Sacred Cows

One of the gravest dangers facing fish, wildlife, and the livestock industry itself is the ongoing circumvention and contravention of the National Environmental Policy Act by Congress and the Bush administration. But the industry prevails on Congress to routinely forgive agencies for renewing grazing permits sans environmental review. A year ago it wangled a rider allowing a NEPA exclusion for up to 800 Forest Service grazing allotments leased to ranchers. Another rider allows the Forest Service and the BLM to skip environmental review until 2008. As I write this, in mid-November 2005, the House NEPA Task Force is holding hearings in an effort to get further NEPA exemptions for public-lands ranchers.

NEPA flouting is a congressional tradition, but the Bush administration is goosing it along. For example, last June the BLM released a set of rules (supposedly being tweaked in a “supplemental environmental impact statement”) that would 1) remove the requirement for prompt action against hurtful grazing practices; 2) cut the public out of the decision-making processes; 3) extend the deadline for mandatory reform of grazing abuses from a year to two years while adding a five-year phase-in period for cow reductions of more than 9 percent; 4) enjoin the agency from suspending permits for ranchers who, outside their allotments, violate federal statutes; and 5) grant ranchers ownership of the public's water.

The rules so worried the US Fish and Wildlife Service that it prepared a report on them for the BLM, making such observations as: “The owner of the trespassing livestock that are found on National Wildlife Refuge lands, for example, would no longer risk loss or suspension of his BLM grazing permit. Such a change communicates to permittees that attention to a healthy rangeland ethic ends at their permit boundary.” And: “We believe that many of the Proposed Revisions would give priority to a use that is often in competition with fish and wildlife resources.” The BLM did not acknowledge these comments, nor did it include them in its final EIS.

The BLM had assigned biologist Erick Campbell to a team of 15 agency scientists charged with vetting the new rules. “The Proposed Action will have a slow, long-term adverse impact on wildlife and biological diversity in general,” wrote Campbell, a respected 30-year BLM veteran who had worked closely with ranchers and was anything but anti-cow. “Upland and riparian habitats will continue to decline due to increasing an already burdensome grazing appeals process, lack of ability to control illegal activities on public lands, and allowing livestock operators to acquire rights to livestock management facilities and vegetation on public lands.”

The response of the Bush administration was to kick Campbell off the team and rewrite his comments and those of his fellow team members so that grazing reappeared as a honey-flavored ecological elixir. Campbell, who retired in frustration, told me this: “BLM's D.C. office said, ‘We can't put this on the streets; this shows that grazing is bad.' Well, all the scientific literature says it is bad. The stuff I cited was peer-reviewed. They took the substance out of what I wrote and reversed me 180 degrees. This whole thing was at the behest of the livestock industry. You can make some progress like [former Interior Secretary Bruce] Babbitt's rangeland standards and guides, which were a hundred years overdue. But when you finally get something that's working, the industry comes in behind you and destroys it.”

The circumvention and contravention of NEPA by the administration and Congress makes it easier for the livestock industry to regulate the regulators. Consider the case of Wyoming rancher Frank Robbins, whose family has strong ties with powerful Alabama politicians. From 1996 to 2001 the BLM handed him grazing-violation citations as if they were green stamps: 8 “non-willful” trespass violations, 4 willful trespass violations, and 12 repeated willful trespass violations. He refused to pay the fines, ran cattle after his permits were revoked, and, according to the US Department of Agriculture, collected at least $42,655 in federal subsidies. He also sued the BLM and individual staffers for “racketeering,” claiming they were conspiring to drive him out of business. In response to all this the BLM agreed in November 2002 to grant him additional grazing flexibility, award him additional rights of way and permits, waive 16 adjudications for grazing violations, settle lawsuits in which he had demanded internal documents, and guarantee that he need not converse with local BLM regulators but could take his grievances straight to the BLM's director in Washington. On top of all this the agreement allowed Robbins to press forward with his racketeering suit. His end of the bargain required him to commit only unintentional grazing violations for two years; after that he could go back to intentional ones.

This placed the Department of Justice in the awkward position of having to defend local BLM staffers for trying to enforce regulations and the DC office for refusing to enforce them. Left to swing in the wind by their agency, the defendants contacted Public Employees for Environmental Responsibility. PEER took the matter to Interior's inspector general, who, on February 10, 2005, reported that “normal processes were circumvented; negotiations were conducted by the Office of Solicitor without involving BLM in the process; concerns articulated by the Department of Justice and the BLM field office were ignored by the Office of Solicitor and were not communicated to the BLM decision-maker; and the interests of the BLM and those of individual BLM employees were not adequately protected.” The Western Watersheds Project sued. All the heat and light frightened the Bush administration more than the prospect of offending the Alabama delegation; and, with inadvertent political assistance from Robbins, who persevered in his grazing violations, it rescinded the agreement.

Dulled though it is, NEPA remains a fearsome sword for litigators like Laird Lucas, who runs the public-interest law firm Advocates for the West and who represented the Western Watersheds Project when it sued the BLM over the Robbins agreement. Currently Lucas's firm and Western Watersheds have litigation or administrative appeals on about 15 million acres of public range in five western states, mostly in the sage-steppe ecosystem of the high desert. In the stunning, wildlife-rich Owyhee Mountains of southwest Idaho, they took on some of the loudest, nastiest property-rights zealots in the nation. Their victories here require the BLM to implement habitat protections until it complies with NEPA. In Nevada, Advocates for the West persuaded a conservative judge that the BLM had violated NEPA by not studying impacts on sensitive species, particularly sage grouse. In Utah, Advocates confronted gross NEPA violations on 2.5 million acres, winning a settlement in 2005 that commits the BLM to an EIS, new land-use plans, scientific monitoring, and a better grazing regime with input from and inspections by the Western Watersheds Project. The agencies don't take any public complaint seriously until there's a lawsuit, and NEPA is always the plaintiffs' most effective weapon.

The way livestock operators have done business on public lands is rapidly coming to an end,” comments Lucas. “Now they know that. The economics of the industry are driving them out anyway. Our hope is that people will recognize voluntary grazing buyouts as a solution.” These buyouts are happening all over the West, mostly with private money but occasionally with federal. In the Sawtooth National Recreational Area of central Idaho, the Western Watersheds Project sued the Forest Service for allowing grazing in fragile, high-elevation riparian areas in clear violation of its own EIS. When the allotment was closed by court order, local ranchers entreated their champion, Representative Mike Simpson (R-ID), to engineer a federal buyout. Accordingly, Simpson introduced the Central Idaho Economic Development and Recreation Act, which would designate 300,000 acres of wilderness and provide funds for voluntary grazing buyouts.

The Grand Canyon Trust and The Conservation Fund recently bought out grazing allotments on 850,000 acres of public land from the Utah border to the north rim of the Grand Canyon, thereby connecting eight wilderness areas, three national monuments, and two national recreation areas.