[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
                           LIVESTOCK GRAZING

=======================================================================

                           OVERSIGHT HEARING

                               before the

                SUBCOMMITTEE ON FOREST AND FOREST HEALTH

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                                   on

          LIVESTOCK GRAZING ON PUBLIC DOMAIN NATIONAL FORESTS

                               __________

                     APRIL 8, 1997--WASHINGTON, DC

                               __________

                           Serial No. 105-19

                               __________

           Printed for the use of the Committee on Resources


                                


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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               NICK LAMPSON, Texas
JIM GIBBONS, Nevada                  RON KIND, Wisconsin
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

                Subcommittee on Forest and Forest Health

                    HELEN CHENOWETH, Idaho, Chairman
JAMES V. HANSEN, Utah                MAURICE D. HINCHEY, New York
JOHN T. DOOLITTLE, California        BRUCE F. VENTO, Minnesota
GEORGE P. RADANOVICH, California     DALE E. KILDEE, Michigan
JOHN PETERSON, Pennsylvania          ---------- ----------
RICK HILL, Montana                   ---------- ----------
BOB SCHAFFER, Colorado               ---------- ----------
                      Bill Simmons, Staff Director
                 Anne Heissenbuttel, Legislative Staff
                    Liz Birnbaum, Democratic Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held April 8, 1997.......................................     1

Statements of Members:
    Chenoweth, Hon. Helen, a U.S. Representative from Idaho; and 
      Chairman, Subcommittee on Forest and Forest Health.........     1
    Crapo, Hon. Michael D., a U.S. Representative from Idaho.....     4
    Hinchey, Hon. Maurice, A U.S. Representative from New York...     6
    .............................................................

Statements of witnesses:
    Bedke, Scott, Oakley, ID.....................................    32
        Prepared statement.......................................    80
    Budd-Falen, Karen, Esquire, Cheyenne, WY.....................    39
        Prepared statement.......................................   133
    Burkhardt, Wayne, Professor Emeritus, University of Nevado-
      Reno and University of Idaho-Moscow, Indian Valley, ID.....    62
        Prepared statement.......................................   167
    Connelley, Jim, Mountain City, NV............................    36
        Prepared statement.......................................   117
    Glustrom, Leslie, Prescott National Forest Friends, Boulder, 
      CO.........................................................    65
        Prepared statement.......................................   174
    Hess, Karl, Senior Associate, The Thoreau Institute, Las 
      Cruces, NM.................................................    55
        Prepared statement.......................................   144
    Kincannon, Linn, Idaho Conservation League, Ketchum, ID......    59
        Prepared statement.......................................   153
    LeVere, William, Forest Supervisor, Sawtooth National Forest, 
      East Twin Falls, ID........................................     7
    Nelson, R.M. (Jim), Forest Supervisor, Toiyabe-Humboldt 
      National Forest, Sparks, NV................................     7
    Oldridge, Neil, American Sportfishing Association, Sagle, ID.    57
        Prepared statement.......................................   148
    Pollot, Mark, Esquire, Boise, ID.............................    34
        Prepared statement.......................................    85
    Unger, Dave, Associate Chief, U.S. Forest Service, 
      Washington, DC.............................................     7
        Prepared statement.......................................    74
    .............................................................

Additional material supplied:
    Connelley, Jim: A report and observations on Wayne Hage-U.S. 
      Forest Service situation...................................   131
    Ecological Costs of Livestock Grazing in Western North 
      America, by Thomas L. Fleischner...........................   182
    Grand jury finds public lands crimes committed...............   122
    Herbivory in the Intermountain West, by Dr. J. Wayne 
      Burkhardt..................................................   202
    Sawtooth National Recreation Area Stanley Basin C&H Allotment 
      Management Plan Draft EIS, 1990............................   134
    Sawtooth penalty policy good for land, taxpayers, ranchers...   162
    The aloe juice man, by Christopher Palmeri...................   199
    The Story Behind the Pine Creek Ranch Takings Case...........   123
    Tighter rules prepare forest for future......................   163
    .............................................................

Communications received:
    Agriculture Department: Memorandum of March 3, 1997, to 
      District and Area Rangers on Sawtooth National Forest 
      Rangeland Management.......................................    97
    Kaiser, Ruth (Nat. Fed. Lands Conf.): Letter of August 8, 
      1991, with attachment to Jim Connolley.....................   126
    Mahoney, Steve (NV Dept. of Ag.): Memorandum of August 29, 
      1991, to all board members.................................   133
    .............................................................



          LIVESTOCK GRAZING ON PUBLIC DOMAIN NATIONAL FORESTS

                              ----------                              


                         TUESDAY, APRIL 8, 1997

        House of Representatives, Subcommittee on Forests 
            and Forest Health, Committee on Resources, 
            Washington, DC.
    The Subcommittee met, pursuant to call, at 2:04 p.m., in 
room 1334, Longworth House Office Building, Washington, D.C., 
Hon. Helen Chenoweth (Chairwoman of the Subcommittee) 
presiding.
    Mrs. Chenoweth. Ladies and gentlemen, the Subcommittee on 
Forests and Forest Health will come to order. The Subcommittee 
is meeting today to hear testimony on livestock grazing on 
public domain national forests.
    Under rule 4(g) of the committee rules, any oral opening 
statements at hearings are limited to the Chairman and the 
ranking minority member. Without objection, though, the 
Chairman will exercise the right to ask Mr. Crapo to give an 
opening statement also.
    I welcome Mr. Crapo, my colleague from Idaho, and I want 
you to know that Mr. Gibbons from Nevada will also be joining 
the Subcommittee right away.
    Although they are not members of the Subcommittee, again, 
without objection, I would like to invite them to join us in 
these proceedings.

 STATEMENT OF HON. HELEN CHENOWETH, A U.S. REPRESENTATIVE FROM 
IDAHO; AND CHAIRWOMAN, SUBCOMMITTEE ON FOREST AND FOREST HEALTH

