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Project Kerr-01d

 

Concept Paper
Redefining Range/Grassland Management on the Public Lands


Concept Paper

This document sets forth a new concept for managing the range and grassland resources of our public lands, administered by the U.S. Forest Service and Bureau of Land Management.  It is the result of a two year effort by representatives from the livestock industry and environmental community, meeting with public land policy experts, to discuss challenges to effective management and long-term stewardship of public lands resources.

The new concept for managing range/grassland resources on our public lands will ensure the long-term ecological health of the lands, while providing stability for the users of these resources.  The strategy creates a series of incentives for holders of a new kind of lease to improve and maintain a high quality resource, including:

  1. opportunities for investing in, or receiving financial benefits from, conserving land resources through creation of a new market for authorizing uses of our range/grassland resources;
  2. long-term tenure on the land; and
  3. increased flexibility in how the lands are, or are not, used and managed.

Equally important, the new strategy takes poor quality range/grassland areas out of circulation and redirects the efforts of the federal land management agencies towards assessing and maintaining resource condition.

Here is How it Works.

Under the new concept, a new kind of lease would be available for the public lands range/grassland resource.  This new lease would extend for 30 years and provide for flexibility in management activities. It could be used for a variety of activities, including livestock grazing, wildlife management, endangered species conservation.  There would no longer be a
"grazing only" permit.  The new lease would grant the holder an exclusive interest in the range/grassland resource subject to the lease, but will not convey a property interest in the public lands, and will not restrict other "multiple uses" on those lands.  The lease holder's use of the public resource would be reviewed by the federal land management agency at 5 year
intervals to determine if the lands are improving or being maintained in such a manner that meets public lands standards.

Holders of a new lease do not have to be in the livestock industry.  They could be wildlife agencies, private individuals, or conservation organizations.  All lease holders will have long-term tenure, and will be responsible for ensuring that the public lands resource is improving or being maintained in an appropriate condition.  After acquiring a lease, the lease
holder will have the option of returning the lands under lease to the land management agency to achieve a conservation objective.  The lease holder will be accountable for the leased area, and changes in land use would have to be achieved through amendments in the land use plan.

Under the new system, holders of these new leases could purchase and sell them to a variety of users.  The value of the lease would be established by what a buyer was willing to pay to acquire the lease.  Typically, grazing permits are sold today for $50/"Animal Unit Month," although there is regional variability in what the market will bear in permit sales.

Existing livestock permittees who are working to improve resource conditions on public lands will be eligible to participate in the new lease program, and receive long-term tenure. Eligible grazing permit holders could obtain the new kind of lease by turning in their existing permits, and willing sellers would then be eligible to sell that lease to anyone.

Some lands would not be available for lease, and some lease holders would be ineligible to participate in the new lease system.  Allotments that are vacant under the existing grazing program would be reviewed by the land management agency to determine whether the land can support management actions under a lease, and may be made available (through competitive bidding) for the acquisition of the lease.  Once leased, the lease fee for these vacant lands would be the same as for other leased lands (and not subject to competitive bidding). Additionally, lease holders who fail to meet the terms of the lease, or who make false statements about the condition of the land, would lose a lease and not be eligible for a new
lease.

Over the term of the lease, resource conditions would be reviewed in 5-year increments to ensure that the condition of the land is improving, and the lease holder is either meeting or making progress towards meeting the goals for land management on the lands subject to the lease.  The lease holder will be responsible for monitoring resource condition.  However, the determination of the condition and trend of the lands are the responsibility of the land management agency.

The Role of the Government

While the new concepts builds on the established rangeland management programs at the U.S. Forest Service and Bureau of Land Management, it represents a radical shift in philosophy from these programs.  Instead of the work of the agencies being directed towards the development of management plans and grazing practices, their resources would be devoted to ensuring that the desired resource conditions on the ground are being met.  This is sometimes referred to as "outcome based management."

The land management agencies would be responsible for working with the lease holders and the public to set the standards for public lands health (many of which are identified in the land use plans) and to determine the resource conditions expected to meet those standards for different leases.  The land management agencies will also provide opportunities for general public input in setting standards for the public lands and setting goals for the leases, as well as in review of  conditions during lease terms.

Benefits to the Leaseholder

  • A new market for buying and selling leases for public range/grassland resources is created.
  • Lease holders will have substantial flexibility in the management of lands under lease.
  • Lease holders will have certainty as to lease terms, and the costs associated with the lease.
  • Willing sellers will be able to dispose of  leases without having to sell their fee title lands.
  • Lease holders would be given 30 year leases.
  • Lease holders would receive direct economic benefit from the improvement in resource conditions, through the increased value of the lease.
  • The program would retain the current distribution formula for the state/county share of fee receipts.
  • The government's role will be focused on assessing/maintaining the ecological health of the land.
  • Under the new system, land management agencies would not be required to provide NEPA documentation for private leaseholder activities.
  • The political/legal turmoil over the public lands grazing program will be substantially diminished.

Benefits to the Public

  • Any member of the public can hold a lease to the public range/grass resource.
  • Once acquired, a lease can be used for any purpose, including non-use, or the lease could be returned to the government.
  • Lands that are not meeting minimum requirements for public lands health would not be eligible for participation in the system.
  • The public can acquire lease interests without having to invest in the associated fee title lands, or "base property."
  • A simple, but effective, enforcement system would be created and sustained.
  • Fees would be increased to cover the costs of administering the program, and then remain stable over time.
  • Public land conditions will be improved.
  • The "Range Betterment" fund would be eliminated.
  • The government's role will be focused on assessing/maintaining the ecological health of the land.
  • The political/legal turmoil over the public lands grazing program will be substantially diminished.
  • Want to Know More?

If you are interested in additional information about this new strategy for range/grassland management, please contact Cathy Carlson at the National Wildlife Federation -- 303-786-8001 x16 (or on email at carlson@nwf.org) or Jason Campbell at the Public Lands Council -- 202-347-5355 (or on email at jcampbell@beef.org). We would be happy to give you additional reading material, or come discuss this new strategy with you or your organization.  Just give us a call or send a message.


