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Monday, September 29, 2014

Game change: industry appeals Battle Mountain decision

by Theodora Dowling, WLJ Correspondent

The livestock industry has officially dug in with an appeal of the Bureau of Land Management’s (BLM) policy for drought response in Nevada—and has shed light on some troubling application of federal law by the agency. While the decision industry is appealing currently affects only a handful of ranching families in northern Nevada, the BLM’s conduct has industry leaders worried about the larger implications for producers west-wide.

At issue is a decision by the Battle Mountain BLM district to remove three families’ cattle from the “Argenta Allotment” under the auspices of “drought” concerns. BLM has removed about 630 cattle from the bulk of the allotment for an indefinite period of time: for the duration of the alleged drought, and a full growing season after the “drought” subsides. The legal arm of the Nevada Cattlemen’s Association (the Nevada Land Action Association), and the Public Lands Council last week joined affected ranchers in appealing the Battle Mountain decision, effectively appealing the BLM’s drought policy in Nevada.

“We’re looking at an agency that’s flouting due process in order to advance an antigrazing agenda,” said J.J. Goicoechea, a rancher, county commissioner, and President of the Nevada Land Action Association. “That is a very scary thing for anyone who relies on grazing on federal land.”

At the surface level, industry voiced concern that the BLM’s decision shows blatant disregard for the protocol laid out in the agency’s own district-adopted drought policy.

“If you’ve been following this story, you know there are way too many examples to put into one sound-bite,” Goicoechea said. “BLM didn’t use site-specific data to determine whether ‘drought response actions’ needed to happen on the Argenta Allotment (in many areas of the allotment, no special action was necessary). They didn’t consult with the affected ranchers to do monitoring or come up with management actions other than closing the areas. They didn’t even fill out their own forage utilization forms that they themselves require. Every one of the above examples is a breach of the district’s own drought policy. But they went ahead and closed the bulk of this allotment—which, we must not forget, is over 50 percent privately owned.”

As the livestock associations went about overturning rocks in its investigation of the Battle Mountain case, they seemed to expose layers of bigger, deeper problems.

“If you read the appeal we filed, you’ll see that this problem goes beyond an agency decision negatively impacting a few ranching families,” said Brenda Richards, President of the Public Lands Council. “You see an application of the National Environmental Policy Act (NEPA) process at the state level that should have every federal land user concerned. NEPA is meant to analyze and show the public the expected environmental and socio-economic effects of a range of potential agency actions. We did not get that kind of analysis or public disclosure from BLM in Battle Mountain—or in most of the other Nevada BLM dis tricts—with regard to the drought policy.”

The BLM’s drought policy in Battle Mountain, known as the “Drought Environmental Assessment,” or “Drought EA,” was put in place several years ago in the district, and, at the direction of the BLM state director, has been duplicated in other BLM districts across Nevada. Goicoechea, who has protested the Drought EAs since their inception, said that the EAs are not scientifically sound documents and that the BLM’s NEPA analysis—which is meant to measure socio-economic and environmental effects of a policy—is sorely inadequate.

“The first problem with the Battle Mountain Drought EA, which was basically copied in most of the other districts in Nevada, is based on the incorrect assumption that drought conditions are statewide,” said Goicoechea. “The policy uses the U.S. Drought Monitor and the Vegetation Drought Response Index, neither of which can tell you if there’s actually a drought in a given locality. In the Argenta Allotment’s case, there weren’t drought conditions in terms of forage production —but the BLM claimed it had the authority to take ‘drought response actions’ based on the Drought EA.”

According to the livestock industry’s appeal, the EA wrongly concludes that “range resources must be rested or closed during and immediately following a drought to avoid adverse impacts.” But some of the studies cited in BLM’s own EA say that managed “moderate” grazing during drought will not have adverse impacts. The Argenta Allotment has been grazed during drought in the past, with no lasting negative effects.

Based on the above assumptions—that there is drought, and that “rest” from grazing is required—the Drought EA then provides a number of “drought response actions,” Goicoechea told WLJ. These actions vary from putting up electric fence, to moving salt locations, to removing livestock for the remainder of the “drought” and a full growing season after. The latter response has obvious potential to damage ranching operations, yet BLM determined in its NEPA analysis that the policy would have “no significant impact.”

