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Permit Value: A Hidden Key to the Public Land Grazing Dispute CHAPTER 2 A History of Permit Value — Grazing control on the National Forests was the most revolutionary force striking the western livestock industry since its modern beginning. It cut abruptly across a manner of living, with all its freedoms, which had evolved during the frontier era. Paul H. Roberts The debate over public land grazing is just a part of a conflict in ideologies prevalent throughout the history of the West. Even before the Forest Service first imposed regulatory control of grazing, there were philosophical, legal and even personal conflicts over public land grazing. Underlying the debate over grazing was the question of whether the land remaining in the public domain should be privatized. The creation of the forest reserves polarized these two camps, as it reversed the long-standing policy of privatizing the frontier, and was opposed by many in the West. In regards to grazing, two basic philosophies emerged. The first is kin to the "use it or lose it" philosophy of western water rights and the "first in time, first in rights" philosophy of western miners. The second philosophy espoused the conservationist belief that public land should be used for the benefit of the public as a whole, and thus the use of forage through the grazing permit and lease systems are only a temporary privilege that can be revoked at any time. These two philosophies have manifested in legal conflicts over numerous different issues regarding public land grazing, including the issue of permit value. Looking to understand why litigation over grazing is so common, Michael Borman and Douglas Johnson note Judge Burns' remarks in the decision on the famous NRDC v. Hodel case that require NEPA assessments of BLM allotments: He noted, however, that the reason for the large scale judicial intrusion into these areas has been the inability or unwillingness of the other branches, both state and federal, to provide solutions to significant societal, environmental, and economic problems. We expect that litigation will continue and these legal "masters" will shape land use policies in the future. Considering that many important issues are still in court, I suspect this legal "shaping" will continue. These include environmental efforts such as Secretary of Interior Babbitt's RR '94 measures and initiatives from environmental groups to lease state allotments. On the side of ranchers, Wayne Hage, author of Storm Over Rangelands: Private Rights in Federal Lands, continues to promote their cause in his case over water and grazing rights. Also, if the courts continue to redefine "takings," a new definition may have an influence of the legal status of permit value, although as of yet the courts have continued to deny its legal existence. It is not in the scope of this work to pass judgment on either these philosophies or their legal or judicial implications. They are presented only to provide background and depth to the attitudes and ideas of the people centrally involved in the issues that are explored in later chapters. It is in their eyes and minds that the value and influence of grazing permits becomes a powerful economic, political and ecological force. EARLY Conflicts over GRAZING REGULATION During the nineteenth century, the users of public land forage found vast unused open spaces that they grew accustom to using at no cost. They gradually came to believe that this use was a right. Even after permit systems were instituted, first in the forest reserves (that later became the National Forests) and then on the lands that ended up being controlled by the BLM, instead of feeling they had a right to the open range, ranchers developed an expectation that their permits would continue intact. They transferred their belief in a "right to graze" on the open range into a belief they had a right to their grazing permits. In 1891, when the forest reserve were first created, the status of grazing in the reserves was not made clear, but quickly became an issue that unified western livestock interests. Meanwhile, under the leadership of John Muir, the influence of those opposing grazing grew. It is now largely forgotten that in 1894, three years after the reserves were first established, all grazing was officially excluded from the reserves. This proclamation, however, was extensively ignored, largely because there was no enforcement mechanism. Years of studies, debate, and lobbying ensued. Grazing was partially reinstated in 1897, by the Pettygrove Amendment to an appropriations bill, despite the recommendation of the Forest Committee that had been formed at the request of Secretary of the Interior Hoke Smith. The Department of the Interior stopped sheep grazing on the reserves again in 1899, after just one year of regulation. Regulation was seen as a failure, but sheep grazing was reinstated that autumn after extensive political pressure from Northwestern Congressmen (Rowley 4-30). This debate over grazing on the reserves even led to a split in the supporters of the forest reserves, after conservationists Gifford Pinchot and Albert Potter advocated a system of regulated grazing in the reserves, much to the dismay of preservationist John Muir, who advocated an end to all grazing, at least of sheep, on the reserves. Since that time, it has largely been the preservationists' influence that has continued to advocate reductions in grazing levels. Indeed they have had some success, particularly in clearly overgrazed areas, where their efforts are occasionally joined by the conservationists. Elements of both the conservationist and preservationist traditions remain in the modern environmental movement, although the lines are not always clear. The preservationists, however, stimulated by expanding population and increased recreation use throughout the West, have in many ways become more persistent, and thus become more threatening to ranchers, especially ranchers who feel most strongly that they have a right to continue using their grazing allotments. Confusion over the final status of grazing on the reserves continued to ensue until the regulation of the forest reserves was transferred to the Department of Agriculture in 1905. Between 1905 