QUESTION from an Investigative Reporter: (posted
Questions from Idaho Watersheds Project:
This is primarily addressed to Johanna Wald since she has the longest involvement with the BLM of anyone, but I would appreciate comments from all.
IWP, as an interested public on approximately17 separate BLM Resource Areas in 4 states, is beginning to receive term grazing permit renewals for permits which have expired or will expire in 1999 as "proposed decisions" from everywhere. These permits are for 10 years, and in the case of Oregon's Vale District are not "proposed decisions" at all. Some from Idaho were preceded 3 months ago by scoping letters. Note that these are not just "interim" permits for 1999 as permitted under the rider to the Omnibus Appropriations Bill of last fall but are full ten year permits.
The BLM, when it does any show of NEPA compliance at all, is offering these permits under "Administrative Determinations" (ADs) of NEPA compliance. These ADs are merely checklists saying that there is no new information and that all environmental consequences have been adequately analysed in a prior NEPA compliant document to which they tier the AD. I am sure you have all seen similar documents. The prior "NEPA compliant" documents are usually MFP EISs from the late 70's, early eighties, or mid eighties. Some of the latter ones are attached to actual RMPs (for what they're worth !).
To give you an example of the degree of thoroughness the BLM is exercising: I have one permit renewal for an allotment in the Bruneau Resource Area in Idaho near the Nevada border which states that: "the allotment has two miles of Sheep Creek on it which was identified in the Bruneau MFP (1981) for improvement. Recent aerial reconnaissance of this section of the creek shows it to be in "fair" condition" . When I spoke to the range con, Steve Jirik, about this he told me that the BLM did not know why the two miles of Sheep Creek was listed for improvement since "the permittee said that his cows had trouble getting into the bottom because of the canyon". I asked him if he had been there and he said no he had not, and no one else had either. He said that the staff did not have time to ground-truth all allotments. When I proposed that a permit renewal was a good time (because permittees are under pressure to sign permits offered by the agency) to add terms and conditions to ensure compliance with 43 CFR 4180 (as required by regulation) such as annual stubble height, stream bank trampling, woody browse, and cobble-embeddedness standards, he said they had not considered that "at this time"!
My questions are:
1. Can the BLM nationally be legally forced to have standardized grazing permit renewal procedure which pursuant to the IBLA's Comb Wash decision would require at a minimum an EA ? And, therefore, is it time to have a national case ?
2. Or is the agency exempted by the Wyoming case Tom Lustig has been working on, where the BLM claims an interpretation that grazing is an "ongoing activity" (like a radio station license under FCC permit) under the federal APA and therefore a permit must be issued even if the agency must do NEPA compliant analysis in some ill-defined interim period ? And if the federal APA does apply, are the ADs NEPA compliant when the original EIS is so old ?
3. Does it matter ?
Having been "involved with the BLM" about as long as Johanna, except from the other side as a BLM employee responding to Johanna, I'll take an initial cut at your questions. I'll try to not be too long-winded here, but I'll flesh out what I am saying and give some additional information and links on-line at a new RangeNet Project (http://www.rangenet.org/projects) that I'll start for "BLM Grazing Permits and Leases".
Question 1: "1. Can the BLM nationally be legally forced to have
standardized grazing permit renewal procedure which
Response: I think this is more a case of getting BLM to nationally comply with standardized NEPA compliance procedures that they already have in place. These are contained in BLM Manual Handbook H-1790-1 "National Environmental Policy Act Handbook" which is available on the web at <http://www.blm.gov/nhp/efoia/wo/handbook/h1790-1.html>. You would be particularly interested in Chapter 1 "Screening for NEPA Compliance" and Chapter 3 "Using Existing Environmental Analysis". At the end of Chapter 3, there is a section titled "Optional Plan Conformance/NEPA Compliance Record" that lays out what the BLM should be considering and reviewing. If they have not done at least this much in their Administrative Determination (AD), then NAIL THEM! I'll post some additional "clarifying material" that BLM issued by instruction memoranda in 1990 and 1991 when this was previously a "hot issue" in the RangeNet Project. I'll also discuss some implications of monitoring and evaluation policy that apply to this at the end of this message.
Question 2: "2. Or is the agency exempted by the Wyoming case Tom Lustig has been working on, where the BLM claims an interpretation that grazing is an "ongoing activity" (like a radio station license under FCC permit) under the federal APA and therefore a permit must be issued even if the agency must do NEPA compliant analysis in some ill-defined interim period ? And if the federal APA does apply, are the ADs NEPA compliant when the original EIS is so old ?
Response: I don't think so, but we will not know with certainty until (and unless) adequate precedent is established in the federal courts. However, the BLM is already on record in the instruction memoranda I will transcribe and post in the RangeNet Project as admitting that a NEPA compliance review IS required. BLM might be "forced" to continue authorizing grazing through "annual authorizations" until they have performed that neglected NEPA compliance review, but I believe any attempt to issue a 10-year permit would be highly contestable under the provisions of Section 402 (b) of the Federal Land Policy and Management Act (FLPMA) which states: "Permits or leases may be issued by the Secretary concerned for a period shorter than ten years where the Secretary concerned determines that - (1) the land is pending disposal; or (2) the land will be devoted to a public purpose prior to the end of ten years; or (3) it will be in the best interest of sound land management to specify a shorter term: Provided, That the absence from an allotment management plan of details the Secretary concerned would like to include but which are undeveloped shall not be the basis for establishing a term shorter than ten years." Either (2) or (3) could be applicable. The discussion on monitoring and evaluation policy also applies to this question.
