Back to the Present: The Supreme Court Refuses to Move Public Range Law Backward, but Will the BLM Move Public Range Management Forward?

Joseph M. Feller¹

"In the ranchers' view, history has created expectations in respect to the security of 'grazing privileges'; they have relied upon those expectations; and the statute requires the Secretary to 'safeguard' that reliance."²

"Their adamance derives from a recollection of history that never existed and from asserted promises that were never made."³

For the last quarter century there has been a persistent dichotomy between law and practice in the administration of livestock grazing on the western public lands. At least since the passage of the Federal Land Policy and Management Act (FLPMA)⁴ in 1976 (and arguably before then),⁵ the law has regarded the federal public lands managed by the Bureau of Land Management (BLM) as a public resource to be managed in the manner that "best meets the present and future needs of the American people."⁶ Under this statutory mandate, livestock production is just one of many potential uses of the public lands, and the Secretary of the Interior, acting through the BLM,⁷ has substantial discretion to decide whether, how much, and under what conditions grazing will be permitted to occur in any particular area.⁸ The BLM has broad authority to reduce, restrict, or eliminate grazing in order to protect or enhance other public land resources and uses, including wildlife, water quality, and recreation.⁹ In practice, however, personnel of the BLM have tended to treat the privilege of grazing livestock on the public lands as an entitlement that may be abridged without the consent of the permittee only under certain narrowly defined conditions.¹⁰ This deference to livestock interests by the BLM has encouraged and perpetuated expectations by ranchers that have often been mistaken for legal rights.

Given this divergence between law and practice, the public lands livestock industry would be well-advised to avoid the courtroom. On those occasions when the BLM (or its sister agency, the U.S. Forest Service) has failed to meet the industry's expectations that traditional deference to their needs would continue, ranchers seeking legal redress have been disillusioned to learn that those expectations are not legal entitlement.¹¹ In Public Lands Council v. Babbitt,¹² a group of organizations representing the public lands livestock industry once again tried and failed to turn the BLM's traditional deference to livestock interests into a legal imperative.

The occasion for the attempt was provided by amendments to the BLM's grazing regulations promulgated by the Clinton/Babbitt Administration in 1995 under the banner of "Rangeland Reform."¹³ The amendments included [31 ELR 10022] a new definition of the term "preference" as used in the regulations and a definition of a new regulatory term, "permitted use."¹⁴ These new definitions, which were designed to clarify that a BLM grazing permittee has no permanent entitlement to graze a particular number of livestock, made no substantive change in the rules determining authorized grazing levels. Nonetheless, the plaintiffs argued that the new definitions were contrary to law because they do away with a purported statutory entitlement that the plaintiffs called "adjudicated forage."¹⁵ Thus, the primary issue underlying the case became whether such a statutory entitlement existed. Unsurprisingly, the U.S. Supreme Court held that it didn't.¹⁶

Like the new regulatory definitions that it affirmed, the Court's decision made no substantive change in the law governing livestock grazing on the public lands. It merely restated what the Court and lower courts have said many times before; namely, that the grazing of livestock on the public lands is a privilege that may be modified or revoked at any time for a variety of reasons. The more difficult and important question, which no court can answer, is whether the BLM will develop the will to break old habits and exercise the authority that it has long had.

Background

The BLM is heir to those federal public lands once known as the "public domain," i.e., those large portions of the American West that (1) remain in federal ownership because they have not been sold or given away to states or to private parties and (2) have not been set aside as Indian reservations, national forests, national parks, national wildlife refuges, or other forms of federal reservations.¹⁷ The BLM's domain includes 176 million acres of mostly arid and semi-arid land in the 11 far western states.¹⁸ Livestock grazing, mostly by beef cattle, is authorized on over 90% of the BLM's far western domain.¹⁹ Because of their aridity, however, these lands account for only a tiny fraction of the national beef supply,²⁰ and livestock production on these lands makes a relatively insignificant contribution to the regional economy.²¹ On the other hand, these same lands, which were once considered virtually worthless for any purpose other than grazing,²² are now valued for a wealth of noncommodity resources, including hundreds of thousands of archaeological sites, habitat for thousands of species of wildlife, spectacular desert, mountain, and canyon scenery, and recreational opportunities that attract tens of millions of visitors annually.²³ By conventional economic measures, the value of the recreational opportunities alone on these lands exceeds their value for livestock production by an order of magnitude.²⁴

Over the last century and a half, livestock grazing has had severe and pervasive impacts on the resources of the lands now managed by the BLM. These impacts include replacement of native perennial grasses by shrubs and annual weeds, soil erosion, degradation of stream channels, loss of riparian vegetation, water pollution, destruction of wildlife habitat, trampling of archaeological sites, and spoliation of natural scenery and recreational opportunities.²⁵ While some of these impacts may be reduced through the employment of various grazing management systems, the single most important variable is the number of livestock.²⁶ Thus, the BLM's ability and willingness to reduce authorized grazing levels is critical if other resources, uses, and users of the public lands are to be protected from the adverse effects of livestock grazing.

The Taylor Grazing Act

Grazing on the lands now administered by the BLM was unregulated by the federal government until the passage of the Taylor Grazing Act of 1934 (Taylor Act).²⁷ The Taylor Act authorized the Secretary of the Interior to establish "grazing districts" out of lands "which in his opinion are chiefly valuable for grazing and raising forage crops."²⁸ The Act instructed the Secretary to "make provision for the protection, [31 ELR 10023] administration, regulation, and improvement" of the grazing districts and to

do any and all things necessary to accomplish the purposes of this chapter and to insure the objects of such grazing districts, namely, to regulate their occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, [and] to provide for the orderly use, improvement, and development of the range.²⁹

In a provision whose meaning was hotly contested in Public Lands Council, the Act then stated:

The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range . . . . Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of the lands, water or water rights owned, occupied, or leased by them . . . . No permittee complying with the rules and regulations laid down by the Secretary of the Interior shall be denied the renewal of such permit, if such denial will impair the value of the grazing unit of the permittee, when such unit is pledged as security for any bona fide loan. Such permits shall be for a period of not more than ten years, subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior, who shall specify from time to time numbers of stock and seasons of use. . . . So far as consistent with the purposes and provisions of this subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands.³⁰

Within a few years of the Act's passage, the vast majority of the public domain was placed in grazingdistricts.³¹ These grazing districts were initially managed by the "Division of Grazing" within the U.S. Department of the Interior (DOI), which was subsequently renamed the "Grazing Service" and was later merged with the General Land Office in 1946 to form the BLM.³² The two most difficult and important tasks required of the Grazing Service were (1) the determination of who would receive grazing permits, and (2) the setting of the numbers of livestock to be authorized by each permit.

Pursuant to the statutory command to give "preference" in the issuance of grazing permits to "landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights," the Division of Grazing created a system, which survives to this day, under which each grazing permit is attached to an identified parcel of private land adjacent to or near the public lands covered by the permit, or to a specific water right on or near those lands. The land or water right to which the permit is attached is called the "base property"³³ and the "preference right of the permittee[] to renewal"³⁴ of the permit follows the ownership of the base property if the base property changes hands.³⁵ "Preference for grazing privileges, then, was given to lands and not to people."³⁶ Because the preference right virtually guaranteed perpetual renewal of the 10-year grazing permits, the permits came to be treated by the market as appurtenances to base properties, with the market price of the base property, and its assessed value for mortgage purposes, reflecting the value of the permit.³⁷

The allocations of grazing privileges came to be known as "adjudications,"³⁸ though the process was not "adjudicative" as that term is usually understood. Decisions were made by district managers, who usually followed the recommendations of advisory boards composed of, and elected by, permittees.³⁹ The initial number of livestock authorized by each permit was based on the historic (pre-1934) number of livestock grazed by the permittee and on the forage-producing capacity of the base property, the idea being that the base property should be sufficient to support the permitted [31 ELR 10024] number of livestock during any period that the stock were not on the public land and vice versa.⁴⁰ Consideration of other interests—wildlife, water quality, recreation—besides those of the permittees was largely absent from the initial allocation process.

Because of the ranchers' control of the allocation process and because of the predominant role of (excessive) historic use levels in that process, the initial numbers of livestock permitted by the Division of Grazing and the Grazing Service generally exceeded the long-term carrying capacity of the land and therefore failed to achieve the Taylor Act's purpose of halting range deterioration caused by overgrazing.⁴¹ Subsequent efforts by the Grazing Service's successor, the BLM, to "readjudicate" grazing privileges based on assessments of carrying capacity⁴² led to a steady decline in authorized grazing levels after the BLM's creation.⁴³

Evolution in the Law: FLPMA and PRIA

In the decades following World War II, use of the public lands for purposes other than livestock grazing increased dramatically. Public lands came to be recognized by the public for their recreational, wildlife, environmental, archaeological, and scientific values as well as their value for livestock production.⁴⁴ Uses of these lands for purposes other than grazing first received congressional recognition in the Classification and Multiple Use Act of 1964,⁴⁵ a temporary measure which expired in 1970. A major legal transformation came in 1976 with the passage of FLPMA.⁴⁶ In contrast to the Taylor Act's primary focus on grazing, FLPMA declared a policy that

the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.⁴⁷

FLPMA mandated that the public lands be managed in accordance with the principle of "multiple use,"⁴⁸ defined as

the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; . . . the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.⁴⁹

FLPMA's primary instrument for implementing this change in management direction is a requirement for comprehensive land use planning. FLPMA instructs the BLM to develop "land use plans which provide by tracts or areas for the use of the public lands"⁵⁰ and to manage the lands "in accordance with" the plans.⁵¹ In developing the plans, the BLM must

use and observe the principles of multiple use and sustained yield; . . . consider present and potential uses of the public lands; consider the relative scarcity of the values involved and the availability of alternative means (including recycling) and sites for the realization of those values; [and] weigh long-term benefits to the public against short-term benefits.⁵²

FLPMA repealed numerous archaic land disposition statutes, including the Homestead Act,⁵³ but it did not repeal the Taylor Act,⁵⁴ and it provided that

the policies of this Act shall become effective only as specific statutory authority for their implementation is enacted by this Act or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law.⁵⁵

Thus, neither the Taylor Act's structure of grazing preferences and permits nor its purposes of "preserving the land and its resources from destruction or unnecessary injury, [and] providing for the orderly use, improvement, and development of the range"⁵⁶ were abolished by FLPMA.

Nonetheless, FLPMA made clear that previous administrative determinations that particular tracts of land [31 ELR 10025] were "chiefly valuable for grazing"⁵⁷ would be superseded by the new land use plans. FLPMA made the renewal of a grazing permit contingent on the land covered by the permit remaining "available for domestic livestock grazing in accordance with land use plans."⁵⁸ The land use plans were to be developed for all BLM public lands "regardless of whether such lands previously have been classified, withdrawn, set aside, or otherwise designated for one or more uses."⁵⁹ Moreover,

Any classification of public lands or any land use plan in effect on October 21, 1976, is subject to review in the land use planning process conducted under this section, and all public lands, regardless of classification, are subject to inclusion in any land use plan developed pursuant to this section. The Secretary may modify or terminate any such classification consistent with such land use plans.⁶⁰

Thus, under FLPMA, a land use plan may determine that, for economic or environmental reasons, a particular area of BLM land should not be grazed, regardless of whether that land was included in a grazing district under the Taylor Act.⁶¹ FLPMA also reaffirmed the government's power to reduce authorized livestock numbers, specifying that the Secretary of the Interior "may reexamine the condition of the range at any time and, if he finds on re-examination that the condition of the range requires adjustment in the amount or other aspect of grazing use, that the permittee or lessee shall adjust his use to the extent the Secretary concerned deems necessary."⁶²

Two years later, Congress reinforced FLPMA with the Public Rangelands Improvement Act of 1978 (PRIA).⁶³ Expanding on FLPMA's multiple use concept, PRIA "established and reaffirmed a national policy and commitment to . . . manage, maintain, and improve the condition of the public rangelands so that they become as productive as feasible for all rangeland values,"⁶⁴ specifically including wildlife habitat and recreation as well as livestock production.⁶⁵ PRIA also reaffirmed the authority of the BLM to determine that livestock grazing should be discontinued on particular parcels of public land.⁶⁶