and 1906 the regulations were extensively revised. A three tiered preference system for permits was put in place and fees were recommended for the 1906 season. Preference was given first to ranchers who owned land adjacent to the reserves, next to those who owned land near the reserves, and finally to transient herders with no local property (Rowley 53-59). This system was challenged in court, by those who questioned whether the agencies had a right to enforce regulations that were not specifically adopted by Congress. In 1911, the same year that the reserves were renamed National Forests, the Supreme Court decided two precedent-setting cases, United States v. Grimaud and Light v. United States. Both affirmed that the Secretary of Agriculture did have the constitutional power to regulate the use of public lands for grazing, with the Grimaud case making it clear that the agency also had the power to institute grazing fees. The Light case is of special interest since it pits state versus federal rights. Fred Light thought that it was the government's duty to follow Colorado law, which puts the onus on landowners to exclude cattle from their property. Thus he believed it was the duty of the Forest Service to put up a fence to keep his cattle from wandering into the forest that bordered the open range near his land. The Supreme Court ruled that the United States did not have to follow Colorado law, and that Light was required to get a permit if his cattle were grazing on public land. Thus, he was not free to knowingly allow his cattle to wander into the forest boundary. Numerous other court cases, including the Supreme Court decision Omaechevarria v. Idaho in 1918, have found that grazing on public land is not a vested right, even if a permit has been acquired and held for years. The issue, however, is not completely clear. In 1890, an earlier Supreme Court decision, Buford v. Houtz, seemed to have ruled that ranchers had an implied license to graze public land. As Wayne Hage summarizes the case, "Mr. Houtz argued that the government of the United States had known of this use, had never forbidden it, nor taken any steps to arrest it, but had consented to and encouraged it." While that is all true, it is important to note that the government's "consent" was passive and really only applied to lands unoccupied and not designated for other purposes. Historically, access to the open range had value to ranchers, but permit value as presented here could not have existed before the Forest Service began instituting the permit system. Before that time stockmen could freely graze on all public lands. With the new allotment system, notwithstanding any court decisions, ranchers quickly recognized that grazing permits legitimized the value of the open range, and a kind of black market developed to buy and sell them. The earliest actual documentation of the existence of permit value that I have found in an extensive search of academic literature, is in a little known work written in 1913 by Will C. Barnes, "Western Grazing Grounds and Forest Ranges." He notes how the early permit system in the forest reserves gave great preference to ranchers and settlers who had established land ownership near them, and that this preference virtually eliminated the migrant or "tramp" stockman. Barnes' description of these preferences in the early permit system also shows how they vary from the now familiar ten year inheritable leases. Most of the permits were yearlong, renewed in the spring, and were not supposed to be salable and transferable—even to heirs. Although Barnes states, "The object of these regulations is to prevent speculation in permits and the handing down of grazing privileges from one person to another without the power of the Government [sic] to control it," (219) he also explains the obvious loopholes in that system. If both the stock and "such necessary ranch property as is clearly commensurate with the number of stock involved" were sold as a unit, then the permit could be renewed to the purchaser—and presumably it usually was. He cites cases "where sheep grazing under permit on a Forest [sic] have been sold for as much as $2 per head more than the market value, solely because the ranch which went with the purchase controlled the range in National Forest" (218). That $2 per head is the permit value, but what is not clear from this single source is how often these combined stock and land purchases occurred, or what the average permit value was in that era. The central question from this early scenario remains with us even today: "Why are ranchers willing to pay more for ranches with grazing permits?" Clearly, the security of having an inexpensive uncontested source of forage is the primary element of that value. Despite the requirement to pay the small fee that was associated with the permit, Barnes thought that stockmen with permits were much better off than either those who had to complete on the open range, or those who had to lease private ranges for fees averaging three times as high (220). Notwithstanding a fairly extensive record of the early disputes over both the existence and levels of grazing fees that extends from the 1910s through to the present, the values of the permit itself was not extensively discussed. There is, however, a significant set of clues that permits had some influence on ranch market values well before the 1960s, when agricultural economists began to study permit value. These clues can be found in the advertisements and classified sections from old magazines and newspapers where ranches were marketed. (See Figure 1.) It is not uncommon to find ranches advertised as "adjoining forest reserve," or "controlling fine range" or having a number of "government" or "Taylor" acres. The ranch advertisements sometimes simply added the word "deeded" after the figure for acreage, to make it clear that the whole ranch was in fact owned. Presumable this practice started because some sellers included various leased and permitted acreage in their advertised figure for the ranch's total acreage. Others were more honest, and clearly distinguished deeded acres from leased acres in their ads, but obviously they still wanted to inform the buyer that they were getting something of more value than the deeded land alone.
