Attorney Advises Permittees on Rangeland Issues
At the recent rangeland and livestock conference held in St. George, Attorney Glenn Davies gave the attendees advice on the legal system as it pertains to them and grazing rights. Davies is counsel for the Farm Bureau and also for many permittees. Davies was described as being a defender against environmentalists.
Davies began by examining the appeal process for the Bureau of Land Management and for the forest service. He described the BLM as having a reasonably independent line of authority to review and examine appeals. He described the appeal process at the forest service as being all within the agency and the appeal usually goes back to guy who gave the instructions in the first place. The only information used in their review is the ranger file with no outside information.
Davies encouraged ranchers to get involved early in the administrative file and make sure your record is in the file. This will give you a leg up. "Meet with the BLM manager and discuss ideas and tentative agreements and then make a record of things you have discussed and plans of action you intend to take; then send a copy of this letter to the manager so it can be included in your file on your allotment. The manager will make a memo of your meeting and if you have not sent a letter; should a dispute ever arise he has a memo and you have nothing. Now, who is the judge most likely to believe? Write out a letter, get a record it saves problems down the road.
"In the disputes with the environmentalists they always have paper documentation. You need to send your manager information on your allotment, studies, anything that pertains to it. You need to paper your record with your information. You have 15 days to protest a proposed decision. An individual group or organization can submit a written request to be involved in the process on specific grazing allotments. Anybody can submit a written request to participate in decision making on your allotment.
"Joe Feller, an environmentalist years ago encouraged his group and other environmentalists to adopt an allotment. Have any of you checked to see if anyone has filed on your allotment to be involved in the decision making process? Be aware and be advised," warned Davies.
Southern Wilderness Alliance and Western Watersheds are appealing each renewal as it is made. The permittee is not a party to the appeal. He will have no right to participate and can submit no evidence or call any witnesses. The right to intervene is not automatic. The BLMs final decision is suspended for the 30 day appeal period on the 31st day the decision will be put into force and effect unless there is a motion to stay. SUWA is protesting every one of the renewed grazing permits. They want to deny BLM the right to issue your permit.
Getting a stay is not easy. Grounds must be demonstrated in four areas. It is difficult to get, similar to getting an injunction. Providing that the Office of Hearing and Appeals stays the decision the permittee is granted use according to preceding use and can continue at that level. The effectiveness of the stay is that the permittee is protected and can graze according to the preceding grazing season as long as the stay is in effect. SUWA does not like that statement. There are two judges employed by the Office of Hearing and Appeals who are independent of BLM. They have a backlog of cases.
Davies went on to explain the appellant process and the need for permittees to become involved in the process as an intervening party. Should a trial become necessary, the permittee will be able to submit evidence and call witnesses and make exhibits. The decision of the law judge will be based on the condition of the resource and by looking at the facts. They will try to use what's available to make a decision. The decision is final with a 30 day window of appeal. "If you did not become a party to the appellate law judge's decision proceedings you will have no right to appeal. File as an intervening party to keep the right to appeal," stressed Davies.
"It's you against the environmental parties, get some public interest on your behalf, county commissioners, SITLA, Farm Bureau; get groups on your side. You need an additional voice of your positions. When the case is closed no new evidence or new ideas can be submitted, the record is closed.
"Environmental groups are attacking NEPA policys and challenging whether NEPA procedures are being followed. Before the federal government or agencies can take any action which potentially impacts the environment they must examine the impacts. An environmental assessment must be made if it is a significant impact. Before proceeding to make a decision an environmental statement must be made assessing all impacts. Back in the 70s this study determined that grazing livestock were in NEPA compliance. Environmentalists are challenging the decision of the agency whether it followed law and they will look at it brand new with regard to compliance. This is SUWAs primary attack," said Davies.
Davies pointed out that the BLM lacks the manpower or the resources to do assessments on an area by area basis. Which SUWA interprets as a readymade appeal of every grazing decision. "BLM cannot meet those standards. It is SUWAs goal to shut down grazing on the public lands, that's what they want to do. That's the direction they're going. We need to get involved. to make sure BLM is making good decisions. To stand and say it's good enough and here's why. It's practical and meets everything the law intended. The ranchers and the wool growers need to make a commitment. It is of grave importance to the ranching community to be involved. It is SUWA's goal to do away with all grazing in the next 10-15 years. SUWA will not compromise. Some of the environmental community will work with you and when they do it is a win-win situation. Look for the positive, grazing is good for the environment, publicize the positive," said Davies.
Ranchers were invited to ask questions and one rancher expressed his concern that they (ranchers) are always trying to improve the land and they are looked at as the bad guys. One rancher said the ranchers are not selfish with public land but the environmental movement is and they try to tie the land up which is selfish. "It is difficult to develop partnerships with the environmentalists when they are not interested in making concessions. We're the good guys and the media will not print our stories," he stated.
One rancher issued the challenge to environmentalists to take the barren land and do something productive with it like the ranchers have done.
One rancher brought up the American Disabilities Act and what would happen if someone who qualified for ADA filed a lawsuit because their access to public lands is denied and will be more so if more wilderness is designated. Davies commented that access by disabled Americans poses a very interesting question but to his knowledge no suits of this kind have ever been filed.
One rancher spoke in support of his environmental specialist who keeps them on their toes and helps them do honest evaluations. The need for getting the word out on the good things the ranchers are doing on their allotments was stressed at the conference as well as the need for documentation of their files on individual allotments.