The Divergence Between Law and Practice

The Taylor Act's caveat that the issuance of a grazing permit "shall not create any right, title, interest, or estate in or to the lands"⁶⁷ covered by the permit has been reinforced by decisions of the Supreme Court, the Ninth Circuit, the Tenth Circuit, and the D.C. Circuit that a federal grazing permit is a revocable license that the government may modify or withdraw at any time for a variety of reasons without payment of compensation.⁶⁸ But while ranchers repeatedly failed to persuade courts that they have a property interest in federal rangelands, they have had much greater success in recent decades in persuading BLM range managers to act as if they did. BLM land use plans developed in the 1980s and into the 1990s treated existing authorized livestock numbers like entitlements, lowering them only if certain narrowly prescribed (and generally unavailable) data relating to forage conditions prove that reductions are necessary, and even then only as a last resort.⁶⁹ Even on allotments that the BLM knew to be overgrazed, the BLM chose to maintain existing livestock numbers while it collected more data and attempted to "improve" the range—through seedings, chemical treatments, tree and brush removal, and construction of new fences and water developments—to match the authorized numbers.⁷⁰ In its land use plans, the BLM almost never exercised its authority to close portions of its domain to livestock grazing in order to protect or enhance soils, vegetation, wildlife habitat, water quality, scenic beauty, or recreational opportunities.⁷¹ Litigation against the BLM by environmental organizations succeeded in forcing compliance with the National Environmental Policy Act (NEPA)⁷² and in blocking an attempt by the Reagan/Watt Administration to formally hand control over some BLM rangelands to ranchers,⁷³ but failed to overturn the administration's policy of avoiding reductions in livestock numbers.⁷⁴

As an alternative to persuading the BLM to exercise its statutory authority to restrict grazing, some conservation organizations sought to take advantage of the deference granted to permittees by becoming permittees themselves. By purchasing base properties with attached grazing preferences, [31 ELR 10026] obtaining grazing permits, and then voluntarily refraining from using the permits, such organizations sought to protect rangelands through the free market rather than through lobbying or litigation.⁷⁵ Two legal difficulties, however, hampered application of this strategy. First, BLM regulations required that permittees "be engaged in the livestock business."⁷⁶ Under this requirement, a conservation organization that was not engaged in commercial livestock production, even if it owned some cattle, risked disqualification from holding a permit.⁷⁷ Second, even if the organization obtained a permit, if it did not use the permit then a neighboring rancher could apply to place livestock on the vacant allotment.⁷⁸

"Suspended AUMs" and the Changing Meaning of "Preference"

The BLM's deference to livestock interests has been reflected in the way that the agency came to use the word "preference," giving it meaning beyond that employed in the Taylor Act. The Taylor Act required the Secretary of the Interior to give "preference" in the issuance of grazing permits to the owners of land or water rights near the lands covered by the permits, and the Act refers to the "preference right" of permittees to renewal of their permits, while at the same time specifying that renewal is "in the discretion of the Secretary of the Interior."⁷⁹ The Act provided no assurance that the number of livestock authorized by renewed permits would remain constant over time. Rather, it provided that the Secretary "shall specify from time to time numbers of stock and seasons of use."⁸⁰

Subsequently, FLPMA made clear, if it was not clear enough already, that this "preference" is only a priority over other grazers, not an assurance that a particular level of grazing—or any grazing at all—will be permitted to continue on a particular tract of public land. FLPMA made the renewal of a grazing permit contingent on the land covered by the permit remaining "available for domestic livestock grazing in accordance with land use plans."⁸¹ If the land remains available for grazing, then the holder of an expiring permit has "first priority" for receipt of a new permit.⁸² FLPMA also reaffirmed the Secretary's continuing authority to modify permitted numbers of livestock or other terms and conditions of grazing permits.⁸³

Over time, however, ranchers and BLM employees developed a habit of using the term "preference" to refer to the number of livestock authorized by a permit as well as a rancher's priority for receipt of that permit.⁸⁴ Thus, a rancher would speak of having a "preference" for a certain number of livestock. When the BLM revamped its grazing regulations to reflect the statutory mandates of FLPMA and PRIA, it also incorporated this usage into the regulations. BLM regulations issued in 1978 defined "grazing preference" as "the total number of animal unit months of livestock grazing on public lands apportioned and attached to base property owned or controlled by a permittee."⁸⁵ But the 1978 regulations also made clear that this "grazing preference" was a variable number, dependent on vegetative allocations in land use plans and on decisions of BLM officials.⁸⁶ A grazing preference would be "canceled, in whole or in part" if the BLM decided to reduce grazing to achieve the objectives of a land use plan.⁸⁷

Nonetheless, many ranchers and their advocates clung tenaciously to the idea that the numbers of livestock authorized in their grazing permits represented some kind of permanent entitlement. Two years later, the BLM encouraged this conception by again altering its regulatory terminology, this time in a manner that would sow the seeds of the dispute in Public Lands Council. Under the terminology adopted by the BLM in 1980, instead of being canceled or reduced, a rancher's preference would merely be "suspended," in whole or in part, when the number of livestock authorized by a permit was reduced.⁸⁸ The difference between the preference and the actual authorized level of grazing was carried on the BLM's books as "suspended AUMs," an animal unit month (AUM) being the unit of measure of [31 ELR 10027] the quantity of authorized grazing.⁸⁹ The "suspended AUMs" were a kind of funny money that allowed ranchers to maintain that their entitlements were intact, while preserving the authority of the BLM to reduce the number of actual cows and sheep on the range.⁹⁰

This semantic change had no effect on the BLM's regulatory authority to reduce actual authorized numbers of livestock. Only the unsuspended or "active" part of the preference represented actual cows, and the BLM retained broad authority to reduce the "active" preference as necessary to conform with land use plans, prevent overgrazing, or protect other resources.⁹¹

Nonetheless, with this change the term "preference" took on a symbolic life of its own. "Preference" became a disembodied number, unchanging regardless of changes in the condition or capacity of the range or in the actual number of livestock that a rancher was permitted to place there. Even a rancher whose authorized level of grazing was reduced to zero could rest assured that he retained his full "preference," albeit suspended, but never revoked or reduced.

Of course, the paper cows represented by the "suspended" portion of the preference could produce neither meat, nor milk, nor income (nor could they do environmental damage).⁹² They might, however, serve as collateral for a loan, or the basis for an inflated sale price of the base property, provided that the lender or purchaser did not understand the difference between the "preference" and the actual authorized number of livestock.⁹³

The concept of an unchangeable "preference" was also a heady elixir for those ranchers (and their lawyers) who, despite decades of precedent and the explicit language of the Taylor Act to the contrary, still clung to the notion that they held some kind of property right in the federal public lands covered by their permits. The "preference," as defined in the BLM's regulations after 1980, became the basis for an elaborate mythology in which it represented an extra-statutory property right, arising from prior use, that pre-dated the Taylor Act.⁹⁴ Under this mythology, statutory text and case law holding that there was no property right in a grazing permit could be dismissed because the property right lay in the "preference" rather than in the permit.⁹⁵ (Never mind that "preference" itself was simply a device created by the Taylor Act for the purpose of determining who would receive a permit.)

But perhaps the greatest impact of the terminology of "preference" and "suspended AUMs" was its psychological effect on BLM employees in the field. For these employees, who tend to be influenced more by custom and tradition than by legal niceties, the terminology reinforced the perception that they are obligated to do their best to provide ranchers with their historical numbers of AUMs, that any reductions should be considered temporary, and that the historical numbers should be restored as soon as range conditions permit. Although the regulations permitted reductions for a variety of reasons, the terminology suggested that only a shortfall in available forage would justify a failure to satisfy a rancher's "preference." Under this mindset, grazing reductions designed to, say, leave more standing grass in place for wildlife cover or scenic beauty, would be unthinkable. The terminology thus dovetailed with the BLM's policy, reflected in its land use plans, of avoiding reductions whenever possible.⁹⁶

Rangeland Reform

Public Lands Council grew out of amendments to the BLM's grazing regulations issued by Secretary of the Interior Bruce Babbitt in February 1995 under the banner of "Rangeland Reform."⁹⁷ The comprehensive amendments affected virtually every section of the regulations, but the most prominent features are a new system of nationally uniform "fundamentals of rangeland health" combined with "standards" for rangeland health and "guidelines" for grazing management to be developed by state offices of the BLM.⁹⁸ These fundamentals, standards, and guidelines are supposed to ensure that all BLM rangelands meet minimum [31 ELR 10028] environmental requirements.⁹⁹ The new regulations also created "Resource Advisory Councils" to be appointed by the Secretary for the purpose of advising the BLM regarding the preparation, amendment, and implementation of land use plans.¹⁰⁰ These councils are supposed to include representation of a broadvariety of interests including ranching and other extractive industries, recreationists, environmental organizations, state and local governments, and Indian tribes.¹⁰¹

These major features of Rangeland Reform, however, were not the focus of the litigation in Public Lands Council. The issues that eventually reached the Supreme Court concerned three other aspects of the Rangeland Reform regulatory amendments: (1) changes in the terminology used to describe grazing privileges, (2) changes designed to lower the barriers to conservation organizations' obtaining and retiring grazing permits, and (3) changes to the provisions concerning ownership of permanent range improvements such as fences and water developments.

"Preference," "Permitted Use," and Suspended AUMs

In a move that was highly controversial among ranchers, the Rangeland Reform amendments sought to clear away some of the mythological haze associated with "suspended" AUMs and with the use of the term "preference" over the previous two decades. In order to clarify that the preferences established under the Taylor Act determine only who is permitted to place livestock on the range and not how many cattle or sheep are allowed, the new regulations define "grazing preference" to mean simply "a superior or priority position against others for the purpose of receiving a grazing permit or lease."¹⁰² To emphasize that numbers of livestock is a resource management issue governed by the BLM's land use plans, the amendments added a new regulatory term, "permitted use," defined as "the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allotment under a permit or lease."¹⁰³

To further clarify that grazing permittees have no permanent entitlement to graze a particular number of live-stock, the Rangeland Reform Amendments prospectively discontinued, for the most part, the terminology of "suspending" rather than reducing grazing privileges when a permit is scaled down. The Secretary initially proposed, in an advance notice of proposed rulemaking published in 1993, eliminating the concept of suspended AUMs altogether.¹⁰⁴ The final rulemaking retained the concept but specified that in the future it was only to be employed for temporary reductions. As explained in the final rule-making notice:

Although in some cases reductions made under this section of the rule may be carried in temporary suspension, the Department does not believe that it serves the best interests of either the rangeland or the operator to continue to carry suspended numbers on a permit, unless thereis a realistic expectation that the AUMs can be returned to active livestock use in the foreseeable future. Should additional forage become available there are provisions at § 4110.3-1 to address increases in permitted use.¹⁰⁵

Under the simplified terminology of the new regulations, in the future instead of "suspending" the "preference," the BLM will simply "reduce permitted grazing use"¹⁰⁶ when it finds that a more-than-temporary reduction of the number of livestock on an allotment is in order.

The simplifying thrust of the amendments and of the paragraph quoted above would also suggest that the millions of AUMs that were "suspended" by BLM decisions prior to 1995 should be jettisoned as excess and confusing bookkeeping baggage. But apparently the ranchers' attachment to this baggage was so great that the administration concluded that the symbolic battle was not worth fighting. After the 1993 advance notice of proposed rulemaking proposed elimination of all suspended AUMs, the notice of proposed rulemaking backtracked:

The initial proposal was intended to remove all reference to suspended nonuse because only in rare instances has forage placed in this category been made available for livestock consumption. However, given the contentious nature of the issue and the fact that the Department views the matter as merely an administrative record-keeping issue, this proposed rule does not carry forward the elimination of suspended nonuse presented in the advance proposal.¹⁰⁷

The environmental impact statement (EIS) accompanying the amendments further states that suspended AUMs will "continue to be recognized and have a priority for additional grazing use within the allotment."¹⁰⁸ In contrast to the disparagement of suspended AUMs in the final rulemaking notice, the EIS explains that "suspended use provides an important accounting of past grazing use for the ranching community and is an insignificant administrative workload to the agency."¹⁰⁹ The apparent upshot is that the BLM will continue to carry funny money on its books in the form of "suspended" AUMs that have been unavailable for actual grazing use for decades, but, for the most part, the agency will refrain from creating additional paper cows and sheep in the future.