Since these ads usually contained little information about the ranches, and proper ranch assessment considers many factors, it is difficult to determine the influence that federally leased acreage had on the marketability of ranches, and impossible to determine their influence on the selling price. It is also unclear how often land designated only as "leased" referred actually to land held through forest reserve or Forest Service permits, and later leases under the Taylor Grazing Act. What is clear is that having extra leased acreage must have given some advantage to the seller or these references would not have been included in the ads, and that these permits did have some real estate value well before the time that such value was investigated by economists. Permit Value and the Taylor Grazing Act The next clearly documented indication of the existence and development of permit value came in passage of the Taylor Grazing Act (TGA) of 1934. The TGA expanded federal management of grazing into over 100 million acres of previously open range, creating an allotment system that had many similarities to the Forest Service's. But in contrast with the primary uses of timber and water in the National Forests, the TGA made grazing the primary use of these public lands. The TGA called for managing these lands in the form of grazing allotments. These allotments were connected to private holdings through the establishment of ten year renewable leases that were both inheritable and transferred with the sale of the land (pending the approval of the Grazing Service and its successor the BLM). It is generally accepted that the TGA was passed to mitigate overgrazing on federal lands and to reduce conflicts among the users of those lands. It may be, however, that its passage was made easier by the awareness of ranchers who understood the value of Forest Service permits. They knew that a permit or leasing system would give them not only more secure forage, but also some advantage and possibly extra value in the marketplace if they were ever to sell their ranch. One important and often overlooked passage in the TGA also insures the rancher that that extra value could be recognized by the banking system as collateral:
Although it does seem rational to suppose that the ranchers' expectation of gaining and retaining their allotment collateral and permit value could have been a reason in the passage of the extensively debated TGA, the extent of that influence remains undocumented and unanswered here. The 1938 Memorandum of Understanding Considering the clear advantage and recognition of permits as collateral that the TGA provides in section 43 USCA §315b, the signing of the 1938 Memorandum of Understanding between the Secretary of Agriculture and the Governor of the Farm Credit Administration (FCA) comes as no surprise. The events that led to this memorandum were covered in the legislative report of the American Cattle Producer as early as March 1935, in a discussion of a meeting regarding grazing permits:
Presumably that meeting led to the subsequent signing of the 1938 memorandum that focuses on the issue of loan security. The memorandum is clearer than the §315b of the TGA, and outlines a procedure whereby a permittee is allowed to put the preference for their grazing permits in escrow, using that escrow as loan collateral in all but name. Under the agreement, in the event of foreclosure on a mortgage with such an escrow, the Forest Service was required, "subject to its regulations and general administrative [to] recognize the loan agency as the logical successor to a preference." The loan agency could continue to graze the land until they sold it, and pass on the preference to whomever bought the ranch. The agreement also required that for permits in these escrow arrangements, the loan agency be consulted in the event the Forest Service was going to reduce or discontinue the permit, and that at least a year's warning be given before the reduction was to take place. The substance of the memorandum seems to be at least in part derived from the passage of the amended Federal Farm Loan Act. That Act calls for "reasonable assurance" of the continued use of the land when loads are made to livestock owners who rely upon public grazing. The Forest Service and BLM permit systems, along with the Memorandum of Agreement and Federal Farm Loan Act, were undoubtedly seen by most as working towards the development, prosperity and security of western agricultural communities. Without the aid of the banks, many if not most of the ranches would not have been established in the first place, and certainly could not survive droughts or unforeseen downturns in stock prices. Over the years, however, this stabilizing effect has often worked to cement existing grazing levels in place, even in areas where ecological considerations call for reductions in grazing levels. The agreement continues even today, under a somewhat altered and clarified form (1986 Forest Service Handbook 18.32-2). This agreement, along with the general practice of banks making loans to ranchers based on both the deeded and permit value of their ranches, has given rise to accusations by environmentalists that the banks have an economic interest in maintaining the permit system and as a result use their political influence to maintain permits at their existing levels. The existence of the memorandum and TGA's §315b clearly document that, by the 1930s, the value of permits was generally recognized to both the stockmen and the banks, but it raises more questions about the nature of permit value than it answers. Was the value only in the form of stabilization of ranch units and thus their mortgages, or did it take on real estate value as well, and if so how much? How extensive was the practice of taking permits as collateral before the legal provisions came into