UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

January 12, 2009

In Reply Refer To:
4100 (220) P

EMS TRANSMISSION 01/14/2009
Instruction Memorandum No. 2009-057
Expires:  09/30/2010

To:
All State Directors, Except Eastern States and Alaska
 
 
From:
Assistant Director, Renewable Resources and Planning
 
 
Subject:
Nonuse of Grazing Permits or Leases
 

 

Program Area: Livestock Grazing Administration

Purpose:  This Instruction Memorandum (IM) transmits guidance for processing applications for nonuse, in whole or in part, of the grazing use specified by a grazing permit or lease. 

This guidance incorporates consideration of the decision of the U.S. Court of Appeals for the Tenth Circuit in Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999), aff’d, 529 U.S. 728 (2000). In this decision, the court found that the Secretary of the Interior (acting through the Bureau of Land Management (BLM)) lacked the statutory authority to issue grazing permits intended exclusively for “conservation use.” 167 F.3d at 1308. In 2006, the Department of the Interior promulgated a final rule at 71 FR 39402 (July 12, 2006) that removed references in 43 CFR Part 4100 to conservation use consistent with the court’s ruling. Recently, the U.S. District Court in Idaho enjoined implementation of the 2006 final rule “in all respects,” including the amendment that in effect removed the conservation use permitting authority.[1]In light of these circumstances, it is necessary to clarify conservation use in the BLM’s grazing program. See Appendix 1 for additional background information. See Western Watersheds Project v. Kraayenbrink, et al., CV-05-297-E-BLW, 2007 U.S. Dist. LEXIS 41973 (2007). 

Policy/Action: A permittee or lessee (operator) may apply to not use all or a portion of the permitted use specified by the operator’s permit or lease. An applicant requesting nonuse of its BLM grazing permit or lease must provide a reason for that request. There are two bases to support an application for nonuse. These are: (1) Nonuse requested by the permittee or lessee because of personal or business reasons; and (2) Nonuse requested by a permittee or lessee for purposes of conservation and protection of the public land. The reason that is offered in support of an application for nonuse affects how the BLM will respond to the application and managethe allotment(s) for which nonuse has been requested. The authorized officer’s action on an application for nonuse is discretionary, but it must be fully informed, well considered, and supported by the administrative record.
 

Background: Nonuse Requested for Permittee or Lessee’s Personal Business Reasons

“Temporary nonuse” means the authorized withholding, on an annual basis, of all or a portion of permitted livestock use in response to a request of the permittee or lessee. 43 CFR § 4100.0-5.

This IM establishes that it is BLM policy that all regulatory references to temporary nonuse in 43 CFR Part 4100 pertain to nonuse that the permittee or lessee requests because of financial or operational considerations, such as annual fluctuations of livestock operations, personal reasons beyond the control of the operator, including hardship, or livestock disease and quarantine. In accordance with 43 CFR § 4130.2(g), BLM managers may approve, on an annual basis, applications for temporary nonuse, in whole or in part, for up to three consecutive years. No grazing fees are charged for approved temporary nonuse. Forage made available as a result of approved temporary nonuse may be made available to qualified applicants under § 4130.6-2 (nonrenewable use).

43 CFR § 4130.2(g)(2) prevents the BLM from approving a fourth consecutive year of temporary nonuse. If an applicant requests four consecutive years of temporary nonuse, the BLM will discuss with the applicant the requirements of 43 CFR § 4130.2(g)(2) and permitted use administration options that may be available under the grazing regulations. These options may include applying for “conservation and protection nonuse” (as discussed below), if applicable, or making arrangements that result in the use of the permitted use available on the allotment, e.g., a preference transfer to a different applicant, or a livestock control agreement with another livestock owner. See 43 CFR § 4100.0-5 for a definition of “control;” § 4110.1(a) describing the qualifications for preference; and § 4130.7(d) regarding livestock control agreements. The operator also should be made aware of the regulatory provisions and penalties associated with the requirement to make “substantial use” under 43 CFR §§ 4140.1(a)(2) and 4170.1-2. If following this communication, or attempted communication, the permittee or lessee makes written application for a fourth consecutive year of temporary nonuse, or does not voluntarily withdraw a previously submitted written application, the BLM must deny this application by decision issued under 43 CFR Subpart 4160. 