Question 3: "3. Does it matter ?"
Response: HELL YES! What the BLM can do is ANYTHING THEY ARE ALLOWED TO GET AWAY WITH. And, they have been getting away with a lot when it comes to permit "renewals" for a long time. It has evolved to a point where, other than an entry in a computer database, the BLM essentially recognizes no difference between annual authorizations issued recognizing payment of fees - and issuance of a 10 year permit. In a 1989 evaluation (terminated without completion by management's displeasure with the findings) of a random 10% of Oregon's largest allotments, for example, we found that there were permits signed by the operator on file for only 59% of the operators involved! That means that 41% of the "permits" being recognized were technically only "annual authorizations". Also, BLM makes no distinction on whether a formal "decision" is required when making changes in authorized grazing whether the change occurs during the term of a permit, or at "renewal" time. Note that I place "renewal" in quotes. That is because BLM does not actually "renew" permits, it issues new permits! The grazing regulations ( Title 43 Code of Federal Regulations Parts 4100) have provided for literally decades that "...Permitees or lessees holding expiring grazing permits or leases shall be given first priority for new permits or leases if: (1) The lands for which the permit or lease is issued remain available for domestic livestock grazing: (2) The permittee or lessee is in compliance with the rules and regulations and the terms and conditions in the permit or lease: (3) The permittee or lessee accepts the terms and conditions to be included by the authorized officer in the new permit or lease..." (emphasis supplied). It is clear that permits are intended to expire at the end of their term, that new permits are then offered subject to the discretion of BLM, and that the permittee holding an expiring permit has FIRST RIGHT OF REFUSAL for the NEW permit. While the authorized officer must not be "arbitrary or capricious" in exercising discretion regarding the new permit and its terms and conditions, the burden of proof must clearly be different with the offer of a new permit as compared with attempting to make changes during the term of an existing permit. The BLM never takes advantage of this!
Regarding "Proposed Decisions": The legal eagles can sort this out for you
better than I can, but let me give you a little
Monitoring and Evaluation: Hold BLM to their own policies, they do have some good ones if they follow them.
(1) For this, start with the local BLM's Monitoring and Evaluation Plan (MEP). BLM Manual Handbook H-4400-1 "Rangeland Monitoring and Evaluation" requires one (see Chapter I.A.). This plan is one place that monitoring and evaluations are to be tied to activity plan and land use plan objectives, and it provides for statewide minimum standards. If they don't have a MEP, then more than shame on them! The MEP has been BLM policy since way back during the Watt administration!
(2) Next, check their Rangeland Program Summary (RPS) updates. BLM Manual
Handbook H-4160-1.11C defines the
This has been policy since the late 1980's, so all BLM offices should be producing them. This is a good example of where the environmental community let the BLM get away with something. About 1990 and 1991, the Burns Oregon District was producing great RPS updates. The were "sufficiently specific to permit interested parties to determine whether they may be adversely affected by one or more future actions" to the point that it was very clear where in several allotments they (1) had an objective to improve rangeland condition (2) had determined that trend was downward and (3) therefore proposed to increase stocking. There were also examples (fewer) where they (1) had an objective to maintain rangeland condition (2) had determined that trend was upward and (3) therefore proposed to reduce stocking. (No, those are not typos. They were going to reward poor management and punish good management). Unfortunately, nobody in the environmental community (or even the livestock community for that matter) picked up on this. At the same time, an adjoining BLM district was putting only the most general information in their RPS updates - things like they were going to evaluate certain allotments, or had performed an evaluation and were going to issue certain permits. They got away with the generalized eyewash, so now everybody does it! However, it should not be too late to challenge them where they fail to do an RPS update or do not provide enough specifics to judge whether or not you might be adversely affected.
(3) Allotment Monitoring Evaluations. This is where the beef is. BLM Manual Handbook H-4400-1(IV)(D) requires formal Analysis, Interpretation and Evaluation (AIE) to: (1) Assemble and Review Pertinent Documents, (2) Establish Specific Coordination Requirements, (3) Display Monitoring and Other Data, (4) Analyze the Data, (5) Review Management Actions and Other Factors, (6) Interpret the Data, (7) Evaluate the Data, (8) Review Objectives, and (9) Evaluate Progress in Objectives. Section (F) requires "Complete and thorough documentation of the findings from formal AIE...." and provides guidance on actions to take based on progress toward meeting objectives.