“The Battle Mountain district has chosen to take the most drastic steps available to it under the EA,” Goicoechea said. “Meanwhile, the Drought EA’s NEPA analysis found that ‘no significant impact’ would come from implementation of the policy. We’re talking about destroying the livelihoods of potentially hundreds of ranching families—if every district manager decides to take the most draconian action of removing grazing, as the Battle Mountain district did. One of our arguments is: If you’re going to have a policy that allows for that, you’d better do the NE- PA analysis showing what it will do to our communities.”

Another argument made in industry’s appeal is the fact that BLM’s grazing reductions will result in environmental destruction. Ranchers and surrounding communities can expect increased fire hazard; increased invasion by cheatgrass and other noxious plants; and the loss of ranchers’ water improvements on the range—to the detriment of wildlife.

“All these concerns were brought before BLM during the comment periods on the various Drought EAs, but were not addressed,” Goicoechea stated. “NEPA requires that the agency respond to substantive concerns such as ours. They should have gone ahead with full environmental impact statements on these drought policies, but they’ve stuck to the line that there won’t be any economic or environmental effects to speak of. It’s ludicrous.”

Richards said that there’s yet another layer that industry exposed in their appeal of the Drought EA.

“The Battle Mountain EA is dangerous and not a sound document on which to base decisions,” Richards said. “But there’s an even bigger problem we uncovered: BLM is attempting to use highlevel, programmatic analysis with these ‘Drought EAs’ without doing the on-theground analysis that, by law, we believe they must do before issuing a decision. The result is that decisions are being made based on broad assumptions that may well not be true of conditions or needs on the ground in sitespecific areas. Such was the case with the Battle Mountain decision.”

Richards added that, until BLM made a final decision, industry had been unable to appeal the Drought EA.

“Meanwhile, we know of several instances where the Drought EA, because it was so severe, led ranchers to ‘voluntarily’ reduce their numbers or turnout dates— so that they didn’t get issued a decision under the EA,” Richards told WLJ. “And as long as no decisions were being issued by BLM, no appeals could be made by affected ranchers or the livestock associations. So we were seeing the EA having negative effects that couldn’t be combated in the appeals process. Now that a decision has been issued on the Argenta, we’re hoping our appeal will put a stop to that pattern.”

Richards said that Nevada BLM’s application of NEPA is “not atypical.”

“Quite often, whether it’s to appease radical anti-grazing groups, or because there exists an anti-livestock bias, NEPA analysis ends up saying that removing livestock won’t have any significant effect—whether it’s economic or environmental. That’s complete denial of the truth, of course,” said Richards. “We can’t allow NEPA to be used in this way without responding. If we simply stand by, it could eventually mean the demise of the entire federal lands grazing industry.”

NEPA reform, Richards added, is on PLC’s priority list of congressional actions.

“NEPA has turned into one of the primary laws that ‘enviro-litigators’ use to sue the government and get taxpayer reimbursement. It was meant to help federal agencies make sound decisions on federal resources, but instead it’s ended up stymieing sound management of our western federal lands.”

Goicoechea noted that fixing NEPA will help, but that “the NEPA problems are just a symptom of a larger problem. Our federal lands system is broken.”

He said there are other laws waiting in the wings— such as the Endangered Species Act (ESA)—that, because of an uninformed yet influential general public, end up harming what they were intended to protect. He mentioned the ESA and the potential listing of the sage grouse as a prime example.

“Not surprisingly, the sage grouse—a possible future ESA species—came up in the Argenta closure, too. Battle Mountain BLM is incorrectly using the agency’s sage grouse policy to force the closures of seven use areas,” Goicoechea told WLJ. “The fire hazard and the loss of ranchers providing water sources and essential habitat will be extremely harmful to the bird. But like I said, we’re not surprised that it’s being used to remove grazing. We fully expect that anti-grazing forces will keep trying to use the bird as leverage, especially on federal land, to remove grazing across the state and across the West.”

Goicoechea said that all the federal land issues facing his state—which is over 80 percent federally owned— has led Nevada to create a task force to study the idea of transferring some of the federal lands to state ownership.

“Whether it’s the sage grouse, the drought policy, or the problem of all the private checkerboard lands that are being put off-limits because of federal land management policies, we here in Nevada are taking action to shake up this broken system,” Goicoechea told WLJ. “We’re already seeing political pushback from the highest levels in Washington, D.C. That just tells me we’re on the right track. Something has to change if western states like Nevada want to keep their resource-based economies and cultures.” — Theodora Dowling, WLJ Correspondent

 
 


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