    Mrs. Chenoweth. Livestock grazing on public lands is an 
issue that has managed to be a topic of debate in one form or 
another in every Congress over the past several decades. When 
we separate the facts from the fiction, a very different 
picture emerges.
    Much of the grazing heritage of the western United States 
is an outgrowth of the period when settlers migrated there to 
grow crops and raise animals on their homesteads. Those 
settlers established a way of life that continues today. Their 
descendants still attempt to make a living from ranching and 
livestock grazing, but under very different and sometimes very 
difficult circumstances.
    Some of the challenges are the same as those of a century 
ago, adequate water supplies, disease, and predators. However, 
the government atmosphere regarding the availability of public 
land for livestock grazing and the attitude toward rangeland 
management has changed dramatically.
    In the emotionally driven debate about livestock grazing on 
public lands, grazing has been continually viewed by opponents 
as having a negative impact on the land; however, science shows 
a much different picture. When done correctly, grazing is a 
natural and essential part of the rangeland environment. 
Because of the varied nature of rangelands, proper care of the 
land as it pertains to livestock grazing can only be carried 
out by proper on-the-ground management.
    This is why the Subcommittee will examine two specific 
cases of management of livestock grazing on the public domain 
national forest to determine if what has happened in the 
Sawtooth and the Humboldt-Toiyabe National Forests is 
indicative of the management of national forests throughout the 
west.
    On March 3, 1997, William Levere, Forest Supervisor of the 
Sawtooth National Forest, sent a letter entitled ``Sawtooth 
National Forest Rangeland Management'' to all permittees in the 
Sawtooth. Contained in the letter was a ``Direction for Uniform 
Action[s] Associated with Grazing Permit Violations.'' Although 
this UAG contains significant changes to livestock grazing on 
the Sawtooth, it was implemented without any public comment.
    The new rules put forward in the UAG contain changes from 
previous grazing rules that include replacing five gradually 
escalating sets of penalties with two sets of penalties, both 
requiring ranchers to explain violations in writing. The 
minimum penalty when permittees are unable to work out a 
mutually acceptable solution with the Forest Service is 
suspension of 25 to 100 percent of the stock or grazing days 
for three years plus payment for any unauthorized foraging. The 
March 3 UAG's maximum penalty for a second offense is total 
permit revocation plus payment for damages.
    By the Sawtooth supervisor's own admission, these were 
significant changes to the existing regulations, yet no public 
input was requested as mandated by the National Environmental 
Policy Act and the Administrative Procedures Act.
    In response to the uproar caused by the release of the UAG 
on March 3, the Forest Service said Friday, April 4, 1997, that 
they would issue a revised interim UAG and open it up to a 30-
day public comment period. In my view, this is at the very 
least an admission that mistakes were made in the promulgation 
of the March 3 UAG.
    By many appearances, the UAG is the culmination of a 
pattern by the Forest Service to try to eliminate livestock 
grazing dating back to 1986. Until 1986, the Forest Service 
personnel in the Sawtooth had generally been an effective 
partner in the development and improvement of grazing 
allotments. Unfortunately, this atmosphere changed in 1986 when 
new management was brought in to the Sawtooth.
    Some have argued that the UAG comes as the result of a 
direct bias against livestock grazing by Forest Service 
personnel, which is what we are going to try to determine 
today.
    What is distressing to me is the fact that the Forest 
Service has little, if any, scientific information to back up 
their punitive actions that will continue to lead to the 
elimination of many families' ability to provide for their own 
means. The argument that the permittees are not treating the 
land properly is not supported by science. The fact is, the 
permittees have the most at stake in assuring the health of the 
land and have done an excellent job in maintaining their 
allotments.
    It is particularly distressing to me that many of these 
draconian sanctions contained in the March 3 UAG were 
implemented unilaterally and without public input. As the 
administration knows very well, any and all regulations that 
have significant economic, social, or cultural impact must go 
through the NEPA and APA public comment process.
    In his March 3 letter, Mr. Levere states that the new UAG 
will ``have major impacts both internal to the Forest Service 
and external to our range permittees and forest visitors.'' 
This is by any measure a recognition of the importance of the 
new UAG, yet NEPA and the APA were not followed.
    It is recognized by the Supreme Court and well grounded in 
the law that ``the acts of public officers (which includes the 
Forest Service) must, in order to be binding, be within the 
limits of the power conferred (by Congress).''
    Further, Supreme Court decisions have stated ``when dealing 
with such public officers, one must inquire into their powers 
and authority to bind the government, and is held to a 
recognition of the fact that government agents are bound to 
fairness and good faith as between themselves and their 
principal.'' The Court went on to say, ``These general 
principals as to public officers have been applied in the case 
of authority exercised by the Secretary of the Interior,'' and 
that is found in Volume 77 AmJur 2d, Section 89.
    These hearings today are to actually inquire as the Supreme 
Court suggests whether the government agents, in this case the 
Forest Service, have acted within the authority conferred on 
them by Congress and have acted in good faith on the Sawtooth 
and the Humboldt-Toiyabe National Forests.
    The Supreme Court has stated that it is the responsibility 
of the governed, not the government, to inquire as to the 
bounds of the Forest Service's authority. That is what the 
permittees have done, and that is precisely the reason that we 
are here today.
    I look forward to receiving testimony from our witnesses 
and receiving the facts from all of you. Now, I would like to 
recognize my colleague from Idaho for an opening statement, 
Mike Crapo.
    Mr. Crapo. Thank you, Madame Chairman, I appreciate the 
opportunity you have given me to participate in this hearing 
this morning, and I would also like to welcome Scott Bedke, a 
citizen of Oakley, Idaho, who is a constituent of mine, to this 
hearing.
    Scott is one of the 195 permittees who run livestock on one 
of the 153 grazing allotments on over 2,100,000-plus acres on 
the Sawtooth National Forest. He and his family have grazed 
livestock on public lands for many years.
    I would also like to welcome Linn Kincannon, someone whom I 
have worked with for a long time on issues such as this, who is 
here representing the Idaho Conservation League and its point 
of view. She is a resident of Ketchum, Idaho, and also a 
constituent. I welcome her to this hearing, and I look forward 
to their testimony as well as the testimony of everyone else 
here.
    I might also add, Madame Chairman, that it is a pleasure to 
get to call you Madame Chairman, I appreciate the fact that 
even though I don't sit on this Subcommittee that you have 
allowed me to participate.
    Mrs. Chenoweth. Thank you, Mr. Crapo, and I also want to 
recognize the fact that I appreciate the fact that you are here 
at this hearing when there was a leadership meeting called by 
the Speaker that you have chosen to be here instead of 
attending those meetings, and those are very important meetings 
especially at this time.