(4) Statewide Monitoring Handbooks. Here you get double beef. During the
late 1980's, EVERY BLM STATE OFFICE
These standards have been in effect as policy for nearly two decades, and
BLM's budget guidance during that period has
Summary: Where BLM is proposing to "renew" grazing permits or leases for a 10-year period, get your hands on the most recent allotment monitoring evaluation. Compare the findings with the terms of the proposed renewal. If they do not have a monitoring evaluation for a category I or M allotment, HOLD BLM'S FEET TO THE FIRE TO ISSUE NO MORE THAN ANNUAL AUTHORIZATIONS UNTIL AN EVALUATION IS COMPLETED. If things don't jibe, HOLD BLM'S FEET TO THE FIRE TO MAKE THE NEEDED CHANGES BEFORE GRANTING ANY RENEWAL - REGARDLESS OF THE TERM. Do not accept findings that monitoring is inconclusive and more data is needed. If, after two decades, the data is inconclusive - then there is no discernible trend. If the objective is to "maintain", then this is fine. If the objective is to "improve", then trend toward achieving objectives IS NOT ADEQUATE AND DEMAND MEANINGFUL CHANGES IN GRAZING MANAGEMENT. With regard to question 1, NEPA conformance, these evaluations and the monitoring data they reflect constitute "significant new information" and/or reflect "significant change in circumstances". As such, they could trigger a finding of non-conformance based on the other listed criteria for plan conformance if the grazing permit renewal would continue present management. Conversely, an appropriate change in management might bring the proposed action back into conformance.
These are the kinds of monitoring, evaluation, and management adjustments
based on Land Use Plan objectives that are
I'll be posting this message along with additional information as a RangeNet Project as previously mentioned. Anybody else who has additional information that would be appropriate to post there is encouraged to send it to me at <email@example.com>.
Oregon/Washington held an internal Rangeland Resources Conference in Sunriver Oregon in 1989. That conference included a set of concurrent program meetings with a BLM District Manager, or Associate District Manager, attending each of the concurrent sessions and taking notes. They presented these notes during a wrap-up session on the last day of the conference, and the notes were subsequently distributed to Oregon/Washington BLM field offices as an "internal draft".
The notes include summaries of several presentations and discussions that remain timely and illustrate "what BLM knew, and when they knew it". Those notes are reproduced below:
NOTES ON CONCURRENT PROGRAM MEETINGS
Interagency Noxious Weed Workshop - Larry Walker
Large upcoming push on noxious weeds. Part of the initiative is from APHIS - interviewed people on potential grasshopper problem as a result of the drought and found that people were more concerned with noxious weeds than grasshoppers.
USDA has issued a draft policy (not sure what USDI's position will be or if there will be a joint initiative).
Funding may be a problem. Weed program in range competes with other high priorities. Out of range it wouldn't have to compete. What is management priority for funding the weed program? Public land weeds impact private lands - are weeds a public funding priority? New legislation may require control of weeds, not just management, and it may redirect existing BLM funding to that effort. (see handout)
Five Year Clock - Larry Walker
The five year clock is a court order. The Bureau position is that we can't meet the five year clock but we will show good faith.
Besides not meeting the schedule, State Office concerned over the management decisions that they have reviewed. (Evaluation is not based on a representative sample)
Do we need a standard Bureau/Oregon policy on how we are going to respond to the five year clock? WHAT IS GOOD FAITH? Is our good faith strategy sound? What will happen if the Bureau is found in contempt of court? Will Judges be making management decisions? Should we be concentrating more resources on meeting the Court order - especially non-range resources?
Decisions and Agreements
"After consultation, coordination, and cooperation, changes in (up or down) preference shall be implemented through documented agreements or by decision."
Agreements that change preference must be separate from the AMP.
Key factors, agreements have to be documented and they must be made through consultation, coordination, and cooperation with all affected parties.
Bureau policy and clearly the position of the courts that we should be using agreements. Authorized officer can make a determination on "affected interests" but how do we practically make the cut? Do we need a standard policy? (Gerry will investigate, talk to the solicitor and get back to the Districts).
Judges look at a lot of things - example, preamble to the regulations. If we do not show good intent, especially in consultation, coordination, and cooperation, we will lose!
MAJOR FRUSTRATION OF THE GROUP - HOW DO WE RECONCILE THE NEED TO BE AGGRESSIVE IN THE FIVE YEAR CLOCK WITH THE NEED FOR CONSULTATION, COORDINATION, AND COOPERATION? This is especially key given the NRDC challenge to the grazing agreements in Nevada. The group asked that the Eastern Oregon District Managers get together and develop a priority for utilizing the existing resources to meet these challenges. The group felt that a statewide strategy was needed rather than each District developing different procedures. (post-conference note: see IM-OR-89-434)
See handout for additional issues.
ISSUES/CONCERNS - RIPARIAN/SWA
How can we understand LIS when we don't even know how to use what we have? We don't even have full mapping of our land, e.g., 7 1/2 min. quads. (This is in reference to Vetterick's presentation on LIS). Modernization is a top-down effort and very expensive. Field people are not involved, not informed and not consulted. We are skeptical that it won't work or be irrelevant and take resources and people away from traditional jobs.
If we keep changing our methodology (ecological site methodology vs desired plant communities [1999 note: you can add "Rangeland Health" to this list]), no one will understand us and we won't understand ourselves either.