[31 ELR 10029]

Permittee Qualifications and "Conservation Use"

The 1995 amendments also made two changes designed to overcome the legal obstacles to conservation organizations' obtaining and retiring grazing permits. First, the amendments deleted the requirement that permittees "be engaged in the livestock business."¹¹⁰ Second, the amendments authorized the issuance of grazing permits for "conservation use." A euphemism for non-use, "conservation use" was defined as

an activity, excluding livestock grazing, on all or a portion of an allotment for purposes of—

(1) Protecting the land and its resources from destruction or unnecessary injury;

(2) Improving rangeland conditions; or

(3) Enhancing resource values, uses, or functions.¹¹¹

Title to Range Improvements

The Taylor Act provides that the Secretary may, through range improvement permits or cooperative agreements, authorize grazing permittees to construct and use various types of "improvements" on the public rangelands.¹¹² Range improvement permits are generally used to authorize removable or temporary improvements such as corrals or water troughs.¹¹³ Cooperative agreements are usually employed with respect to permanent developments such as pipelines and wells.¹¹⁴ The Taylor Act also provides that, if a new grazing permit is subsequently issued to a different permittee, the new permittee must pay the prior permittee the "reasonable value" of improvements "constructed and owned" by the prior permittee.¹¹⁵ In addition, FLPMA requires that, if the government cancels a grazing permit or lease "in order to devote the lands covered by the permit or lease to another public purpose," the permittee be compensated for the value of the terminated portion of his interest in any authorized permanent range improvements.¹¹⁶

Under the regulations in effect prior to 1995, when an improvement was constructed pursuant to a cooperative agreement between a rancher and the BLM, the rancher would receive partial title to the improvement in proportion to his contribution to its construction.¹¹⁷ The Rangeland Reform amendments prospectively changed this aspect of the regulations to provide that, henceforth, the United States will hold title to any new permanent range improvements constructed under cooperative agreements.¹¹⁸

The Litigation

A coalition of livestock industry organizations attacked the amendments in federal district court in Wyoming.¹¹⁹ Except for an allegation (which was rejected by the district court) that the BLM had not adequately responded to public comments,¹²⁰ the plaintiffs did not challenge the provisions establishing the fundamentals of rangeland health and the standards and guidelines, nor did they question the establishment of the new Resource Advisory Councils. They did, however, persuade the district court (1) to overturn the new definitions of "grazing preference" and "permitted use,"¹²¹ (2) to overturn the new provision for "conservation use"¹²² and to reinstate the requirement that grazing permittees be "engaged in the livestock business,"¹²³ and (3) to overturn the provision stipulating that, in the future, the government would hold title to all newly constructed permanent range improvements on BLM land.¹²⁴

In overturning the new definitions of "grazing preference" and "permitted use," the district court declared that, under the previous regulations, the preference represented "an adjudicated right to graze a predictable number of livestock on public lands" that could not be canceled, suspended, or reduced without an evidentiary hearing.¹²⁵ The court held that, by reducing the preference to a priority for permit renewal, the new regulations violated the Taylor Act's command that grazing privileges shall be "adequately safeguarded."¹²⁶ According to the court, the uncertainty induced by the change in the definition of preference could force some ranchers out of business by eliminating their [31 ELR 10030] ability to obtain bank loans.¹²⁷ The court concluded that "with a mere stroke of his pen, the Secretary has boldly and blithely wrested away from Western ranchers the very certainty, the definitiveness of range rights, and the necessary security of preference rights that their livestock operations require."¹²⁸

The government appealed the district court's decision with respect to the provisions that it had struck down.¹²⁹ The Tenth Circuit reversed the district court on all but one of the provisions. In an opinion by Chief Judge Seymour, the court of appeals upheld the new definitions of "preference" and "permitted use."¹³⁰ The court of appeals also upheld the elimination of the requirement that permittees be "engaged in the livestock business,"¹³¹ but it agreed with the district court that the provision for "conservation use" was contrary to the Taylor Act.¹³² Finally, the court of appeals upheld the provision for government title to newly constructed range improvements.¹³³ In a dissenting opinion that largely followed the reasoning of the district court, Judge Tacha of the court of appeals argued that the new definitions of "preference" and "permitted use," as well as the provision for government title to newly constructed range improvements, contravened the Taylor Act.¹³⁴

Public Lands Council v. Babbitt

On petition from the plaintiff livestock industry organizations (hereinafter referred to as the ranchers), the Supreme Court granted certiorari to review the Tenth Circuit's reinstatement of the three provisions that the district court had overturned. (The government had not sought certiorari to revive the conservation use provision rejected by both lower courts.) In a unanimous opinion written by Justice Breyer, the Court held for the government on all three provisions, rejecting the ranchers' arguments and affirming the court of appeals.¹³⁵

"Preference" and "Permitted Use"

The ranchers focused their effort on the new definitions of "preference" and "permitted use." The heart of their argument was a concept that they called "adjudicated forage." According to the ranchers, the DOI's initial determinations of permitted livestock numbers following the enactment of the Taylor Act established a level of "adjudicated forage" for each permittee, and the permittee's quantitative preference, as defined in the BLM's regulations from 1980 to 1995, represented this "adjudicated forage." The ranchers interpreted the Taylor Act's mandate that "grazing privileges recognized and acknowledged shall be adequately safeguarded" as requiring that the government safeguard this level of "adjudicated forage." Under this theory, the 1995 amendments to the BLM's regulations, by redefining "preference" in a nonquantitative way and linking "permitted use" to land use plans rather than historical determinations, violated the Taylor Act.¹³⁶

The Court was not impressed. It held that the new definitions were well within the Secretary's authority under the Taylor Act. While never referring explicitly to the ranchers' concept of "adjudicated forage," the Court gave three reasons for rejecting their challenge to the new definitions.

First, the Court noted that the Taylor Act's mandate to "safeguard" grazing privileges is prefaced by the qualification "so far as consistent with the purposes and provisions of this subchapter" and is followed by the caveat that a grazing permit "shall not create any right, title, interest or estate in or to the lands."¹³⁷ The Court concluded that these qualifications "make clear that the ranchers' interest in permit stability cannot be absolute; and that the Secretary is free reasonably to determine just how, and the extent to which, 'grazing privileges' shall be safeguarded, in light of the Act's basic purposes," which include protecting the public lands from overgrazing and soil deterioration as well as stabilizing the livestock industry.¹³⁸ Moreover, given that Congress, in FLPMA, had ordered the Secretary to develop land use plans and to use them in the allocation of grazing privileges, the Court could find no fault in the Secretary's decision to include such plans in the definition of "permitted use."¹³⁹

Second, the Court observed that the pre-1995 definition of "preference" in terms of a number of livestock "did not offer [the ranchers] anything like absolute security." The Court explained:

The Secretary has long had the power to reduce an individual permit's AUMs or cancel the permit if the permit holder did not use the grazing privileges, did not use the base property, or violated the Range Code. And the Secretary has always had the statutory authority under the Taylor act and later [under] FLPMA ro reclassify and withdraw range land from grazing use. The Secretary has consistently reserved the authority to cancel or modify grazing permits accordingly. Given these well-established pre-1995 Secretarial powers to cancel, modify, or decline to review [sic; the Court probably meant "renew"] individual permits, including the power to do so pursuant to the adoption of a land use plan, the ranchers' diminishment-of-security point is at best a matter of degree.¹⁴⁰

[31 ELR 10031]

Third, the Court emphasized that the new definitions "by themselves do not automatically bring about a self-executing change that would significantly diminish the security of granted grazing privileges."¹⁴¹ The Court quoted from the rulemaking notice, which asserted that the new definitions are "merely a clarification of terminology,"¹⁴² and noted that the government "now assures us through the Solicitor General that the definitional changes 'preserve all elements of preference' and 'merely clarify the regulations within the statutory framework.'"¹⁴³ The Court suggested that the ranchers may have had greater cause for concern had the Secretary followed through on his original announced intention to eliminate entirely the concept of "suspended use."¹⁴⁴ The Court also observed that all BLM lands are already covered by land use plans and that all BLM grazing permits are already required to conform to those plans, "yet the ranchers have not provided us with a single example in which interaction of plan and permit has jeopardized or might yet jeopardize permit security."¹⁴⁵ Finally, the Court observed that, should a particular land use plan lead to an unlawful denial of grazing privileges,

the affected permit holder remains free to challenge such an individual effect on grazing privileges, and the courts remain free to determine its lawfulness in context. We here consider only whether the changes in the definitions by themselves violate the Taylor act's requirement that recognized grazing privileges be "adequately safeguarded." Given the leeway that the statute confers upon the Secretary, the less-than-absolute pre-1995 security that permit holders enjoyed, and the relatively small differences that the new definitions create, we conclude that the new definitions do not violate that law.¹⁴⁶

Permittee Qualifications

The Court also rejected the ranchers' argument that the Rangeland Reform Amendments violated the Taylor Act by deleting the regulatory requirement that only persons "engaged in the livestock business" are eligible for grazing permits. The Court relied on the fact that the Act contains two separate clauses about permittee qualifications and preference. The first requires that permits be issued to "bona fide settlers, residents, and other stock owners"¹⁴⁷; the second requires that "preference" be given in the issuance of grazing permits to "landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights."¹⁴⁸ The Court reasoned that Congress, by using the words "stock owners" in the first clause but "landowners engaged in the livestock business" in the second clause, expressed an intent that a broad class of persons (stock owners) would be qualified to receive permits but that a narrower subclass (landowners engaged in the livestock business) would have priority. Thus, the court reasoned, the new regulations do not violate the Act simply because they allow the possibility that some individuals not "engaged in the livestock business" might receive grazing permits."¹⁴⁹

The Court noted the ranchers' concern that the new regulations might allow individuals or organizations owning a small number of livestock to obtain grazing permits with the intention of not grazing at all or grazing only a nominal number of animals. The Court observed, however, that the government had not sought review of the lower court's decision striking down the provision for "conservation use" that would have facilitated such a tactic, and that, without that provision in place, other provisions of the regulations prevent permittees from making extended non-use of their permits.¹⁵⁰

Title to Range Improvements

Finally, the Court rejected the ranchers' challenge to the new regulation providing that the government will hold title to new permanent range improvements constructed pursuant to cooperative agreements between grazing permittees and the government. The ranchers had argued that the new regulation is inconsistent with the statutory requirement that new grazing permittees compensate prior range users for improvements "constructed and owned" by the prior occupants. The ranchers reasoned that Congress would not have enacted such a requirement if it did not contemplate that ranchers would hold title to at least some permanent improvements.¹⁵¹

The Court quickly dismissed the ranchers' argument, stating that, although under the previous regulations the Secretary did grant ranchers ownership of range improvements, "we see nothing in the statute that prevents him from changing his mind in respect to the future."¹⁵² The Court held that the change was justified by reason of administrative convenience and because the original purpose of the compensation requirement—to provide compensation to nomadic sheep herders who were unable to obtain grazing permits under the preference system established by the Taylor Act—no longer existed.¹⁵³ The Court also observed that the new regulation does not prevent ranchers from ever owning new range improvements; ranchers will still hold title to removable range improvements that they construct pursuant to range improvement permits rather than cooperative [31 ELR 10032] agreements.¹⁵⁴ Finally, the Court noted that, regardless of formal title, each rancher remains free to negotiate with the government the terms under which he will construct permanent range improvements, including requirements for compensation should he lose his permit.¹⁵⁵

The Concurring Opinion

Although the opinion of the Court was unanimous, Justice O'Connor, joined by Justice Thomas, wrote a separate concurring opinion to make two observations. First, Justice O'Connor placed "special emphasis" on the Court's third reason for rejecting the ranchers' challenge to the Secretary's new definitions of "preference" and "permitted use," namely, that the new definitions themselves do not make any changes in any rancher's grazing privileges.¹⁵⁶ Justice O'Connor felt that it was "of particular importance" that the government had assured the Court in its brief that the new definitions "do not in actual practice 'alter the active use/suspended use formula in grazing permits' and that 'present suspended use would continue to be recognized and have a priority for additional grazing use within the allotment.'"¹⁵⁷ She warned that, should the government "deviate[] from the above assurances and in the process deprive [a] permit holder of grazing privileges to such an extent that the Secretary's conduct can be termed a failure to adequately safeguard such privileges," the aggrieved rancher may bring an "as-applied" challenge to the government's action.¹⁵⁸

Second, Justice O'Connor considered it "important" that the only issues that the Court had addressed were the ranchers' claims that the three regulations in question exceeded the Secretary's authority under the Taylor Act. She noted that the ranchers had raised in the district court a separate claim that the new regulations are arbitrary and capricious because they depart from previous rules without an adequate reasoned explanation, but that "for whatever reason" they had not pursued that claim in their petition for certiorari.¹⁵⁹ She observed that, while the petitioners in this case may now be precluded from raising such a claim in future litigation, the issue may yet be open for other affected ranchers to pursue.¹⁶⁰

Prospects for Future Litigation

Both the opinion of the Court and the concurring opinion of Justice O'Connor relied on assurances by the government, in documents other than the new regulations themselves, that the BLM would continue to carry "suspended AUMs" on its books and give those suspended AUMs "priority for additional grazing use within the allotment."¹⁶¹ Both opinions invited future "as-applied" litigation should those assurances not be kept.¹⁶² Both opinions, however, are misleading in the importance that they ascribe to suspended AUMs. In fact, it is unlikely that the BLM's handling of suspended AUMs will have a practical effect that will lead to a justiciable claim, because suspended AUMs have nothing to do with the underlying disputes between ranchers, environmentalists, and the BLM that prompted the ranchers to challenge the new regulations.