Comments by Robert Hoskins
Reprinted by permission of the author.

Thanks for forwarding to me this conservation-environmental group/livestock industry proposal for rangeland reform.  I must confess that I find it quite disturbing because the only consequence I can see coming from this proposal is the ultimate privatization of the public lands.  It entrenches the worst characteristics of the status quo established by the Taylor Grazing Act; it does not change the status quo for something better.  Quite frankly, it looks like an "Enlibra" proposal--guilded paint over rotten wood.

Clearly, this proposal reflects the livestock industry's latest attempt to establish property rights in grazing leases and by extension federal lands to prevent its economic demise.  This has been, as you know, a policy of livestock organizations and landowners as well as many western states for years.   It's just trying another, more subtle tactic to get what it's always been after.  I'm deeply disappointed that the NWF/NRDC etc. could fail to see the clear dangers here and sign onto this.

Last fall, the Public Lands Council lost its lawsuit in the 10th Circuit over grazing reform.  It apparently lacks the funds to carry the appeal to the US Supreme Court, as the Wyoming Woolgrowers and Stockgrowers are pushing for.  Additionally, the industry failed in 104th and 105th Congresses to get its own brand of grazing reform (privatization).  It's clear that now the industry is trying to negotiate what it wants with "moderate" environmentalists and conservationists by holding out the alluring prospect of enviros getting the opportunity to secure "non-grazing" leases with long tenures through the market. However, this is a siren song.

As Andy Kerr has noted in his white paper on this subject carried on the Rangebiome web site (even though in the paper he apparently and unfortunately supports incentives approaches for conservation), it is unlikely that enviros/conservationists would end up with such leases in any reasonable numbers to make a difference because of a severe lack of funds.  In other words, we can't compete in the market that this proposal places such faith in.

The operational and financial aspects alone of trying to acquire thousands upon thousands of federal leases are mind-boggling. Referring to Aldo Leopold's experiences with economic incentives to achieve the goals of conservation, we know that if incentives are to work, they would have to work at landscape scales--in this case, with thousands and thousands of leases.  Leopold discovered in the 1930s that for various reasons incentives didn't come close to achieving conservation on private lands at the necessary scales.  What promise of beneficial landscape-scale effects does this proposal give us?

None.

While I can stomach, although just barely, the solution of simply paying ranchers to retire leases (a solution that also runs into scale problems, however), this proposal does nothing to guarantee retirement of grazing leases; indeed, it ensures that grazing will continue--in 30 year increments, mind you.  I think everyone agrees that retirement of grazing leases ought to be the goal.

I see in this proposal nothing more than one more subsidy to current leaseholders and the industry, which is in deep economic trouble due to the glutted beef market, long-term indifference to marketing, too many subsidies and an addiction to politicking for more subsidies instead of working the land as stewards, and the meat-packing monopoly.  And don't forget that in Wyoming, there is a growing demand from the public that the industry's tax exemptions and other subsidies get cut as budget shortfalls worsen.  The industry is staring reality in the face for the first time since dust blew into Washington as Congress was considering the Taylor Grazing Act in 1934.

I think that evolving social, political, and economic conditions will put a merciful end to most public lands grazing, as long as we help it along by letting the industry's inherent economic marginality catch up to it. This proposal promises only to give the industry a new lease on life--courtesy of environmental and conservation groups.  I'm sure the Public Lands Council and other livestock groups realize this, just as the industry understood the Taylor Grazing Act would give them a new lease on life.

Aside from the continued subsidies that the proposal sanctions--this time oddly from the market itself-- my greatest fear is that with the creation of markets for leases, there is a strong likelihood of further consolidation of leases in fewer hands, and thus the creation of greater and more powerful monopolistic control in the hands of very wealthy landowners, particularly corporate landowners.  Do we want the Trues or Magagnas or Anheuser-Busches to control even more public land than they do now?

Also, the claim that no property rights in public lands will develop from this new kind of lease is troubling, and seems to me to be highly questionable.  How can creating explicitly marketable leases with 30 year EXCLUSIVE tenures ON THE LAND not be interpreted as anything but the establishment of property rights in the land?  We already know how the industry will interpret it.  They still claim from time to time that the Taylor Grazing Act gives them property rights in the land, even though the plain text of the law explicitly denies it.  There's the law, and there's reality.

Do you remember when Ag tried to extend the length of Wyoming state lands leases two years ago in House Bill 177 to 99 years?  It was clear that Ag was trying to strengthen its control over--and its perceived property rights in--state lands in the face of greater public opposition to Wyoming's pro-Ag state lands policy.  I see the same sort of intent in this proposal, only to a more extreme extent.  The fact that Truman Julian was part of the negotiations for this proposal, according to Cathy Carlson's piece included on the Rangebiome site, doesn't give me a whole lot of confidence in it.  We both know the anti-wildlife and anti-public policies Julian and the Woolgrowers have been pushing in Wyoming.

Assuming that this proposal eventually becomes law, and given today's bizarre private property rights climate, I fear that sooner or later some court is going to refuse to accept the anaemic "no private property rights created" subterfuge outlined in this proposal, find a fait accompli, and declare that lease holders do have property rights in land enforceable against the government--and thus the public.  How are we going to deal with that?  Why take this risk?  We need to be STRENGTHENING the public interest in the land over the next generation, not WEAKENING it as this proposal does.  We need to eliminate grazing leases from the public lands, not extend them and give them new life.

We've already seen with the hunting license controversy that landowners believe and act on the belief, unfortunately with full state support, that marketable hunting licenses convey property rights in publicly "owned" wildlife.  As you know, in some states like Texas, New Mexico, and California, this is the de facto situation, regardless of what the law says.  This proposal creates the same kinds of undesirable conditions/incentives for privatization of public lands that marketable hunting licenses already perversely create for wildlife.  In this regard, grazing leases and hunting licenses are functionally equivalent in landowners' eyes.  Allowing private persons to market them establishes de facto property rights that become the effective status quo, regardless of what the law says.  This is rapidly becoming the case with marketable hunting licenses in Colorado and Utah.

