Implementing Grazing Provisions in Fiscal Year (FY) 2012 Appropriations Act

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

April 10, 2012

In Reply Refer To:

4110 (220) P

EMS TRANSMISSION 04/12/2012

Instruction Memorandum No. 2012-096

Expires:  09/30/2013

To:                All Field Office Officials

From:            Assistant Director, Renewable Resources and Planning

Subject:        Implementing Grazing Provisions in Fiscal Year (FY) 2012 Appropriations Act

Program Area:  Rangeland Management (1020)

Purpose: To provide direction for implementing provisions within the Consolidated Appropriations Act, 2012 (Public Law 112-74) related to livestock grazing authorizations.

The Consolidated Appropriations Act, 2012 (Public Law 112-74) includes one modified provision and three new general provisions which address the management of the Bureau of Land Management’s (BLM’s) livestock grazing program.  One of the three provisions has two distinct parts.  This Instruction Memorandum (IM) is intended to provide direction to the Field on how to implement these provisions. 

Policy/Action:  Appropriations Act provisions (in italics for easy reference) are followed by background and policy to implement the provision.

1. Section 122 (a) Exhaustion of Administrative Review Required

The provision reads as follows:

1.  For fiscal years 2012 and 2013 only, a person may bring a civil action challenging a decision of the Bureau of Land Management concerning grazing on public lands (as defined in section 103(e) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702(e))) in the Federal District Court only if the person has exhausted the administrative hearings and appeals procedures established by the Department of the Interior, including having filed a timely appeal and a request for stay.

2.  An issue may be considered in the judicial review of a decision referred to in paragraph (1) only if the issue was raised in the administrative review process described in such paragraph.

3.  An exception to the requirement of exhausting the administrative review process before seeking judicial review shall be available if a Federal court finds that the agency failed or was unable to make information timely available during the administrative review process for issues of material fact.  For the purpose of this paragraph, the term “timely” means within 120 calendar days after the date that the challenge to the agency action or amendment at issue is received for administrative review.

Background:  The Department of the Interior (DOI) regulations at 43 CFR §§ 4.21(c) and 4.479(e) already requires exhaustion of administrative remedies prior to bringing a lawsuit in Federal District Court. Section 122(a) seeks to clarify and legislate the exhaustion requirement for FY 2012 and 2013.

Policy:  This provision does not require the Field Office (FO) to change any current grazing decision processes.  The issue of whether a would-be plaintiff has properly exhausted administrative remedies in accordance with Section 122(a) will almost always arise in litigation and should be examined on a case-by-case basis.  The FO should be working closely with the Office of the Solicitor when this issue arises. 

2. Section 122 (b) “Acceptance of Donation of Certain Existing Permits or Leases”

Policy addressing this provision will be issued by the California State Office as it only applies to one district within California.

3. Section 123 Trailing Livestock Across Public Land

The provision reads as follows:  “During fiscal years 2012 through 2013 only, the Bureau of Land Management may, at its sole discretion, review planning and implementation decisions regarding the trailing of livestock across public lands, including, but not limited to, issuance of crossing or trailing authorizations or permits, under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).  Temporary trailing or crossing authorizations across public lands shall not be subject to protest and/or appeal under subpart E of Part 4 of Title 43, Code of Federal Regulations, and subpart 4160 of part 4100 of such title.”

1. Section 123 provides the Authorized Officer (AO) discretion to review existing decisions and NEPA documents to determine if additional NEPA analysis is needed.

Background:  Regulations provide that the BLM “may” issue a crossing permit (43 CFR 4130.6-3).  If the AO elects to issue a crossing permit, it must have had an appropriate analysis under NEPA.  An appropriate analysis may include an Environmental Assessment (EA); an EA tiered to a RMP-NEPA document; or Determination of NEPA Adequacy (DNA), where appropriate.

Policy:  The FO must consider the effects of issuing a crossing permit.  The degree of detail and analysis is left up to the FO discretion.  Typically, this will depend on the resources affected by the livestock crossing, the type and magnitude of the crossing, as well as any resource issues present.  The language of Section 123 does not alter the FO responsibilities under the Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. §§ 470 et seq.) or any other statutes. 