The motivation behind the ranchers' litigation was the fear that the BLM, acting in response to concerns raised by environmentalists or other public land users, will use its land use planning process to substantially reduce authorized grazing levels, and possibly eliminate grazing altogether in some areas, in order to favor competing interests such as preservation and improvement of wildlife habitat, enhancement of recreational opportunities, or protection of the natural character of wilderness areas.¹⁶³ As will be discussed in the next section, this fear may be exaggerated. But to the extent that the fear is justified, it is not going to be resolved by resort to suspended AUMs or any other bookkeeping niceties.

Suspended AUMs affect only the division of available forage between ranchers, not the total number of livestock that will be permitted on a piece of BLM land. The fact that a rancher is credited with some suspended AUMs means simply that, if and when the BLM ever decides to allow more cows to graze on that rancher's allotment, the additional cows should be his and not someone else's.¹⁶⁴ Suspended AUMs would become a disputed issue only if the BLM were, for some reason, to authorize a neighboring rancher to take the extra grass instead. It is hard to imagine why the BLM would want to do this; it has enough trouble mediating disputes between ranchers and environmentalists [31 ELR 10033] without provoking disputes among ranchers.¹⁶⁵

The BLM's authority to make changes in the authorized level of livestock grazing on an allotment, as opposed to redistributing that grazing among competing ranchers, is unaffected by suspended AUMs, by preference, or by any of the other regulatory provisions at issue in Public Lands Council. It is set forth in another section of the regulations, which was not challenged by the ranchers, and which gives the BLM broad authority to reduce grazing for a variety of reasons.¹⁶⁶

The Promises and Pitfalls of Rangeland Reform

The unanimous decision in Public Lands Council, combined with the BLM's broad power under FLPMA and its own regulations to restrict and control grazing, would seem to provide a green light for the BLM to use its land use planning and other authorities to make major changes in the way the public rangelands are used and managed. By themselves, however, neither the decision nor the definitional changes it affirmed will trigger such changes; they merely clarify and reaffirm powers that the BLM has long possessed. The more difficult and important question is whether the semantic adjustments in the terminology of "preference" and "permitted use," combined with the more substantive aspects of the Rangeland Reform regulatory amendments, will lead to significant improvements on the ground.

The Role of Land Use Plans

The new regulations' definition of "permitted use" explicitly ties livestock grazing authorizations to the BLM's land use plans.¹⁶⁷ The land use plans, as required by FLPMA, should determine where, how much, and under what conditions livestock grazing is permitted to occur.¹⁶⁸ In preparing the plans, the BLM is instructed to consider, among other things, "the relative values of the resources"¹⁶⁹ on its lands, "the relative scarcity of the values involved,"¹⁷⁰ and "the availability of alternative means and sites for realization of those values"¹⁷¹ in order to determine what combination of land uses in a given area "will best meet the present and future needs of the American people."¹⁷²

Consideration of these factors reveals that the relative value of the livestock forage on most public lands is quite low compared with that of the other resources found there, and that alternative sites—namely, private lands in areas that receive more rainfall than the deserts and semi-deserts managed by the BLM—can and do provide the vast majority of the nation's livestock production.¹⁷³ Moreover, livestock grazing frequently conflicts with other, more valuable resources and uses of the public lands. Grazing livestock, even in numbers that technically do not constitute "overgrazing" as defined by range scientists, can remove cover needed by wildlife, pollute streams, cover campsites and recreational areas with manure, trample archaeological sites, and radically transform the appearance of the land.¹⁷⁴ One essential function of land use planning should be to take account of these types of conflicts and make determinations of where grazing is an inappropriate land use because its negative effects on other resources and uses exceed its economic benefits.¹⁷⁵ Where grazing is determined to be appropriate, a second function of land use plans would be to determine levels of grazing that strike an appropriate balance between livestock production and other resources and uses. For example, in areas of high recreational use where natural [31 ELR 10034] scenery is an important value, livestock numbers could be limited in order to leave more standing grass than the short, unsightly stubble that might be considered acceptable in an area where grazing was the only land use.¹⁷⁶

New Regulations, Old Plans

The land use plans currently in force on BLM lands, however, perform neither of these functions.¹⁷⁷ Ironically, while the Clinton/Babbitt Administration's new regulations assert the primacy of land use plans in BLM range management, most existing BLM land use plans themselves are relics of the Reagan/Watt era¹⁷⁸ and reflect none of the Clinton/Babbitt Administration's environmental values. While the implementation of the plans has been modified in some important respects by the Rangeland Reform regulatory amendments, the plans themselves remain in place and, under current levels of funding for BLM land use planning, it is unlikely that most of them will be replaced by new plans in the foreseeable future.¹⁷⁹

These Reagan-era land use plans are based on the presumptions that (1) livestock grazing is an appropriate use of virtually all BLM lands¹⁸⁰ and that (2) existing livestock numbers should be maintained unless and until it is proven, through the collection of certain narrowly prescribed data over an extended period of time, that they exceed the carrying capacity of the land.¹⁸¹ Conflicts between grazing and other resources and land uses that are not reflected in these data are generally ignored.¹⁸² The Rangeland Reform amendments to the BLM's regulations have left the first assumption of the Reagan-era plans untouched; they contain no provision, requirement, or criteria for reviewing the advisability of grazing on any BLM lands.¹⁸³

The Fundamentals, Standards, and Guidelines

The amendments have, in effect, modified the second assumption of the Reagan-era land use plans by broadening the criteria applied in determining acceptable levels of grazing. The regulations' national "fundamentals of rangeland health" and state-level "standards and guidelines for grazing administration" establish minimum requirements for the ecological health of BLM rangelands.¹⁸⁴ The fundamentals include requirements for the condition and functioning of watersheds, riparian areas, soils, hydrologic and nutrient cycles, water quality, and habitat for threatened and endangered species.¹⁸⁵ The standards and guidelines, developed by BLM state offices in consultation with Resource Advisory Councils, are supposed to address these and other factors, including habitat for other, i.e., nonendangered, native plant and animal populations.¹⁸⁶ Perhaps most important—and in contrast to the "maintain the status quo and collect more data" policy of the Reagan Administration—the new regulations require prompt management changes, including reductions in livestock numbers if necessary, where it is determined that existing grazing practices are preventing or retarding conformance with the fundamentals or the standards and guidelines.¹⁸⁷ Combined with the new definitions of "preference" and "permitted" use, which may help to lower the psychological barriers limiting BLM personnel's willingness to reduce existing authorized livestock numbers, these new regulatory requirements could lead to quicker and more widespread improvements in BLM grazing management than previously seen.

Barriers to Effective Implementation

But there are also reasons to believe that change will be much more limited and much slower than the proponents of Rangeland Reform may have hoped. The BLM remains a [31 ELR 10035] highly decentralized agency, and the success of Rangeland Reform depends on implementation by the same employees in state and local BLM offices whose traditional subservience to the needs of livestock ranchers created the need for change in the first place. The standards and guidelines are developed by state BLM offices in each of the far western states, in consultation with Resource Advisory Councils.¹⁸⁸ The determinations of whether they are being met—and, if not, what changes need to be made—on each grazing allotment are up to the local BLM managers¹⁸⁹ in over 100 offices in small towns scattered around the west.¹⁹⁰ And since each manager, who has many responsibilities besides administering livestock grazing, cannot be expected to become personally familiar with ecological conditions and livestock management issues on each of the hundred or more grazing allotments under his jurisdiction¹⁹¹ (each typically covering many thousands of acres),¹⁹² the managers must rely in turn on the recommendations of their staffs. Moreover, although these staffs include individuals trained in a number of disciplines, a leading role is still played by the "range conservationists," grazing specialists whose education often comes from livestock-oriented range management schools and whose closest working relationships are often with the permittees. The new regulations' creation of nominally pluralistic state-level Resource Advisory Councils¹⁹³ and local-level Rangeland Resource Teams¹⁹⁴ was intended to make these employees responsive to a broader variety of interests, but such advisory bodies, through self-selection and agency selection of their members, can all-too-easily become a vehicle for continued capture of the BLM by the same narrow set of interests that have historically dominated it.¹⁹⁵

Some Disturbing Observations

The decentralized nature of the BLM, and the impossibility of characterizing and evaluating its thousands of local decisions by any simple set of statistics, make it difficult to determine whether Rangeland Reform is succeeding.¹⁹⁶ But the author's own observations of the implementation of Rangeland Reform in Arizona suggest that the BLM's old habits are alive and well. For most of the five years since its inception, Arizona's BLM-appointed Resource Advisory Council has had no representative from any of the state's environmental organizations,¹⁹⁷ and several of the Resource Advisory Council's members who nominally represent other interests are ranchers or their advocates or associates. Expressions of environmental sentiments are not well-received by the Resource Advisory Council, and their meetings are sometimes forums for bashing environmentalists, the Endangered Species Act (ESA), and agency decisions that offend ranchers.¹⁹⁸

The standards and guidelines developed by the Arizona state office of the BLM,¹⁹⁹ which are similar to those developed in other states,²⁰⁰ are equally disappointing. The standards, which are supposed "to provide specific measures of rangeland health,"²⁰¹ are very general and add little specificity to the national Fundamentals of Rangeland Health.²⁰² And the "guidelines," which are supposed to "identify acceptable or best management practices,"²⁰³ are purely nominal. Rather than providing actual guidance for range management, they simply restate the issues that they [31 ELR 10036] are supposed to address. For example, in response to the requirement that the guidelines address "maintaining, restoring, or enhancing water quality,"²⁰⁴ the Arizona guidelines simply state that "management practices [should] maintain, restore, or enhance water quality."²⁰⁵ Moreover, despite the requirements of the regulations,²⁰⁶ the Arizona standards and guidelines fail to address habitat for wildlife other than threatened or endangered or other special status species.