The claim that the incentives approach to leases will lead to an improvement in rangeland quality has no merit either.  It appears that the NWF/NRDC has bought into the very questionable claims regarding markets and conservation (e.g., Curtis Freese's Wild Species As Commodities, PERC's Wildlife in the Marketplace).  As we know from the research into the use of marketable hunting licenses as financial incentives for conserving habitat on private lands, as well as from what we know of Leopold's experiences with private landowner incentives in the 1930s, conservation incentives to private landowners have had almost no impact on improving habitat on private land.  They've only been incentives for further incentives.  THAT'S been the ONLY landscape scale affect.

If incentives don't work on private lands to achieve conservation, how are they possibly going to work on public lands?  This proposal, like PERC and Freese's books and the anachronistic libertarian theory they're based on, assumes far too much about the efficacy of market incentives for conservation without any realistic or factual basis in how people actually behave economically and politically--especially politically. What's at issue on the publiclands is political and economic power gained through control of public resources, not efficiency in the allocation of resources.

The belief that market forces can drive conservation is sheer fantasy from libertarian think tanks and a dangerous sophism from those special economic interests who would assert greater private control over public lands for personal profit.  Remember, conservationists can't compete financially on the market in bidding for these leases.  We could get only a fraction of them.  What we would gain in the market in specific places we would lose on the landscape scale in the market.

These new leases would NOT "ensure the long-term ecological health of the lands," but they would surely "provide stability for the users of these resources"--that is, very wealthy landowners, because, quite frankly, that's who'll end up with the majority of these leases as they go on the market, particularly in areas that have scenic value for landed estates or commercial value for big-game outfitting.

It'll be more of the same stuff--manipulation of public land for specific economic/political purposes that exclude biodiversity conservation, as with game ranching--except with fewer and even more powerful leaseholders tightening their grip over public lands.  And let's not forget how land trades are being used by many landowners to gain outright title in desired public lands to improve opportunities for commercial game ranching.  That's surely a part of the mix of this proposal.

Remember, stability in enjoyment and certainty in the flow of benefits are the primary goals of property rights.  To the extent that private individuals enjoy that stability and certainty in public lands, that makes public rights--and public responsibilities--less secure.

Finally, this proposal does nothing but extend and elaborate the status quo of range management that has existed since the Taylor Grazing Act was passed; it just uses different words and a slightly different structure. It's just an update of the Act.  Through the influence of grazing advisory committees or councils, ranchers have had effective stability and secure tenure on the land from grazing leases since 1934, with clearly disastrous results for the land and public rights and responsibilities, making the latter unstable.  This proposal will simply provide greater security of tenure to the livestock industry, albeit for fewer individuals.  So what will change from the status quo?

We already see in the proposal that current leaseholders can exchange their old leases for new leases.  This is exactly what  happened as a result of the Taylor Grazing Act.  First dibs on grazing leases went to those who were already there.

(Indeed, from a market perspective, this authorized transfer from old to new leases in the same person completely undercuts the legitimacy of the proposal because current lease holders can keep their leases.  If this were TRULY a market-based proposal, the current leaseholder would lose his/her lease and would have to bid on the new lease with everyone else. Were I a libertarian economist, I would see this as a fundamental conceptual flaw in the proposal).

What else would be any different? For example, under the current system lease holders technically can lose a lease for failing to live up to the terms of the lease, but how often has that  happened?  It is highly unlikely that these five-year reviews by the agencies in the new proposal will change things.

Nor do I see anything in the proposal that changes the structure of or proposes to eliminate local grazing advisory associations authorized under the TGA that would create truly representative, public interest-oriented, local advisory or even management bodies.  Indeed, the marketability of the new leases militates against the creation of truly representative public-interest bodies that can influence what happens on public lands or even who gets leases.  The market will determine what happens and who gets what, not the public.

I see the public getting cut out, not cut in, with this proposal.  We should be increasing the role of the public in public lands management, not reducing it.

As we well know, neither the Forest Service nor the BLM have shown much inclination to enforce current range management standards unless lawsuits force them to, and even then they generally do a poor job.  They already have the responsibility of "assessing/maintaining the ecological health of the land."  How does this proposal ensure that the agencies will finally do what they're chartered to do by law?  It doesn't.  It even eliminates one of the few avenues of enforcement we now have (NEPA). Ranchers have been looking for ways to neutralize NEPA for years.  This proposal does it for them. (And if we exempt grazing leases from NEPA, guess what's next.  Minerals and logging and other commercial ventures. This proposal effectively kills NEPA in both the short term and the long term).

There is in this proposal no enhanced opportunity for the public to influence public lands management.  That's one of the primary affects of privatization, by the way, and what ranchers have wanted since the Wilderness Act, NEPA, Nixon's anti-poison-on-public-lands order, the ESA, NFMA, and FLPMA, not to mention the Clean Water Act and FIFRA, etc.  It wants to get rid of the pesky public and go back to the days of open range, free grass, and the wasteful feudal estates of the 19th century.

This sounds like the livestock industry's dream proposal.  The conservation/enviro groups who negotiated this proposal with the livestock industry are unfortunately, perhaps unwittingly, proposing to give the livestock industry virtually everything it has wanted since the Forest Service first implemented bitterly-opposed leases on forest reserves.

In sum, this proposal isn't radical, or adaptive to current conditions, or in the public interest; it's old and bitter wine in new, fragile bottles.  Conservation would get no benefits from this proposal.

This proposal is a giveaway to the livestock industry and wealthy landowners.  It also demonstrates the inherent weaknesses of "consensus and collaboration" approaches with an incorrigibly corrupt industry. Many of us have concluded that the livestock industry has squandered whatever legitimacy for consideration it may have had as a result of its historically periodic reprehensible political behavior (bison, elk feedgrounds, wolves, bears, grazing reform, water quality, riparian and upland range destruction, privatization proposals in Congress, predator control, siphoning state game & fish funds, etc.).