STATEMENT OF HON. MICHAEL D. CRAPO, A U.S. REPRESENTATIVE FROM 
                             IDAHO

    Mr. Crapo. Thank you very much and I appreciate that 
opportunity. The reason I am here is because of the importance 
of this issue to Idaho and to my district and to the West. In 
February, I was briefed by Bill Levere, the forest supervisor 
of the Sawtooth National Forest, on his proposed uniform 
grazing permit violations action guide. This was several days 
before the proposed guidelines were released.
    At this meeting, I stated my opposition to the 
implementation of these guidelines and relayed to him my deep 
concern with the approach that the Forest Service appeared to 
be taking with regard to rangeland management in the Sawtooth 
National Forest.
    Instead of fostering a cooperative approach to addressing 
rangeland management concerns, these new guidelines impose a 
rigid and what I consider to be a confrontational style of 
management. While every permittee should be required to adhere 
to the rules and regulations of their permit and while we must 
assure that we protect and preserve the resources of the United 
States, the magnitude of the penalties in these proposals and 
the rigidity of the manner in which they are implemented do not 
fit the violations and the circumstances, in my opinion.
    These guidelines are another example of an approach to 
public land management in a way which seemingly appears to many 
to be an attempt to abolish grazing and other multiple uses for 
public lands through the use of excessive and costly 
regulations.
    In defense of these actions, the Forest Service states that 
the Sawtooth National Forest rangers and permittees spend 90 
percent of their time dealing with ten percent of the 
permittees. However, instead of identifying and dealing with 
this small percentage of permittees who consciously fail to 
adhere to conditions of their permits, the Forest Service 
imposes a one-size-fits-all approach which has not worked in 
the past.
    Instead of dealing with problems in an effort to eliminate 
them, the Forest Service has chosen to place all permittees in 
the same situation. This will only increase problems and 
increase staff time spent.
    For example, these proposed guidelines force rangers to 
reduce a permittee's forage by 25 to 100 percent for an 
accidental violation without consideration of past performance 
or circumstance. The guidelines fail to make a distinction 
between a good permittee who fails to close a gate and one who 
is a habitual offender. As this occurs, more and more pressure 
will be placed on the Forest Service resources to deal with an 
increasingly hostile and difficult permittee public.
    Originally, uniform action guidelines were only 
recommendations, and rangers had the authority to vary action 
based on individual circumstances. They could take extenuating 
circumstances into account and give consideration for 
accidental and nonwillful events. These new proposed 
guidelines, however, show absolutely no flexibility.
    It is now mandatory that the direction of the new 
guidelines be followed. The only discretion left to the ranger 
is in determining whether or not the violation has occurred, 
and in my opinion, this is not reasonable nor right.
    I am additionally concerned with the lack of communication. 
For example, Cassia County and the Forest Service have recently 
entered into a memorandum of understanding which is less than 
one year old. This MOU was created to foster a better working 
relationship between the Forest Service, elected officials, and 
residents of the area.
    I am aware of the disagreement between the Forest Service 
and the Cassia County commissioners on exactly what sort of 
communication is required by the MOU and by FLPMA on these 
guidelines. But notwithstanding this disagreement, the Forest 
Service must work closer with the county commissioners and 
other involved on these issues.
    This lack of communication extends to the guidelines we are 
here to discuss today. Instead of receiving a warning letter or 
a notification of a violation as is currently prescribed, the 
new guidelines dictate a show-cause letter for canceling a 
percentage of the permittee's forage for all violations, no 
matter the severity.
    This is not communication. This is intimidation. The Forest 
Service in this case is acting as the police, the judge, and 
the executioner. Ranchers under these new guidelines have far 
less opportunity to communicate with the Forest Service and are 
placed in a position of potential real economic loss with very 
little recourse and no access to a jury of their peers.
    In raising these concerns, it has been explained to me that 
all that the ranchers have to do is to communicate and bring 
their concerns to the attention of the forest rangers, and that 
there will be an effort to work things out with them.
    The problem with that point of view, however, that approach 
is that, first of all, the guidelines are still rigid and do 
not allow for the flexibility necessary to deal with 
circumstances as they properly should be. Secondly, with such 
extensive potential penalties in place and with the person that 
the ranchers are dealing with being the one who has the 
discretion to implement the penalties, all the rancher can do 
is plead for mercy rather than to deal with the Forest Service 
in an effort to try to avoid the extenuating and extreme 
penalties.
    This type of concentration of power can only lead to an 
increased difficulty in communication and more time spent by 
Forest Service personnel in dealing with the public.
    I do want to applaud Mr. Levere for his recent decision to 
revise the guidelines and open them up now for public comment 
and review. A decision of this magnitude should not be made in 
a vacuum, but with input from affected communities and 
individuals. I want to suggest to the Forest Service that, 
during this comment period, it looks closely at alternatives 
for these guidelines.
    As indicated in all of the letters that have been signed 
back and forth on this, it is clear that the Forest Service has 
now recognized that it must look to and receive public input to 
evaluate this new proposal.
    Madame Chairman, I again want to thank you for allowing me 
to participate in this hearing, and I look forward to hearing 
from the witnesses today.
    Mrs. Chenoweth. Thank you, Mr. Crapo, and now I would like 
to welcome Jim Gibbons to the committee. Mr. Gibbons' district 
includes the Toiyabe National Forest in Nevada, and it is a joy 
to have you here.
    I would be very pleased if you would like to submit a 
written statement to the record.
    Mr. Gibbons. We will submit our opening statement for the 
record.
    [Statement of Mr. Hinchey follows:]

 Statement of Hon. Maurice D. Hinchey, a U.S. Representative from New 
                                  York

    Madame Chairman, this has been billed as an oversight 
hearing on livestock grazing policies on public domain National 
Forests. I suspect however from the witness list that this is 
really a hearing on livestock grazing on the Sawtooth, Toiybe 
(Toy-ob-e) and Humboldt National Forests, especially Sawtooth.
    It seems that Sawtooth National Forest Supervisor Bill 
LeVere has stepped on a few toes in moving to implement a 
uniform policy on grazing permit violations, noting that the 
Forest Service has got to change the way it has been doing 
business. I congratulate Supervisor LeVere and the other forest 
supervisors who are changing the way the Forest Service has 
been doing business. If there ever was a program in need of 
reform, it is the grazing program. The misguided legislative 
attempts that took place in the last Congress highlighted again 
the serious shortcomings of the grazing program. The fatally 
flawed efforts of proponents last Congress to enshrine grazing 
at the expense of other multiple uses of our public lands and 
National Forests would have cut off useful and necessary 
reforms in grazing management.
    Secretary Babbitt has proceeded to implement grazing 
management reforms on public lands and contrary to the dire 
predictions, the sky has not fallen in. I suspect the same 
would happen with the Forest Service. In fact, we should be 
going further to eliminate grazing subsidies for corporations 
and large operators. Something is wrong when we hear all this 
talk about the small rancher and come to find out that just 12 
percent of the permittees control 63 percent of the forage on 
National Forests.
    I support the Forest Service objectives to protect and 
restore the health of the land, to manage grazing in the 
broader context of multiple use-sustained yield, and provide 
for grazing only in areas where it is suitable and appropriate. 
If we are looking at grazing policies on National Forests, 
these are the policies the Forest Service should be following.

    Mrs. Chenoweth. Thank you, Mr. Gibbons. Now, I would like 
to call on the first panel. Dave Unger, Associate Chief of the 
United States Forest Service from Washington, D.C.; and with 
him is William LeVere, Forest Supervisor, Sawtooth National 
Forest, East Twin Falls, Idaho; and Mr. Jim Nelson, Forest 
Supervisor, Toiyabe Humboldt National Forest, Sparks, Nevada. 
Gentlemen, welcome.
    It is the intention of the Chairman to place all outside 
witnesses under oath. This is something that we do with 
everyone, and this is a formality of the committee that is 
meant to assure open and honest discussion and should not 
affect the testimony given by the witnesses.
    I believe all of the witnesses were informed of this before 
appearing here today, and they have each been provided a copy 
of the committee rules.
    If you will please stand with me and raise your right hand, 
I will administer the oath.
    Do you solemnly swear and affirm that you will, under the 
penalty of perjury, tell the truth, the whole truth, and 
nothing but the truth so help you God?
    Let me remind the witnesses that under our committee rules, 
they must limit their oral statements to five minutes, but that 
their entire statement will appear in the record and we will 
also allow the entire panel to testify before questioning a 
witness.
    The Chairman now recognizes Mr. Dave Unger, Associate 
Chief, U.S. Forest Service, to testify. Mr. Unger.

