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Monday, February 17, 2014

War of attrition continues on grazing numbers

by Theodora Dowling, WLJ Correspondent

“It is no use saying, ‘We did our best.’ You have got to succeed in doing what is necessary.” It could be said that Sir Winston Churchill’s philosophy on winning a war is shared by members of the National Cattlemen’s Beef Association (NCBA) federal lands committee. The committee convened in Nashville on Feb. 6 th during the 2014 Cattle Industry Convention and NCBA Trade Show. Members of the committee discussed the most critical fronts in the ongoing war on federal lands grazing.

Strategies on these fronts were discussed, both in the meeting and in the halls throughout the course of the week. Times are hard on the federal lands, and not just because of drought: issues such as lack of federal management of feral horses; upcoming sage grouse regulations; continued attempts by the Environmental Protection Agency to claim jurisdiction over practically all waters in the country; and catastrophic wildfire due to mismanagement by the federal government—all these and more are matters staring ranchers in the eye every day.

At the meeting, a Utah rancher whose operation is severely impacted by horses excoriated the Bureau of Land Management (BLM) for more closely resembling a “Bureau of Horse Management.” Indeed, the BLM range spokesman spent a good deal of time explaining to the NCBA federal lands committee that, despite the best science pointing to the contrary, no horse gathers were planned by his agency for this fiscal year (other than in Wyoming where a federal court order requires it). He said that a BLM executive leadership team would be meeting in March to discuss how to handle the inevitable crisis that is looming. In light of the drought—combined with the agency’s decision not to gather horses off the range—he said, “The team will be looking at questions like, ‘Are we going to allow horses to die? Will we haul them water? Will we open gates?’” Echoing in the hallways of the NCBA meeting were rumblings of a litigation strategy on the horse problem. BLM is not fulfilling its statutory duty of managing the horses, and many ranchers are reaching a point where they can no longer operate alongside the horses, which are destroying the range in some areas. No further details were available on a national-level litigation strategy, but Dustin Van Liew, Executive Director of NCBA Federal Lands, assured us that NCBA is looking very hard at the issue.

“We consider all options to be on the table in responding to BLM’s statement that they have discontinued gathers,” said Van Liew.

While temperatures ran high about horses, nothing at the meeting overshadowed the Grazing Improvement Act (GIA). Just hours before the meeting, fresh ground was won: passage of the GIA in the U.S. House of Representatives. The GIA is one of NCBA’s top-priority pieces of legislation. It was conceived several years ago due to growing regulatory and legal pressures that may surpass every other threat to grazing on federal lands. Over time, agency-crafted regulations and court precedent have resulted in the requirement that commonplace 10-year grazing permit renewals undergo extensive analysis under the National Environmental Policy Act (NE- PA). This process—and the resulting litigation by antigrazing groups—constitutes a war of attrition on ranchers’ grazing numbers and turnout dates. Not only that, it poses a huge cost to the federal land management agencies, who report they are spending more time completing NEPA paperwork and responding to lawsuits than they do performing on-the-ground monitoring and management. Both the Bureau of Land Management and the U.S. Forest Service are operating under extensive backlogs of NEPA reviews on perfunctory grazing permit renewals.

“We don’t even think NE- PA should be done on permit renewals,” said Globe, AZ, rancher David Cook in an interview with WLJ. Cook is the Chairman of the NC- BA federal lands committee. “But it’s the situation we face, and we need legislation that can pass and that can bring us some relief.”

The House-passed Grazing Improvement Act (GIA) would put in place language that ensures grazing may continue despite the NEPA paperwork backlog. Also, all permits that are being renewed without changes in management would not have to undergo the full NEPA review—which would reduce the backlog. Certain low-impact or administrative activities, such as livestock trailing and crossing, a transfer of preference rights, and range improvements, would be exempt from NEPA altogether.

According to Van Liew, the bill was strengthened by two amendments before passage. One amendment, offered by Rep. Cynthia Lummis (R-WY) and Rep. Ral Labrador (R-ID), the bill’s sponsor, puts finer points to provisions streamlining the NEPA process on permits and making sure crossing and trailing applications are processed in a timely manner. A second amendment, offered by Rep. Labrador, makes sure that when an outside party (read “anti-grazing group”) challenges a final grazing decision and loses, that party will pay the attorney fees and court cost of the affected parties.

Colin Woodall, Vice President of Governmental Affairs for NCBA, told federal land committee members that the improvements to the House bill would prove helpful should the Senate pass its version and a final bill be negotiated. Some think the recently-amended Senate version could end up doing more harm than good to ranchers. NCBA agrees that, in its current form, it is unacceptable—but contends that certain compromises had had to be made in order to advance the bill in the Senate. The new troubling provisions, Woodall said, would have to be left out of a final bill to have NCBA’s support.

This strategy was unacceptable to NCBA memberaffiliate, New Mexico Cattle Growers’ Association (NMC- GA), who brought their concerns before the NCBA federal lands committee.