As we see every year in the Wyoming legislature, you can't blink without the industry coming up with another scheme for dipping into the public purse and damaging the public weal.  I still believe the only reasonable option for enviros and conservationists is to work to eliminate livestock grazing from the public lands altogether.  We don't need to accede to proposals that will surely keep cows/sheep on the public lands.

Also, let's not forget that a minority of very powerful landowners/corporations has federal grazing leases, as we are reminded in every anti-grazing document produced by environmental and conservation groups.  Nor let us forget that their control over leases and the agencies that administer them is a key element of their political power, particularly in the Western states.  They use this power to prevent necessary reform in many areas of public policy and sustain their political power as oligarchs.

It's these same people, for example, who in Wyoming are fighting the regulation of non-point source pollution, trying to downgrade the classification of waters in National Parks and wilderness, raiding state game and fish funds to pay for predator control, and pushing game ranching for commercial big-game hunting.  It's also these same people who are opposing the institution of a fair and equitable tax system in the state.

What this proposal does, by placing leases on the market, is to give these powerful oligarchs another opportunity to consolidate their power over federal lands by reducing the number of leases and the number of leaseholders, thus making themselves even more untouchable.  This cannot possibly benefit the public nor the public lands.  Remember, we cannot compete in the market with these people.

We may not be able to prevent the exercise of this power, but let's not make it easier for them.

In closing, this is the most subtle proposal I've yet seen for privatizing the public lands without expressly doing so.  It violates every principle of the public trust, and of the public interest in public lands, that we have long worked for and I hope are still working for. Livestock grazing has become ecologically, economically, politically, and socially obsolete and obnoxious in the West.  I see no reason to support its continuation in any form for the vain hope that we might turn a few leases to conservation goals.

Robert Hoskins


Comments by Bill Marlett, Oregon Natural Desert Association
Reprinted by permission of the author.

Thanks for forwarding the concept paper. And a big thanks for all the work you and everyone put in to this discussion. Because of our respective opinions, getting these ideas flushed out, debated and resolved is not only invaluable, but necessary.

I have made specific comments (in bold) to individual points from the concept paper below. In general, the proposal includes many ideas, some of which ONDA supports, such as the retirement of grazing permits or non-use of a grazing permit. However, the notion of giving ranchers long-term tenure runs counter to our belief that livestock do not belong on the arid lands of the West and that public lands should be managed for values other than producing beef. Therefore, ONDA can't support the central tenet of this proposal which creates "a new kind of lease creating long-term tenure on the land".

While one could argue that the land might benefit from these "new" lease holders, such as those wanting to protect rare plants, the bottom-line is that we will be operating from a position of weakness since most all current permit holders will become the new lease holders. Even if we leveled the playing field by taking away all current grazing permits and allocating them to the highest bidder, we would still come out on the short end of the stick.

In short, the proposed new system creating long term tenure inherits the same biases of the old system and will make it even more difficult for conservationists to move ahead.

On the other hand, we might be willing to consider this proposal further IF the ranchers were willing to meet us half way: we will let them manage one half the public lands under the system proposed in this paper, and we will manage the other half without livestock.

Thanks again Cathy. Look forward to continuing the discussion at Desert Conference!

Bill

Specific comments to statements in public rangelands management concept paper:

The new strategy takes poor quality range/grassland areas out of circulation and redirects the efforts of the federal land management agencies towards assessing and maintaining resource condition.
We still haven't addressed the key issue that led to these poor conditions; either a suitability analysis or identifying lands that are chiefly valuable for livestock grazing as required under the Taylor Grazing Act. I would argue that most lands in the West are of "poor quality" and therefore they all need to be taken out of circulation.

The proposal creates a new lease, replacing the current grazing permit with a multiple use lease extending for 30 years to any person for a variety of uses.
We are opposed to multiple use leases. There is no reason to go down the path of opening up grazing permits to other uses. Further, there is no need for adopting a multiple use lease in order to accommodate "non-use" or "conservation use", in spite of the Tenth Circuit's decision.

We are also opposed to 30 year leases. The current grazing permit holders already have too much certainty. They have had it for over 100 years. Along with the banks, many ranchers now treat their grazing lease like private property. Why would we give them more certainty? This is a key issue. To the extent we give them certainty, we lose our ability to move towards a sustainable future on our public lands, regardless of whether your goal is reform livestock grazing towards better management or ending commercial livestock grazing.

The program makes existing livestock permittees, who are working to improve resource conditions on public lands, eligible in the new lease program.
As a practical matter, this means all existing permit holders would be eligible.

The program provides that allotments that are now vacant would be reviewed by the land management agency to determine whether the land can support management actions under a lease, and may be made available (through competitive bidding) for the acquisition of the lease.
Vacant allotments should be retired. This determination is no different from the suitability analysis and chiefly valuable finding we have all been pressing for and that the agencies should already be doing.

The program provides that lands "once leased, the lease fee for these vacant lands would be the same as for other leased lands (and not subject to competitive bidding). Additionally, lease holders who fail to meet the terms of the lease, or who make false statements about the condition of the land, would lose a lease and not be eligible for a new lease."
Why should persons managing a vacant lease for rare plants, acquired through competitive bidding, have to pay a fee? This suggests that managing for natural values has no greater or lesser value than managing for beef production.

The program would provide for review in 5-year increments to ensure that the condition of the land is improving, and the lease holder is either meeting or making progress towards meeting the goals for land management on the lands subject to the lease.
Five years is too long; monitoring should occur every year. What monitoring that now occurs, is nonexistent or borderline. The notion that the "land is improving" or "making progress" towards goals is a Trojan Horse. The agencies already use this concept, quite effectively I might add, to maintain the status quo. It doesn't take much to "make progress". Just look at the BLM's classification of streams in properly functioning condition for a real live example of what constitutes progress. Giving ranchers a 5 year window further institutionalizes the status quo. Don't forget, the same political and social forces that undermine the agencies' current monitoring and enforcement efforts will undermine the new leasing program.