2. Section 123 removes the application of the protest and administrative appeals process of 43 CFR Subpart 4160 from the issuance of crossing permits, but does not preclude notification to affected permittees or the interested public of the issuance of a crossing permit as a decision.      

Background:  Section 123 removes the application of the protest and administrative appeals process from the issuance of crossing authorizations or permits.  Congress has used mandatory language stating that “[t]emporary trailing or crossing authorizations across public lands shall not be subject to protest and/or appeal under subpart 4160 of part 4100 of such title.” 

Section 123 addresses the section of Subpart 4160 dealing with protests and/or the administrative appeals process only.  Section 123 does not change the requirements for notification of a decision issued under 43 CFR § 4160.1.  Because Section 123 removes the application of the protest process to the issuance of crossing authorizations or permits, the FO would no longer need to first issue a proposed decision, but rather provide this notification to affected permittees/lessees and the interested public as a final decision.     

Policy:  When a decision is issued to authorize a crossing permit, the AO should replace the traditional administrative appeal rights language in the final decision with a statement informing the affected permittee/lessee or the interested public that the decision is not protestable and/or administratively appealable under Subpart 4160.  Suggested language for this revised notice is as follows:

“Pursuant to Section 123 of the Consolidated Appropriations Act, 2012 (Pub. L. 112-74), this BLM final decision is not subject to protest and/or administrative appeal under subpart E of Part 4 of Title 43, Code of Federal Regulations and subpart 4160 of part 4100 of such title.” 

The FO should consult with the Office of the Solicitor and the BLM State Office Rangeland Management Program Leads if they have questions regarding crossing permit applications.

4. Section 415: Issuing Grazing Permit Renewals & Transfers 

The provision reads as follows:  Section 415 - The terms and conditions of section 325 of Public Law 108-108 (117 stat. 1307), regarding grazing permits at the Department of the Interior and the Forest Service, shall remain in effect for fiscal year 2012 and 2013.  A grazing permit or lease issued by the Secretary of the Interior for lands administered by the Bureau of Land Management that is the subject of a request for a grazing preference transfer shall be issued, without further processing, for the remaining time period in the existing permit or lease using the same mandatory terms and conditions.  If the authorized officer determines a change in the mandatory terms and conditions is required, the new permit must be processed as directed in section 325 of Public Law 108-108.

1. Permit Renewals

Background:  Section 415 of Public Law 112-74 extends the authority to issue grazing permits under the provisions in Section 325 of PL 108-108 through the end of FY 2013.  Section 325 provides the process for authorizing grazing until a permit or lease is issued in compliance with all applicable law and regulatory processes.  Section 415 provides the authority for using the processes in Section 325 until September 30, 2013.  In addition, Section 415 provides direction for issuing permits following a transfer of preference.

A permittee seeking a renewed permit must satisfy the “mandatory qualifications” as laid out in 43 CFR § 4110.1.  One of the mandatory qualifications is a “satisfactory record of performance” with respect to the expiring grazing permit as determined by the authorized officer.  See 43 CFR § 4110.1(b). 

Policy:  Where a FO is unable to fully process a permit renewal in compliance with all applicable laws prior to the permit expiration, it must renew the permit pursuant to Section 415.  A permit renewed pursuant to Section 415 must contain the same terms and conditions as the expiring permit.  The BLM has discretion to determine the length of a new permit issued under Section 415.  The new permit is to be issued for 10 years unless one of the four provisions in 43 CFR 4130.2(d) applies.

When processing a grazing permit in compliance with applicable law and regulation in preliminary priority habitat and preliminary general habitat for sage-grouse, use the policies and procedures in WO IM 2012-043.  If terms and conditions need to be changed in order to comply with Washington Office IM 2012-043, and processing has not already been initiated, then processing should be initiated immediately

If grazing permits are issued using the authority of Section 415 between the effective date of this Instruction Memorandum and October 1, 2013, include the following statement on the permit:

“This permit or lease is issued under the authority of Section 415, Public Law 112-74 and contains the same terms and conditions as the previous permit or lease.  This permit or lease may be canceled, suspended, or modified, in whole or in part to meet the requirements of applicable laws and regulations."