STATEMENT OF DAVE UNGER, ASSOCIATE CHIEF, U.S. FOREST SERVICE, 
     WASHINGTON, DC; ACCOMPANIED BY WILLIAM LEVERE, FOREST 
 SUPERVISOR, SAWTOOTH NATIONAL FOREST, EAST TWIN FALLS, IDAHO; 
  AND R.M. (JIM) NELSON, FOREST SUPERVISOR, TOIYABE-HUMBOLDT 
                NATIONAL FOREST, SPARKS, NEVADA

    Mr. Unger. Thank you, Madame Chairman, and we appreciate 
the opportunity to participate in this overview of the Forest 
Service range management program.
    I will summarize my statement briefly. As everybody on the 
committee knows, the Forest Service has been involved in 
managing rangelands for nearly 100 years and has a long history 
of partnership with the livestock producers and others who rely 
on National Forest System lands.
    It is interesting that at the turn of the century when 
there was a debate about whether livestock grazing should be 
allowed on the forest reserves as they were called at that 
time, the person who was to become the first Chief of the 
Forest Service, Gifford Pinchot, argued that grazing should not 
be prohibited as some were calling for, but instead should be 
regulated, and that view was based on scientific range 
research, and we think that those early range scientists, by 
developing concepts such as carrying capacity and grazing 
systems that involved deferral and rotation, laid the 
foundation for sustainable resource use.
    Nearly half of all National Forest System lands lie within 
the boundaries of grazing allotments, about 95,000,000 acres of 
land in 33 States. The Forest Service administers approximately 
9,000 paid permits which provide for about 9,900,000 head 
months of grazing by cattle, horses, sheep, and goats, and of 
course, nearly all of this permitted grazing is located in the 
western States.
    Authorized grazing use on National Forest System lands has 
been declining over the past ten years, from about 11,000,000 
head months in 1986 to about 9,000,000 head months for each of 
the past three years. The reasons for the decline in authorized 
use over this period include continued efforts to improve range 
in poor or fair condition, more emphasis on restoring degraded 
riparian areas, adjustments for effects on threatened and 
endangered species, and other reasons including economic 
factors that affect permittee decisions.
    Despite improvements in rangeland conditions since the turn 
of the century, we have work to do. Currently, about 72,000,000 
acres of rangeland have management objectives that are 
identified in forest plans. About 71 percent of those acres 
meet or are moving toward the specified objectives, and that is 
good.
    Another 11 percent do not meet those objectives or do not 
show signs of improving, and another 18 percent are in an 
indeterminate status due to the lack of current data which we 
think that we can get up to date in the years immediately ahead 
so that we can remove those acres from that undetermined 
status.
    Permittees, as the committee has recognized here in its 
statements, using the public land have made an agreement with 
the Forest Service to use it in a certain way, and Forest 
Service officers have discretion in administering permits to 
achieve the resource utilization and protection purposes they 
are designed to serve.
    In some cases, managers have chosen to use these uniform 
action guides which are the subject of this hearing as a tool 
to obtain more consistent and fairer actions by the Forest 
Service when permit violations occur. These guides are in use 
on the Sawtooth, the Humboldt, and Toiyabe National Forests as 
well as many other units in the western States.
    I might mention that downsizing of the agency has required 
the Forest Service to streamline its processes and cut costs. 
Examples of specific actions to stretch our dollars include 
forging collaborative monitoring programs with some of our 
partners including rangeland permittees and others, and we have 
formed other partnerships which have other similar 
opportunities, such as ``Seeking Common Ground'' which is an 
effort in eight western States to develop demonstration 
projects to manage big game and livestock grazing interactions 
and common habitats.
    A new program, ``Pulling Together Partnerships'' is a 
program that has the primary objective of managing noxious 
weeds on a landscape basis across jurisdictional boundaries.
    We are also working with other Federal agencies to try to 
streamline consultation and analysis processes so we can be 
more responsive to the permittees, the public, and local 
community needs.
    I will just conclude by saying managing rangeland resources 
is an important task for the Forest Service. We appreciate the 
committee's interest in this subject.
    [Statement of Dave Unger may be found at end of hearing.]
    Mrs. Chenoweth. Thank you for your testimony, and I would 
like to open with questions from Mr. Crapo.
    Mr. Crapo. Thank you very much, Madame Chairman. I 
appreciate the opportunity to question this panel.
    As I have read the material that was put out by the Forest 
Service on this matter, it was pointed out that this was 
intended to be a system in which there was a voluntary working 
relationship created between the permittees and the Forest 
Service. But, as I indicated in my opening statement, it is 
hard for me to see how that will work.
    I would like to encourage any of you to answer this 
question. It seems to me that the notion that implementing a 
very heavy penalty and then requesting the rancher or permittee 
to come in and basically work out the solution with the 
understanding that if they don't agree with whatever the 
solution that is being imposed is, then the heavy penalty is 
going to be imposed, is hardly a voluntary working 
relationship. The final few sentences in the letter that was 
sent out say that to those who aren't willing to work on this 
arrangement, we can either work together or we can work against 
one another. The route you choose is yours. The consequences of 
each route are yours to accept or reject.
    How is it an open, voluntary working relationship when the 
agency has already proposed a very extensive penalty and is 
then telling the permittee that they must either agree to 
whatever the terms are as they negotiate with the ranger or 
suffer this extensive penalty?
    Mr. Unger. Let me ask Mr. Levere to respond to that, but my 
understanding of these kinds of guidelines which are in effect 
in a number of forests in the west is to try to have a more 
consistent basis for treating people fairly and equitably where 
they are found to have violated the grazing permit provisions, 
but I will let Mr. Levere respond directly to your question.
    Mr. Levere. Yes, I feel the need to respond to that, and 
that those are my words. I wrote them.
    What we are after, and it may be a misinterpretation, and 
hopefully, the April 4 direction clarified that it is--that the 
permittee has to voluntarily accept the penalty as proposed in 
the show-cause letter, that the purpose is to promote that the 
permittee and the local ranger at that level sit around a 
table, look at options, identify what the problem truly is, and 
then develop solutions to that problem, and if they can come up 
with those solutions at that local level where the ranger 
agrees that it is a solution to the problem that he or she was 
concerned with, and it is a solution that the permittee can 
agree with, and again, this could be a solution that is 
different from the penalty as proposed in the show-cause 
letter, then essentially the problem is resolved at that level. 
Nothing further is taken on the show-cause letter. In fact, the 
April 4 direction notes that we would actually stamp that 
letter and denote that, that letter cannot be held against them 
for future penalties, and that if they come to agreement at the 
local level, that, that won't be counted as what we have termed 
a first offense.
    Mr. Crapo. The point I am raising though is--and I will use 
some of your other words from the letter--you state 
alternatively, if those same range permittees are not willing 
to work these problems out on a voluntary basis, then my only 
conclusion is that they are willing to accept the status quo 
and will have to live with the consequences of operating under 
their current annual operating plan and this new direction for 
uniform action.