The author's observation of the on-the-ground interpretation and application of these standards and guidelines has been even more discouraging. On a large grazing allotment in the western Arizona desert whose management the author has been following for a decade,²⁰⁷ the BLM now purports to be assessing compliance with the standards and guidelines but is in fact relying on the same forage utilization and trend data that became the focus of its management in the 1980s.²⁰⁸ These data fail to reflect most of the environmental impacts of grazing, and exclusive reliance on them is the antithesis of the broader based view of rangeland health embraced by the rhetoric of Rangeland Reform.²⁰⁹ Moreover, even where these limited data indicate poor and declining range conditions,²¹⁰ the BLM, again following the practices of the 1980s, has proposed to continue existing management practices, and even to allow an increase in the number of livestock, while it collects more data.²¹¹

Limitations of the Standards and Guidelines

This adherence to old ways may be transitional, and may not be characteristic of all BLM managers. Over time, and across the West, more faithful and vigorous application of the Fundamentals of Rangeland Health and the state-level standards and guidelines may ultimately lead to real improvements in management and in range conditions.²¹² But these new requirements, even if fully implemented, are basically a refinement, albeit an important one, of the principle that livestock grazing should be conducted at the maximum possible level consistent with maintenance of environmental standards. They do not question the underlying assumption that grazing should be permitted on virtually all public lands, and they do not attempt to place grazing in context with the other, more valuable public land resources and uses with which it competes and often conflicts.²¹³

Numerous conflicts between grazing and other resources and uses are either not addressed or addressed only incompletely by the fundamentals, standards, and guidelines. For example, even in the case of a grazing allotment that satisfies the fundamentals, standards, and guidelines, livestock may be displacing wildlife, covering hiking and camping areas with manure, trampling archaeological sites, spreading exotic and invasive species of plants and animals, and despoiling scenery by transforming tall grasses into unsightly stubble.²¹⁴ Diversion of water from springs and seeps to livestock troughs can dry up small riparian areas and deprive wildlife of water, and the facilities and motorized equipment needed to support livestock production can constitute a major intrusion into designated wilderness areas, all without causing any violation of the fundamentals, standards, or guidelines.²¹⁵

The determination of whether the fundamentals and the standards and guidelines are being met on a grazing allotment also involves no consideration of the relative values of the resources on the allotment, no evaluation of the economics of grazing there, and no weighing of the harms and benefits of grazing. Thus, for example, even under vigorous implementation of the Rangeland Reform regulations, grazing will continue in areas where the BLM's management costs exceed the value of the livestock forage,²¹⁶ and where the degradation of scenic and recreational qualities causes [31 ELR 10037] economic losses that are greater than any income generated from livestock production.²¹⁷

Alternative Avenues to Reform

Environmental Litigation

Environmental organizations seeking to dislodge grazing from its privileged position among public land uses may find it more productive to pursue litigation strategies based on statutory mandates such as FLPMA, NEPA, the Clean Water Act (CWA), and the ESA than to rely on the Range-land Reform regulations as an engine for change on the public rangelands.²¹⁸ Historically, these laws have received far less attention, and been the subject of much less litigation, in the management of public lands livestock grazing than in the regulation of other extractive uses of the public lands such as timber cutting, mining, and oil and gas production.²¹⁹ But the last five years have seen a handful of precedent-setting cases that could portend more vigorous and widespread application of environmental laws on the public range. A federal district court in Idaho in 1996 applied the ESA to prohibit the Forest Service from allowing grazing on a salmon spawning stream,²²⁰ and the Forest Service has settled a similar lawsuit over endangered fish by excluding livestock from riparian areas on 58 grazing allotments in Arizona.²²¹ In 1997, the Interior Board of Land Appeals (IBLA) affirmed a decision by an administrative law judge that prohibited livestock grazing in five canyons in southeastern Utah because the BLM had failed to prepare an adequate EIS and had failed to implement FLPMA's definition of "multiple use" by engaging in "a reasoned and informed decisionmaking process" that "balanced competing resource values to ensure that the public lands in the canyons are managed in the manner that will best meet the present and future needs of the American people."²²² And more recently the IBLA prohibited the BLM from allowing grazing at a wilderness desert spring in Arizona because the BLM had failed to consider the spring's protected status under state water quality regulations implementing the CWA.²²³ Most recently, in February 2000, a district court in Idaho imposed restrictions on grazing on 68 BLM allotments in that state as a remedy for the BLM's failure to comply with NEPA when it issued grazing permits.²²⁴ This handful of cases may grow into a larger number as environmental activists seek to enforce laws that have been on the books for decades but have often been ignored in the administration of the public rangelands.²²⁵

The "Buy-Out" Option

So long as the BLM fails to use its land use planning process to identify areas of public land that are inappropriate places for livestock grazing, some individuals and organizations will seek to use private market transactions to eliminate grazing in areas where it is having unacceptable impacts on wildlife habitat or other resources.²²⁶ The Rangeland Reform regulatory amendments and the ensuing litigation have removed one legal barrier to such transactions but left others in place. The elimination of the regulatory requirement that only those "engaged in the livestock business" may hold grazing permits, and the Supreme Court's affirmance of that change,²²⁷ makes clear that organizations whose primary purpose is protection and enhancement of wildlife habitat or other resources, rather than livestock production, can qualify for permits. However, contrary to the implications of at least one prominent newspaper report,²²⁸ nothing in the new regulations establishes an open process that would allow such organizations to oust traditional ranchers from their grazing allotments. Grazing preferences remain attached to base properties,²²⁹ and current permit holders still enjoy a statutory preferential right of renewal.²³⁰ Anyone seeking a grazing permit will have to bargain with an existing rancher, either for purchase of his base property or for his agreement to voluntarily transfer the preference to another property.²³¹

Moreover, although permittees now need not be "engaged in the livestock business," the Taylor Act still requires that they be "stock owners,"²³² and the district court's and the court of appeals' overturning of the provisions authorizing [31 ELR 10038] the issuance of permits for "conservation use,"²³³ which was not challenged by the government in the Supreme Court, means that the permits that the BLM issues to such organizations must authorize the grazing of some livestock. Further, the new regulations place an upper limit of three years on the period for which a permittee may engage in voluntary "non-use" of a grazing permit.²³⁴ Thus, any environmental organization obtaining a grazing permit should be prepared to purchase some cattle.

This does not, however, mean that the elimination of the requirement that permittees be "engaged in the livestock business" is entirely meaningless. Some conservation organizations, most prominently the Nature Conservancy, have purchased base properties and obtained grazing permits not for the purpose of retiring them, but with the intention of managing livestock in a more environmentally responsible manner than traditional ranchers. In at least one instance, however, the Nature Conservancy found itself the target of an administrative appeal by a rancher who successfully argued that, even though the Nature Conservancy raised some livestock, it was not "engaged in the livestock business" because its purpose was conservation, rather than livestock production.²³⁵ The elimination of the "engaged in" requirement should remove this potential pitfall for organizations pursuing such a "mend it, don't end it" approach.

The legally proper way to remove grazing entirely from a portion of the public lands is through an amendment to the applicable land use plan classifying the area in question as unavailable for grazing.²³⁶ Such an amendment cannot be purchased. Market transactions can, however, be used to remove the private opposition that would normally make such a plan amendment politically impossible. Although the BLM virtually never uses its land use planning to remove livestock from an area where an existing rancher wishes to continue grazing, BLM managers have exhibited more willingness to close an area to grazing when the permittee agrees to such a change. This willingness has led to the development of a type of hybrid private/public transaction wherein a conservation organization pays a permittee to relinquish his grazing permit and to support an amendment to the applicable land use plan terminating grazing on the public lands covered by the permit.²³⁷

This type of transaction nicely illustrates the dichotomy, set out in the introduction to this Article, between the BLM's legal obligation to serve the public interest and its historical commitment to private ranchers. By law, the BLM's land use plans should represent the BLM's judgment as to what combination of land uses "will best meet the present and future needs of the American people,"²³⁸ and this judgment should not hinge on payments to ranchers. Under this legal standard, if the BLM determines that grazing on a particular area of public land is causing environmental impacts and/or incurring management costs that are disproportionate to whatever economic benefits the grazing may yield, then the BLM should close that area to grazing, regardless of whether the grazing permittee agrees with the BLM's determination. But the reality is that the BLM is still largely unwilling to make hard decisions that serve the larger public interest at the expense of individual ranchers, and payoffs to ranchers by environmental organizations are, in some instances, a pragmatic way around that unwillingness.

Conclusion

The decision of the Supreme Court in Public Lands Council was not a major step forward in public rangelands law; rather, it was a reiteration of well-established principles. The principal regulatory changes that the decision affirmed—the new definitions of "preference" and "permitted use"—cleared away some confusing terminology (while leaving some, namely "suspended use," in place), but did not significantly change the legal rules governing the authorization and management of livestock grazing on the public lands. Those rules have long given the BLM ample authority to reduce, control, or even eliminate livestock grazing on areas of land it manages in order to promote the public interest in protecting wildlife, watersheds, water quality, archaeological resources, recreation, and natural landscapes. But the BLM has rarely been willing to exercise its authority, and has provided ranchers with de facto entitlements that far exceed their legal rights.

Other aspects of the Rangeland Reform regulations, not at issue in the Court's decision, promise a more ecologically enlightened approach to grazing management. But deliverance on that promise depends on implementation of the regulations by BLM employees, some of whom, in the author's observations, are still unwilling to abandon the historic priority they have given to livestock grazing over environmental protection and other land uses. Moreover, the new regulations do not alter the assumption, incorporated in land use plans left over from previous administrations, that livestock grazing is an appropriate use of virtually all public lands, regardless of its (often marginal) economics and regardless of its effects on other uses and users of those lands.

[31 ELR 10039]

For these reasons, individuals and organizations concerned about the negative impacts of livestock grazing on public lands and resources continue to pursue alternative avenues of reform. These avenues include litigation to enforce environmental statutes such as NEPA, the CWA, and the ESA, as well as market transactions in which ranchers are paid to relinquish their public land grazing privileges. For the foreseeable future, these efforts may yield more substantial results than the Rangeland Reform program championed by the Clinton/Babbitt Administration.

1. Professor of Law, Arizona State University; J.D. 1984, Harvard Law School; Ph.D. 1979, University of California at Berkeley; B.A. 1975, Harvard College. The author thanks Cullen Battle, David Bertelsen, David Frederick, Bill Hedden, Gary Marchant, Leon Pack, George Schatzki, Erik Schlenker-Goodrich, George Vensel, Ken Visser, and Johanna Wald for their assistance.

2. Public Lands Council v. Babbitt, 120 S. Ct. 1815, 1823, 30 ELR 20566, 20569 (2000).

3. George Cameron Coggins & Margaret Lindeberg-Johnson, The Law of Public Rangeland Management II: The Commons and the Taylor Act, 13 ENVTL. L. 1, 2-3 (1982). While the quoted statement preceded the subject case by nearly two decades, it nicely anticipated the essence of the case.

4. 43 U.S.C. §§ 1701-1782.

5. See LaRue v. Udall, 324 F.2d 428, 430 (D.C. Cir. 1963) (describing the Taylor Grazing Act of 1934 (Taylor Act) as a "multiple purpose act" that recognized that some public lands are more valuable for purposes other than grazing); DEBRA L. DONAHUE, THE WESTERN RANGE REVISITED: REMOVING LIVESTOCK FROM PUBLIC LANDS TO PRESERVE NATIVE BIODIVERSITY 193-203 (1999) (arguing that the authors of the Taylor Act did not intend for grazing to be the predominant use of the public lands).

6. 43 U.S.C. § 1702(c) (defining "multiple use").

7. Throughout this Article the terms "Secretary" and "BLM" are used interchangeably. The relevant statutes (primarily the Taylor Grazing Act and FLPMA) grant management authority to the Secretary, see, e.g., 43 U.S.C. §§ 315, 1732, but that authority is largely delegated to the BLM. See 43 U.S.C. § 1702(e) (defining "public lands" for purposes of FLPMA as land "administered by the Secretary of the Interior through the [BLM]").

8. See Joseph M. Feller, What Is Wrong With the BLM's Management of Livestock Grazing on the Public Lands?, 30 IDAHO L. REV. 555, 566-68 (1984).

9. Id.

10. See id. at 576-78. For reviews of the history of deference to livestock interests by the BLM and by its predecessor agency, the Grazing Service, see DONAHUE, supra note 5, at 67-88; PHILIP O. FOSS, POLITICS AND GRASS: THE ADMINISTRATION OF GRAZING ON THE PUBLIC DOMAIN (1960).

11. See, e.g., United States v. Fuller, 409 U.S. 488 (1973); Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 30 ELR 20155 (10th Cir. 1999); Diamond Bar Cattle Co. v. United States, 168 F.3d 1209, 29 ELR 20602 (10th Cir. 1999). But see Hage v. United States, 42 Fed. Cl. 249 (1998) ("Preliminary Opinion" suggesting that public lands ranchers may have compensable property interests related to their water rights).

12. 120 S. Ct. 1815, 30 ELR 20566 (2000).

13. See Final Rule, 60 Fed. Reg. 9894 (Feb. 22, 1995) (amending 43 C.F.R. pts. 1780 & 4100).

14. See id. at 9961 (amending 43 C.F.R. § 4100.0-5).

15. See Brief for Petitioners at 17-37, Public Lands Council, 120 S. Ct. at 1815, 30 ELR at 20566.

16. See Public Lands Council, 120 S. Ct. at 1823-24, 30 ELR at 20569.

17. See generally GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW ch. 2 (2000).

18. See BUREAU OF LAND MGMT., U.S. DOI, PUBLIC LAND STATISTICS 1999 13-14 (2000) [hereinafter PUBLIC LAND STATISTICS]. The 11 far western states are Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. The BLM also manages 86 million acres of land in Alaska and another 1.4 million acres scattered among 15 other states. Id. The discussion here pertains primarily to the far western states.