The BLM FOs must complete a record of performance review when processing an application for permit renewal.  The authorized officer should specify in the grazing decision that the BLM has determined that the applicant has a satisfactory record of performance.  

Once a FO uses Section 415 to renew an expiring permit, it must prioritize that permit renewal against all other permit renewals for processing.  In prioritizing grazing permits for full processing, the FO should consider the environmental significance of the underlying grazing allotments as well as funding considerations.  In several instances, the Director has issued guidance related to the prioritization of future authorizations (refer to IM 2009-018 and IM 2012-043 specific for sage grouse and its habitat).  These statements of policy apply to all grazing renewal circumstances as well as other program authorizations.

2. Transfers

Background:  The BLM employs a two-step process with respect to transfers.  For transfers from one operator to another, Step 1 involves the BLM approval of a transfer of the “grazing preference” from the transferor to the transferee.  This action is eligible for a categorical exclusion under NEPA (see 516 DM 11.9(D)(1)).  Step 2 involves issuing a new permit to the transferee.^[1]  See 43 CFR § 4110.2-3(a)(3); see also 43 CFR § 4110.2-3(d) (noting that the transferor’s permit terminates automatically when the BLM approves the transfer of preference).  Step 2 (issuance of the new permit) is not an action eligible for a Categorical Exclusion, and absent application of the Section 415 grazing provision, the issuance of a new permit must be done in compliance with all applicable laws, including NEPA.

Policy:  Under Section 415, if a grazing permit is “subject to” a request for a grazing preference transfer, the BLM must issue a new permit to the qualified applicant.  Ensure that the applicant is “qualified” pursuant to 43 CFR § 4110.1(a).  Do not approve a transfer of preference to an unqualified applicant except as provided in § 4110.2-3(e).

1. Terms and conditions of a permit issued under Section 415 in the transfer context:

When a FO issues a new permit to a transferee under Section 415, the permit must contain the same terms and conditions that were contained on the transferor’s permit. 

A permit issued pursuant to a transfer request using Section 415 as authority should be issued for the number of years that would have been remaining on the transferor’s permit had no transfer application been submitted.  For example, if in year four of a ten-year permit a transferor transfers his grazing preference, then the new permit to the transferee should be for six years.

2. Permits issued under Section 415 in the context of a preference transfer do not get placed on priority list and do not require further processing:

Permits issued under Section 415 in the context of a preference transfer are, in general, not subject to additional prioritization solely on the basis of being issued as a result of a preference transfer and do not require “further processing” in compliance with applicable laws.  Priority for processing should not change unless the conditions necessitate a change.  If a FO seeks to change permit terms and conditions as part of the transfer process, the transferee’s new permit should either a) be processed before being issued, or b) issued for up to ten years with the same terms and conditions as the transferor’s permit and then processed subsequently with appropriate NEPA analysis of the proposed changes.

3. Change in the mandatory terms and conditions:

The FO continues to retain its discretion to revisit the terms and conditions of a permit at any time using existing processes in the grazing regulations.  See 43 CFR § 4130.3-3. 

Any permit issued under authority of Section 415 using Section 325 processes will be designated as an “Appropriations Act” permit in the Rangeland Administration System (RAS), whether a renewal or a transfer.  A permit issued as a result of a transfer under the authority of Section 415 will be designated with the same status as the transferor’s permit.  If the transferor’s permit was designated as “Active” and no terms and conditions are changed, the newly issued permit will also be designated as “Active.”  If terms and conditions need to be changed the permit should be issued as required by Section 415, and the permit issued to the transferee should be prioritized using the processes in Section 325. 

5. Section 431 Prohibition Regarding Potential Domestic Sheep and Bighorn Sheep Contact National Forest System Land

The provision reads as follows:

(a) PROHIBITION REGARDING POTENTIAL DOMESTIC SHEEP AND BIGHORN SHEEP CONTACT ON NATIONAL FOREST SYSTEM LAND—Notwithstanding any other provision of law or regulation (other than the Endangered Species Act of 1973 and regulations issued under such Act), none of the funds made available by this Act or made available by any other Act for fiscal year 2012 only may be used to carry out—

1. any new management restrictions on domestic sheep on parcels of National Forest System land (as defined in the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a))) with potential domestic sheep and bighorn sheep (whether native or non-native) contact in excess of the management restrictions that existed on July 1, 2011; or
2. any other agency regulation for managing bighorn sheep populations on any allotment of such National Forest System land if the management action will result in a reduction in the number of domestic livestock permitted to graze on the allotment or in the distribution of livestock on the allotment.