The program would provide that the lease holder will be responsible for monitoring resource condition. However, the
determination of the condition and trend of the lands are the responsibility of the land management agency.
This is not a good idea. Not that the ranchers couldn't do as well as the agencies, but there is little accountability (who do we sue, the ranchers?) and it further instills the feeling of ownership by the ranchers. Regarding agency determinations of trend and condition, see my comment below.

Instead of the work of the agencies being directed towards the development of management plans and grazing practices, their resources would be devoted to ensuring that the desired resource conditions on the ground are being met. This is sometimes referred to as *outcome based management.*
I see no difference between this and current management. The agencies' current resources, aside from being insufficient for the task, would still be driven by only having to show that lands are "making progress" towards some objective (do we even agree on the objective?). Accountability should be everyone's first order of business.

The land management agencies would be responsible for working with the lease holders and the public to set the standards for public lands health (many of which are identified in the land use plans) and to determine the resource conditions expected to meet those standards for different leases. The land management agencies will also provide opportunities for general public input in setting standards for the public lands and setting goals for the leases, as well as in review of conditions during lease terms.
In theory, they already do. How is this different? Then why do away with NEPA as proposed below?

The program would create a new market for buying and selling leases for public range/grassland resources is created.
We oppose setting up a "new" market over the existing "black" market currently limited to persons engaged in ranching. We do support the notion of allowing any person to acquire a permit through the existing market ONLY for the purpose of conservation use or retiring the permit to the government.

Lease holders will have substantial flexibility in the management of lands under lease.
I can't imagine ranchers having more flexibility; the ranchers already have a great deal of flexibility. It seems like we're just feeding their notion of ownership, though many of them currently operate under that notion anyway. The point is we shouldn't feed that desire.

The program would allow willing sellers to dispose of leases without having to sell their fee title lands.
We support this IF the purpose of selling the grazing permit were for conservation use or retirement only.

Lease holders would receive direct economic benefit from the improvement in resource conditions, through the increased value of the lease.
No comment.

The program would retain the current distribution formula for the state/county share of fee receipts.
We should recommend doing away with any connection between state/county payments and the level of grazing.

The governments role will be focused on assessing/maintaining the ecological health of the land.
Aren't they supposed to be doing this now? This is why Congress passed the Taylor Grazing Act and FLPMA. After 60 years, the government has yet to show they can adequately assess, much less protect, the ecological health of the land. The government's role should be focused on helping ranchers out economically while phasing out grazing on public lands.

Under the new system, land management agencies would not be required to provide NEPA documentation for private leaseholder activities.
This is not acceptable; after all, these are public lands. Further, this would set a bad precedent under NEPA. Besides, how else do you provide for public input as alluded to above?

The political/legal turmoil over the public lands grazing program will be substantially diminished.
This is debatable; I think it will further embolden ranchers in the myth that they control our public lands.

Any member of the public can hold a lease to the public range/grass resource.
Allowing the public to hold a lease is OK only IF the purpose of acquiring the lease is for conservation use or permit retirement.

Once acquired, a lease can be used for any purpose, including non-use, or the lease could be returned to the government.
As previously discussed, we should not expand leases to multiple uses. Further, we should not treat non-use and permit retirement as "use" in the same context as a commercial activity.

Lands that are not meeting minimum requirements for public lands health would not be eligible for participation in the system.
Most lands are not in a condition I would consider healthy; whose criteria of "land health" are we going to use? Does it include a full suite of predators and all native wildlife? Does it mean there are no listed species on the land? I would suggest most public lands are unhealthy and disqualify them from the leasing program, which puts us right back at square one. To see how the agency would pervert this concept, just look at how they classify streams as "properly functioning condition".

The public can acquire lease interests without having to invest in the associated fee title lands, or *base property.*
Separating the permit from the base property is OK only IF the purpose of acquiring the lease is for conservation use or permit retirement.

A simple, but effective, enforcement system would be created and sustained.
I have yet to see any simple, much less effective, enforcement under the current system. One could argue that the new system would foster better enforcement, but that's debatable, and certainly not a reason to adopt the proposed new system.

Fees would be increased to cover the costs of administering the program, and then remain stable over time.
Given that the current grazing program costs taxpayers at least $10 for each dollar received, I don't see how current permittess, which will be the vast majority of the new lease holders, will tolerate a system which in fact pays for itself. And what about all the hidden, indirect costs such as poor water quality, listed species, loss of biodiverstiy, unsightly and dangerous fences, etc.

Public land conditions will be improved.
This is debatable.

The *Range Betterment* fund would be eliminated.
This is good. Or, these funds could be used to retire permits.

The governments role will be focused on assessing/maintaining the ecological health of the land.
It should be focused on this issue regardless. Why create a program asking them to do what, by law, they are
supposed to do anyway?

The political/legal turmoil over the public lands grazing program will be substantially diminished.
This is debatable. The only thing that will end the debate once and for all is to phase out livestock grazing on public lands in a manner that respects the legitimate interests of the ranchers.

Bill Marlett, Executive Director
Oregon Natural Desert Association
16 NW Kansas
Bend, OR 97701

541/330-2638
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Comments and a Counter-Proposal by Larry Walker, RangeBiome
Permission to redistribute granted by the author

My comments on the proposal could pretty much be summed up under a title such as: "Well Intentioned Amateurs Build Train Wreck: Reinvent Robert Burford's Cooperative Management Agreements."

With the exception of 30-year leases and NEPA exemption, virtually everything in the proposal was contained in the regulations on Cooperative Management Agreements (CMA's) that BLM attempted to implement under the kindly hand of Robert Burford as Director of the Bureau of Land Management. Fortunately, that attempt was thwarted in 1985 by a ruling by U.S. District Court Judge Raul A. Ramirez (see the web at http://www.rangebiome.org/archive/ramirez.phtml).