Let's not forget monitoring and the importance it has to education, public involvement and support. It's the backbone of everything we do including riparian enhancement.
Has BLM abandoned the Taylor Grazing Act? Are we blaming all the wrongs on the rancher when we are responsible as land managers for what has occurred?
Does BLM want to sell out the consumptive uses? Let's not blame the rancher for poor riparian when BLM and even OSU taught them that these were sacrifice areas. Don't sell out the livestock industry. The problem isn't cow management, it's people management and commitment to change.
Management emphasis should shift from planning to on-the-ground action. We have to be willing to take the risk of making a mistake and learning from it. It's time to go out and get the job done with the people to do the job. When will managers provide this support? All positions have decreased over the past 8 - 10 years.
Range conservationists don't have time to work on riparian issues because they are spread so thin and have so much to do that they don't have time for other things. We need more range cons. and range techs to meet our rangeland management objectives including riparian.
Public education is important but not receiving enough emphasis in BLM - bureauwide.
Issue: LUP's and RPS's without riparian objectives are kissed off because managers don't want to amend the RMP just to take action for one or two riparian pastures, or we do a band-aid approach. Managers will not make changes in these cases for riparian improvement other than throw money at it. What can be done about this?
Small offstream water catchments/reservoirs requires a $300 filing fee to the State of Oregon plus we must provide the engineering and construction, clearances, and meet State of Oregon procedures. This is expensive, time consuming and creates hindrances to riparian management. We have to have a licensed water rights examiner to approve/submit every application unless they are stockwater ponds for catchment of ground water only. The State of Oregon should be advised by the State Director that their procedures delay and hinder riparian enhancement. We should request exemption/relief from State of Oregon.
Issue: Water rights applications in W&SR basins will not be processed until the State can resolve conflict with Federal law relating to designation (e.g. Klamath River). So far, this is an adjudication issue relating only to the Klamath River Basin.
Water Quality Act of 1987
Each district has one copy of the Clean Water Act (they were handed out at January 5, 1989 budget meeting). Section 319 is new to the 1987 Act. Non-point source action program, mandate, to require States to develop management plans to control non-point pollution sources. Everybody was funded except Federal agencies to implement Section 319.
A biennial review of our accomplishments in Clean Water Act will be required. Read page 129, Sec. 313. Most important part of the Act for BLM. This is the section that binds BLM to the Clean Water Act.
Section 319, pg. 136-138 - Oregon's plan has not been approved yet. Oregon DEQ recognizes BLM's riparian enhancement plan as key to our commitment to non-point sources control. This will help us to be in compliance when the State of Oregon's plan is issued. Only 18 States to date have taken charge of their clean water quality responsibility. Many have deferred or defaulted to EPA to do it for them.
The State of Oregon (DEQ) has prepared maps on all drainages and basins for non-point sources of pollution on streams, but they are not available yet until the Governor approves the assessment document/management plan. Much of this data came from BLM.
Clean Water Act. Highlights of Draft State of Oregon Assessment Plan:
Best Management Practices (BMPs) - BLM must identify BMP's for all streams/drainages specifically targeted to water quality. We already have BMP's for grazing and forestry but not for recreation, mining, etc. BMP's are a vehicle to meet State Water Quality standards.
Will AMP's qualify as plans under the State's requirements? It must include BMP's to qualify at a minimum.
Rangeland Monitoring Handbook
The requirement is for each R.A. to monitor 2 streams and 12-15 samples per year for water quality. Is this adequate? Are we monitoring BMP's or just collecting data (temperature, turbidity, etc)? The monitoring Bill Brookes wants to see relates to the BMPs - did we accomplish what we said we would do in the BMP's? This is compliance monitoring (e.g., 1st compliance) followed by effectiveness monitoring. Was the BMP effective in meeting the goal?
Water Quality has been given short change in the Rangeland Monitoring Handbook in complete disregard of the Clean Water Act. For water quality we need to have more than 2 samples per year which was proposed by Staker. The technicians want a statistical reliability which will require many stations and many samples to be able to defend decisions in court. The managers want to be certain that we have met our monitoring standards and have considered best available data in the decision. Perennial question: How much is enough?
It's important to use "representative" sites or the "most sensitive" sites to monitor so that there is a correlation to other streams in the Resource Area. If we limit ourselves to a few streams and a few samples then let's make them streams that can be accessed year-round and are representative of BLM streams in the R.A. We are trying to get the best information we can for the least cost. The main problem is that no 2 streams are alike and we will be making correlations that might not hold up to scrutiny or legal challenge. On the other hand, we can't do everything and we agreed in the MOU with the State to sample representative streams and the Rangeland Monitoring Handbook commits to monitor 2 streams in each R.A. The unsatisfactory conclusion which management has reached is to give us monitoring standards that we can do, afford, and that will get us by. Because we can't afford ($'s or people) to do more, the standards have been built upon our capability and not to meet the Clean Water Act, etc.
An option to pursue would be to get the State of Oregon to accept macro-invertebrate studies in lieu of the traditional water quality monitoring data. If they will accept this then we could amend our monitoring standards and these data would tell us more than samples from 2 streams per R.A. as presently required. To do both would be better still.
