Grazing/FLPMA Flashcards
- What is a grazing fee on federal lands and why is there so much controversy about this issue? (5pts)
Grazing fees are a charge that allows established ranchers to graze livestock on public lands. The fee is generally charged per AUM (animal unit month), which is defined as one cow and her calf, one horse, or five sheep. The main controversy has to do with the PRIA grazing fee formula which often makes grazing on public lands very, very cheap especially when compared to fees on private, state, or tribal lands.
- What is a grazing fee on federal lands and why is there so much controversy about this issue? What guidance do federal range laws provide regarding grazing fees on BLM lands (be sure to include relevant provisions from the Federal Land Policy Management Act and the Public Rangelands Improvement Act)? (10pts)
Grazing fees are a charge that allows established ranchers to graze livestock on public lands. The fee is generally charged per AUM (animal unit month), which is defined as one cow and her calf, one horse, or five sheep. The main controversy has to do with the PRIA grazing fee formula which promotes “equitable fees” but often makes grazing on public lands very, very cheap especially when compared to fees on private, state, or tribal lands. Another argument is that the federal government is funding/subsidizing an unprofitable industry by having such low grazing fees on the federal lands. They are giving so much money away just to get very, very little in return. They spend much more in managing grazing programs than they get in return from collecting grazing fees.
Again, the Public Rangelands Improvement Act (PRIA) (1978) calls for equitable fees that are set through the grazing fee formula. FLPMA (1976) possesses language that the US must receive fair market value of the use of public lands and their resources unless otherwise provided for by statute. PRIA came after FLPMA, and it is the “unless otherwise provided for” statute that establishes a formula for “fair market value” fees as described in FLPMA.
((not necessary for this question but, argument controversy-> PRIA sets grazing fees way below fair market value))
- The Taylor Grazing Act (1934) includes a provision stating that the Secretary of Interior shall manage public lands “pending [their] final disposal.” How did the Federal Land Policy Management Act (FLPMA) change this provision? (5pts)
FLPMA states explicitly that federal public lands are to be retained in federal ownership. Given this language, federal public lands are no longer “pending final disposal”.
- What is a common theme found in past or present versions of the “sagebrush rebellion”? How does a central tenet of this movement challenge the pervasive theme found in federal law that public lands be managed and conserved in the “national interest.” (5pts)
The common theme in past and present versions of the sagebrush rebellion is to reduce federal control over public lands and increase local control over them and their resources. In the sagebrush rebellion this sort of mindset would technically be the “national interest” (if majority of public vouched for this change).
- Describe the multiple use mandate as found in the Federal Land Policy Management Act (FLPMA) of 1976. How much management discretion does it provide to the Bureau of Land Management (BLM)? What do (a) Resource Management Plans (RMPs) as required by FLPMA and (b) NEPA have to do with multiple use? Provide an example in your answer. (15 pts)
Multiple use mandate means that public lands are to be managed to utilize multiple resources rather than for one dominant use (mining, grazing, etc.). Multiple use includes recreation, range, timber, natural scenic, scientific, and historical values, watershed, fish and wildlife resources. The idea is to balance multiple values without simply prioritizing one use that provides the highest economic value and to utilize a combination that best meets present and future needs of the American people. FLPMA gives BLM a lot of management discretion because it doesn’t explicitly state what uses to prioritize. The BLM gets to decide this. The language, “consideration of physical, biological, economic, and other sciences” provides an example of discretionary language within the Act. Because the act covers so many uses, as long as the BLM is considering some, they can’t really be held accountable for not considering a different use because the language is so vague. However, there are some provisions that help ensure that the BLM does actually act in accordance with multiple use. For example, one provision states, they must “take any action necessary to prevent unnecessary or undue degradation of the lands.
Resource management plans (RMPs) are used as the primary means to identify and allow for certain uses on BLM lands while placing restrictions on others. These plans are where you find the details of BLM’s multiple use mandates and where it is operationalized on the ground. NEPA requires the development and consideration of alternatives to analyze various potential outcomes and guide decisionmakers in developing and selecting an Approved RMP. The RMP essentially goes through the EIS process of NEPA by default since it is such an essential and impactful environmental decision.
One example of how discretionary FLPMAs language is shown in Natural Resources Defense Council V. Hodel in which the BLM submitted only one EIS to cover its entire grazing program. When this issue was brought to the Supreme Court, the judge stated that they are powerless to substitute their judgement for that of BLM in these manners, further proving how discretionary this Act is. They state that FLPMA and PRIA “can hardly be considered concrete limits upon agency discretion” and that the language of multiple use breathes discretion at every pore.