19. See Feller, supra note 8, at 570.

20. See DONAHUE, supra note 5, at 250-63; Joseph M. Feller, 'Til the Cows Come Home: The Fatal Flaw in the Clinton Administration's Public Lands Grazing Policy, 25 ENVTL. L. 703, 704 (1995).

21. Thomas Michael Power, The Economic Importance of Federal Grazing to the Economies of the West, S. UTAH WILDERNESS ALLIANCE NEWSL., Spring 1995.

22. See COGGINS & GLICKSMAN, supra note 17, § 2.03[2][d].

23. See Feller, supra note 20, at 704-05.

24. Feller, supra note 8, at 559 n. 15; see also DONAHUE, supra note 5, at 231-50 (showing that the value of livestock production on the public lands is low compared to other potential land uses).

25. Feller, supra note 8, at 560-63. For reviews of the ecological impacts of livestock grazing on western rangelands, see DONAHUE, supra note 5, at 114-60; Thomas L. Fleischner, Ecological Costs of Livestock Grazing in Western North America, 8 CONSERVATION BIOLOGY 629 (1994).

26. See Jerry L. Holechek et al., Grazing Studies: What We've Learned, RANGELANDS, Apr. 1999, at 12 (summarizing the results of 29 studies of the effects of stocking rate and grazing systems on range condition, and finding that stocking rate is the more important factor). See also R.D. Pieper & R.K. Heitschmidt, Is Short-Duration Grazing the Answer?, 43 J. OF SOIL & WATER CONSERVATION 133 (1988) ("Stocking rate is and always will be the major factor affecting the degradation of rangeland resources.").

27. 43 U.S.C. §§ 315-315r. For an excellent summary of the history of federal range management from the mid-19th century up to the mid-1970s, see Coggins & Lindeberg-Johnson. supra note 3.

28. 43 U.S.C. § 315.

29. Id. § 315a.

30. Id. § 315b. The Taylor Act also authorizes the Secretary to issue "leases" for grazing on public lands outside of grazing districts. Id. § 315m. Currently, approximately 64% of all BLM grazing authorizations are permits; 36% are leases. See PUBLIC LANDS STATISTICS, supra note 18, at 88, 89. The average permit authorizes more livestock than the average lease; permits account for 87% of the animal unit months (AUMs) of grazing authorized on BLM lands. See id. at 85, 87.

FLPMA and BLM regulations treat grazing permits and leases virtually identically. See 43 U.S.C. § 1752 (always referring to "permits and leases" or "permits or leases"); 43 C.F.R. pt. 4100 passim (always referring to "grazing permits and leases" or "a grazing permit or lease"); compare 43 C.F.R. § 4100.0-5 (definition of "Grazing lease") with id. (virtually identical definition of "Grazing permit").

One district court has held that a grazing lease, unlike a grazing permit, creates a property interest that is compensable under the Fifth Amendment of the U.S. Constitution. See United States v. Certain Parcels of Land in San Bernardino County, 296 F. Supp. 774 (C.D. Cal. 1969). The continuing validity of that pre-FLPMA holding is doubtful, since FLPMA requires that all grazing permits and leases contain a term reserving the authority of the government to cancel the permit or lease, and FLPMA requires that the recipient of a renewed permit or lease accept the terms and conditions of the permit or lease. See 43 U.S.C. §§ 1752(a), (c)(3). Even if a grazing lease does create a property interest, such interest would presumably expire with the expiration of the lease, which, like a grazing permit, has a maximum term of 10 years. See 43 U.S.C. § 1752(a).

31. See Foss, supra note 10, at 74-75, 84-85. The Taylor Act's requirement that only lands "chiefly valuable for grazing and raising forage crops" be included in grazing districts was largely ignored. Lands were placed in grazing districts without any attempt to compare their value for grazing with their potential value for alternative uses.

32. See id. at 78, 83, 84-85.

33. See 43 C.F.R. § 4100.0-5 (definitions of "Base property" and "Grazing preference").

34. 43 U.S.C. § 315b.

35. See 43 C.F.R. § 4110.2-1(d).

36. Foss, supra note 10, at 63.

37. See, e.g., Coggins & Lindeberg-Johnson, supra note 3, at 74.

38. See, e.g., Frank J. Falen & Karen Budd-Falen, The Right to Graze Livestock on the Federal Lands: The Historical Development of Western Grazing Rights, 30 IDAHO L. REV. 505, 507 (1994). The author considers Falen's and Budd-Falen's thesis—that the "preference" for a grazing permit under the Taylor Act is a property right protected by the Fifth Amendment to the Constitution—to be untenable. See infra note 94-95 and accompanying text.

39. Natural Res. Def. Council v. Hodel, 618 F. Supp. 848, 16 ELR 20096 (E.D. Cal. 1985); Foss, supra note 10, at 64-65, 104-39; Coggins & Lindeberg-Johnson, supra note 3, at 56-60.

40. Foss, supra note 10, at 62.

41. Coggins & Lindeberg-Johnson, supra note 3, at 59.

42. BUREAU OF LAND MGMT. U.S. DOI, 50 YEARS OF PUBLIC LAND MANAGEMENT 13, 15 (1984).

43. See Public Lands Council v. Babbitt, 120 S. Ct. 1815, 1821, 30 ELR 20566, 20568 (2000).

44. See, e.g., DONAHUE, supra note 5, at 247.

45. 78 Stat. 987 (1964) (formerly codified at 43 U.S.C. §§ 1411-1418) (expired 1970). See Coggins & Lindeberg-Johnson, supra note 3, at 98-99.

46. 43 U.S.C. §§ 1701-1784. For discussions of the history and content of FLPMA and its application to grazing, see DONAHUE, supra note 5, at 203-18; George Cameron Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 ENVTL. L. 1, 5-109 (1983).

47. 43 U.S.C. § 1701(a)(8).

48. Id. § 1732(a).

49. Id. § 1702(c). For a discussion of the meaning of multiple use, see George C. Coggins, Of Succotash Syndromes and Vacuous Platitudes: The Meaning of "Multiple Use, Sustained Yield" for Public Land Management, 53 U. COLO. L. REV. 229 (1982).

50. 43 U.S.C. § 1712(a).

51. Id. § 1732(a).

52. Id. § 1712(c).

53. See GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 90 (3d ed. 1992).

54. FLPMA also explicitly disavowed repealing any statute by implication. See Pub. L. No. 94-579, § 701(f), 90 Stat. 2743, 2786(1976).

55. 43 U.S.C. § 1701(b).

56. Id. § 315a.

57. Id. § 315.

58. Id. § 1752(c)(1). Unlike most of the rest of FLPMA, the grazing provisions of FLPMA apply to National Forests as well as BLM lands. See id. § 1752(a).

59. Id. § 1712(a).

60. Id. § 1712(d).

61. See Feller, supra note 8, at 566-67.

62. 43 U.S.C. § 1752(e). The "Secretary concerned" refers to the Secretary of the Interior for BLM lands and the Secretary of Agriculture for National Forests. See id. § 1752(a).

63. 43 U.S.C. §§ 1901-1908. For discussions of the history and content of PRIA, see DONAHUE, supra note 5, at 218-22; Coggins, supra note 46, at 109-30.

64. 43 U.S.C. § 1901(b).

65. See id. § 1901(a)(1); see also id. § 1902 (d) (relating "range condition" to wildlife habitat, watershed, and plant communities as well as forage production).

66. See id. § 1903(b).

67. Id. § 315b.

68. See, e.g., United States v. Fuller, 409 U.S. 488 (1973); Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 30 ELR 20155 (10th Cir. 1999); Diamond Bar Cattle Co. v. United States, 168 F.3d 1209, 29 ELR 20602 (10th Cir. 1999); Swim v. Bergland, 696 F.2d 712, 719 (9th Cir. 1983); McNeil v. Seaton, 281 F.2d 931, 934 (D.C. Cir. 1960).

69. See Feller, supra note 8, at 576-86.

70. See Natural Res. Def. Council v. Hodel, 624 F. Supp. 1045, 1057, 16 ELR 20508, 20513 (D. Nev. 1985), aff'd, 819 F.2d 927, 17 ELR 21012 (9th Cir. 1987).

71. See Feller, supra note 8, at 570-73.

72. Natural Res. Def. Council v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974), aff'd per curiam, 527 F.2d 1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976).

73. Natural Res. Def. Council v. Hodel, 618 F. Supp. 848, 16 ELR 20096 (E.D. Cal. 1985).

74. Natural Res. Def. Council v. Hodel, 624 F. Supp. 1045, 16 ELR 20508 (D. Nev. 1985), aff'd, 819 F.2d 927, 17 ELR 21012 (9th Cir. 1987).

75. Joseph M. Feller, Recent Developments in the Law Affecting Livestock Grazing on Western Riparian Areas, 18 WETLANDS 646, 650 (1998).

76. 43 C.F.R. § 4110.1 (1993).

77. See Mercer v. BLM, No. AZ-04-90-04 (U.S. DOI, Office of Hearings and Appeals, Hearings Div.) (Apr. 23, 1993).

78. See id.; see also 43 C.F.R. §§ 4110.3-1(a), 4130.6-2 (authorizing the issuance of temporary, nonrenewable grazing permits when extra forage is available).

79. 43 U.S.C. § 315b.

80. Id.

81. Id. § 1752(c)(1).

82. Id. § 1752(c).

83. See id. § 1752(a), 1752(e).

84. See Final Rule, 60 Fed. Reg. at 9922 ("Through time, common usage of the term evolved to mean the number of AUMs attached to particular base properties. But this usage dilutes the original statutory intent of the term as an indication of relative standing.").

85. 43 Fed. Reg. 29058, 29068 (July 5, 1978); 43 C.F.R. § 4100.0-5(o) (1980, 1994).

86. 43 Fed. Reg. at 29068; 43 C.F.R. § 4110.2-2(a) (1980).

87. 43 Fed. Reg. at 29069 (amending 43 C.F.R. § 4110.3-2(b)).

88. See 45 Fed. Reg. 47104, 47105 (July 11, 1980) (amending 43 C.F.R. § 4110.3-2(b)). See also 53 Fed. Reg. 10224, 10227 (Mar. 29, 1988) (explaining that preference does not change; only the "preference status or mix of active versus suspended use" changes); id. at 10233, 10234 (amending 43 C.F.R. §§ 4110.3, 4110.3-2(c)). See also Advanced Notice of Proposed Rulemaking, 58 Fed. Reg. 43208, 43212-13 (Aug. 13, 1993) ("Suspended nonuse is a term used to designate AUMs which were once available for active grazing use but were determined to be unavailable and suspended from grazing by a decision or through agreement.").

89. One AUM is the amount of forage consumed by an adult cow in one month. See 43 C.F.R. § 4100.0-5.

The concept of suspended AUMs was not new in 1980. Since the early 1960s, BLM regulations had authorized the placing of AUMs in a "suspense status" when the current grazing capacity of an area was less than the potential capacity. See 43 C.F.R. § 4111.4-2(e) (1964). The accounting of suspended AUMs helped to ensure that, if and when the grazing capacity of the area increased, the increased forage would be allocated among ranchers in proportion to their initial allocations. See Public Lands Council, 120 S. Ct. at 1820-21, 30 ELR at 20568. It was only the 1980 amendments to the regulations, however, that applied the terminology of "suspension" to all reductions in authorized grazing, whatever the reason and regardless of whether there was any likelihood that the suspended AUMs would ever be reactivated.

90. See Advanced Notice of Proposed Rulemaking, 58 Fed. Reg. at 43213 ("There appears to remain, however, a significant number of permittees who believe, regardless of land use planning allocations, that suspended nonuse establishes a 'priority' for any increased forage.").

91. See 43 C.F.R. § 4110.3 (1994) (authorizing changes in the active grazing preference whenever such changes were "either specified in an applicable land use plan or necessary to manage, maintain, or improve rangeland productivity"); Feller, supra note 8, at 566-68.