District Needs and Concerns
Geographic Emphasis Areas (GEA):
Praise for SD and others for interest in wetlands.
FTEO ceiling is stifling field opportunities and on-the-ground accomp.
ADC - No statewide guidance/management.
Gold Fever; need serious look see at 1872 mining laws.
What about LIS - at district level?
Cost sharing programs. (i.e., Rocky Mtn. Elk Foundation, Bighorn Sheep Foundation)
Kudos on "Watchable Wildlife" pamphlet.
Fins, Feathers, Fur and Flowers
Cost Sharing - Botanical
Question: What's status of district nominated sensitive species?
Fish & Wildlife 2000
Dick Vander Schaaf - The Nature Conservancy, Public Lands Coordinator
Eric Schultz - Trout Unlimited Corp. (TU)
Handouts: Two draft MOU's between BLM and Trout Unlimited.
Memo transmitting MOU and instructions should be out soon from SO.
Bob Meinke - Ore. Dept. of Agriculture, Plant Coordinator
(Presented slide show)
Oregon State ESA split management responsibilities between two state agencies. ODFW: responsible for animals; Dept. Ag. responsible for plants.
Two Major Initiatives
Art Oakley - Public Land Restoration Task Force, 1989 Riparian Voluntary projects will be coordinated by PLRTF as done in 1988.
Carole Jorgensen - Eugene District, Wildlife Biologist
Issue: There is no consistency between individual resource program
Art Oakley - OSO biologist
Summary of T/E Plant Monitoring
Background on the need for monitoring meeting for TE plants
Why need monitoring meeting?
In the monitoring session we:
Material will be typed, consolidated, reviewed by key participants and distributed to all DOs. This is a start in getting our thoughts and needs together.
Appreciation to Bob Meinke of Oregon Dept. of Agriculture for substantial contributions and to managers present for providing realism, clarification of our thoughts, support, and encouragement.
BLM's management team for Oregon and Washington approved the concept of putting the work and dollars in one area to show accomplishments on a watershed base. This overcomes the problem of scattering dollars and effort all over and not seeing improvement in the resources. Good concept for showcase and funding but need to work out the problems.
B. Problems at this point in time
C. Suggestions for making the concept work smoothly in the future.
Bureau of Land Management
Instruction Memorandum No. OR-89-434
To: All Eastside District Managers and Medford
Subject: Providing Interested Parties With The Opportunity To Participate In The Implementation Of Grazing Management Action
On Friday, April 21, 1989, four eastern Oregon District Managers, the Deputy State Director for Resources and appropriate staff met at the Burns District Office to develop guidance for public involvement in the grazing management program. The following is the result of that effort.
The Rangeland Program Summary (RPS) update will be the tool used in Oregon and Washington to provide notice to the public of the opportunity for participation by affected interests in all future livestock grazing management decisions and agreements. BLM Handbook H-4160-1.11C defines the Rangeland Program Summary update as follows:
"RPS updates may be issued as needed, to document progress toward meeting land-use plan objectives. While the initial RPS is a summary of land-use planning decisions, the RPS Update is primarily a progress report and notice of future actions to be taken. Information in the RPS Update must be sufficiently specific to permit interested parties to determine whether they may be adversely affected by one or more future actions. Those individuals or groups who notify the authorized officer in writing that anticipated decisions for a specific allotment may adversely affect their interests must be sent the proposed and final decisions by certified mail at the same time the decisions are sent to the grazing permittees or lessees."
The following is the definition of affected interests as set forth in the Grazing Regulation (43 CFR 4100.0-5).
"Affected interest means an individual or organization that has expressed in writing to the authorized officer concern for the management of livestock grazing on specific grazing allotments and who has been determined by the authorized officer to be an affected interest."
To implement this process, each district should evaluate their situation relative to meeting the requirements of the 5-year clock, management actions completed since the last RPS update, and allotment monitoring evaluation completion schedules in order to time the publication of the next RPS update to best meet BLM commitments and need. This update will list the result of all monitoring evaluations and management actions that have been completed since the last RPS update and any future actions which are being considered. It will provide an opportunity for affected interests to review and comment upon these future actions. The following wording should be used in the RPS update.
"If you believe that any of the future actions indicated in the RPS update may affect your interests, please contact the district manager in writing by [Date - 30-60 days after mailing]. Please advise as to the specific future actions which are of concern to you, the allotment or allotments involved and your reason for believing that you have an interest which could be affected by the proposed future actions. The district manager will provide those determined to be an affected interest with an opportunity to participate in the development of livestock grazing management plans in the identified allotments."
/s/ Paul M. Vetterick
Bureau of Land Management
Instruction Memorandum No. 90-552
To: All State Directors
Subject: Plan Conformance and Environmental Review Requirements in the Range Management Program
The Bureau of Land Management has ongoing statutory responsibility to ensure that use authorizations are in conformance with approved land use plans and that existing environmental documentation is supplemented as conditions change. Section 302(a) of the Federal Land Policy and Management Act (FLPMA) states "The Secretary shall manage the public lands under the principles of multiple use and sustained yield, in accordance with the land use plans developed." The National Environmental Policy Act (NEPA) in Section 102(c) requires that Federal agencies consider the potential environmental impacts of their actions.
