Anti-grazing groups sue government agencies

Jun 18, 2010

Public lands grazing fees are again being targeted in the courts, this time by a coalition of groups with a common anti-grazing agenda. In a press release dated June 10, the Center for Biological Diversity, together with Western Watersheds Project, Oregon Natural Desert Association, WildEarth Guardians, and Good Old Broads for Wilderness announced they had filed suit against the Department of the Interior (DOI) and the Department of Agriculture (USDA) to compel them to respond to a 2005 rulemaking petition in which the groups called for a substantial increase of grazing fees on 258 million acres of public land.

"The federal grazing program is as fiscally irresponsible as it is ecologically harmful," said Taylor McKinnon, public lands campaigns director for the Center for Biological Diversity. "In responding to our petition, the government must now choose between correcting and continuing the subsidized destruction of America’s public land."

The lawsuit comes as the most recent link in a chain of events which began with a 2005 Government Accountability Office report which indicated that income generated by Bureau of Land Management (BLM) and U.S. Forest Service grazing fees fell short of the cost to administer the grazing program by $115 million dollars. In response to the report, the anti-grazing coalition filed a rulemaking petition later in 2005 seeking an increase in grazing fees, claiming that "[t]he current grazing fee does not recover even the administrative costs of operating the program, leaving U.S. taxpayers to pay the difference. The fee also falls short of paying for the environmental problems this land use causes, and instead enables high levels of livestock grazing that harm ecosystems, degrade watersheds, and cause species decline."

In a pattern that has become routine with lawsuits filed by anti-grazing groups, the complaint in this case pertains strictly to procedural matters, not substantive environmental or economic concerns. Indeed, despite the abundance of anti-grazing rhetoric in the plaintiffs’ complaint, the complaint technically has nothing to do with grazing fees, but only with DOI and USDA’s alleged failure to respond to the plaintiffs’ petition.

The Administrative Procedure Act (APA) enables private citizens and groups to petition government agencies to issue, amend, or remove administrative rules. It also requires that the petitioned agency respond to the petition in a "reasonable" amount of time, though the exact time frame is not specified. The plaintiffs allege that DOI and USDA have had ample time to respond to their petition and are now in violation of the law.

Public lands attorney Karen Budd-Falen explains: "Legally, all the environmental plaintiffs are asking is for the ... BLM and the Forest Service to respond to a petition for rulemaking that they filed. The response to the petition could be either ‘Yes, we agree,’ or ‘No, we don’t,’ or anything in between. The case doesn’t ask for a substantive ruling on whether the grazing fees are too low or too high. Legally, the only thing a court can do with this is either say, ‘...You have to respond to their petition,’ or ‘You can take more time and respond to their petition.’ That’s the only response that a court can make for this."

The lawsuit is a textbook example of the sort of litigation effort that Budd-Falen maintains misuses government agency resources and indirectly promotes an anti-grazing agenda in the courts.

"These groups petition for everything, because it’s the only way that [they] can then drag the federal agencies into court," explains Budd-Falen. Activist groups have filed ‘hundreds of petitions’ which the government agencies are legally required to respond to, at substantial administrative cost. With so many petitions to administer, the likelihood that all petitions are responded to promptly is highly unlikely. This opens the door for groups to file suit on procedural technicalities. For the agencies, it is a losing proposition.

"The courts and ... congress [are] forcing the agencies to answer every single one of these petitions no matter how ridiculous they are, and the work load is impossible to keep up with."

"What [activist groups are] really doing is ... forcing the agencies to sit in their office and respond to petitions instead of being out on the ground to monitor grazing, to do wildlife projects, to do whatever it is they should be doing."

Budd-Falen also points out that the cost of such lawsuits is considerable to the agencies since they must both cover their own administrative costs, legal expenses, and, in many cases, the legal expenses of the plaintiffs through the Equal Access to Justice Act (EAJA). EAJA is designed to assist private parties with legal fees when they are seeking legal redress against the government. Anti-grazing groups have exploited this law extensively by filing vast numbers of lawsuits on minor technicalities and recouping their legal fees at the taxpayers’ expense.

True to this pattern, in the complaint filed by the Center for Biological Diversity, they request that the court "[a]ward to the Plaintiffs their costs, expenses, expert witness fees, and reasonable attorney fees pursuant to applicable law including the Equal Access to Justice Act."

Budd-Falen also raises a question about the appropriateness of the extensive negative discussion of grazing in the plaintiffs’ complaint.

"While they use the APA and say, ‘You have to respond to this petition,’ if you look at this complaint, it complains all about how livestock grazing is horrible for the environment. [N]one of that stuff has anything to do with their petition [not being responded to]."

Yet because no part of the case actually hangs on facts regarding grazing, there is no requirement that the plaintiffs support the lengthy and highly negative commentary on grazing, featured in their complaint, with scientific data.

"That is one of the most frustrating things about the litigation effort that these guys have put together. They can say all this stuff, but they don’t have to prove any of it because the point of their complaint is simply whether or not the government responded to the petition. It’s not whether cows are good or bad. So they say all this stuff, they put it in the print media, they put it in the press. People who don’t understand litigation think, ‘Oh my gosh, they said it in a complaint, it must be true,’ but they don’t have to prove any of it." — Andy Rieber, WLJ Correspondent