Among their contentions: a provision in the Senate version that would allow permanent grazing permit retirements in Oregon and New Mexico. Should it be included in a final bill, ranchers in those two states would likely be under constant harassment by radical groups whose aim is to forever remove grazing from the landscape. (As the law stands now, any time a rancher relinquishes his permit, it must be offered to another rancher for purposes of grazing.) NCBA had already stated its opposition to the “permit retirement” aspect of the Senate bill in a press release following committee passage. Nonetheless, in response to the threat to their members’ livelihoods, New Mexico brought before the NCBA committee a resolution criticizing NCBA for supporting the overall Senate version of the bill, and demanding that NCBA withdraw its support for the Senate version.

“We do not want to be the sacrificial lamb,” said Jose Varela Lopez, NMCGA President and rancher of La Cieneguilla, NM.

He explained to the committee that his membership had sent him to Nashville to right the situation and ensure that their livelihoods would not be the collateral damage of the strategy being pursued by NC- BA to pass the GIA. Discussion ensued wherein NCBA federal lands leadership made clear its acknowledgement that the permit retirement language would be a chink in the armor of the entire industry, if it were left in the final bill. In that case, they said, the bill would not have industry’s support. Leadership was confident that the livestock industry had enough allies in Congress to ensure that the bill could be killed if the offensive provisions were not removed from the final version.

Ultimately, although NMCGA agreed to withdraw its resolution, a motion was passed to include the resolution in the minutes, regardless. A directive was also brought to the floor that instructed NCBA staff to support the Housepassed version and support a final version only if its key provisions mirror those of the House bill. The directive passed.

“It has been and remains our position to put a stop to any damaging language before final passage, while recognizing the process in a divided Washington is not straightforward and as easy as we wish,” said Van Liew, who, as NCBA staff in Washington, DC, has been industry’s overseer as the bill has advanced through both chambers. “I understand that NMCGA couldn’t stand still after their junior senator agreed to include the provision dealing with permit relinquishment in their state.

That’s not something any of us will stand for in a final bill, and I hope this directive adds to ranchers’ confidence that NCBA represents all of them and will do everything in our power to see that the final bill benefits all western states. We will oppose any final bill that includes permit retirement language.”

Of course, nothing in Washington is certain.

“I understand they have a certain strategy, but we in New Mexico don’t agree with that strategy,” said Varela Lopez in an interview with WLJ. “It’s too dangerous for New Mexico to be listed in that bill the way that it is.”

Caren Cowan, Executive Director of NMCGA, said in an interview with WLJ that they still oppose the Senate bill and that she felt they were never able to discuss the merits of the bill at the NCBA meeting.

But according to Robbie LeValley, a Hotchkiss, CO, rancher and the Vice- Chairman of NCBA federal lands committee, NCBA staff and leadership had had multiple conversations with NMCGA and had provided ample opportunity for their concerns to be brought before the committee membership.

“NCBA staff and federal lands committee leadership had conversations with New Mexico prior to the Nashville meeting. At the Nashville meeting, the leadership again met with New Mexico one-on-one and heard their concerns. Then, during the NCBA federal lands committee meeting, leadership facilitated significant discussion specific to the issue and the proposed resolution from New Mexico,” she said. “It was clear from the discussions both prior to the meeting and at the meeting, that NCBA would support the U.S. House version, and not the Senate version in its current form for final passage. This was reinforced by the directive that we passed out of the federal lands committee: NCBA supports the Housepassed bill and any final bill that doesn’t significantly differ from it. The directive reaffirms the strategy under which leadership and staff have been working. Meanwhile, the full NMCGA resolution—even though they withdrew it— is reflected in the minutes of our committee meeting.”

Van Liew said that other concerns brought up in committee about the Senate version would also be addressed, including one that NEPA could be construed as mandatory for crossing and trailing permits. “I don’t think that’s the intent of the language currently in the bill, but we will make sure that it’s crystal clear before the bill is final,” he said.

“Most of all, we are motivated by seeing Congress progressing on pro-grazing legislation. Given the composition of Congress and the Senate committee right now, this might be our only chance in who knows how long to make ranchers’ lives better with national legislation. I ask all ranchers, from across the West, to continue supporting the effort to pass legislation to strengthen our industry. If we can’t stand united as an industry on how to proceed from here on out, I fear we’ll miss a huge opportunity.”

In this war-without-end, is NCBA “doing what is necessary” by making compromises to see the Grazing Improvement Act pass? Nobody has made the assertion that this bill is a silver bullet; indeed, it’s not likely that anyone really expects there ever to be peace on federal lands. However, there is broad agreement that enactment of a bill similar to the House version would put industry on considerably higher ground. Risks were taken to advance the bill to this point. Now, industry is faced with the question of how best to proceed: accept the risk posed to Oregonians and New Mexicans and carry the bill forward, or stop it in its tracks? All signs indicate that, at least at the national level, it’s full speed ahead. — Theodora Dowling, WLJ Correspondent