effect? After these provisions? While it would take a major investigation beyond the scope of this work to discover the historical or present extent of permit value's use as collateral, it is generally recognized as widespread ("Taxpayers taken for ride by Western ranchers"), even through the admission of FCA officers (Henson). If the stability of permit levels is a factor in permit value, so is the likelihood of their renewal. In looking though the history of the management of the permit system, it is rare that permits are not renewed to active ranchers who continued to desire them. With this in mind, the most significant change brought about by the TGA is clearly the development of the Grazing Advisory Boards, which strongly influenced the lifestyle and values of ranchers with TGA allotments. In the first few years after the implementation of the TGA in 1934 most of the grazing lands were divided into Grazing Districts. Each of the districts had a Grazing Advisory Board that arbitrated disputes between ranchers and made recommendations to the federal administrators as to grazing levels and permit renewals. Each board consisted of nine positions. Four positions represented cattlemen and horsemen and four positions represented sheepmen and goatsmen elected by ranchers from within each grazing district. The state appointed one position to represent wildlife interests. Each district also had a district range manager who, at least on paper, was:
This is no small job, considering that many of the districts are larger than Connecticut. With range managers spread so thin, it is easy to see how the day-to-day decisions of such regulators could be ignored or influenced by groups of ranchers, whose elected grazing advisory boards had officially recognized power to make recommendations. The ranchers were well organized to exercise political power. They had local, state, and national stockmen's associations, and the support of many western senators, some of whom were themselves ranchers. In Politics and Grass, Foss even argues that this power, combined with the Grazing Service's and later the BLM's lack of personnel in these rural isolated areas, led to a system whereby the advisory boards made over ninety percent of the management decisions in many districts. State and national advisory boards were also instituted, and not only were they effective in making most of the decisions, keeping administrators few and powerless, and fees low, they increased in political savvy enough to understand the importance of keeping the fee controversy and the significance of permit value largely out of the public's attention. Congressman Taylor called this influence, "Home rule on the range." Two stories from the author William Kittredge, who grew up in southeastern Oregon, reveal the irreverence that that power commanded:
The story portrays the ranchers' general sentiment towards government officials as similar to a horse's feelings towards its pesky flies: they are in constant need of being whisked away by the brush of their tail. At times, the interactions between ranchers and officials became more belligerent:
The ranchers' attitude in these stories is not simply, "This is my allotment." It is clear that often their attitude is more aptly phrased, "This is my land!" and is rooted in many factors. Once again, it is important to remember that for the old-time ranch families, the range was once grazed for free. Further, throughout its development, the system whereby ranchers could lease otherwise unused public land has been clearly and strongly coded into legal system. Ranchers are the ones who have used and "improved" the land with fences and watering systems. Within grazing districts, through the advisory boards, they have had a strong say in local decision making. For a few ranches, there is a sixty-to-ninety year history of leases held by a single family. Finally, since most of the ecological and landscape transformations resulting from grazing occurred years ago, most ranchers are not lying if they say, "For as long as I can remember, the land always looked this way." Although new environmental laws and the growth of the BLM, in both budget and personnel, have slowly brought both management changes and new perspectives, it could be argued that the influence of the "Home rule on the range" philosophy continues even today. Many of the recent arguments that explicitly propose grazing on public land to be a legal right are derived from or refer back to the decision in Red Canyon Sheep Company v Ickes, 98 FR 2d 308, (1938). This complicated case heard by the US Court of Appeals for the District of Columbia put an injunction on a land trade proposed by Mr. C. M. Harvey, who owned land completely enclosed by National Forest, and wanted to trade his land for some land controlled by the Department of Interior. The Interior's land, however, had already been put into a grazing district as authorized by Section 7 of the TGA, and had, "by an Executive Order of November 26, 1934, No 6910, [been] withdrawn from settlement, location, sale or entry" (98 FR 2d 311), pending further classification. Further, a temporary license to graze had already been given to the Red Canyon Sheep Co., which argued that it would suffer a substantial loss if the trade proceeded, as they fully expected the license to eventually become a permit. The court agreed and stopped the transfer, apparently admitting that the Red Canyon Sheep Co. had a right to graze. What is often forgotten is that the court also asserted that the Secretary of the Interior still had the power to reclassify that land and take it out of the grazing district at any time so that he could then proceed with the transfer if he so chose. The court's allowance that the Secretary has such power implied that the company had no property right in regards to the grazing federal land, and is thus consistent with the decisions in the Grimaud, Light, and Omaechevarria cases. Still, in a few places in this decision, the courts used other language that can be read to substantiate "grazing rights." First, in their examination of the phrase from Part I, §3 of the TGA, "stock owners as under his rules and regulations are entitled to participate in the use of the range," the decision states:
The courts use of the words "entitled" and "right" resound for those who would like public land grazing to be an absolute property right, even if the decision only actually clarifies the decision-making process that chooses which ranchers are to get permits. Further, although this decision agrees with other courts that grazing is not a vested right, it also states that:
In such a statement, grazing rights activists see the courts affirming permit value. On the other hand, most environmentalists are either unaware of such statements, or chose to downplay or ignore them. Although they are correct in continually calling allotments public land, simply calling them such does not take away the privileges to their use that Congress gave to ranchers. The question then becomes, "To what extent is that privilege itself something substantial?" Two other controversial cases have important relevance to the question of permit value. Both United States v. Jaramillo, and later United States v. Fuller, deal with circumstances where the government took away private lands through eminent domain, but left the grazing permits intact. In both cases the question was not whether the landowner should be awarded money for the allotment (which the courts have refused to do even if permits are canceled), but whether a jury should take into consideration the potentially increased value that private land has due to the proximity of the allotment lands and their economic importance to the landowner. The judge in the Jaramillo case allowed the jury to consider the influence of the allotment on the real estate value, but in a five to four decision on the Fuller case the Supreme Court reversed the decisions of the district and appeals courts, which had also allowed the jury to consider the importance of the permit, arguing that the government was not required to pay compensation for a value that the government had created (i.e. permit value). In this case the government ended up paying $136,500, when Fuller's expert witnesses had valued the land at upwards of a million dollars, and the original jury was going to compromise, awarding Fuller $350,000. The other major legal quandary that has solidified the value of grazing permits in the minds of many involves the practices of the IRS. Although I have not been able to find a clear starting point for this practice, for many years the IRS has figured inheritance tax on the total value of a ranching estate, including the assessed value attributed to its grazing allotments. Thus, although originally a permit may have been awarded to some lucky rancher, the rancher's heirs are required to pay for 50% of the allotment's value. Even though this law only applies to the value of an estate that exceeds a certain limit, all but the smallest ranches have at least part of their value taxed. The sentiment among many ranchers is that if the IRS recognizes the value of permits, than the Forest Service and BLM should also. Growing Environmental Influences The seeds of many of the present disputes over public land grazing were planted in the 1960s, with the passage of the Wilderness Act (1964), the Multiple Use Sustained Yield Act (MUSYA-1964), the National Historic Preservation Act (1966) and Wild and Scenic Rivers Act (1968). Each, to varying degrees, brought changes in grazing policy. Then, a whole new set of laws passed during the environmental movement of the seventies opened the door to many more changes, with the passage of the National Environmental Protection Act (NEPA-1970), the Endangered Species Act (ESA-1973), the Clean Water Act (CWA-1972), the National Forest Management Act (NFMA-1976), the Federal Lands Policy and Management Act (FLPMA-1976, also known as the BLM Organic Act) and the Public Rangeland Improvement Act (PRIA-1978). The most significant event in this era was undoubtedly the 1974 landmark decision in the Natural Resource Defense Council's suit (NRDC v. Morton ), which used NEPA to require that the BLM do Environmental Impact Statements on its rangelands before reissuing leases. The suit forced the BLM to conduct 144 site specific Environmental Assessments (EAs) and Environmental Impact Statements (EISs) to analyze the effects of grazing, thus allowing public comments to be made for each individual allotment. Many of these assessments initially called for significant reductions in grazing, but these reductions were lessened through appeals and political pressure. Even still, since that decision, NEPA has probably been the strongest and most widely used tool for environmentalists to force changes in allotment management, particularly in obviously impacted areas. NEPA, along with the strong language in MUSYA, FLPMA, and the PRIA, gave environmentalists the ability to force the recognition of recreation, scenic, and habitat values, to make changes in agency monitoring and management techniques, and even to alter individual allotment plans. Still, environmentalists have only made significant changes in areas where they could keep their attention and efforts focused. Charles Wilkinson offers an explanation as to why overall environmentalists efforts have only been marginally successful:
Some local environmental groups have taken his words to heart. The Oregon Natural Resources Council recently developed a model citizen monitoring system in which volunteers are trained to monitor and comment on grazing allotments, and are asked to visit allotments three times a year. Other groups are following suit, and various new guides to monitoring grazing allotments, including the Southern Utah Wilderness Alliance's publication, How Not to be Cowed, are also being developed. These give citizens quick access to much of the information and the tools they need to comment on the allotments where they hike, hunt, or fish. Each of these new laws and efforts has brought gradual change to public land grazing practices. The Wilderness Act and Wild and Scenic Rivers Act both directly threaten permit value, but only for a small portion of the allotment system. Although the implementation of these laws usually leave allotments within designated areas intact for the current users, designation usually includes a provision that ends the leasing of allotments when the land is sold. This eliminates the permit value of these allotments. Under MUSYA and FLPMA, areas that were once consider largely or primarily devoted to grazing use are now forced to compete with other uses. Sometimes these other uses conflict with grazing, leading to a decline in AUM levels. With the ESA and National Historic Preservation Act, ranchers now fear that evidence of artifacts or endangered species on their allotments will limit or end grazing. Overall these new laws, whose affects generally get incorporated into the NEPA process, have still brought only gradual changes in total AUM levels allowed by the BLM and Forest Service. Nevertheless, a number of allotments have been hit hard by NEPA assessments or occasional lawsuits that call for significant reductions in AUM levels or an end to grazing altogether. These reductions, whether proposed or implemented, spark ire and resistance from the public lands ranchers, who clearly fear further reductions in their overall profits and to permit value. Even the ranchers who are not facing immediate reductions fear that they may have to face threatened or actual reductions in the future. The question remains, however, as to how much overall influence these new environmental laws have on permit value. While reducing an allotment's AUM level will clearly reduce its permit value, managers often make these reductions temporary, or reduce the "actual use" of an allotment while keeping the official "permitted use" on the books stable. This allows them to keep their real estate value and value as collateral. Many ranchers and agricultural economists argue that the new environmental laws reduce the value of each AUM value, but do market trends really reflect this conception? It may be that the perceived threat of AUM reductions and the associated increased risk of investing in permit value have developed enough of a psychological influence that they have achieved the status of actual market forces. For many ranchers, along with groups of loggers, millworkers, miners, and others whose jobs were tied to the public land, and to a more vocal and visible group of conservative thinkers and politicians, this new era of environmental laws caused a wave of fear, distaste, and anger, which led in part to their organizing around a powerful new formulation of their historically rooted sentiments. The call of the Sagebrush Rebellion, with its aim of bringing the federal domain into state control, and of its offshoot, which called for privatization of federal land, caused a response in them that could not have been more clear. For many it was the desire to solidify what they felt they already had, but were at risk of losing: the control of the land. For the ranchers, if the rangelands were held by the state or privately, they would have more influence over decisions affecting them, and little or no risk of losing the economic value of the allotment leases they had long held and continue to feel invested in, with both their money and labor. The Sagebrush Rebellion has its roots in the dissension of the western stockmen that started early in the century. Rowley recounts how the stockmen at the Public Lands Convention held in Denver in 1907, upset over grazing regulations and fees, "talked in terms of western secession" (65). Similar disputes, termed the "blowup in Region 2" erupted in the late 1940s in Colorado. The ensuing political battle that aimed to further ranchers' rights to graze on public lands has continued, often unifying the ranchers' anti-agency sentiment (207-217). The modern Sagebrush Rebellion began in 1979 when the Nevada legislature passed a bill claiming ownership of all 48 million acres of BLM land in the state. Within the next two years, Arizona, New Mexico, Utah, and Wyoming passed similar legislation, while Hawaii and South Dakota passed resolutions supporting the cause. Meanwhile the rebels' proposals were argued but defeated in seven other states (Cawley 2). Secretary of Interior James Watt even took steps, ultimately unsuccessful, to sell off large portions of public land. The courts overruled these measures and few actual policy changes resulted from the movement. As Cawley suggests:
Viewed in that light, the rebels won most of the battles over grazing in the 1980s, by preventing the passing of many new environmental laws, and generally maintaining low fee and stable AUM levels. With Reagan's election and the prospect of looser regulations and enforcement, much of the momentum of the movement stalled. The ranchers had their man in the White House and did not need to rebel. But the war was not over. It took Bush's declaration of his environmentalism to rekindle the movement and mend some of the splits between different rebel factions:
As it turned out, they had little to worry about, since in practical terms Bush's administration of the public domain was much like Reagan's. Nevertheless, the movement continued. For many ranchers the philosophic and economic principles voiced by the Wise Use movement spoke of the concerns which had underlain their long-standing controversy over grazing fees. The movement collected the sentiments and ideas they lived by but had never completely or coherently formulated. The Babbitt Reforms and 1990s Environmentalism The amazing grassroots and often bipartisan strength of the Wise Use movement arose yet again in 1993, when Clinton, through his Secretary of the Interior Bruce Babbitt, proposed new fee increases for federal allotments. The controversy again exploded, and this time not just on the range or in the back rooms of Congress, but with national attention:
After this visit, and intense pressure from western senators, Clinton backpedaled and proposed compromise, but did not completely give up on the issue. Babbitt held extensive meetings throughout the West over the next two years and found a number of common complaints and difficulties. He then came up with a new set of reforms that included among others, a more modest fee increase, some incentive measures for lessees who managed their lands well, establishment of Grazing Advisory Councils, allowing ranchers more leeway in resting their allotments, and allowing nonranchers to lease allotments. While some of these proposals have been implemented, including the Grazing Advisory Councils, others, including the right-to-rest provision and allowing nonranching leaseholders, are still working their way though the court system. On one hand the laws regarding allotment leases require that allotments be grazed, but they also allow the lessee to temporarily halt grazing to improve allotment conditions. At issue is the question of how much discretion the BLM has in defining "temporary." These last two issues have also hit the state courts in Oregon, Idaho, New Mexico and Arizona, after environmental groups started to outbid ranchers for the leases of state-controlled school grant lands, hoping to give these allotments an extended or permanent rest. Nevertheless, most of these leases were still awarded to the lower-bidding ranchers who had held them previously. Some of cases are headed to their respective state supreme courts, and may finally end up in the US Supreme Court. Other recent developments in the 1990s have been forcing significant changes in grazing levels and practices which indirectly affect the question of permit value. In the Columbia River Basin, the declaration of various salmon and steelhead runs as threatened or endangered, followed by the publication of Pacfish, the draft EIS which discusses the implications of these listings, has already begun to force land managers to fence the riparian areas of affected streams to protect them from cattle grazing, for fear of lawsuits. With the listing of the bull trout and expected listing of the westslope cutthroat trout, Infish and the Interior Columbia Basin EIS could force similar measures throughout much of the Inland West. In the Southwest, after the listing of willow flycatcher and other species, other suits have successfully asked for grazing reductions in their habitat and more are expected to follow. Finally, Judge Haggerty's 1996 decision in the Clean Water Act case, Oregon Natural Desert Association et al. v. Jack Ward Thomas, may become the latest bane to the public lands ranchers. The decision establishes, "that applicants for federal grazing permits receive, as a necessary precondition to the issuance of that permit, certification from the state in which the grazing is to occur that the grazing will not adversely impact state water quality standards" (4). This is extraordinary because the Clean Water Act has not been much of a factor in grazing disputes, even though as a nonpoint sediment pollution source, sedimentation from grazing affects thousands of miles of rivers and streams, as well as extensive wetlands throughout the West. According to Bill Marlett at Oregon Natural Desert Association, the "EPA has already supported 401 applicability as a policy matter, and has been joined by the Association of State Attorneys General on the legal issues." If this certification process moves forward, it is likely to become a tool used by environmentalists to reduce AUMs, thus reducing the total permit value of allotments. Legislative Responses to The Environmentalists' Success With the introduction of the bill, S. 852, To Provide for Uniform Management of Livestock Grazing on Federal Land, and Other Purposes, in 1995 by Senator Domenici of New Mexico, the ranching community began to respond to the environmentalists' success in the courts with a series of legislative responses. The goals still clearly include maintaining low fee levels, but due to low prices of beef in the 1990s, which in part determine those levels, environmentalists have not been successful in raising fees. The goals of the "Domenici Bill" and the other legislative proposals that followed are more focused on stopping the erosion of the total AUM levels, stopping the elimination of grazing from individual allotments, blocking the general public's ability to influence allotment management decisions, eliminating the recent reforms in BLM grazing management, and blocking the use of the ESA to modify grazing management. Overall, these bills can be seen as an attempt to give ranchers with public land leases greater control over those lands than they have had since the passing of the Taylor Gazing Act in 1934. The Domenici Bill provided for increasing the duration of most leases from ten to fifteen years, and provided further isolation to the ranchers by limiting possible public comment on the BLM and Forest Service allotment management plans (AMPs) to that of "affected interests." The bill then redefined an "affected interest," limiting it to a person or group who "has provided substantial evidence that the management of the public lands will affect that individual or organization" (§103). This definition, if passed into law, would have made it