(b) EXCEPTION—Notwithstanding subsection (a), the Secretary of Agriculture may make such management changes as the Secretary determines to be necessary to manage bighorn sheep if the management changes —

1. are consistent with the wildlife plans of the relevant State fish and game agency and determined in consultation with that agency; and
2. are developed in consultation with the affected permittees.

(c) BUREAU OF LAND MANAGEMENT LANDS—In circumstances involving conflicts between bighorn sheep and domestic sheep grazing on public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)), the Bureau of Land Management may only modify or cancel domestic sheep grazing permits after consulting with the appropriate State fish and game agency.  However, if the State in question has an approved State Wildlife Management Plan that addresses, with specificity, bighorn sheep management, then the Bureau of Land Management modification or cancellation of permits in that State shall conform to the bighorn sheep management objectives in the State Wildlife Management Plan, unless conformance would be inconsistent with Federal statute or regulation.  The Bureau of Land Management shall be bound by the requirements of this subsection until September 30, 2012.

(d) VOLUNTARY CLOSURE OF ALLOTMENTS—Nothing in this section shall be construed as limiting the voluntary closure of existing domestic sheep allotments when the closure is agreed to in writing between the permittee and the Secretary of the Interior or the Secretary of Agriculture and is carried out for the purpose of reducing conflicts between domestic sheep and bighorn sheep.

(e) WAIVER OF GRAZING PERMITS AND LEASES—The Secretary of the Interior and the Secretary of Agriculture may accept the voluntary waiver of any valid existing lease or permit authorizing grazing on National Forest System land described in subsection (a) or public lands described in subsection (c).  If the grazing permit or lease for a grazing allotment is only partially within the area of potential domestic sheep and bighorn sheep contact, the affected permittee may elect to waive only the portion of the grazing permit or lease that is within that area.  The Secretary concerned shall—

1. terminate each permit or lease waived or portion of a permit or lease waived under this subsection;
2. ensure a permanent end to domestic sheep grazing on the land covered by the waived permit or lease or waived portion of the permit or lease unless or until there is no conflict with bighorn sheep management; and
3. provide for the reimbursement of range improvements in compliance with section 4 of the Act of June 28, 1934 (commonly known as the Taylor Grazing Act; 43 U.S.C. 315c).

Background:  Subparts (a) and (b) apply only to the Forest Service and the Secretary of Agriculture. Subpart (c) applies only to BLM and is directed only to the situation where conflicts between domestic and bighorn sheep have been identified.  Subparts (d) [Voluntary Closure] and (e) [Waiver of Grazing Permits] apply to the BLM and the Forest Service.  The provision uses the term “waiver”, which is a term used by the Forest Service.  The BLM term “relinquishment” is an equivalent action, so this policy section will refer to relinquishment of grazing permits and leases. 

Section 431(c) says that the BLM must conform to the bighorn sheep management objectives in a State wildlife management plan that addresses bighorn sheep management unless conformance with the State plan would be inconsistent with a Federal statute or regulation.  The regulations at 43 CFR 4110.3-3(b) require closure of allotments or portions of allotments, or modification of authorized grazing use when the FO makes a finding that significant resource damage is imminently likely.  The BLM Idaho Office recently closed an allotment based on its finding that continued domestic sheep grazing would create an “imminent likelihood of significant resource damage” under 43 CFR 4110.3-3(b) (2005).  See Marshall Mountain Grazing Appeal.  Section 431(c) would not restrict a FO from making similar findings in the future where such a finding is warranted by conditions on the ground. 