    The point I make is that if you cock the gun and put it to 
the head of the permittee and say now, come to the table and 
talk with me, and you lay out whatever options you discuss 
around the table, the permittee knows that the cocked gun is 
still there.
    I am wondering how it is going to result in a voluntary 
exchange of discussion of options when the person whose finger 
is on the trigger is also one of those negotiating in the room 
with regard to what the options are going to be.
    Mr. Levere. I don't necessarily view it as a cocked gun to 
their head that--what I view it is as them following up on the 
terms and conditions of their permit which they signed and 
agreed to follow, and we are imposing these penalties when they 
have violated those terms and conditions, something that they 
have already agreed to.
    Mr. Crapo. That they have already agreed that they have 
violated the terms and conditions of the permit?
    Mr. Levere. No, that they would follow the terms and 
conditions of the permit.
    Mr. Crapo. But what if there is a disagreement? What if 
there is a disagreement over whether there has been a 
violation?
    Mr. Levere. If there is a disagreement over the violation, 
then the ultimate call is the ranger out there to follow up----
    Mr. Crapo. But that is my point. The ultimate call of the 
ranger is the ranger's, and when the ranger says, no, I don't 
agree with you, there is a violation here, or it was 
intentional not accidental, or whatever the ranger concludes--
the ranger is the judge, the jury, the investigator, and the 
executioner.
    Mr. Levere. The ranger is the initiator, then there are 
other steps that are taken after that. There are appeal rights 
under 36 C.F.R. 251 which the permittee has available. They can 
appeal that ranger's decision to my level. Then if they don't 
agree with my decision, they can then appeal it above me to the 
Regional Forester level, and then if they don't agree after 
that, there is always the litigation route.
    Mr. Crapo. But what you are suggesting here is that the 
option that the permittee has is to either agree with the 
ranger or suffer the penalties and hope that somewhere up the 
chain, at that point in litigation, resolves the problem 
against the Forest Service, inside the Forest Service's own 
administrative system.
    Mr. Levere. Those are two options, and a third option is 
that they follow the terms and conditions of their permit and 
not find themselves in that situation to begin with.
    Mr. Crapo. With the ranger being the one who decides 
whether they have done that subject to these extensive 
penalties?
    Mr. Levere. That is that ranger's job.
    Mr. Unger. And that would be the case, Mr. Crapo, under the 
system without the uniform guidelines. The ranger, if he felt a 
violation had occurred, would make the decision as to whether 
that violation had occurred and make the decision which then, 
if the permittee felt was unfair, would be subject to appeal 
under the----
    Mr. Crapo. I understand that, and I don't disagree with the 
fact that we need rangers on the ground who are doing their 
jobs and doing them well and making these decisions and 
assuring that we protect our resources.
    My point is that under the old guidelines and under the old 
approach, the rangers had a range of options that they could 
work with, and there truly was an opportunity to deal with one 
another. Now, under these new guidelines the ranger can say 
this is an intentional violation, and if you don't agree with 
me, then take her up the chain, but your permit is at least 25 
percent eliminated if not 100 percent eliminated. Is that not 
correct?
    Mr. Levere. That is what the uniform action guide says and 
that is for uniformity so that we are responding consistently 
across the forest, but it is a guide, and the rangers, 
depending on the situation, can deviate from that guide if they 
see fit. They have always had that flexibility.
    Mr. Crapo. So they don't have to follow the guideline?
    Mr. Levere. No, it is guidance.
    Mr. Crapo. I see my time is up, Madame Chairman. Thank you 
very much.
    Mrs. Chenoweth. We will have a second round of questioning, 
and I also would like to ask the members of the Forest Service 
to stay for the entire hearing, because we will have other 
witnesses, and we would like to be able to call you back. Thank 
you very much.
    Mr. Gibbons. Before Mr. Gibbons begins his questioning, I 
would like to recognize Mr. Kildee and Mr. Vento, and the fact 
that they are with us today. I will call on you in the order in 
which you came into the committee. Mr. Gibbons.
     Mr. Gibbons. Thank you, Madame Chairman. Mr. Unger, you 
talked a lot about the uniform action guide and Mr. Crapo got 
into that a little bit. These are to afford opportunities under 
the uniform action guide, are they not, afforded to the 
permittee to meet with the Forest Service people, the forest 
ranger, to seek a cooperative solution to the problem or to the 
permit violation. Is that not correct, what you are saying?
    Mr. Unger. That is my understanding, yes.
    Mr. Gibbons. Would you help us on this committee, Mr. 
Unger, by referencing that part of the uniform action guide 
that permits this to take place? Would you point us to that 
segment and tell us where these opportunities are listed out 
and where they are referenced?
    Mr. Unger. I will ask Mr. Levere to respond to that 
directly in terms of the guides that we are discussing on his 
forest, but of course, the permittee and the ranger have every 
opportunity at any time to meet together and cooperatively 
discuss problems that may be viewed in the relationship from 
either side.
    Mr. Gibbons. We are referencing all of this discussion and 
all of this colloquy over the uniform action guide and how that 
relates to individual permittees' opportunities to resolve on a 
voluntary basis the permit violation that Mr. Crapo has talked 
about in terms of when that action takes place, how that comes 
before the Forest Service, what the permittee's opportunities 
are to voluntarily resolve in a cooperative fashion.
    I would just like to know where that is referenced in these 
uniform action guides so that perhaps these permittees have a 
better understanding of just exactly what their opportunities 
are.
    Mr. Unger. Let me ask Mr. Levere to respond.
    Mr. Levere. I would like to reference page two of the 
interim directive that I issued on April 4.
    Mr. Gibbons. Is that this year?
    Mr. Levere. Yes.
    Mr. Gibbons. So we are talking an agreement that is exactly 
four days old?
    Mr. Levere. Yes.
    Mr. Gibbons. Go ahead.
    Mr. Levere. On page two under--and this is one of the 
examples in order to answer your question where the violation 
would be grazing excess numbers. In there, it says that under a 
first offense, there are two options, and this is identified as 
the preferred option in that interim directive, that upon 
receipt of show-cause letter, permittees meet with the unit 
ranger. A solution to the identified problems on the allotment 
are agreed to by the unit ranger and voluntarily accepted by 
the permittees. The agreement is documented and signed by all 
parties.
    Mr. Gibbons. So up until April 4, 1997, this voluntary 
agreement was not put in writing.
    Mr. Levere. It was not explicitly contained in the uniform 
action guide on the Sawtooth National Forest.
     Mr. Gibbons. What about other forests, like the Humboldt-
Toiyabe area? Mr. Nelson.
    Mr. Nelson. The Humboldt-Toiyabe has had a uniform action 
guide since--well, the Humboldt since 1987.
    Mr. Gibbons. 1987, OK.
    Mr. Nelson. And the Humboldt-Toiyabe since 1991. We have a 
little bit different system that we utilize than the one that 
the Sawtooth has put together.
    There was a National Wildlife Federation lawsuit, I think 
in 1995, and as a result--against the Forest Service on the 
Humboldt for not enforcing grazing standards properly, and we 
tried to settle that out of court in cooperation with the 
Nevada Land Action Association, the Wildlife Federation, and 
the Forest Service. We worked on developing a uniform action 
guide that everyone could agree on. We did that, the court 
agreed with it, and we have implemented it now in both national 
forests.
    This action guide separates willful violations versus 