increasingly difficult for the general public to influence or appeal the AMPs that are written into the leases. (These plans sometimes ask for a decrease in AUMs to benefit the riparian areas, scenic values, and wildlife habitat within allotments.) Domenici's bill drew enough attention that it provoked a coordinated and successful effort by environmental groups to prevented its passage. They were not fooled by the bill's attempt to obscure some of its major provisions, which repealed or amended sections of the Public Rangelands Improvement Act, by referring to them only by number, when in fact these sections contained the strongest environmental protection language in that Act. But not everything was hidden. Besides the obvious increase of leases from ten to fifteen years, there were a few glaring sections that clearly showed that this bill could generally threaten long-term rangeland productivity. Consider the new definition for livestock carrying capacity that opens the door to calls for reassessing current allotment limits: "The term 'livestock carrying capacity' means the maximum sustainable stocking rate that is possible without inducing permanent damage to vegetation or related resources" (§104.23). It does not take much foresight to realize that any tests attempting to ascertain that carrying capacity would induce the permanent damage that they were, in theory, aiming to prevent. Additionally, the bill attempted to make the issuing of permits or leases a federal action that would be outside the consideration of NEPA (§121). On final analysis, the bill looks like an attempt to farther codify the, "This is my allotment!" attitude. Although Domenici's bill failed, a little known rider was quietly slipped into the 1995 Rescissions Bill (PL 104-19 §504) along with the "Salvage Rider." It called for the Forest Service to implement a schedule to ensure, "that not more than 20 percent of the allotments shall undergo NEPA analysis" each year. This might not seem very significant, but there was and continues to be a backlog of allotments due for renewal. Moreover, the bill also forces the Forest Service to renew the allotments which have their analyses delayed with their current terms and conditions, until the time they can be fully assessed. This allows overgrazed allotments, many of which still lack AMPs and are long overdue for assessment, to avoid analysis for up to ten more years—and maintain their existing permit value. Aside from this drawback, theoretically a clear schedule of allotment assessments could bring some long-term benefits, because it might allow the Forest Service to designate sufficient personnel to work on them, and thus eventually allow for better quality AMPs, EAs and EISs. In 1997, Representative Bob Smith introduced a slightly toned down version of Domenici's bill, "The Forage Improvement Act of 1997." It has got more support than the previous version, passing in the House on October 30, 1997 by a 242-182 vote. Nevertheless, so far it failed to become law even after it was modified to offer at 30% increase in grazing fees (from $1.35 to $1.85 per AUM). This failure is undoubtedly in part due to the heightened awareness of major environmental groups to these issues that was brought by Domenici's bill. Still, Domenici has not completely failed to gather support this session in his efforts to maintain the existing AUMs and permit value of federal allotments. In the Interior Appropriations bill signed in November 1997, a rider was slipped in that effectively reversed a court decision that may have stopped grazing on over four hundred allotments due to concerns over endangered species. Clearly the struggle between ranchers and environmentalists runs deeper than a controversy over low grazing fees. This struggle encompasses the shape and continuance of the public land grazing system. Central to these issues is maintaining the value of permits and the economics and value of public lands ranching. While not all environmentalists called for, "Cattle free by '93," most are concerned about the health of riparian areas, endemic ecosystems, and endangered species, and support significant reductions in AUM levels. The counter-argument heard from ranchers is that many ranching operations would fold with higher fees or lower AUMs, and that they are defending their way of life. This argument does have some merit for operations running on marginal profits, with a high dependency on federal lands, or with high debts. In these cases, higher fees or lower AUMs significantly cut into profits and lower permit values. Lower permit values also reduce a ranch's collateral value, thus making it more difficult to refinance if hard times hit. With foreign or corporate owned ranches, however, or with larger family owned but more profitable and less federally dependent operations, the motivation of "protecting a way of life" must be questioned. Many operations would not go under even if they were stripped of federal lands or if fees were tripled. For them the motivations surely include both maintaining their permits' real estate value and the year-to-year profits that come with allotments. From the historical record, it is impossible to determine just what motivations influenced specific political events in the history of public land grazing. Fee levels, AUM levels, permit values and profit are simply too interwoven to separate when considering the motivations of policy decisions and legislative proposals, since most proposals or decisions have the potential to affect all of them. The real motivations for these efforts can really only be explained by the ranchers themselves, and will be further explored in Chapter Four, which discusses the results of interviewing ranchers and individuals whose work brings them in close contact with ranchers.
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