Whoever has been working on the proposal from the environmental community appears to be willing to trade away virtually everything else for the dubious opportunity of being able to acquire a "non-grazing" lease. While that approach has some merit with regard to State lands where there are legal mandates to produce funding for schools, it is not applicable to federal lands.

Other than the comment about letting the ranchers manage 50% if they would retire the other 50% (tongue in cheek I hope), I agree with all of Bill Marlett's comments. And, keep in mind that I am a retired BLM Range Conservationist.

Some other specific comments (in bold) that I will add to Bill's are:

"Under the new concept, a new kind of lease would be available for the public lands range/grassland resource.  This new lease would extend for 30 years and provide for flexibility in management activities. It could be used for a variety of activities, including livestock grazing, wildlife management, endangered species conservation.  There would no longer be a *grazing only* permit.  The new lease would grant the holder an exclusive interest in the range/grassland resource subject to the lease, but will not convey a property interest in the public lands, and will not restrict other *multiple uses* on those lands."

30 years is ridiculous. Existing 10-year permits (with perpetual renewals) are already twice the normal 5-year/one renewal industry maximum. In addition, existing grazing permits and leases are for FORAGE USE ONLY. The proposed leases would actually be LAND LEASES and undermine the long upheld provision of the Taylor Grazing Act that "issuance of a permit pursuant to the provisions of this ACT shall not create any right, title, interest, or estate in or to the lands. (43 U.S.C., sec 315b)"

"The lease holder's use of the public resource would be reviewed by the federal land management agency at 5 year intervals to determine if the lands are improving or being maintained in such a manner that meets public lands standards."

It is already BLM policy (see BLM Manual H4400-1, IV(2)) that:
"2. Frequency of Formal Evaluations. State Minimum monitoring standards specify the frequency, by allotment category, of formal evaluations. The area-wide MEP outlines the schedule for formal evaluations and should be coordinated with the renewal schedule of long-term (10-year) grazing permits and leases. In general, the following should guide the development of the MEP schedule.
     a. Category "I" Allotments. Evaluate preceding the third and fifth year following implementation of a monitoring system and/or prior to the third or fifth year implementation phase of grazing use decisions. Thereafter, evaluate to coincide with the end of the grazing cycle. Evaluate at longer intervals where satisfactory progress toward meeting management objectives is documented, but always prior to the renewal of the 10-year permit.
     b. Category "M" Allotments. Evaluate prior to the renewal date of the term grazing permit or lease or as scheduled in the activity plan or allotment agreement. Evaluate if use supervision indicates deteriorating resource conditions."

"While the new concepts builds on the established rangeland management programs at the U.S. Forest Service and Bureau of Land Management, it represents a radical shift in philosophy from these programs. Instead of the work of the agencies being directed towards the development of management plans and grazing practices, their resources would be devoted to ensuring that the desired resource conditions on the ground are being met. This is sometimes referred to as *outcome based management.*

The land management agencies would be responsible for working with the lease holders and the public to set the standards for public lands health (many of which are identified in the land use plans) and to determine the resource conditions expected to meet those standards for different leases. The land management agencies will also provide opportunities for general public input in setting standards for the public lands and setting goals for the leases, as well as in review of conditions during lease terms."

This is just a restatement of what they do now! The only change is some perceived shifting of priorities within these activities. The budgets of the agencies are just not large enough to do it all. While I agree that they need to put more emphasis on accountability, I cannot agree that "development of management plans and grazing practices" are a waste. It has been my experience (including program evaluations and review of hundreds of allotment evaluations) that the majority of allotments that are in pretty good shape and/or noticeably improving are included in those where management plans and/or grazing systems have been developed by BLM personnel. I agree that they have a strong tendency to lean much too heavily on "range improvements" instead of adjusting areas, amount, duration, timing, and frequency of use (yes, including reductions) - but don't throw the baby out with the bath water.

"Benefits to the Leaseholder"

All of those listed, and more.

"Benefits to the Public"

All of those listed either would not occur, or would be meaningless or of minuscule extent if they did.

Remember that these comments are in addition to the excellent comments provided by Bill Marlett. Now, I will give you my perception of what your group should be doing instead of developing 19th century answers for 21st century issues.

It should be clear to anybody that public lands ranching is coming under increasing pressure from many fronts, and that trend is most likely to get stronger - not weaker. Under that scenario, the most effective thing your group could be doing is trying to develop some kind of "soft landing" for those who will be adversely impacted.

I doubt that there has ever been a Range Conservationist working for either the Forest Service or BLM who, when faced with the workload associated with making a meaningful grazing adjustment without being found arbitrary and capricious, hasn't said "It would be cheaper to just buy them out". So, while the U.S. cannot pay for what does not legally exist ("permit value"), why couldn't it provide an incentive to those who would save the money required to go through the adjustment or cancellation process by voluntarily retiring their permit?

What I have in mind is a limited tax credit.

Either the concept paper approach or what I am proposing would require new legislation, so I'll flesh out what I propose a little more.

First, congress would need to find that it is desirable to exclude domestic livestock grazing from some portion of the public lands for the purpose of improving water quality, recovering endangered species, providing preserves and corridors for biological diversity, etc. Let's take Bill Marlett's example and call it 50% of the currently grazed public lands.

This would establish that it would be in the public interest to retire grazing from those lands at the least cost to the taxpayer and make it reasonable to both reduce costs to the U.S. and alleviate economic disruption to affected permittees/lessees by providing some kind of incentive payment for voluntarily retiring public lands grazing. It would sunset when the desired percent of public lands were retired from grazing.

Why a tax credit? First, it would not require an annual appropriation like a cash buy-out would. Second, it is a vehicle already favored by large industry - and a lot of the current grazing on public lands is controlled by large industry. Third, it would provide an incentive for business interests such as real estate agencies (not just environmentalists) to acquire "base properties", retire the grazing permits for the tax advantages, and then resell the "base properties". Of course there would be some "cows to condos", but that is going to happen anyway in the absence of effective local zoning. Base properties are, by definition, private lands.