unwillful violations. If it is apparent that the violation is 
unwillful, then we normally issue a warning letter to the 
permittee and the warning letter will describe what the 
violation is, will describe some remedies for correction, and 
then that will be the end of it. If it continues to occur, then 
we move into the actions as outlined.
    It is a guide and the ranger has total discretion to use it 
or not to use it. It is primarily there. I think it helps both 
the permittee and the agency to provide for uniformity across 
the two forests in terms of decisionmaking.
    You could have a situation easily without a uniform action 
guide where the penalties on two separate ranger districts 
could be quite different, one being much more severe than the 
other for basically the same thing.
    In terms of willful violations of the permit, then we move 
right into suspension. The first suspension is recommended to 
be 25 percent for a three-year to five-year period.
    Mr. Gibbons. Let us get back to the question I asked Mr. 
Unger who deferred to Mr. Levere about where in your uniform 
action guide is this cooperative, voluntary agreement written 
that you will work with the permittees to resolve their 
problems. Is it in your agreement? Is it written like Mr. 
Levere just stated on April 5 or April 4 of this year?
    Mr. Nelson. I will back up a little bit. We issue----
    Mr. Gibbons. I am just saying, is it written in your 
uniform action guide?
    Mr. Nelson. It is not specifically in the uniform action 
guide, but every year, we develop operating plans in 
cooperation with the permittee that talk about the various 
requirements and agreements on how we are going to graze the 
forthcoming year.
    Mr. Gibbons. Mr. Nelson, I have just a very little bit of 
time left, and I want to ask you a question before we go on.
    The discretion you talked about in the ranger to determine 
whether it is willful or unwillful in terms of the permit 
violation, what guidelines do you give your rangers to make 
that determination and how are they to determine whether it is 
a willful or unwillful violation?
    Mr. Nelson. A lot of times, it is a judgment call, but 
sometimes, it is fairly easy to make. If someone has put their 
cows out a month in advance of when they are supposed to, you 
would have to consider that willful. If there are cows that 
show up in a unit that they are not supposed to be in because a 
fence is down, you would have to assume that was unwillful.
    It is a judgment call, but it is usually not that 
difficult.
    Mr. Gibbons. Are there no guidelines----
    Mr. Nelson. There are no guidelines to define what is 
willful or what isn't willful, but it is usually fairly 
obvious.
    Mr. Gibbons. Thank you, Madame Chairman.
    Mrs. Chenoweth. Thank you, Mr. Gibbons. I would like to 
recognize Mr. Kildee.
    Mr. Kildee. Thank you, Madame Chairman. Mr. Levere, does 
anything in the Sawtooth uniform action guide change any terms 
or conditions of a grazing permit?
    Mr. Levere. No, they do not.
    Mr. Kildee. No change at all?
    Mr. Levere. No change.
    Mr. Kildee. Does the UAG deal solely with violations of a 
grazing permit?
    Mr. Levere. Yes.
    Mr. Kildee. Does anything in the UAG eliminate the right to 
an administrative or judicial appeal of a grazing violation 
decision?
    Mr. Levere. No, it does not.
    Mr. Kildee. So they can appeal within your agency beyond 
the ranger on the ground?
    Mr. Levere. That is correct.
    Mr. Kildee. And there are several levels administratively 
they could appeal?
    Mr. Levere. Yes. There is a two-level appeal.
    Mr. Kildee. Hopefully, this would not have to happen, but 
they could have a judicial appeal if they did not feel 
satisfied with the administrative appeal?
    Mr. Levere. Yes, that is correct.
    Mr. Kildee. Does the Sawtooth UAG eliminate administrative 
discretion in dealing then with a grazing violation?
    Mr. Levere. No, it does not. In fact, there have been 
statements made that I removed that discretion from the rangers 
when I issued the March 3, and in that March 3 UAG, in the 
second paragraph on the second line, it stated that the 
delegated forest officer still has the discretion and authority 
to determine whether a significant violation has occurred based 
on the merits of the individual situation.
    When I issued the clarified direction on April 4, I bold-
faced and capitalized that statement in an attempt to clarify 
that.
    Mr. Kildee. What has the general reaction of the ranchers 
been to the Sawtooth UAG?
    Mr. Levere. Well, it has been mixed. I was very concerned 
about what I would call some of the good permittees who did 
voice some concerns, and that did concern me, and that is why I 
elected to clarify the direction last Friday in my April 4 
memo.
    Some of the permittees are very concerned. I guess my 
intent is that this shouldn't concern those permittees that are 
following the rules and obeying the terms and conditions of 
their permits. As far as those permittees that are not obeying 
the rules, not following the terms and conditions of their 
permit, my objective is that they should be concerned.
    Mr. Kildee. In your April 4, someone mentioned that it was 
four days old. That was in response to some of the concerns 
that have been expressed by some of the ranchers.
    Mr. Levere. It was in response to some of those concerns 
with a few of the key permittees. I went out and solicited 
their comments, and then one of the other reasons, not that I 
was in violation of any procedure or process as has been hinted 
at here today, it is that I heard some folks wanted the 
opportunity for a public comment period, and since becoming 
forest supervisor of the Sawtooth National Forest, I will let 
my record stand that I listen to people and I respond to what I 
hear. I decided to allow for a public comment period in a 
notice that announced that in response to comments that I heard 
from the public. It was not that I had violated any procedure, 
rule, or law.
    Mr. Kildee. Thank you very much for your response, Mr. 
Levere. Thank you, Madame Chairman.
    Mrs. Chenoweth. I would like to now call on Mr. Vento.
    Mr. Vento. Thank you. Supervisor Levere, how many 
permittees do you have on the Sawtooth?
    Mr. Levere. We have 195.
    Mr. Vento. And how many acres? That is what, some 300-plus 
acres of grazing land?
    Mr. Levere. We have approximately 2,000,000 acres on the 
Sawtooth National Forest and approximately 80 percent of that 
is under grazing permit.
    Mr. Vento. Has there been any reduction or an increase in 
that in recent years?
    Mr. Levere. Essentially, it has remained stable in terms of 
the amount of use. We have three allotments that we currently 
do not graze on. Two of those are in the Sawtooth Wilderness, 
and one of those is the Big Cottonwood allotment on the Twin 
Falls range district.
    Mr. Vento. Is that weather or environmental-related or 
simply that there is no bid on it?
    Mr. Levere. Essentially, those in the Sawtooth Wilderness, 
if any of you have been there, there is uncertainty whether 
they are suitable or capable for livestock grazing. On the Big 
Cottonwood, that was a situation where the permittee sold their 
base operations to Idaho Fish and Game, and we then made the 
decision to rest that allotment with the intent of going back 
at a later date and evaluating that allotment.
    Mr. Vento. So you couldn't put into a guideline all of the 
specifics or into a permit all the specifics, because that is 
something that is dependent upon basically the weather, is that 
correct?
    Mr. Levere. Yes, to a certain degree, that is correct.
    Mr. Vento. Are there other factors as well that enter into 
it?
    Mr. Levere. Yes. There are many factors that go into it. 
One of the factors right now that is probably holding us up in 
taking a serious look at the Big Cottonwood allotment and 
reissuing that permit is just budget.
    Mr. Vento. So when you are talking about budget, you have 
had a reduction in the number of personnel that you have to in 
fact serve and to monitor these allotments. Is that what you 
are saying? You have 190 allotments and you don't have the 
personnel to do the job, is that right?
    Mr. Levere. Well, we have the same amount of personnel, but 
in order to charge appropriately in terms of what they are 
