The ranching economy in much of the West rests on the stability of public lands grazing leases. That foundation could shift dramatically, however, with looming changes in grazing permit transfer policy.
A test of the new policy lies with a case in Wyoming between the Bureau of Land Management (BLM) and a Worland, WY, rancher. The heart of the argument is the question of who is authorized to transfer a grazing permit.
The U.S. Department of the Interior is arguing in federal district court that low-level BLM personnel can deny the transfer of a grazing preference and permit for any reason. This is a new position with major ramifications to the livestock industry and the BLM's grazing permit program.
The BLM's position for 60 years has been that when base property changes hands, associated grazing permits automatically transfer to new owners. That's so long as the purchaser was qualified to hold the permit.
“However, the recent position taken by the BLM and backed by the Department of Justice is that term ‘grazing permit transfer’ is completely discretionary,” says Cheyenne, WY, attorney Karen Budd-Falen. “If the court accepts that argument, the result would be disastrous for grazing permittees.”
Budd-Falen says thousands, if not all, BLM grazing permittees, along with much of the grazing infrastructure, would be economically devastated by this change.
“The Justice Department cites no legal authority for this position,” she adds. “This policy has not been accompanied by agency rulemaking, a BLM manual or handbook modification or any other notice to the public.”
Budd-Falen says there are significant ramifications far beyond the specific facts of the case between the BLM and rancher Frank Robbins.
Robbins purchased a ranch with BLM grazing preference rights in the spring of 2000. Once the purchase was complete, Robbins applied for transfer of the grazing permits through the Worland BLM district office. The BLM's response was that although Robbins qualified for the permit, the agency would not transfer the Owl Creek permit to him because of his “unsatisfactory record of performance.”
The BLM bases its claim on a record of willful livestock grazing trespasses and grazing permit cancellations. Robbins has administratively appealed those claims.
“With regard to the alleged livestock grazing trespasses, only one decision has been issued by the Office of Hearings and Appeals,” explains Budd-Falen. “In that decision, it was determined Robbins was not guilty of a willful trespass.”
The rest of the BLM allegations have yet to be adjudicated. Robbins emphatically denies he is a “bad rancher,” but he admits to a significant personality conflict with Worland BLM office management.
Robbins appealed the permit transfer denial to the Interior Board of Land Appeals (IBLA) and requested a stay regarding whether he had an unsatisfactory grazing record. The IBLA granted the stay but didn't rule the BLM had to transfer the permit. Robbins subsequently appealed the IBLA's failure to transfer the permit to the Federal District Court for the District of Columbia.
“If the appeals process demonstrates the transferee is not qualified, the permit can be canceled or suspended,” Budd-Falen explains. “In this manner, the BLM retains the power to remove unqualified permittees without devastating the economic stability of the industry.”
But, she says, if anyone in the BLM can deny a transfer for any reason, the entire grazing permit system begins to crumble.
If the court agrees that transfer is discretionary, it could become very difficult to buy or sell a ranch dependent on federal land. Lending institutions cannot rely on that system if the authorized officer has the discretion to deny the permit transfer for any or no reason, she says.
Quagmire Of Red Tape
In addition, if the transfer is discretionary, National Environmental Policy Act analysis and Endangered Species Act Section 7 consultation must occur before the permit can be transferred.
“In that case, the anti-livestock groups will challenge those documents and ensure that permits don't transfer for years,” she adds. Thus, if a permittee dies, his heirs could be out of business long before the permit transfers.
“Certainly, a buyer will not purchase a ranch and wait years to find out about the grazing permit,” Budd-Falen says. “Finally, many ranch owners find it necessary to lease their base property to a third party. Likewise, young operators often start out by leasing ranches.”
However, if the authorized officer has discretion not to transfer the permit, or if he requires years to transfer the permit, the leasing of ranches will no longer be a viable option.
Budd-Falen believes the Owl Creek permit should be transferred to Robbins until Interior Secretary Gale Norton has finally determined whether Robbins is qualified.
Although the Justice Department claims only the secretary is allowed to deny permit transfers for any or no reason, in Robbins' case, the Worland office made the decision.
“In effect, the Justice Department is elevating a decision by a field office to the level of a decision of the secretary,” explains Budd-Falen. “This position not only impacts Frank Robbins, but sets an extremely adverse precedent for the entire livestock industry.”