The Grazing Administration regulations (43 CFR Parts 4100) clearly state that livestock grazing management actions and activities are subject to NEPA and must conform to the approved land use plans.
In order to assist you in fulfilling your FLPMA and NEPA responsibilities we have answered a number of frequently asked questions regarding plan conformance and NEPA review requirements.
If you have questions concerning this memorandum or if there are other planning and NEPA issues pertaining to the range management program that you would like to see addressed please contact Willie Peterson, Division of Rangeland Resources at FTS 653-9193 or Gordon Knight, Division of Planning and Environmental Coordination at FTS 653-8824.
PLAN CONFORMANCE REQUIREMENTS
NEPA REVIEW REQUIREMENTS
Bureau of Land Management
Instruction Memorandum No. 91-332
Subject: Relationship Between Rangeland Monitoring and National Environmental Policy Act (NEPA) Compliance and Land Use Plan Conformance
Recent events suggest that there is some misunderstanding concerning the relationship between the Bureau of Land Management's (BLM) rangeland monitoring activities and Nepa compliance and Federal Land Policy and Management Act conformance requirements. Public interest in this matter is high, and it is important that resource management actions be implemented in a manner consistent with applicable authority. This memorandum clarifies existing policy and references existing BLM guidance.
Existing laws and regulations require that resource management plans (RMP's) establish, among other things, allowable resource uses and related levels of production or uses to be maintained and resource condition goals and objectives to be attained. The RMP's also generally establish intervals and standards for monitoring and evaluation. The results of monitoring and evaluation help managers determine whether management changes, including a plan amendment or revision, are necessary. Trend, actual use, and weather information (especially precipitation data) are often measured as part of the monitoring done in association with RMP implementation.
The monitoring standards and schedules established in RMP's provide the basic framework for rangeland monitoring and evaluation plans. The RMP objectives guide the identification and selection of features to be measured or studied in subsequent rangeland monitoring work. If any activity plans have been prepared (e.g., allotment management plans), the more detailed objectives within those plans are also used to identify the data to be collected, study locations, monitoring priorities, etc. The rangeland monitoring program and schedule developed also describe how data will be analyzed, interpreted, and evaluated. Public involvement and consultation, cooperation, and coordination with rangeland users, adjacent landowners, academic institutions, and State and other Federal agencies are required.
The analysis, interpretation, and evaluation process consists of reviewing and analyzing the data collected and documenting conclusions regarding achievement of specific resource objectives. These conclusions may provide the basis for formulating changes in management and use authorizations to achieve existing objectives or for developing new or revised objectives, as appropriate. Any changes in management, including use authorizations, are subsequently addressed in a NEPA review as "proposed actions." Adjustments in management may be initiated in the form of a proposed decision or documented agreement, installation of a range improvement, etc.
Compliance with NEPA requirements for management actions that are determined to be adequately addressed in an existing environmental document consists of documenting the case file. The BLM Handbook (H)-1790-1 contains an Optional Plan Conformance/NEPA Compliance Record which may be used for this purpose. That form may also be used when the proposed action is covered by a categorical exclusion.
When monitoring shows progress is not adequate or, for other reasons, a change in management is needed and the proposed action is not already covered by an existing NEPA document, NEPA compliance and documentation involve preparing an environmental assessment (EA) or, if necessary, an environmental impact statement. A proposed management change that is not in conformance with RMP provisions would require further consideration through a plan amendment or plan revision. Several optional EA formats are shown in BLM H-1790-1, Chapter 3.
Public involvement through hearings or meetings, if required or necessary, and notices of availability of NEPA compliance and RMP conformance apply to all rangeland program activities. Please assure that the appropriate range management program personnel review Instruction Memorandum No. 90-552 and H-1790-1. We will evaluate compliance with this guidance as part of the rangeland management program evaluations. If you have questions, please contact Buddy Arvizo (WO-221) at FTS 653-9195.
Appealing Wyoming BLM Grazing Permit
Being a relative newcomer to the private sector, I need to have a little
help in finding the proper information to effect an appeal of a grazing permit
EA. I'm told it's called the "33 cent injunction" by attorneys. I have "How
Not to be Cowed" but need to have updated information on appeal procedures.
If it can be accomodated, I'm sending a copy of a typical EA being put out
by Wyoming's BLM.
EA NUMBER: WY - 046 - EA99 -
BLM OFFICE: Pinedale Field Office
CASE NUMBER: Grazing Record 494336
PROPOSED ACTION TITLE/TYPE: Alsade, Ltd. Grazing Permit Renewal.
LOCATION OF PROPOSED ACTION: Lower Bench Corral Common Allotment No. 02084
APPLICANT: Alsade. Ltd.
CONFORMANCE WITH APPLICABLE LAND USE PLAN: This proposed action is subject to the following land use plan:
NAME OF PLAN: Pinedale Resource Management Plan.