working on and with the budget we get, we are having to have 
that personnel work on other tasks such as timber sales, things 
like that.
    Mr. Vento. But these uniform guidelines didn't wipe out any 
law or any other procedures. It sounds like they put in place 
something that is more determinate, predictable, and certain 
with regards to what penalties and sanctions would be in place 
as opposed to something that was less specific, is that 
correct?
    Mr. Levere. Yes. That is correct.
    Mr. Vento. So it is determinate. You know what to expect if 
certain things happen and before, it hadn't been quite that 
explicit, is that right?
    Mr. Levere. Yes. That is correct. In fact, if you would 
allow me, I always say a picture is worth a thousand words, and 
I could show you some pictures of what I am trying to stop out 
there.
    Mr. Vento. You are talking about some problems with 
riparian areas maybe?
    Mr. Levere. Yes.
    Mr. Vento. You are talking about fences that are 
chronically broken maybe?
    Mr. Levere. I have some examples. Would you like me to----
    Mr. Vento. So that ends up kind of tripping over from 
Supervisor Nelson's example from something which is an accident 
to something that really isn't excusable, that really we need 
to answer.
    Now, Supervisor Nelson, you have had the Toiyabe and 
Humboldt for a while, you have been out there, as I recall.
    Mr. Nelson. That is correct. Yes.
    Mr. Vento. And the fact is, you have had these same type of 
uniform guidelines or uniform action plan in place and what has 
been the experience with it? Is it working?
    Mr. Nelson. Yes. It works very well. We have consistency 
across the forests and I think the permittees know what to 
expect if they violate it.
    Mr. Vento. Let us cut to it. Has this resulted in more 
violations or less violations?
    Mr. Nelson. I don't think it affects the number of 
violations at all. It helps us, I think, get some compliance in 
terms that we might not have.
    Mr. Vento. Through some clarity?
    Mr. Nelson. Yes.
    Mr. Vento. You came to this not completely voluntarily in 
this case, is that right?
    Mr. Nelson. That is correct.
    Mr. Vento. Mr. Unger, is this policy with regard to this 
uniformity and this plan in this particular mode, this 
streamlining is something you are trying to institute 
throughout the Forest Service today and encouraging it?
    Mr. Unger. No. We have no national policy. These uniform 
action guidelines have been adopted forest by forest in about 
16 forests that we know of, and all the forests in Region 2 
which is another ten, so about 25 forests have these, and those 
decisions have been made at the local level.
    Mr. Vento. Can you make any judgment about whether they 
have resulted in unfair treatment or resulted in some specific 
problems that--I suppose every one of these, you learn as you 
go along, but is there something here that----
    Mr. Nelson. To my knowledge, this is the first time that 
there has been any serious concern about the institution of 
uniform guidelines.
    Mr. Vento. Part of the process here, Mr. Levere, is to 
provide some education ahead of time, and in retrospect did you 
in fact try to consult and visit and explain to folks what was 
happening beforehand?
    Mr. Levere. In the almost two years that I have been on the 
Sawtooth National Forest, the range program is a key program on 
the forest and when I have interacted with permittees, we are 
always trying to promote good stewardship on the lands. We are 
trying to emphasize the need to follow the terms and conditions 
of the permits, and we did that.
    In 1995, we issued an initial uniform action guide and 
based upon the performance that I saw in the 1996 grazing 
season, I felt the need to issue this updated uniform action 
guide.
    Mr. Vento. Have there been some specific problems that you 
are trying to resolve? You said you had a lot of examples.
    I guess maybe you have some photographs you wanted to show 
us and pass around, I think, that probably would be useful to 
see what you are talking about. Do you have them here?
    Mr. Levere. I would like to take that opportunity.
    Mr. Vento. I would like to see that.
    Mr. Levere. This first example is a picture of salting down 
into a riparian area, and this is all that occurred in the 
1996----
    Mr. Vento. This is barred by the agreement that they 
signed, that you don't put salt down in a riparian area.
    Mr. Levere. Essentially, that is exactly the place where 
you shouldn't do salting. Here is another----
    Mr. Vento. Because it concentrates the cows down there.
     Mr. Levere. In this particular area, there were 17 piles 
of salt in a riparian area in direct violation of the terms and 
conditions of the permits for that specific location.
    Here is an example of some overgrazing on the forest. Here 
is another one of overgrazing right there by the stream. A lot 
of people would debate whether or not we can accurately measure 
that. I publicly made the statement that my 12-year-old son 
knows that that is overgrazed, folks. It is not that we are 
making a borderline call.
    Here is an example of the maintenance of improvements. Here 
is a water trough. The responsibility of maintenance goes to 
the permittees. Here is an example of that.
    It is this kind of thing that I am trying to stop, and I 
guess I would like to make the statement that this is your 
public land, your national forest. Is this the way you want it 
managed?
    Mr. Vento. I am glad you are trying. My time is up.
    Mrs. Chenoweth. Mr. Vento, I thank you and I would like to 
call on the----
    Mr. Vento. You are welcome, Madame Chairman.
    Mrs. Chenoweth. I would like to call on the gentleman from 
California, Mr. Doolittle.
    Mr. Doolittle. Madame Chairman, if I may, I think I will 
reserve my time at this point.
    Mrs. Chenoweth. Thank you. Mr. Levere, you have mentioned 
in your uniform action guidelines issued March 3, 1997, and you 
have mentioned in the press that there are good apples and 
there are bad apples. Can you tell me who the bad apples are?
    Mr. Levere. Well, there are certain permittees that have 
had a history of not following the terms and conditions of 
their permits, and who have received penalties in the past, and 
frankly, I would prefer not naming names.
    I don't know all of them specifically. There are some 
examples this last year where we had certain permittees have 
violations. In the 1996 season, 64 of our 195 permittees 
received some type of violation notice. Most of those were 
warning letters.
    Mrs. Chenoweth. Let me ask you, is Scott Bedke or Bud Bedke 
considered a bad apple or Joe Tugaw considered a bad apple?
    Mr. Levere. The Goose Creek permittees--that is an 
allotment where we have had some challenges. Mr. Tugaw did 
receive a warning letter this last grazing season. I am not 
sure that I would consider Mr. Tugaw a bad apple. Everybody is 
entitled to a mistake.
    Mrs. Chenoweth. Mr. Tugaw is past president of the Idaho 
Cattle Association, and I do see here on page two of your 
uniform action guide that you say ``I see an ever-increasing 
breakdown in the communication between the Forest Service and 
the permittees instead of discussing and attempting to resolve 
problems with the Forest Service, I see a more adversarial role 
occurring instead of attempting to work things out between the 
permittees and the Forest Service. The more immediate response 
by some of the more aggressive range permittees is to seek 
remedies either through what I perceive to be negative press 
targeted at individuals and/or the agency or through local 
political contact and hopefully, political influence over 
agency decisions through formal administrative appeals and/or 
through potential litigation.''
    You go on to say that in your uniform action guide that, 
``Although all of these remedies are within the legal rights of 
the affected range permittees, they frequently are not the most 
productive ones for the range permittees or the Forest Service 
from my perspective.''
    Would you please explain that statement?
    Mr. Levere. Essentially, that is the crux of what I am 
trying to do, is to try to get the permittees to meet with the 
Forest Service at the local level to resolve these issues. I am 
not trying to allude that those other options that the 