Policy:  Under Section 431(c) implement the following actions:

1. Where a conflict between bighorn sheep and domestic sheep grazing exists on public land, the BLM should consult with the appropriate State fish and game agency before modifying or cancelling a grazing permit or lease.  While this provision only speaks of “modifications” or “cancellations” of existing permits, 43 CFR 4130.2(b) (2005) requires the AO to consult, cooperate and coordinate with the State having lands or responsible for managing resources within the area before issuing or renewing a grazing permit or lease.
2. Where State agencies have a State wildlife management plan that addresses bighorn sheep management specifically, the AO’s modification or cancellation of the permit must conform to the bighorn sheep management objectives in the State plan unless conformance would violate Federal statute or regulation.  For example, if the BLM found that conformance with a State wildlife management plan would create a situation where an imminent likelihood of significant resource damage existed, the BLM would not have to “conform” to the State plan because doing so would be inconsistent with a Federal regulation. See 43 CFR 4110.3-3(b).  Similarly, if conditions necessitated closure to comply with a land use plan, the FO could undertake this, even if not consistent with a State wildlife management plan, because the FO must comply with its land use plans by law. See 43 U.S.C. 1732(a). 
3. Where a State does not have a management plan specifically addressing bighorn sheep, then the FO will consult with the State fish and game agency when contemplating modification or cancellation of a grazing permit.  The consultation between the FO and the State fish and game agency is documented in the permittee’s file.  The requirement to consult with the State fish and game agency does not mean that the FO has to follow or comply with the opinions of the State agency, although reasonable input by the State should be accommodated as appropriate.

Under Section 431(d) the BLM retains full discretion to accept voluntary closures of existing domestic sheep allotments so long as the closure is:

1. agreed to in writing between the permittee and the AO; and
2. carried out for the purpose of reducing conflicts between domestic sheep and bighorn sheep.  This requirement should reflect consultation with the appropriate State fish and game agency or cite to the appropriate provisions in the approved State bighorn sheep management plan.

Section 431(e) provides the AO authority to accept a voluntary waiver (relinquishment) of any valid existing lease or permit authorizing grazing on public lands described in subsection (c).  This provision further provides that a partial relinquishment can be acceptable:

1. If the grazing permit or lease for a grazing allotment is only partially within the area of potential domestic sheep and bighorn sheep contact, the affected permittee may elect to relinquish only the portion of the grazing permit or lease that is within that area.
2. When a permittee submits a relinquishment to prevent domestic sheep and bighorn sheep conflict, the AO must 1) accept it; 2) terminate each permit or lease, or portion of a permit or lease, relinquished under this subsection; 3) ensure an end to domestic sheep grazing on the land covered by the relinquished portion of the permit or lease unless or until there is no conflict with bighorn sheep management; and 4) provide for the reimbursement of range improvements in compliance with section 4 of the Act of June 28, 1934 (commonly known as the Taylor Grazing Act; 43 U.S.C. 315c).  The reimbursement will be from an appropriate MLR account and will be based on the adjusted value of the range improvements.

Consult with the Division of Forest, Rangeland, Riparian and Plant Conservation (WO-220) and Solicitors Office before acting on an offer of relinquishment.

Timeframe:  This policy is effective immediately.

Budget Impact:  Implementation of the Section 122(a) provision should reduce Equal Access to Justice Act (EAJA) fee payments, and reduce litigation costs at the Federal court level.  The California Solicitor’s Office will describe the impacts to Section 122(b).  There will be new costs to process Trailing Permits if they were previously issued without NEPA analysis.    Implementing Section 415 will decrease costs with the ability to issue permits as a result of preference transfers.  Implementing Section 431(c), (d) and (e) should not have any significant budget impact.

Manual/Handbook Sections Affected:  None

Coordination: This IM was prepared in coordination with the Solicitor’s Office, and the Divisions of Decision Support, Planning and NEPA (WO-210), Forest, Rangeland, Riparian and Plant Conservation (WO-220), Fish and Wildlife Conservation (WO-230), and Cultural, Paleontological Resources and Tribal Consultation (WO240).                                                                 

Contacts:  Dick Mayberry, Rangeland Management Specialist, WO 220, at 202-912-7229, or Bob Bolton, Senior Rangeland Management Specialist, WO 220, at 202-912-7204.

Signed by:                                                                   Authenticated by:

Edwin L. Roberson                                                     Robert M. Williams

Assistant Director                                                       Division of IRM Governance,WO-560

Renewable Resources and Planning