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Monday, May 5, 2014

Gray area in Steens Act fencing responsibility

by Traci Eatherton, WLJ Managing Editor

The pristine Steens Mountain wilderness area was designate by Congress in 2000, and covers over 170,200 acres in Oregon. A land exchange provision blocks up nearly 100,000 acres of livestock-free wilderness within the area, and that livestock-free area is at the heart of a fencing dispute pitting local rancher George Stroemple against the Bureau of Land Management (BLM).

On April 25, U.S. Rep. Greg Walden (R-OR) was in Burns, OR, for a meeting with local ranchers and BLM because the agency is refusing to put up fencing between federal land and private land around Steens Mountain, “ignoring the letter and spirit of a law passed by Congress 14 years ago.”

The Steens Act—written by Walden and signed into law in October 2000—contains a very clear sentence: “The Secretary [of the Interior] shall be responsible for installing and maintaining any fencing required for resource protection within the designated no livestock grazing area.”

But Burns and his lawyer believe the agency is failing to live up to their end of the bargain, and has made it clear they feel the responsibility for building the fences falls to the ranchers.

In 2013, Stroemple put in a request with BLM for a permit to herd his cattle across his lands, only to find out that if his cattle cross over into the wilderness area, he would be subject to fines. Rhonda Karges, the Andrews/Steens Resource Area Field Manager in the BLM’s Burns District, wrote in the final decision that it is “the landowner’s responsibility to keep livestock off of federal land.”

The Steens Act, Karges said, “applies to resource protection but does not establish a BLM responsibility to keep private livestock on private land.”

“(Stroemple) wants to take cattle up there, and the BLM has threatened him with trespass,” he said. “My client is reasonably unwilling to take that risk,” Dominic Carollo, Stroemple’s attorney, told the Burns Times-Herald.

Stroemple has appealed the decision to the Department of the Interior, which kept Walden from being able to meet the ranchers and BLM representatives at the same time.

Meeting with the ranchers first, Walden said this is not the first time there has been conflict with the Steens Act interpretation. Other conflicts included road use and a camp. But he believes the fencing portion is black and white.

“I came pretty close to writing this entire law, and it says the federal government will fence out the cows,” Walden told the group.

Following the meeting with the ranchers, Walden then met with BLM State Director Jerry Perez and Burns District Manager Brendan Cain. From the discussions, it appears that a there may be a lack of understanding surrounding the act. But the litigation kept both BLM representatives relatively quiet on the topic.

As Walden told reporters before the meeting, “I wrote this law. I know what we intended, I know what we wrote, and I know what we fully envisioned. It’s not the first time I’ve tried to educate the BLM folk on what was the intent of the law and what wasn’t, because they continue to try to interpret it their way, and that’s not the way the agreements were made. You get these people in this agency that think it’s their land and the government’s land and not the public’s land, and they don’t respect the intent of Congress. … Now they have some high-priced lawyers running around, trying to interpret nuances to get to a result that they want. And I’ll be darned if I’m going to let them do that.”

According to Walden, the Steens Act mentions fencing twice: • “The secretary shall also construct fencing and develop water systems as necessary to allow reasonable and efficient livestock use of the (replacement) forage resources.” • “The secretary (of the Interior) shall be responsible for installing and maintaining any fencing required for resource protection within the designated no livestock grazing area.”

While it does seem pretty cut and dry, BLM says the first sentence applies only to the lands involved in land swaps that occurred in the act, and the second sentence applies only to resource protection, without establishing any responsibility for payment of fencing.

Ben Otley, a rancher at the meeting, said when the Steens Act was being negotiated, ranchers were worried about the cost of fencing. They also knew lawsuits, fines or worse could follow if cattle weren’t fenced in. That’s why the language in the law specified the government would be responsible for fencing. Ranchers and Walden said there was no real disagreement on the matter. It made sense to everyone. Otley added that the BLM contracted with him to fence in some of his land.

That’s why Walden and ranchers were stunned to hear the BLM did not believe it was responsible for fencing in cattle or that it would be responsible only in certain areas.

Walden points out that the BLM can’t assign its own meaning to the language of the Steens Act. Unless it can prove that congressional intent is somehow different from what the law’s author says it was, it’s the BLM’s responsibility for fencing in cattle on the Steens.

The wilderness area is also home to several herds of wild horses. The two BLM representatives were asked about the numbers, but they didn’t have a clear count. The estimate was somewhere around 500, but 250 is the set number for the area, which may very well become another hot topic surrounding the Steens Wilderness area in the near future.

But the ranchers seemed to be in agreement that the new staff in the Oregon BLM office may just need to catch up on what the original intent of the act was, and what it actually says, and following the recent Cliven Bundy-BLM range war, it might be wise to do it quickly.

The Bundy chaos still continues, with the potential of new lawsuits. Title 43 of the U.S. Public Lands code states, “When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement author ity within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations.”

While Bundy’s case isn’t as black and white, BLM officials may very well have overstepped their boundaries, again. — Traci Eatherton, WLJ Editor