How much tax credit? "Permit value" is whatever a willing seller and a willing buyer can agree on, so any appraisal approach could lead to both inflation through speculation and litigation over appraised values. Besides, we are talking about an incentive program to soften the landing in exchange for reducing costs to the U.S., not a buy back of something that does not exist in law (permit value). A reasonable, objective, and easily calculated value would be what the permit holder could expect to save in permit fees during the term of a 10 year permit as compared with the Private Lands Lease Rate (PLLR). Keep it simple and don't include other costs or discounting. Make it something like 10 times (the prior year PLLR per AUM minus the current year Grazing Fee per AUM). Here's an example of how that would work out for BLM lands by state based on the 1998 PLLR and the 1999 federal grazing fee:

State

Tax Credit per AUM

AUMs to Retire

Total Cost

Arizona

$ 53.50

  340,364

$ 18,209,474

California

$191.50

  181,480

$ 18,420,220

Colorado

$194.50

  358,437

$ 37,456,667

Idaho

$ 94.50

  667,740

$ 63,101,430

Montana

$112.50

  656,601

$ 73,867,613

Nebraska

$176.50

         334

$        58,951

Nevada

$ 77.50

1,157,860

$ 89,734,150

New Mexico

$ 74.50

   944,762

$ 70,384,769

North Dakota

$ 88.50

        4,684

$      414,534

Oklahoma

$ 76.50

             69

$          5,279

Oregon

$ 97.50

   518,106

$ 50,515,335

South Dakota

$128.50

      36,775

$   4,725,588

Utah

$ 86.50

    639,258

$ 55,295,817

Washington

$ 86.50

       13,248

$   1,145,952

Wyoming

$105.50

1,015,375

 $107,122,063


For BLM lands, the tax credit proposal would grant an estimated total of $590,457,843 in tax credits over the life of the program to retire about half of the BLM lands currently grazed. I don't have figures handy for Forest Service, but estimate that the total for BLM and Forest Service lands would be less than $1 billion (less than half the cost of one B2 bomber) over a period of 10 years, or however long it took for voluntary relinquishment of half the permitted AUMs.

Here are a few more odds and ends that should be considered with the tax credit proposal:

  1. AUMs eligible for retirement tax credits should not include "suspended nonuse". Suspended nonuse was established to ensure that, in the event range conditions improved enough to provide additional AUMs, those who had taken reductions would get back AUMs proportional to what they had given up - not to establish any obligation to provide those AUMs.
  2. Voluntary retirements should be all or nothing at the allotment (or at least the pasture) level, not merely reductions.
  3. Permits/Leases being canceled "for cause" should not be eligible for voluntary retirement tax credits.
  4. Permits/Leases where a proposed decision changing use has been issued should not be eligible for voluntary retirement tax credits. This is because a major portion of the tax credit would be based on saving the money that would have already been spent in building a case to the point that a proposed decision were issued.
  5. The legislation would need to be revenue neutral to states/counties by including a provision that whatever states/counties have been receiving as a share of grazing receipts would be added to basic Payments in Lieu of Taxes (PILT), and then the provisions for sharing from the receipts from grazing canceled.
  6. The lands offered for retirement under such a willing permitee/lessee approach might not be the ones most in need of being retired. This is also a problem with your concept proposal. Therefore, there would need to be some kind of "one-time exchange" provision for BLM/Forest Service to use - such as providing that after any area voluntarily retired had been rested for a minimum of 5 years and if identified in a Land Use Plan or Plan Amendment (FLPMA), grazing could be shifted into the voluntarily retired area if an equal number of grazed acres were placed in permanent retirement (not eligible for subsequent exchange) someplace else.
  7. Such a retirement program should target an equal percent to be retired (by agency) in each state or district - not the BLM/FS at large.
  8. There are presently provisions whereby certain entities who acquire a base property but are not qualified to hold a grazing permit/lease are allowed two years to either become qualified, or turn over control (sale/lease) to somebody who is qualified. This would need to be expanded to allow nonqualified applicants who acquire a base property to also voluntarily retire the grazing permit/lease during that two-year period.
  9. The legislative language should exempt any voluntarily retired lands (or "exchange" lands as in 6 above) from FLPMA section 202(d)(2) with regards to grazing.

In response to anticipated comments that a "tax credit" approach would not do anything for non-profit environmental organizations, I suggest the following: (1) They could enter into a contract with an existing permittee to pay a bonus if he/she retired the permit. (2) They could purchase a base property with permit and resell it within the 2-year modified grace period contingent on the new owner retiring the permit as part of the terms of sale, (3) They could acquire a base property with permit, retire the permit within the 2-year modified grace period, and resell the base property. Option 3 would not give them any benefit from the tax credits, but it would be better than what they have now.

Well Cathy, I gave your proposal a pretty healthy barrage - so it's only fair that you have the opportunity to do the same to my counter-proposal. Feel free to redistribute it.

Larry Walker
RangeBiome, A Public Rangeland Almanac
2850 SW Cedar Hills Blvd., #251
Beaverton, OR 97005
 


Comments by Mark Salvo, American Lands Alliance

Thank you for presenting your public lands grazing concept paper at the Oregon Natural Desert Association High Desert Conference. We appreciate the thought and time you and the other conservationists and representatives of the ranching community have invested in this process. Although we disagree with much of the concept paper, we appreciate the attention it has brought to the public lands grazing debate.

We concur with most commentators on the paper that it needlessly forfeits past environmental victories on public grasslands and deserts (like removing the public from regional and allotment management and planning processes under the National Environmental Policy Act) and wrongly recognizes ranching as an environmentally and ecologically sustainable industry on our public lands. We are discouraged that the proposal would require no more responsibility of livestock operators or the government than is not already mandated by law. We are even more concerned about the legal and economic ramifications this proposal would have as our new grazing policy. We identify some problems below that could prove disasterous for the environment and the American public.