92. See Notice of Proposed Rulemaking, 59 Fed. Reg. 14314, 14323 (Mar. 25, 1994) ("For the most part it appears that these suspended AUMs have no real impact on ranches or on the condition of public lands.").

93. See Advanced Notice of Proposed Rulemaking, 58 Fed. Reg. at 43212-13 ("Suspended nonuse is also confusing to prospective permittees, realtors and brokers who deal in ranch properties.").

94. See Falen & Budd-Falen, supra note 38, at 507-11. The alleged property right represented by the preference is purportedly based on, among other things, Spanish and Mexican law. See id. at 511-12. One problem with the theory, among many, is that the predecessors-in-interest of current public lands ranchers began grazing the public lands decades after those lands passed out of Spanish and Mexican sovereignty.

95. See id. at 509-10; see also WAYNE HAGE, STORM OVER RANGELANDS: PRIVATE RIGHTS IN FEDERAL LANDS 185-87 (3d ed. 1994) (arguing for a "preexisting" property right, distinct from a permit, to graze on federal public lands).

96. See supra notes 69-71 and accompanying text.

97. See 60 Fed. Reg. at 9894 (amending 43 C.F.R. pts. 1780 & 4100).

98. See id. at 9969-70 (adding new 43 C.F.R. subpt. 4180).

99. For an extensive discussion of these provisions, see Bruce M. Pendery, Reforming Livestock Grazing on the Public Domain: Ecosystem Management-Based Standards and Guidelines Blaze a New Path for Range Management, 27 ENVTL. L. 513 (1997).

100. See 60 Fed. Reg. at 9958-60 (amending 43 C.F.R. subpt. 1784).

101. See 43 C.F.R. § 1784.6-1(c).

102. 60 Fed. Reg. at 9961 (amending 43 C.F.R. § 4100.0-5).

103. Id.

104. See Advanced Notice of Proposed Rulemaking, 58 Fed. Reg. at 43212-13.

105. 60 Fed. Reg. at 9931. See also 43 C.F.R. § 4100.0-5 (defining "suspension" as the "temporary withholding from active use . . . of part or all of the permitted use in a grazing permit or lease").

106. 43 C.F.R. § 4110.3-2(b).

107. Notice of Proposed Rulemaking, 59 Fed. Reg. at 14323.

108. BUREAU OF LAND MGMT., RANGELAND REFORM '94 FINAL ENVIRONMENTAL IMPACT STATEMENT 144 (1994).

109. Id.

110. See 60 Fed. Reg. at 9925 (discussing amendments to 43 C.F.R. § 4110.1).

111. Id. at 9961 (amending 43 C.F.R. § 4100.0-5) (emphasis added).

112. 43 U.S.C. § 315c.

113. See 43 C.F.R. § 4120.3-3.

114. See id. § 4120.3-2.

115. 43 U.S.C. § 315c.

116. Id. § 1752(g).

117. See 43 C.F.R. § 4120.3-2 (1994).

118. See 60 Fed. Reg. at 9964 (amending 43 C.F.R. § 4120.3-2(b)). Permittees may still hold title to removable range improvements installed pursuant to range improvement permits. See 43 C.F.R. § 4120.3-3(b).

119. Public Lands Council v. Department of the Interior, 929 F. Supp. 1436, 27 ELR 20040 (D. Wyo. 1996).

120. Id. at 1447-48, 27 ELR at 20045.

121. Id. at 1440-41, 27 ELR at 20041.

122. Id. at 1443-44, 27 ELR at 20043.

123. Id. at 1444-45, 27 ELR at 20043-44.

124. Id. at 1442-43, 27 ELR at 20043. The district court rejected plaintiffs' challenges to the following additional provisions of the new regulations: a new definition of "affiliate" for purposes of determining who is ineligible for receipt of a grazing permit after a preceding permit is canceled as a result of violations of its terms and conditions, id. at 1441-42, 27 ELR at 20042; a three-year limitation on voluntary non-use of a grazing permit, id. at 1444, 27 ELR at 20043; a provision clarifying that permittees may be required to allow wildlife to use water developments that they construct, id. at 1445-46, 27 ELR at 20044; a provision providing for cancellation of a grazing permit if the permittee is convicted of violating certain environmental laws, id. at 1446, 27 ELR at 20044; and a surcharge on permittees who allow livestock owned by others to graze on their allotments, id. at 1446-47, 27 ELR at 20044-45. The district court also rejected a claim that the EIS accompanying the new regulations was inadequate, id. at 1448-50, 27 ELR at 20045-46.

125. Id. at 1441, 27 ELR at 20041. In fact, the ranchers' right to an evidentiary hearing is the same under the new regulations as under the old. Under either set of regulations, a rancher may appeal to an administrative law judge any decision that adversely affects his interests. See 43 C.F.R. § 4160.4 (1995), id. § 4160.4 (1999). Appealable decisions would include a "suspension" of "preference" under the old terminology and a reduction in "permitted use" under the new.

126. 929 F. Supp. at 1441, 27 ELR at 20041 (citing 43 U.S.C. § 315b).

127. Id.

128. Id.

129. The plaintiffs did not appeal the district court's rejection of their other claims.

130. Public Lands Council v. Babbitt, 167 F.3d 1287, 1294-1302, 29 ELR 20116, 29 ELR 20119-23 (10th Cir. 1999).

131. Id. at 1305-07, 29 ELR at 20124-25.

132. Id. at 1307-08, 29 ELR at 20125-26.

133. Id. at 1302-05, 29 ELR at 20123-24.

134. Id. at 1309-18, 29 ELR at 20126-30.

135. Public Lands Council v. Babbitt, 120 S. Ct. 1815, 30 ELR 20566 (2000).

136. Brief for Petitioners, Public Lands Council v. Babbitt, at 17-37.

137. Public Lands Council, 120 S. Ct. at 1823, 30 ELR at 20569 (quoting 43 U.S.C. § 315b).

138. Id. (citing the Taylor Act, 48 Stat. 1269).

139. Id. at 1823-24, 30 ELR at 20569.

140. Id. at 1824, 30 ELR at 20569 (citations omitted).

141. Id.

142. 120 S. Ct. at 1824, 30 ELR at 20569 (quoting 60 Fed. Reg. at 9922).

143. Id. (quoting Brief in Opposition to Petition for Writ of Certiorari, at 13, 14).

144. Id.

145. Id. at 1825, 30 ELR at 20569.

146. Id. at 1825, 30 ELR at 20569-70.

147. 43 U.S.C. § 315b.

148. Id.

149. 120 S. Ct. at 1826, 30 ELR at 20570.

150. Id. at 1826-27, 30 ELR at 20570.

151. See id. at 1827, 30 ELR at 20570.

152. Id. at 1828, 30 ELR at 20571.

153. Id.

154. Id. (citing 43 C.F.R. § 4120.3-3(b)).

155. Id. (citing 43 U.S.C. § 1752(g) (requiring the United States to compensate a permittee for his "interest" in range improvements if it cancels a grazing permit)). The Court apparently assumed that the terms of a cooperative agreement could give a rancher an "interest" in a permanent range improvement even if it gives him no title to the improvement.

156. 120 S. Ct. at 1828, 30 ELR at 20571 (O'Connor, J., concurring).

157. Id. (quoting Brief for Respondents, at 22 (in turn quoting RANGELAND REFORM '94 FINAL ENVIRONMENTAL IMPACT STATEMENT, supra note 108)).

158. Id.

159. 120 S. Ct. at 1828-29, 30 ELR at 20571 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 13 ELR 20672 (1983)).

160. 120 S. Ct. at 1829, 30 ELR at 20571.

161. See id. at 1824, 30 ELR at 20569 (citing Brief in Opposition to Petition for Writ of Certiorari, at 13, 14 and Notice of Proposed Rulemaking, 59 Fed. Reg. at 14323, and quoting RANGELAND REFORM '94 FINAL ENVIRONMENTAL IMPACT STATEMENT, supra note 108); 120 S. Ct. at 1828, 30 ELR at 20571 (O'Connor, J., concurring).

162. See 120 S. Ct. at 1825, 30 ELR at 20569; id. at 1828, 30 ELR at 20571 (O'Connor, J., concurring).

163. See Petition for Writ of Certiorari, at 7 ("Absent protected grazing rights, grazing may take second place in the land use plan to competing mineral lease, off-road vehicle, wilderness, and other uses. The permitted number of livestock will vary drastically depending on which land use issue of the day garners most public support.").

164. See 43 C.F.R. § 4110.3-1(b) (providing that "additional forage available on a sustained yield basis for livestock grazing use shall first be apportioned in satisfaction of suspended permitted use to the permittee(s) or lessee(s) authorized to graze in the allotment in which the forage is available").

165. Even with respect to the allocation of forage among ranchers, suspended AUMs are less important now than they once were and than the opinion of the Court suggests. The Court stated that suspended AUMs provide an accounting system to ensure that increases or decreases in forage production on a district are shared proportionately among ranchers. Public Lands Council, 120 S. Ct. at 1820-21, 30 ELR at 20568. However, over the years since the creation of grazing districts under the Taylor Act, the districts have been increasingly subdivided into smaller allotments. According to data provided the author by Mr. Leon Pack of the BLM's Denver Service Center in August 2000, approximately 90% of all BLM allotments now have only one permittee. According to this same data, although the average multi-permittee allotment is larger than the average single-permittee allotment, the majority of BLM grazing land is nonetheless in single-permittee allotments.

Increases or decreases in authorized grazing levels are driven by conditions on each allotment, not on a district as a whole. There is no proportional sharing across allotment boundaries. Where there is only one rancher per allotment, each rancher's permitted use level is determined by the forage production on his allotment, and therefore there is no need for the accounting function that the Court ascribed to suspended AUMs. Moreover, even where there is more than one permittee per allotment, records of past grazing permits for each permittee provide all the information that is reflected in suspended AUMs.

166. See 43 C.F.R. § 4110.3, which provides as follows:

The authorized officer shall periodically review the permitted use specified in a grazing permit or lease and shall make changes in the permitted use as needed to manage, maintain or improve rangeland productivity, to assist in restoring ecosystems to properly functioning condition, to conform with land use plans or activity plans, or to comply with the provisions of subpart 4180 of this part. These changes must be supported by monitoring, field observations, ecological site inventory or other data acceptable to the authorized officer.

See also Feller, supra note 20, at 711 (discussing evolution of this provision).

167. See 43 C.F.R. § 4100.0-5; supra note 103 and accompanying text. For a discussion of the law and history of BLM land use planning, see COGGINS & GLICKSMAN, supra note 17, § 10F.04.

168. See 43 U.S.C. § 1752(c) (conditioning the renewal of grazing permits on the lands remaining "available for domestic livestock grazing in accordance with land use plans").

169. Id. § 1702(c) (definition of "multiple use"); see id. § 1712(c)(1) (requiring the BLM to "use and observe the principles of multiple use and sustained yield" in the development and revision of land use plans).

170. Id. § 1712(c)(6).

171. Id.

172. Id. § 1702(c) (definition of "multiple use").

173. See supra notes 20-24 and accompanying text.

174. See, e.g., Feller, supra note 8, at 562-63. For reviews of the ecological impacts of livestock grazing on western rangelands, see sources cited supra note 25.

175. See National Wildlife Fed'n v. BLM, 140 I.B.L.A. 85, 101 (1997) (holding that FLPMA's definition of "multiple use" requires the BLM, in deciding whether to authorize grazing in a particular area, to "balance[] competing resource values to ensure that the public lands in the [area] are managed in the manner that will best meet the present and future needs of the American people"); Joseph M. Feller, The Comb Wash Case: The Rule of Law Comes to the Public Rangelands, 17 PUB. LAND & RESOURCES L. REV. 25 (1996).

176. See Feller, supra note 8, at 562-63 & n.34.

177. See COGGINS & GLICKSMAN, supra note 17, § 10F.04[4][b] (describing a typical BLM land use plan as a "non-plan," as "a confused melange of do-nothing motherhood statements which offered neither managers nor users much useful guidance on future management," and as "a nugatory, meaningless exercise").

