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Earlier this month, the Western Watersheds Project (WWP) dismissed without prejudice their lawsuit against the Bureau of Land Management (BLM) following claims of a “zombie grazing permit” in the Badger Den allotment.

The Badger Den allotment is in the San Simon Valley, an area in southeastern Arizona and southwestern New Mexico. The valley is east of the Chiricahua Mountains and comprises parts of Cochise and Graham counties. It is surrounded by the Dos Cabezas and Pineleno mountains on the west with the Peloncillo Mountains on the east. The San Simon River flows northwest through the valley and into the Gila River.

The allotment is approximately seven miles north of Bowie, AZ, and consists of 11 pastures covering 47,000 acres of BLM land and 1,300 acres of private property.

The lawsuit filed in December 2019 argued BLM’s Safford Field Office Field Manager Scott Cooke authorized the transfer of a nonexistent livestock grazing permit for the Badger Den grazing allotment using “categorical exclusion.”

The lawsuit also alleges BLM issued a permit without public comment per the rules of the National Environmental Policy Act (NEPA).

While there has not been grazing on the Badger Den allotment since it was revoked by the BLM in 1991, the allotment has a long history of controversy. Prior to the revocation, the Klump family had several run-ins with the BLM resulting in the seizure of their cattle and Wally Klump serving time in jail for contempt of court.

For years, the family fought in U.S. District Court for just compensation, and violations of the Fourth Amendment of the Constitution. In the years since, the WWP cites in the original complaint the Klumps had an interest in regaining the grazing rights.

Allotment since permit revoked

The U.S. Fish & Wildlife Service in a 2011 Biological Opinion (BiOp) stated, “Grazing privileges on this allotment were canceled by the Safford Field Office for failure of permittee to follow grazing regulations.” The BiOp also acknowledged that grazing privileges might be reinstated or transferred at a later date, and trespass cattle are possible.

According to the complaint filed by WWP in 2019, in a memorandum from the BLM fisheries biologist to the range management specialist dated May 23, 2014, it was stated a “grazing application was discussed in some detail, including some ongoing trespass livestock through February 2009.”

In October 2015, the BLM assistant field manager identified the Badger Den allotment as a “priority” and indicated plans to prepare an environmental assessment (EA). By August 2017, the BLM classified the Badger Den allotment in the “improve” category and listed the permittee as “Klump,” according to the complaint.

In November 2017, the BLM issued a NEPA number for the Badger Den allotment and notified range staff that BLM law enforcement was ready to introduce cattle and improve the allotment. A week later, the BLM planning and environmental specialist indicated the permit renewal EA (2014-0022-EA) had been withdrawn, stating, “the grazing permit renewal process for this allotment will occur at a time to be determined.”

The complaint further stated that in June 2018, “the BLM field manager signed the NEPA compliance record authorizing the use of categorical exclusion to transfer the nonexistent permit.”

It also states that the field manager issued a grazing permit to Levi Klump for the allotment authorizing 1,776 animal unit months (AUM) for the period of June 11, 2018 to Feb. 23, 2028, with the same terms and conditions as the canceled permit held by his father.

The WWP received a Consultation, Coordination, and Cooperation (CCC) letter from the BLM asking for input in proposed range improvements to the allotment. The letter also notified the public a land health evaluation would be conducted and that a permit renewal process is conducted through the NEPA process “in order to evaluate the possibility of reactivating the suspended AUMs.”

Before receipt of the CCC letter, the WWP believed the grazing permit had been canceled, and the BLM “would initiate a NEPA to develop an EA prior to considering authorizing any livestock grazing on the Badger Den allotment.”

After a Freedom of Information Act was filed by WWP in May 2019, WWP determined trespass cattle were an “ongoing problem” on the allotment.

The WWP in their suit claimed that the transfer of the non-existent grazing permit was a violation of the FLMPA, the Department of Interior Regulations, and NEPA. They also contended the categorical exclusion did not apply in the transfer of the nonexistent Badger Den grazing permit.

WWP agreed to dismiss the lawsuit after BLM withdrew the underlying grazing authorization and acknowledged they broke the law.

In the court’s dismissal order, it stated, “The decision challenged by [the] plaintiff has been revoked, rendering the case moot.”

History of controversy

The Badger Den allotment has a history of controversy surrounding the Klump family. Luther Wallace “Wally” Klump lost his grazing permit on the allotment in 1991 after what the BLM termed as trespassing.

In May 1992, the BLM issued a notice of impoundment of the allotment to Wayne Klump, Luther Klump, and others. Luther Klump and his brother subsequently appealed the BLM orders to the Interior Board of Land Appeals (IBLA), which, on Feb. 5, 1993, dismissed his case.

On Feb. 18, 1993, the BLM ordered the Klumps to remove their livestock from the allotment, warning that any livestock that remained after the allowed removal period would be impounded.

On April 13 and 14, 1993, the BLM impounded the livestock still on the allotment—289 head of the impounded cattle belonged to the Klumps and others. On Apr. 22, 1993, the cattle were sold at auction, netting $3,442.10 after costs were subtracted for transportation, care and feeding, veterinarian, sales commission, and brand inspection.

Later in 1993, the Klumps appealed the IBLA’s decision to the U.S. District Court for the District of Arizona. That court, on Apr. 21, 1994, upheld the IBLA’s decision and rejected their claims that his property rights were taken without due process and just compensation in violation of the Fifth Amendment.

Meanwhile, on May 11, 1994, Wayne Klump filed suit, seeking just compensation based upon the government’s impoundment of his cattle.

On June 23, 1997, the U.S. Court of Federal Claims granted the motion to dismiss Wayne’s claim arising under the Fourth Amendment to the Constitution. The court noted, “The IBLA had held that the BLM had followed the required procedures for impounding and selling the cattle found in trespass and that those findings had been affirmed by the U.S. District Court and the Ninth Circuit.”

On Oct. 16, 2002, the court found that Wayne Klump should be entitled to $2,611.48 for the sale of the cattle during the roundup by the BLM. That same year, a federal district judge in Tucson found Wally Klump and his son, Barry, had “repeatedly and willfully trespassed on federal lands by grazing cattle on the Badger Den and Simmons Peak allotments without permission.”

Wally was jailed for contempt of court for refusing to remove 28 cattle from Simmons Peak. After spending a year in jail, he agreed to cull the herd, and the family has not grazed on the Badger Den or Simmons Peak allotments since. — Charles Wallace, WLJ correspondent

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