Dec. 5, 2003

QUESTIONS AND ANSWERS
re: the Proposed Grazing Rule
of the Bureau of Land Management

What is the basic purpose of the BLM's proposed grazing rule?

The proposed rule would improve management of public rangelands, and in so doing would help grazing continue as one of the legitimate uses of the public lands. The proposal recognizes the many benefits of public lands ranching, including its economic and social contributions to rural communities and its preservation of open space in the rapidly growing West.

How would the proposal achieve its overall purpose?

The proposed rule would improve management and support the continuation of public lands grazing by improving the BLM's working relationships with its grazing permittees and lessees; by advancing the Bureau's efforts in assessing and protecting rangelands; and by addressing legal issues and enhancing administrative efficiency.

What would the proposal do to improve the BLM's working relationships with its grazing permit and lease holders?

To improve such relationships, the proposed rule would:

• make clear that BLM managers will document their consideration of the relevant social, cultural, and economic consequences of decisions affecting grazing, consistent with the requirements of the National Environmental Policy Act of 1969. The intent is to ensure that land managers, before making a grazing-related decision, document the factors they took into account in assessing the potential impacts of that decision on the human environment.
• allow the BLM and a grazing permittee to share title of certain permanent range improvements -- such as a fence, well, or pipeline -- if they are constructed under what is known as a Cooperative Range Improvement Agreement. (Such an agreement describes the terms and conditions under which the BLM and a livestock operator would construct, use, and maintain specific range improvements.) This provision, which had existed before the 1995 grazing rule changes, reflects the Administration's view that ranchers, when contributing financially to the construction of such improvements, should be able to share ownership in proportion to their investment of labor, material, or equipment. Shared title may also serve as an incentive for livestock operators to undertake needed range improvements.
• phase in grazing decreases (and increases) of more than 10 percent over a five-year period unless a livestock operator agrees to a shorter period, or unless a quicker phase-in is necessary under existing law to protect the land's resources. The BLM is proposing the phase-in to provide sufficient time for ranchers to make gradual adjustments in their operations, particularly so they can reduce adverse economic impacts resulting from any grazing reductions. The Bureau retains its full authority to respond as necessary to drought, fire, and any other factors affecting grazing allotment conditions.
• expand the definition of "grazing preference" to include an amount of forage on public lands attached to a rancher's private "base" property, which can be land or water. This expanded definition, similar to one that existed from 1978 to 1995, when the "Rangeland Reform" rules took effect, makes clear that grazing preference has a quantitative meaning (forage amounts, measured in animal unit months) as well as a qualitative one (precedence of position in the "line" for grazing privileges). The broader definition of "grazing preference" is intended to ensure that forage allocations on public lands are associated with private base property; it is also aimed at ending some of the confusion that resulted from the 1995 change to the long-standing definition. The expanded definition of "grazing preference" would make unnecessary the forage-related term "permitted use," which was introduced in the "Rangeland Reform" rules change.

What would the proposal do to advance the BLM's efforts in assessing and protecting rangelands?

To advance these efforts, the proposed rule would:

• require assessments and monitoring of resource conditions to support BLM evaluations of whether an allotment is meeting rangeland health standards. Currently, these evaluations may be supported by documented observational assessments rather than by the more in-depth information collection procedures used in monitoring.
• extend to 24 months, from the current 12 months, the BLM's self-imposed deadline for initiating an appropriate course of action to make remedial changes in grazing practices that significantly contribute to an allotment's failure to meet rangeland health standards. This provision recognizes the BLM's need for sufficient time in determining the most appropriate course of action while meeting the requirements of such laws as the National Environmental Policy Act and the Endangered Species Act.
• remove the current three-consecutive-year limit on temporary non-use of a grazing permit by allowing livestock operators to apply for non-use for up to one year at a time, whether for conservation or business purposes. The removal of this limit would promote rangeland health by giving the BLM more flexibility to cooperate with grazing permittees to rest the land as needed or respond to changing business needs.

What would the proposed rule do to address legal issues and enhance administrative efficiency?