178. See BUREAU OF LAND MGMT., U.S. DOI, REPORT TO THE CONGRESS: LAND USE PLANNING FOR SUSTAINABLE RESOURCE DECISIONS (2000) [hereinafter BLM PLANNING REPORT]. The table on pages 15-21 of this report shows that 115 out of 162 existing BLM land use plans were completed in the period 1981-1992, and only 32 were completed after 1992. The report also describes most BLM land use plans as "aging and outdated" documents that leave the BLM "ill-prepared to address areas with vulnerable, sensitive or at-risk resource values and increasingly exposed to litigation," and the report points to the emergence of "conflicting land uses and cultural values . . . that were not anticipated or addressed in BLM's aging plans." Id. at 2.

I use the terms "Reagan/Watt era" and "Reagan era" loosely to refer to the presidential administrations of Ronald Reagan (1981-1989) and George Bush (1989-1993). James Watt was President Reagan's first Secretary of the Interior, and, at least with respect to livestock grazing, his land management policies continued in effect throughout the Reagan and Bush Administrations. For a review of Mr. Watt's land management legacy, see George Cameron Coggins & Doris K. Nagel, "Nothing Beside Remains": The Legal Legacy of James G. Watt's Tenure as Secretary of the Interior on Federal Land Law and Policy, 17 B.C. ENVTL. AFF. L. REV. 473 (1990).

179. Currently, most BLM planning work consists of amending existing plans to address site-specific problems or projects. The BLM describes such amendments as "band-aid[s]" that "fail to address the more serious comprehensive need of aging documents." BLM PLANNING REPORT, supra note 178, at 11.

180. See Feller, supra note 8, at 570-73.

181. See id. at 576-81.

182. Id. at 578-79.

183. Feller, supra note 20, at 712-13.

184. See 43 C.F.R. subpt. 4180; Pendery, supra note 99.

185. See 43 C.F.R. § 4180.1.

186. See id. § 4180.2.

187. See id. §§ 4180.1, 4180.2(c) (requiring action "as soon as practicable but not later than the start of the next grazing year" upon determining that management changes are needed). See also 60 Fed Reg. at 9931 ("The Department believes that it would be inconsistent with its mandate to manage the public rangelands to allow an allotment to continue to deteriorate while prolonged monitoring studies are conducted in those instances where other reliable measures of rangeland health indicate a need for action."). But see Feller, supra note 75, at 647, 649 (pointing to possible uncertainties and delays in making such determinations).

188. See 43 C.F.R. § 4180.1.

189. The regulations delegate these determinations to the "authorized officer[s]." See id. §§ 4180.1, 4180.2(c). The BLM's authorized officers are called "field managers" in some states and "area managers" in others.

190. For directories, by state, of BLM offices, see http://www.blm.gov/nhp/directory/index.htm.

191. See PUBLIC LAND STATISTICS, supra note 18, at 88-89 (approximately 12,000 grazing permits and 7,000 grazing leases in force).

192. Joseph M. Feller, Grazing Management on the Public Lands: Opening the Process to Public Participation, 16 LAND & WATER L. REV. 571, 573 n.18 (1991).

193. See 43 C.F.R. § 1784.5-1.

194. See id. § 1784.5-2(1)(iv), 1784.5-2(2)(iv).

195. See Michael Axline, Federal Lands and Invisible Hands, 25 ECOLOGY L.Q. 611 (1999); George C. Coggins, Regulating Federal Natural Resources: A Summary Case Against Devolved Collaboration, 25 ECOLOGY L.Q. 602 (1999).

196. But see Cathy Carlson & Johanna Wald, Rangeland Reform Revisited (Final Draft, Apr. 7, 2000) (surveying the current status of implementation of Rangeland Reform)(on file with author).

197. In September 2000, the BLM appointed I representative of the Grand Canyon Trust, a regional environmental organization, to the 15-member Resource Advisory Council for Arizona. See Arizona State Office, Bureau of Land Mgmt., U.S. DOI, News Release: Secretary Babbitt Announces New Appointments to BLM Resource Advisory Council in Arizona (Sept. 20, 2000) (listing Christine Newell, of the Grand Canyon Trust, as environmental representative). This was the first time a representative from an environmental organization had been placed on the Arizona council. From 1995 to 1999, the BLM had designated, in turn, a former employee of the Arizona Game & Fish Department, and an individual nominated by a county parks and recreation department, as "environmental" representatives. These individuals did not represent "nationally or regionally recognized environmental organizations," as specified in the regulations. See 43 C.F.R. § 1784.6-1(c)(2)(i). In the period 1999-2000, the BLM dropped even the pretense of including an environmental representative on the Arizona council. See Arizona State Office, Bureau of Land Mgmt., U.S. DOI, News Release: Secretary Babbitt Announces New Appointments to BLM Resource Advisory Council in Arizona (Sept. 23, 1999) (listing no environmental representative).

198. These statements are based on the author's personal familiarity with some members of the council and the author's observations of several meetings of the council. They are confirmed by one of the council's members. See E-mail communication from David Bertelsen, Arizona Resource Advisory Council member, to the author (Sept. 19, 2000). See also Carlson & Wald, supra note 196, at 5-7 (finding a consistent lack of balance in the membership of Resource Advisory Councils, with ranchers over-represented and environmental interests under-represented).

199. See Arizona State Office, Bureau of Land Mgmt., U.S. DOI, Arizona Standards for Rangeland Health and Guidelines for Grazing Administration (1997) [hereinafter Arizona Standards and Guidelines].

200. See Feller, supra note 75, at 648.

201. 60 Fed. Reg. at 9954.

202. See Feller, supra note 75, at 648. See also Carlson & Wald, supra note 196, at 16-17 (finding that most states' standards and guidelines are very general and very similar to the "fallback" default standards and guidelines contained in the regulations).

203. Id.

204. 43 C.F.R. § 4180.2(e)(7).

205. Arizona Standards and Guidelines, supra note 199, at 8.

206. See 43 C.F.R. §§ 4180.2(d)(5), 4180.2(e)(10).

207. See Feller, supra note 8, at 595-99, 600-01.

208. See Kingman [Arizona] Field Office, Bureau of Land Mgmt., U.S. DOI, Santa Maria Community Allotment Evaluation 16-21, 25-26 (2000) [hereinafter Santa Maria Evaluation]; Letter from Joseph M. Feller, Professor of Law, Arizona State University, to John Christensen, BLM Kingman Field Manager 3 (July 5, 2000) [hereinafter Feller Santa Maria Comments]. See also Carlson & Wald, supra note 196, at 19 (finding that the BLM is routinely relying on poor quality or outdated information to assess compliance with standards and guidelines).

209. See Joseph M. Feller & David E. Brown, From Old-Growth Forests to Old-Growth Grasslands. Managing Rangelands for Structure and Function, 42 ARIZ. L. REV. 319, 328-35 (2000).

210. See Feller Santa Maria Comments, supra note 208, at 4.

211. See Santa Maria Evaluation, supra note 208, at 29-30; Feller Santa Maria Comments, supra note 208, at 6. See also Carlson & Wald, supra note 196, at 19-23 (finding that BLM managers are failing to make changes in grazing use, preferring to maintain the status quo even when existing grazing practices are causing significant damage to resources). In at least some other areas of the West, the BLM has been more willing to conclude that management changes are needed in order to meet standards and guidelines, but has dragged its feet in implementing those changes. Litigation has been necessary to enforce the regulatory requirement that the BLM take action before the start of the next grazing year after it determines that changes are needed. See 43 C.F.R. § 4180.2(c); Idaho Watersheds Project v. Hahn, 187 F.3d 1035, 29 ELR 21431 (9th Cir. 1999) (rejecting BLM theory that the requirement could be satisfied by proposing, but not actually making, the needed changes, within the required time frame).

212. See, e.g., Carlson & Wald, supra note 196, at 24-26 (finding that the California state office of the BLM is making greater efforts to implement standards and guidelines than are other state offices).

213. See supra notes 20-25 and accompanying text. Cf. Feller, supra note 175, at 51 (distinguishing between "Cattle Ranch Management" and "Multiple Use Management").

214. See Feller, supra note 8, at 562-63.

215. See, e.g., Kingman [Arizona] Resource Area, Bureau of Land Mgmt., U.S. Dep't of the Interior, Range Improvement Maintenance Plan and Environmental Assessment: Arrastra Mountain Wilderness (Environmental Assessment AZ-026-92-011, July, 1996) (authorizing the use of pickup trucks, chainsaws, a bulldozer, and a backhoe to reconstruct and maintain water developments and motor vehicle routes within a BLM wilderness area to support livestock grazing).

216. For a discussion of the low value of livestock production on BLM public lands, see DONAHUE, supra note 5, at 250-63. For a comparison of the BLM's costs of grazing administration with its revenue from grazing fees, see id. at 277-80.

217. See, e.g., Feller, supra note 175, at 29.

218. See Feller, supra note 75, at 650-53.

219. Feller, supra note 175, at 26-28.

220. Pacific Rivers Council v. Thomas, 936 F. Supp. 738, 27 ELR 20163 (D. Idaho 1996); but see Pacific Rivers Council v. Thomas, No. 92-1322-MA (D. Or. Oct. 20, 1994) (allowing grazing to continue under similar circumstances).

221. See Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., No. CV-97-666-TUC-JMR (D. Ariz., stipulation dated Apr. 16, 1998).

222. National Wildlife Fed'n v. BLM, 140 I.B.L.A. 85, 101 (1997); Feller, supra note 175.

223. National Wildlife Fed'n v. BLM, 151 I.B.L.A. 66 (1999).

224. Memorandum Decision and Order, Idaho Watersheds Project v. Hahn, No. 97-0519-S-BLW (D. Idaho Feb. 29, 2000); see also Memorandum Decision and Order, Idaho Watersheds Project v. Hahn, No. 97-0519-S-BLW (D. Idaho Mar. 31, 1999) (finding NEPA violation).

225. Another litigation strategy being pursued by one group of environmental organizations is to attempt to require the Secretary of the Interior to revisit the issue of whether lands are "chiefly valuable for grazing," a prerequisite to their inclusion in grazing districts under the Taylor Act, 43 U.S.C. § 315. Following the passage of the Taylor Act, lands were placed in grazing districts without any serious consideration of whether this criterion was met. Moreover, given the enormous changes in the way the public values and uses the public lands, most such lands that may have been chiefly valuable for grazing in the 1930s are probably no longer so today. In the opinion of the author, however, the classification of lands under the Taylor Act has been rendered moot by FLPMA, since land use plans under FLPMA now determine which lands will be used for grazing. See 43 U.S.C. § 1752(c)(1).

226. See supra note 75 and accompanying text.

227. See supra notes 110, 147-49 and accompanying text.

228. See Mark Shaffer, Court Opens Grazing Leases, ARIZ. REPUBLIC, May 16, 2000,at A1.

229. See 43 C.F.R. § 4100.0-5 (definition of "Grazing preference").

230. See 43 U.S.C. § 315b; supra text accompanying note 30.

231. See 43 C.F.R. § 4110.2-3.

232. 43 U.S.C. § 315b; supra note 30.

233. See supra notes 111, 122 & 132 and accompanying text.

234. Public Lands Council v. Babbitt, 120 S. Ct. 1815, 1827, 30 ELR 20566, 20570 (2000); 43 C.F.R. § 4130.2(g)(2).

235. Mercer v. BLM, No. AZ-04-90-04 (U.S. DOI, Office of Hearings and Appeals, Hearings Div.) (Apr. 23, 1993).

236. See 43 U.S.C. § 1752(c)(1).

237. A leading engineer of transactions of this type hasbeen the Grand Canyon Trust, which has negotiated to remove cattle from over 325,000 acres of BLM land in southern Utah. See Bill Hedden, Escalante Grazing Retirement, COLO. PLATEAU ADVOCATE (Grand Canyon Trust), Summer 1999, at 1; Bill Hedden, Grazing Retirement (unpublished manuscript, on file with the author) (Oct. 31, 2000). For examples of BLM land use plan amendments associated with these transactions, see Utah State Office, Bureau of Land Mgmt., U.S. DOI, Approved Amendment and Decision Record for the Henry Mountain Management Framework Plan Regarding the Partial Relinquishment of Grazing Privileges in the Robbers Roost Allotment and Construction of Associated Fences and Cattleguard (June 1, 2000); Grand Staircase-Escalante National Monument, Bureau of Land Mgmt., U.S. DOI, Environmental Assessment: Proposed Plan Amendment—Grazing (Dec. 8, 1998).

238. 43 U.S.C. § 1702(c) (definition of "multiple use").