DATE APPROVED: 12/12/88. This plan has been reviewed to determine if the proposed action conforms with the land use plan terms and conditions as required by 43 CFR 1610.5.
NEED FOR PROPOSED ACTION: Allow Alsade, Ltd. to continue to graze 1,578 cattle (2,491 AUMs) from May 25 to July 10 on 23,172 public land acres in the Lower Bench Corral Common Allotment No. 02084.
REMARKS: The Lower Bench Corral Common allotment was placed in the Improve
(I) category during the 1988 RMP
DESSCRIPTION OF PROPOSED ACTION: Renew Alsade, LTD's grazing permit for Lower
Bench Corral Common
ALTERNATIVES: [NO ACTION] -- Under this alternative the grazing permit for Alsade, Ltd. would not be renewed and they would no longer be allowed to graze livestock in this allotment. Since there is another permittee in this allotment, selection of this alternative would not entirely remove grazing from the allotment. Since this alternative would arbitrarily cancel the Alsade, Ltd. permit and allow the other permittee to continue to use their permit in the allotment, it is not likely to survive a legal challenge. Therefore, a strict "no action" alternative will not be analyzed further.
[ISSUE A MODIFIED PERMIT] -- Based on billing records, Alsade, Ltd. ran an average of 625 cattle in the allotment during the 1987 - 1996 grazing seasons; in 1997 they ran 695 cattle, and in 1998 ran 800 cattle. The other livestock operator ran full numbers during this same period. Monitoring data indicates the allotment could run more cattle if additional water sources were made available. Alsade, Ltd. would most likely appeal any decision to select this alternative based on the fact that they have voluntarily not run higher numbers due to the lack of water. For several years, Alsade, Ltd. has asked BLM to drill a well in the northwest part of the allotment to hold cattle off Muddy Creek and improve livestock distribution into this area. BLM has not aggressively pursued this request due to the potential conflict with elk winter range. Based on the monitoring data, the request for an additional water source and the fact that this decision would only reduce the Alsade, Ltd. grazing permit, this alternative will not be analyzed further. [CANCELLATION OF ALL GRAZING PERMITS]: -- Under this alternative, this permit, as well as the other grazing permit for this allotment, would be cancelled. No livestock would be authorized to graze this allotment. This alternative is not in conformance with the Pinedale RMP and would require an RMP amendment. It is likely that a decision selecting this alternative would be appealed. Implementation of this alternative may not be entirely within the BLM's control.
(Of the ENVIRONMENTAL IMPACTS that might be affected, only WETLANDS/RIPARIAN ZONES was checked.)
DESCRIPTION OF IMPACTS:
Riparian Ecology - The riparian habitat on this allotment consists of a few seeps, springs, about 50 acres along Muddy Creek and 30 acres along Meadow Canyon Creek. The natural waters serve as water sources for livestock and wildlife. Both creeks are also irrigated out of. Additional (man-made) water sources provide some grazing pressure relief around the natural systems. Muddy Creek was determined to be in Proper Functioning Condition; however, the riparian areas along Meadow Canyon Creek were determined to be functional at risk due to Hummocking. Hummocking is lowering the water table and allowing more xeric species to encroach into the riparian area.
Upland Ecology - Livestock grazing favors shrub (sagebrush) production over
grass and forb production. Certain highly
Habitats -The rangelands on this allotment are capable of sustaining viable populations and diversity of native plants and animals appropriate to the habitat. The allotment contains yearlong and winter range and parturition areas for pronghorn antelope, elk crucial winter and winter range, and moose yearlong and winter range. Since cattle are primarily grazers and pronghorn antelope and moose are primarily browsers, there would be little dietary overlap other than for the early green-up grasses (e.g. Sandberg bluegrass) and willows. There could possibly be some competition between elk and cattle as both are primarily grazers;however, the elk in this area are fed at the Bench Corral Feedground and areas denoted as elk winter range are currently lightly grazed by cattle.
There are 5 sage grouse leks in the allotment. Sage grouse also use the allotment
for nesting and brood rearing. Under the
Water Quality - Waters from this allotment drain into the Green River via Muddy and Meadow Canyon creeks. To date there is no data to suggest that water quality in either of these streams is impaired, or that any impairment can be associated with livestock grazing.
Air Quality - No data exists to suggest that grazing has impaired the regional air quality, or that renewal Of the grazing permit will result in impaired air quality.
Selection of the proposed action would benefit Alsade, Ltd.
[CANCELLATION OF ALL GRAZING PERMITS] -- Soils - Under this alternative, the existing erosion would continue until such time as it becomes in balance with the landscape; however, due to the expected increase in plant cover and grass litter accumulation (and subsequent decrease in bare ground), the erosion process would be slowed. Riparian Ecology - Under this alternative, native riparian species would increase in vigor and reproductive capabilities. This would eventually allow them to outcompete xeric species to improve riparian and wetland conditions. This would result in stabilized streambanks as the native species have root masses capable of better withstanding erosive forces. Eventually the streambanks would begin to rebuild as sediment was trapped and deposited. As the water table rose, the xeric species would further be removed from the system. Hummocks would begin to heal and spring and seep flows could be sustained for longer periods of time. Riparian plants would be expected to appear and/or increase around water sources such as reservoirs and springs which could provide additional habitat for waterfowl or other riparian dependent species. It is also probable that without some type of vegetation manipulation (prescribed fire), the vegetation could grow thick enough to "choke itself out." If this were to happen it is likely the stream(s) would blow out and begin the revegetating process over.