To address legal issues and enhance administrative efficiency, the proposed rule would:

• eliminate, in compliance with federal court rulings, existing regulatory provisions that allow the BLM to issue long-term "conservation use" permits. The need to eliminate such permits was prompted by litigation in the case Public Lands Council v. Babbitt, which led to a 10th Circuit Court of Appeals ruling that the 1934 Taylor Grazing Act does not authorize such permits.
• make clear how the BLM will authorize grazing if a Bureau decision affecting a grazing permit is "stayed" (postponed) pending administrative appeal. This provision is aimed at providing a permittee with continuity of operation in the event that the rancher or an interested member of the public appeals a BLM grazing decision affecting the rancher's operation.
• clarify that if a livestock operator is convicted of violating a federal, state, or other law, and if the violation occurs while he is engaged in grazing-related activities, the BLM may take action against his grazing permit or lease only if the violation occurred on the BLM-managed allotment where the operator is authorized to graze. This provision seeks to make clear that while any illegal acts by a livestock operator are potentially punishable by various legal authorities, such acts are subject to BLM sanctions only when the acts affect the rancher's BLM-managed allotment.
• improve efficiency in the BLM's management of public lands grazing by reducing the occasions in which the Bureau is mandated to involve the interested public. Under this provision, the BLM could involve the public in such matters as day-to-day grazing administration, but would no longer be required to do so. The BLM would continue to involve the public in the Bureau's major planning decisions, such as grazing allotment plans and land-use plans.
• provide flexibility to the federal government in decisions relating to livestock water rights by removing the current requirement that the BLM seek sole ownership of these rights where allowed by state law. This provision would change the 1995 grazing regulations, which established a policy under which the BLM would seek full water rights whenever legally able to do so. This provision would give the BLM greater flexibility in negotiating arrangements for the construction of watering facilities in states where the Federal government is allowed to hold a livestock water right. The BLM would still have the option of acquiring the sole water right, consistent with state water laws.
• clarify that a biological assessment of the BLM, prepared in compliance with the Endangered Species Act, is not a decision of the Bureau and therefore is not subject to protests and appeals. The provision would also clarify that the BLM must allow permittees and the interested public an opportunity to review and provide input to biological evaluations that are used as a basis to change grazing use. This provision would address issues raised by a 1998 decision of the Interior Board of Land Appeals, which made it clear that the 1934 Taylor Grazing Act requires the BLM to provide a permittee with an opportunity to submit information relevant to a proposed Bureau action described in a biological evaluation that may affect the rancher's grazing permit. A biological assessment or evaluation identifies what action the BLM is considering so that the U.S. Fish and Wildlife Service can prepare a biological opinion under Section 7 of the Endangered Species Act. Given the pre-decisional nature of biological assessments and evaluations, the BLM is proposing this provision to make clear that such assessments and evaluations are neither proposed nor final grazing decisions, and thus are not subject to protest and appeal.
• increase certain service fees to reflect more accurately the cost of grazing administration. This proposed provision would raise current service charges as follows:

Would the proposed rule make any changes in the rangeland health standards and guidelines developed by the BLM's Resource Advisory Councils under the "Rangeland Reform '94" rules?

No. The proposed rule would leave the standards and guidelines as written.

What happened to the idea of "Reserve Common Allotments"?

The proposed rule would not establish forage reserves known as "Reserve Common Allotments," a concept that the BLM had been considering earlier this year. Negative comments about the idea, received after the Bureau published an Advance Notice of Proposed Rulemaking on March 3, 2003, came from ranching industry members, who said they would rather have "regular" allotments, and from environmentalists, who questioned whether such allotments would be the best use of the land. The BLM will further examine the concept of forage reserves through its non-regulatory policymaking process.

What happened to the idea of allowing livestock operators to lock gates on public lands?

The proposed rule would not allow grazing operators to temporarily lock gates on public lands. This was an idea, intended to help ranchers protect livestock or private land, that had been under the BLM's consideration when it published its grazing-related Advance Notice of Proposed Rulemaking on March 3, 2003. Those who submitted comments expressed nearly unanimous opposition to the locked gates idea, which the BLM is no longer considering.

Would the proposed rule affect the Resource Advisory Council system established as part of the "Rangeland Reform '94" initiative?

No. The BLM will continue to receive advice and recommendations from its 24 citizen-based Resource Advisory Councils across the West.

Would the proposed rule affect the Federal grazing fee formula?

No, the BLM's proposal would make no changes in the way the federal grazing fee is calculated, a formula established by Congress in 1978 that continues under a 1986 Presidential Executive Order.

What happened to the non-regulatory policy ideas that the BLM was considering earlier this year?

The BLM has gathered input from its 24 citizen-based Resource Advisory Councils (RACs) concerning several non-regulatory policy ideas, which the Bureau asked them to examine at meetings over the summer and fall. The RACs were also free to develop their own grazing-related policy concepts. The Bureau is now reviewing the advice and recommendations of the RACs and is considering its next steps in the area of non-regulatory policy changes. No decisions have been made as to what those next steps will be.

-- BLM --