In the Comb Wash case (NWF V. BLM), the BLM violated the multiple-use mandate as described in FLPMA when it authorized grazing in five canyons in Comb Wash without engaging in a “reasoned and informed decision-making process showing that it had balanced competing resource values in order to meet the present and future needs of the American people. In this case the courts demanded at least some informed analysis of multiple use decisions (using NEPA). This isn’t always the case, as seen in NRDC V. Hodel, the courts give more discretion at times.
- Why is the multiple use mandate given to the BLM and USFS considered so discretionary? (5pts)
The multiple use mandate (FLPMA-> BLM, NFMA-> USFS; BOTH use “multiple use” as defined in MUSYA) is considered discretionary because it involves a wide range of resources, uses, and issues, all with major environmental, social, and economic consequences. The agency has discretion to choose which values to consider in order to meet the present and future needs of the American people. It has discretionary language so that it is flexible and can be used for different uses or “focuses” based on present needs (that the agency ultimately defines).
- Describe two provisions found in the Federal Land Policy Management Act (FLPMA) that can be used to advocate for and/or achieve “conservation-oriented outcomes” on public lands (e.g., protecting fish and wildlife habitat, water quality, etc.) (10pts)
The unnecessary and undue degradation provision is one of the best to use against the BLM in conservation cases. The provision essentially creates an obligation to conserve. It states that the secretary shall take any action necessary to prevent unnecessary or undue degradation of the lands. This language clearly places a strong emphasis on the importance of conservation. However, the provision still calls for effective multiple use on the lands and also clearly states that FLPMA is not to amend the rights given under the general mining law (GML) of 1872. So, there is only so much this language can do, and it doesn’t necessarily apply to hardrock mining cases and multiple use is still the requirement (so it could be argued that conservation needs to be a part of the plan because of this language, but it couldn’t be successfully argued to only conserve).
(43 U.S.C. §1739) Another provision requires public participation throughout the FLPMA process. The secretary must establish procedures, such as public hearings, to give state/local governments and the public adequate notice and opportunity for comments. It also says [to allow the public] “to participate in the preparation and execution of plans and programs for, and the management of, the public lands”. So, with these provisions for public hearings and comment opportunities, the public can use these as opportunities to voice their concerns regarding conservation and the BLM’s plan (RMPs).
The extent to which these provisions will be helpful in cases against the BLM is uncertain because the agency is granted so much discretion (Natural Resources Defense Council V. Hodel). However, they are the provisions with the most “teeth” and will most likely be the most effective in courts.
- The Federal Land Policy and Management Act’s “unnecessary or undue degradation” provision: How has this statutory provision (and its regulation) been used in the past in the context of hard rock mining on federal lands? (5 pts)
The BLM has used this standard as a basis for regulating mining though it emphasized the word “unnecessary” in the past; reasoning that it had limited authority to stop mining activities because of the dominant use language found in the 1872 Mining Law.
Clinton administration interpreted this a little differently, saying that things resulting in “substantial irreparable harm to significant scientific, cultural, or environmental resource values of the public lands that cannot effectively be mitigated.”
- What is an environmental “market-based approach” to either oil and gas leasing on public lands or grazing permits/leases on public lands? (5pts)
Conservation groups will buy out grazing leases as a conservation strategy. However, grazing leases are a “use it or lose it” type of lease meaning they are only given out for the purpose of grazing. So, the strategy is to buy out leases then implement the smallest legal amount of cattle in order to keep the grazing lease while impacting the land/environment as little as possible.
- What is an environmental “market-based approach” to either oil and gas leasing on public lands or grazing permits/leases on public lands? Explain how can federal public land laws be an obstacle in this regard? (10 pts)
Conservation groups can buy out grazing leases and just never actually graze any animals. They can also bid on oil and gas leases, then never extract oil and gas from the land. The problem is that FLPMA and the Taylor Grazing Act have wording to prevent that kind of use. The courts decided that through the language in FLPMA and the TGA, the land leased must be used for leasing purposes. If the conservation groups lease the land, then never use it, the government can take back the land and re-release it to a person who will actually use it for the intended purposes. So, there are severe limitations to these strategies and they often result in the government seizing the land (and even jail time for certain individuals). For example, the Taylor Grazing Act authorizes BLM “to issue or cause to be issued permits to graze livestock” on grazing districts, and FLPMA defines grazing permits/leases as any document that authorizes the use of public lands for the purpose of grazing livestock”. So, the terminology in these Acts clearly poses an obstacle to “buy-out” strategies, however the limitations are still unknown. (Could conservation groups buy out land and then only graze one animal on the land, or the bare minimum the allowed?) The same is true for mineral leasing/mining, leases are to be used for the given activity and if the activity is not being conducted on the lands themselves the government has the ability to take the land back due to language in FLPMA/etc.
