New spending law to impact ranchers on public lands

Jan 27, 2014

One might think that a federal spending bill would have little impact on private enterprise. Not so for ranchers who hold grazing rights on federal land. Ranchers who run for part of the year on Bureau of Land Management (BLM) and U.S. Forest Service (USFS) land can attest that one appropriations bill can make or break a ranching family. On Friday, Jan.17, Congress sent a spending bill to President Obama’s desk that, according to industry experts, maintained important safeguards for public land grazing and the western communities that depend on it. The signed bill will fund the federal government through September, 2014, the end of this fiscal year.

According to Dustin Van Liew, who is the Executive Director of both Public Lands Council (PLC) and federal lands for National Cattlemen’s Beef Association, there were no big surprises in the bill. It was a product of past spending bills, reflecting the continued effort industry has put into the appropriations process, he said. Very few new “riders” were allowed—in other words, new spending measures or prohibitions.

One “rider” that has consistently been included in spending legislation for over a decade is geared toward allowing federal land grazing to continue despite a backlog of regulatory review. BLM and USFS are required to perform environmental and socio-economic analysis on most grazing permits when they come up for renewal every 10 years. This review, performed under the National Environmental Policy Act (NEPA), is often a costly and lengthy process. Because of this extensive analysis—and the litigation that often results—the agencies are far behind schedule in completing their work. The grazing rider, which was again included in the fiscal year 2014 spending bill, will ensure that for the next two years, ranchers will not be forced off the range because of the regulatory paperwork backlog.

“While we don’t believe the agencies should have to do the NEPA review on permits in the first place, we’re thankful that Congress has once again acted to protect our members,” said Van Liew. “Ranchers shouldn’t be the collateral damage of bureaucratic red tape and the resulting litigation by radical anti-grazing groups.”

Litigation of agency decisions by special interest groups has become recognized as a major cost to both the federal government and the ranching industry. One incentive to litigate is perpetuated by a law known as the Equal Access to Justice Act (EAJA), which allows interest groups to recoup their court costs and attorneys’ fees—sometimes billed at over $500 per hour. None of the payments are tracked by the federal agencies, making oversight an issue. Report language associated with the new spending law described the problem this way:

“As litigation costs siphon funding away from critical priority programs, agencies are forced to divert budgets intended for effective land management away from carrying out activities associated with their congressionally-directed missions.

The Committee is alarmed that some state and field offices currently spend more than half of their current budget on responding to litigation. The Committee is also deeply concerned that these costs, which are paralyzing many national forests and field offices, are not accounted for by the agencies.

It becomes impossible for this Committee to write an accurate or responsible budget when the costs of litigation are neither accounted for nor available.”

To alleviate the problem, Congress directed the agencies to provide to the Appropriations Committees and make publicly available detailed reports of all EAJA payments. These reports are to include the names of the fee recipients, the hourly rates of attorneys’ fees awarded, and the amount of program funds used.

Possibly in response to the growing litigation costs burdening the land management agencies, the new spending law also included increases in BLM and USFS range budgets. Not many items in the new law received such increases. According to U.S. Representative Ken Calvert, chairman of the subcommittee that crafts the funding bill for the Interior Department and related agencies, this is gress’ acknowledgment that maintaining livestock grazing on federal lands is of crucial importance to the West and to the nation.

“The Committee believes American ranchers deserve an efficient and reliable grazing program,” Rep. Calvert told WLJ. “We provided the funding and included provisions that reflect that belief.”

Some provisions of the legislation acted as preventative measures. In this year’s budget request, the Obama administration recommended imposing a new tax on federal land grazing. This $1 per animal unit month tax would have constituted a 74 percent increase in the grazing fee for every rancher. It would have cost the industry as a whole almost $12 million dollars annually. Since research shows that most ranchers operate on a narrow margin on federal lands, this proposed tax had the potential to drive many of them out of business.

In another matter near and dear to many ranchers’ hearts, the new law allocated $15 million specifically to the sage grouse conservation effort. The U.S. Fish and Wildlife Service has identified the greater sage grouse as a candidate for listing under the Endangered Species Act. In an attempt to prevent the listing, slated for 2015, BLM, USFS and private and state landowners are working to provide assurances that the bird’s habitat is not endangered. In addition to appropriating $15 million to augment BLM’s sage grouse conservation efforts, Congress addressed wildfire, the top threat to sage grouse in the Great Basin area. It allocated $452 million for fuel reduction activities and wildfire prevention, $150 above the President’s request.

A listing of the sage grouse would have dire implications for livestock grazing and all other public land activities across 11 states. Thus, the effort to prevent the listing is rightfully fullthrottle.

While the spending law acknowledges the importance of the sage grouse issue in some areas, it does little to address the widespread overpopulation of feral horses and burros in the West. Official herd areas overlap about 20 percent of identified sage grouse habitat; however, the overlap is expected to be much larger in reality, given the expansive nature of the “unofficial” areas occupied by horses and burros across the West. BLM estimates that feral horse and burro populations are roughly 40 percent above the level the range can sustain—a figure that the National Academy of Sciences says is likely underestimated. According to the National Horse and Burro Rangeland Management Coalition, feral horses and burros often overgraze and cause soil compaction and erosion, creating “ecosystem-wide effects [that] are of particular concern for sagebrush-dependent species, including the greater sage grouse.”

Instead of addressing the feral horse and burro overpopulation issue, the spending law perpetuates language from 2005 that prevents BLM from giving full title to adopters and buyers of horses and burros. Many fear the continued mismanagement of horse and burro populations on the range may be a deciding factor in the 2015 sage grouse listing decision.

John Falen, immediate past President of PLC and a rancher in Orovada, NV, said that sage grouse in his area suffer from the mismanagement of horses. He is a member of BLM’s National Wild Horse and Burro Advisory Board and is actively involved in efforts to alleviate the horse overpopulation problem, he said.

This includes serving on the Board of Trustees of the Mustang Heritage Foundation, which promotes feral horse adoptions. He said that beyond promoting adoptions, BLM must start managing the horses as the law requires.

“We watch what these horses are doing to sage grouse habitat—and our habitat—and we are beside ourselves,” Falen said. “If BLM is serious about sage grouse conservation, they need to get a handle on these populations. They’re going to eat sage grouse and ranchers out of house and home.”

When asked about the new spending law, Falen replied, “It’s a shame so many of our livelihoods depend on legislation coming out of Washington. I guess it’s just a sign of the times. Lucky for us, there are still folks in Congress who understand the importance of keeping us ranchers in business. Our businesses and families are the backbone of rural towns all across the west.” — Theodora Dowling, WLJ Correspondent