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October 10, 2006
In Reply Refer To:
4100 (220) P
Instruction Memorandum No. 2007-004
Expire: 9/30/2008

To:                   All Field Office Officials

Attn:                State and Field Office Range Staffs
From:               Assistant Director, Renewable Resources and Planning
Subject:           2006 Grazing Regulations Status
Program Area: Rangeland Management (1020) Program.
Purpose:  To provide instruction on implementation of the recently amended grazing regulations (43 CFR Part 4100) in light of recent court orders.
Background:  The Bureau of Land Management (BLM) grazing regulations were last changed in 1995. Implementation experience and new information have helped identify regulatory changes that will improve the effectiveness of BLM’s administration of the grazing program. A Notice of Proposed Rulemaking was published in 2003 and the draft EIS (DEIS) notice of availability was published in the Federal Register on January 6, 2004.  Notice of availability of the Final Environmental Impact Statement (FEIS) was published on June 17, 2005, and an addendum issued on March 31, 2006. On July 12, 2006, the BLM published the Environmental Impact Statement (EIS) Record of Decision and Notice of Final Rulemaking (with an effective date of August 11, 2006) in the Federal Register (Vol. 71, No. 133, pgs 39402-39509). Immediately after the BLM published the Notice, three motions for a preliminary injunction were filed against the amendments to the grazing regulations in the United States District Court for the District of Idaho: Western Watersheds Project v. Kraayenbrink, Civ. No. 05-297-E-BLW (D. Idaho) (one motion filed alleging a violation of the National Environmental Policy Act (NEPA) and one motion filed alleging a violation of the Endangered Species Act (ESA)) and Maughan v. Rosenkrance, Civ. No. 06-275-E-BLW (D. Idaho) (one motion filed alleging a violation of NEPA and the Federal Land Policy and Management Act (FLPMA)). On July 28, 2006, Idaho District Court Judge Lynn B. Winmill heard arguments regarding the motions to enjoin implementation of the regulations.

On August 11, 2006, preliminary to hearing the case on the merits, Judge Winmill issued nearly identical orders in each case. The court did not address the motion for a preliminary injunction on ESA grounds, but the court did decide the motions raising NEPA and FLPMA violations. In these initial orders, the Judge declined to enjoin implementation of the regulation changes except for the changes that affect the definition and role of the interested public in participating in the BLM grazing decision making processes.
Specifically, the court ordered that the changes to the public participation aspects of the following regulations are enjoined: 43 C.F.R.  §§ 4100.0-5 (definitions); 4110.2-4 (allotments); 4110.3-3 (implementing changes in active use); 4130.2 (grazing permits or leases); 4130.3-3 (modification of permits or leases); 4130.6-2 (nonrenewable grazing permits and leases). The court also enjoined BLM’s ability to issue nonrenewable grazing permits or leases in full force and effect.
On August 21, 2006, Western Watersheds Project filed a renewed injunction motion. Defendants and proposed defendant-intervener filed opposition briefs. On September 25, 2006, the Court issued a second order that enjoined the changes to the regulations that allow cooperators to share title to range improvements constructed under a Cooperative Range Improvement Agreement and that change implementation procedures for the Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration.
Action:  As a result of the August 11, 2006, injunction orders, the BLM must continue to use the 1995 regulations that govern public participation in grazing matters, and cannot issue nonrenewable permits or leases in full force and effect. As a result of the September 25, 2006, injunction order, the BLM must continue to use the 1995 regulations that govern which party holds title to improvements constructed under a Cooperative Range Improvement Agreement (43 CFR § 4120.3-2(b)) and that govern implementation of the Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration (43 CFR §§ 4180.1 and 4180.2(b) and (c)).
Questions about application of the regulations in light of the injunction orders should be directed to Ken Visser, Division of Rangeland Resources, at (775) 861-6492.
Attached for your use is a copy of the 4100 grazing regulations promulgated on July 12, 2006. It has been modified to reflect the August 11, 2006, and September 25, 2006, Idaho Federal District Court orders. Provisions of the 1995 regulations that are now in effect as a result of the court’s orders are in red print. Provisions that have been enjoined are crossed out.
With respect to the regulatory amendments that were not enjoined, the July 12, 2006, Notice of Final Rulemaking contains information that is useful for their implementation. Also, the Washington Office (WO) and State Office range staffs conduct monthly conference calls where interpretation and implementation questions regarding the regulatory provisions that were not enjoined can be further addressed. As the need for further national level guidance is identified, WO will address the issue and provide guidance.  
Time Frame: Effective immediately
Budget Impact: None
Manuals/Handbook Sections Affected: None
Coordination: Division of Fish, Wildlife, and Plant Conservation and the Department of the Interior’s Solicitors Office
Contact: Robert Roudabush, Acting Chief, Division of Rangeland Resource, at (202) 785-6569 or Ken Visser, Rangeland Management Specialist, at
(775) 861-6492.
Signed by:                                                       
Authenticated by:
Ed Shepard                                                     
Robert M. Williams
Assistant Director                                            
Division of IRM Governance,WO-560
Renewable Resources and Planning
1 Attachment

Last updated: 10-21-2009