Nonuse for Reasons of Conservation and Protection of the Public Lands

When the Tenth Circuit invalidated the regulatory provisions that allowed the BLM to issue a “conservation use” permit for a multi-year term of up to 10 years, the court noted that the BLM may approve nonuse on an annual basis that “furthers… preservation goals” if it is justified based on the current year’s rangeland conditions “even when that temporary non-use happens to last the entire duration of the permit.” 167 F.3d at 1308. This IM establishes policy for processing a nonuse application when the reason offered for it is conservation and protection of the public lands. 

“Conservation and Protection Nonuse” (C&P Nonuse) is now defined as: “The authorized withholding, on an annual basis, of all or a portion of the permitted livestock use in response to a request of the permittee or lessee for purposes of: (1) Protecting the land and its resources from destruction or unnecessary injury; (2) Improving rangeland conditions; or (3) Enhancing resource values, uses, or functions.”

If a permittee or lessee requests C&P Nonuse, then prior to approval the BLM must independently confirm that the purpose(s) of the C&P nonuse is justified based on current or projected rangeland conditions for the year (or a season within a year) that the C&P nonuse has been requested. If the BLM does not concur that C&P nonuse is justified, then the BLM should discuss with the operator the basis for this position and any permitted use administration options that may be available under the grazing regulations. These may include the previously discussed preference transfer, livestock control agreement, or applying for “temporary nonuse,” as discussed at page 2 above. The operator also should be made aware of the regulatory provisions and penalties associated with the requirement to make “substantial use” under 43 CFR §§ 4140.1(a)(2) and 4170.1-2. If following this communication, or attempted communication, the permittee or lessee makes written application for C&P nonuse, or does not voluntarily withdraw a previously submitted written application, the BLM must deny this application by decision issued under 43 CFR Subpart 4160.

Consistent with the decision of the Tenth Circuit, this IM establishes policy that the BLM may, at its discretion, approve C&P nonuse on an annual basis. This approval is not subject to 43 CFR § 4130.2(g)(2), which limits temporary nonuse to three consecutive years. Moreover, the BLM will not issue a nonrenewable permit to authorize use of land approved for C&P nonuse, and the BLM will not authorize a permit holder to use lands previously approved for C&P nonuse unless the BLM first confirms that the rangeland conditions that justified approval of the C&P nonuse have abated. No grazing fees are charged for authorized C&P nonuse.

Approval of C&P nonuse should not be used as a surrogate method to implement a long term grazing reduction or rest on allotments that the governing land use plan has determined are available for grazing use. If such action is needed, the BLM must adjust permitted use in accordance with 43 CFR §§ 4110.3-2 and 4110.3-3 or amend the land use plan to provide that the lands in question are no longer available for grazing use authorizations.  A decision to deny an application for grazing use where C&P nonuse previously has been approved must, at a minimum, have a rational basis and be supported by resource data. Such decisions are subject to protest and appeal under 43 CFR Subpart 4160.

In order to comply with the Tenth Circuit decision and U.S. District Court injunction, it is necessary to differentiate existing (1995) regulatory provisions on “conservation use” that are useful for implementing “C&P nonuse” from regulatory references to “conservation use” that must not be implemented. Appendix 2provides this differentiation and implementation instructions.

Timeframe:  This policy is effective immediately.

Budget Impact:  None.

Manual/Handbook Sections Affected:  The direction in this Instruction Memorandum will be included in H-4130-1, Authorizing Grazing Use, until completion of a rulemaking that successfully removes the “conservation use” provisions of the 1995 regulations consistent with the Tenth Circuit’s decision. This effort will likely remove the term “temporary nonuse” and replace it with “operational nonuse” to reflect that such nonuse is being requested for reasons associated with operation of the dependent livestock enterprise and not for reasons associated with conservation and protection of the public lands.

Coordination: The Office of the Solicitor, State and National Rangeland Program Leaders.

Contacts:  Please contact Rob Roudabush at (202) 785-6569 or Ken Visser at (775) 861-6492 of the Division of Rangeland Resources.
 
 
Signed by:                                                                   Authenticated by:
Edwin L. Roberson                                                       Robert M. Williams
Assistant Director                                                        Division of IRM Governance,WO-560
Renewable Resources and Planning
 
2 Attachments


[1] For this reason, all citations to the grazing regulations in this Instruction Memorandum are to the 2005 edition of 43 CFR.