1. Exempting range management from NEPA wrongfully excludes the public from public lands management.

The National Environmental Policy Act was passed by Congress in 1969 to decentralize environmental decisionmaking and force accountability from agency bureaucrats in Washington, D.C. and elsewhere (Redmond & Mowrey, Not In Our Back Yard, 1993). The enormous success of NEPA cannot be measured. NEPA demands rational decisionmaking, adequate public notice and consultation, and requires careful deliberation of the consequences of a proposed action. Quite unintentionally, NEPA has also worked to weave together other environmental laws, like the Endangered Species Act and Clean Water Act, into a cohesive legal framework. Of greatest importance is the role NEPA affords the public in agency planning processes. "The NEPA variant on the hard look doctrine promises judicial assistance to outsiders whose considered opinions are swept aside, ignored, or cheapened by an arrogant administrative regime" (Rodgers, Environmental Law, 1994). Stated more blithely, "if a federal agency does not comply with NEPA, or if some disgruntled person merely believes that it has not complied with NEPA, then the agency faces the prospect of time-consuming, expensive litigation" (Laitos & Tomain, Energy and Natural Resources Law, 1992).

We oppose removing public rangelands from NEPA management planning as proposed by the concept paper. We are not convinced that a new, "simplified" process for setting environmental standards will improve upon the reliability and comprehensive requirements in NEPA. The concept paper is unclear how management planning would work in the future. Indeed, we expect that dozens of lawsuits would be filed by citizens (unless they were prohibited) to determine what exactly the new planning process entails. (This would increase, rather than decrease political and legal turmoil over grazing, a stated goal of the concet paper). The paper is also unclear about public participation in rangeland planning. If the public's role in rangeland management is to be diminished, we would oppose that. On the other hand, we would oppose creating an entirely new system for public participation as that would essentially be rewriting NEPA-a wasteful and dangerous enterprise.

The most frightening result of eliminating NEPA from rangelands management is the precedent it would set. Should this proposal become law, we foresee dozens of resource extraction industry-government "working groups" seeking similar exemptions from a sympathetic Congress for everything from timber harvesting to river dredging and highway construction. Conservation organizations would be forced to spend an infinite amount of time and resources fighting these efforts.

2. Creation of thirty-year leases will confer new property rights on forage leaseholders.

The term "lease" is loaded with 200 years of American statutory and common law (Cunningham, et al., The Law of Property, 1993). Generally, the law recognizes a lease (leasehold) as a possessory estate, giving the leaseholder exclusive right to the premises or resource for a term. By contrast, a permit is a revocable privilege to occupy and use property under the owner (Barron's Law Dictionary, 1991).

We contend that replacing Taylor Grazing Act permits with new public land forage leases as proposed in the concept paper will create new private rights in public resources. While the paper argues that forage leases would convey no property interest, it also states that leaseholders would enjoy an "exclusive interest" in the publicly-owned forage resource; that they could buy, sell, and transfer the lease; and that they could sublease the forage rights. These are property rights. (Exclusitivity, buying, selling, transferring, and subleasing are fundamental rights contained in traditional property leases (Cunningham, 1993)). They can be enforced in court. The forage lease represents a radical shift from Taylor Grazing Act permits which contain none of these rights.

We wonder what impact these rights will have on the public lands. We are also concerned that, upon the establishment of a new leasing system, the same livestock industry representatives who have collaborated on this proposal would immediately seize the term "lease," proceed to court and argue for even more rights to the public resources. Certainly public lands ranchers have sought property rights to public lands in the past (in their grazing permits and through state water rights). Why would they pass on this opportunity?

The federal government, conservation community and the livestock industry have fought for decades over what rights a Taylor Grazing Act grazing permit affords a permittee. Often, the argument has been narrowly focused on the definition of "permit." (Individual words and phrases are often the subject of intense court battles). For over three decades conservationists and the Department of Justice have successfully defended the public's ownership of rangeland resources and limited grazers' rights under grazing permits. By creating a new leasing program, we would not only sanction new grazing rights that dozens of lawsuits have previously denied public lands grazers, we would also inject a new term, "lease," into the debate. We are nervous about ceding ground to the ranchers' lawyers even as we prepare to fight the same legal battles all over again.

4. Multiple uses of public lands may be restricted under the new lease system.

Because a forage lease market would be created, the ranching community will be keenly interested in winning the right to exclude "multiple uses" on leased allotments. As noted in the concept paper, the value of a forage lease will depend on the condition of the forage. Forage grazed and trampled by livestock--and impacted by other uses--will be in worse condition, and subsequently be worth less, than forage that is only grazed and trampled by livestock. We foresee ranchers presenting a three-pronged argument to exclude/limit multiple uses to increase lease value. First, they will argue that any outside use sanctioned by the federal government that reduces forage condition and decreases lease value is a compensible taking under the Fifth Amendment since they are granted an exclusive right to the forage by their lease (probably a losing argument). Their second contention will be based on detrimental reliance: that multiple uses degrade forage condition more quickly than a rancher expected causing economic loss to their ranch and threatening the long-term viability of their operation (a stated goal in the concept paper) (this is a strong argument since the proposed thirty-year lease is a virtual life estate, allowing ranchers to plan their retirement around selling their lease). Finally, ranchers will argue that range standards required by the lease can only be met by prohibiting all uses extraneous to the lease.

5. A forage lease market could result in increased corporate control of public resources.

Can conservation organizations, family ranchers, and cash-poor governments compete with corporations in a forage lease market where the highest bidder takes the lease? We know that corporations, such as J.R. Simplot Cattle Company, are seeking to expand their cattle operations. Most are less concerned with making a profit than taking a tax writeoff to offset gains in other businesses, so they would outbid competitors on even the most pitiful allotments. Increased corporate control of forage resources in a particular area will in turn lead to a variety of foreseeable (and unforeseeable) consequences, including undue influence over local decisionmakers and land management agencies who are responsible for monitoring and safeguarding the public lands.