Upland Ecology - Without a disturbance (e.g. prescribed fire, herbicide),
the sagebrush component would remain largely
Habitats - Under this alternative, more forage would be available to wildlife
species. Sufficient nesting habitat should also be available for sage grouse.
Under this alternative, pronghorn antelope would benefit from reduced competition
for the early greenup grasses and shrubs. However, so me literature indicates
that proper levels of cattle grazing can be beneficial to pronghorn antelope
in that it stimulates browse and forb production. Therefore, it is possible
that under this alternative,
Water Quality - Any water quality impairments associated with livestock grazing would be expected to decrease.
Air Quality - No data exists to suggest that grazing has impaired the region's air quality.
Socio-Economic - Selection of this alternative would result in adverse financial impacts to the livestock operators who would be forced to either find alternative pasture in an area where such pasture is severely limited, reduce their herd size or leave the ranching industry altogether. This could also have adverse impact on local businesses that depend on the ranching industry for part, if not all, of their income. One scenario is that one or more of the livestock operators could subdivide their base property into "ranchettes." While more residences could benefit local businesses, it would most likely have an adverse impact to the wildllife that use the lands for at least part of the year.
[CANCELLATION OF ALL GRAZING PERMITS] - If numerous permits were cancelled it would become increasingly difficult to find alternate pasture in the area. This would cause more ranches to reduce herd size or leave the livestock industry altogether. This would result in a cumulative impact to the local livestock industry and any businesses in the area which depend in the ranches for support.
IRRRETRIEVABLE AND IRREVERSIBLE COMMITMENTS OF RESOURCES: Neither the proposed action nor the alternative to cancel grazing would result in an irreversible or irretrievable commitment of resources. The short term use of the land could affect the long term productivity of the land under both alternatives. Although no-grazing and over-grazing can reduce rangeland productivity, permanent significant changes in productivity would not be expected.
DESCRIPTION OF MITIGATION MEASURES AND RESIDUAL IMPACTS: The allotment has
been assessed in
PREPARER: Ty Bryson, Rangeland Management Specialist
Please bear with me while I bring your attention to a few of the several items that will illustrate the dilemma of our public lands and wildlife.
1) Note that although the permittee has been using only about half of his
adjudicated AUMs, the land was placed in an
2)Notice that the "No Action", "Issue A Modified Permit" and "Cancellation
of all Grazing Permits" alternatives have been
3)The proposed action continues the current use primarily to keep the Bureau from litigation and because to select any other alternative would "result in adverse financial impacts to the livestock operators" and "could also have adverse impact on local businesses that depend on the ranching industry for part, if not all, of their income." And since the other permittee in the allotment is allowed to graze livestock, Alsade, Ltd. can't be restricted. Under this philosophy, the Bureau cannot change the grazing in any common allotment unless all permits come up for review at the same time
4)Note all of the positive effects that would be seen by selecting the
CANCELLATION OF ALL GRAZING PERMIT
5)The Cumulative Impacts section under the proposed action is a testimony to the fact that the Bureau of Land Management is well aware of the negative impacts of overgrazing on this allotment but nonchalantly brushes it off by saying they simply "add to the similar impacts that occur on the majority of the adjoining public land." The Bureau is not the least embarrassed by this statement which says a lot about their public lands management.
6)Note how many times the author contradicts other statements. For example:
Page 2, bottom of page, "erosion was not
7)Note statements that are nonsensical. Example: Page 5 Under "Irretrievable and Irreversible Commitments of Resources" : "Although no grazing and over grazing can reduce rangeland productivity, permanent significant changes in productivity would not be expected." Complete opposites produce the same result? Evidence proves that overgrazing, not undergrazing, causes significant permanent changes in and reduces rangeland productivity.
The EA can be picked apart at every turn. The bottom line and sad truth of
the whole thing is that this EA is typical of the logic and reasoning being
used by our land management agencies to avoid taking meaningful steps to
restore the vigor and health of public lands in Wyoming and the west. The
evidence exists in massive amounts to tell the story of decades of mismanagement
that continues today because of the fear of political backlash. The evidence
exists in massive amounts to tell the story that public lands are not in
the condition that they should be to promote sustained healthy natural
This type of nonsense need to be taken to task through the appeal process. Your help would be appreciated.
Thanks for taking the time to read it all.
While you are finding out the real appeal process, which I don't know either,
get out a letter saying /called "notice of appeal", include all your
reasons like you described in your email, add a few more and send it to the
Call first, then go to your state's central agency office and look through
the appeals files for any EAs that have been appealed. You will find
references to the procedural rules in those files. The references are
to CFR. The agency may have a copy of the CFR or a local law library
will have them. They are also availabe on the net, though with some