permittees have available to them--they are clearly within 
their right to do so.
    I would hope though that they won't pursue those other 
options in lieu of meeting with the Forest Service, and that is 
essentially what I was after, and that is the crux of our new 
uniform action guide to again, try to promote and encourage 
permittees to meet with rangers at the local level to resolve 
their problems.
    That is the desired outcome.
    Mrs. Chenoweth. Have you issued or read or studied many 
uniform action guides or policies or have you studied NEPA or 
how these guidelines are issued under NEPA, and do you feel 
that statement is proper in the issuance of uniform action 
guidelines?
    Mr. Levere. To my knowledge, the issuance of uniform action 
guides are not--NEPA is not required to do that. The 
authorities under which we administer terms and conditions of 
grazing permits are in FLPMA. Section 204(a) in FLPMA 
authorizes the Secretary to suspend, cancel, modify, and issue 
permits. That, in turn, is if you go to--I believe it is 36 
C.F.R. 222.4, that then authorizes the Chief of the Forest 
Service to suspend, modify, cancel, and issue permits, and then 
if you go to the Forest Service manual, if you look under 
Forest Service manual 22.04----
    Mrs. Chenoweth. I do understand that.
    Mr. Levere. [continuing]--that gives me my authority.
    Mrs. Chenoweth. It does, and my question though was not 
answered. Do you think this type of statement is proper in the 
issuance of uniform action guidelines plus your closing 
statement which said, ``I am confident that most will accept 
the personal responsibility and accountability that goes along 
with the UAG. However, there is also no doubt in my mind that 
there will be a few range permittees who will not be willing to 
work with us. To those few, I can only offer these words of 
advice. We can either work together or we can work against one 
another. The route you choose is yours. The consequences of 
each route are yours to accept or reject. I think I have made 
my offer and my intention clear. Now, the choice is yours.''
    Do you realize, Mr. Levere, that the National Environmental 
Policy Act and your own guidelines set up specific methods 
under which new action guidelines should be issued? There is 
such a term under NEPA. The Supreme Court has ruled on it often 
as a major Federal action, and a major Federal action requires 
an environmental impact statement.
    On page one of your own uniform action guidelines, you 
state that this UAG is important and you go on to say important 
in that it will no doubt have major impacts both internal to 
the Forest Service and external to our range permittees and 
forest visitors.
    So you have indicated that this is a major Federal action, 
and indeed it is, in my opinion. I agree with you, and yet 
there was no notice, there was no issuance of an environmental 
impact statement or economic impact statement, there was no 
attempt to put these uniform action guides in the form of rules 
and regulations and publish them in the Code of Federal 
Regulations.
    I am concerned because this has been such an extraordinary 
process. My concern is, as I have said to Mr. Dombeck, I 
honestly and very sincerely want to see the Forest Service be 
all it can be, and I share with you the vision of Teddy 
Roosevelt and Gifford Pinchot.
    Mr. Unger, I want your forest supervisors to be the best 
there is, and my comments are not personal, but rather my 
desire is to make sure everybody operates on the same page, and 
that page has been laid down by Congress, in NEPA and the APA.
    Mr. Unger. Could I respond to that, Madame Chairman?
    Mrs. Chenoweth. Yes.
    Mr. Unger. It is my understanding as well as Mr. Levere's 
that NEPA does not apply in this way to the issuance of 
guidelines of this kind because they don't cause the particular 
environmental result and are therefore categorically excluded 
as administrative actions, and thus, don't require the 
development of environmental analysis or impact statement.
    Mrs. Chenoweth. Mr. Unger, and we can call on your 
attorneys or other attorneys who are here, but the courts have 
agreed over and over again that a major Federal action is the 
key that kicks in an environmental impact statement and I think 
it is National Helium v. Morton issued in the late '70's that 
stated that with that also goes an economic impact statement.
    So if we are to require or even suggest that there should 
be an environmental impact statement on a single reissuance of 
a permit and yet no environmental impact statement on a major 
policy change in two forests, then somehow, even NEPA becomes 
punitive in its application, and that is what we want to get 
away from.
    Mr. Unger. Well, I would agree with that, but I believe the 
test is whether there is a significant environmental impact 
expected from the action, and the action of issuing these 
guidelines does not result in any decision in and of itself. It 
sets forth guidelines for decisions to be made, and it is those 
decisions then that a test has to be applied as to whether 
there is a significant environmental impact.
    Mrs. Chenoweth. And I just returned to my opening 
statement, and that is that the agencies need to operate within 
the umbrella of authority conferred on them by Congress and 
when it is perceived that they step outside that authority, 
then our free system reacts and it causes hearings like this.
    Mr. Unger. We would certainly want to dispel any perception 
that we are acting outside the bounds of Congress.
    Mrs. Chenoweth. So with regards to what triggers an 
environmental impact statement, I would urge you to have your 
attorneys look back at Supreme Court decisions and the history 
of NEPA and the debate that ensued around the passage of NEPA 
so we can get back on the same page.
    Mr. Unger. We would be happy to do that. In fact, we have a 
representative of our Office of General Counsel here today, if 
you want to explore this further now or we can do it at a 
future time.
    Mrs. Chenoweth. Thank you very much. At this time, I would 
like to call the gentleman from California, Mr. Doolittle.
    Mr. Doolittle. I have no questions at this point, Madame 
Chair.
    Mrs. Chenoweth. Thank you, Mr. Doolittle. I would like to 
return for another round of questioning to Mr. Crapo.
    Mr. Crapo. Thank you, Madame Chairman, and I have three or 
four issues I want to get through in my five minutes, so I am 
going to try to be hurrying along here.
    Most of the questions will be to you, Mr. Levere, since the 
forest you supervise is in my district.
    First of all, you indicated earlier that you were facing 
serious budget problems, and with regard to the budget issue, 
one of the concerns I have is that it is my understanding that 
a lot of time is being used by the range cons under the water 
adjudication that we are doing in the State of Idaho, is that 
correct?
    Mr. Levere. That is correct.
    Mr. Crapo. And do you know how many thousand claims or how 
many claims have been filed by the Forest Service in that 
adjudication?
    Mr. Levere. I can only speak for the Sawtooth. We have 
approximately 1,800 claims filed with the court.
    Mr. Crapo. That is an issue that I am probably going to 
want to talk with you about separately at some time, but the 
concern I have is that range cons are being used for all of 
that activity when it is my understanding that other agencies 
are using other personnel who are not in such critical 
circumstances, sometimes even temporary hires to do the work 
that is necessary.
    Is there a reason that you are not doing that?
    Mr. Levere. Yes. Essentially, the advice that I have been 
given and just to give you an idea, about 35 percent of our 
range cons' time last year was spent on the field verification 
for water adjudication, and in order to have credence in court, 
if we get to that point, that we need qualified individuals 
that are out there doing that field verification that have the 
appropriate credentials that if we do get eventually into court 
and need their testimony there, that they are credentialed 
individuals to do that, and that is why we have our range cons 
performing that work and not just seasonal employees that have 
no credentials whatsoever.
    Mr. Crapo. All right. It is my understanding that that is 
not necessarily necessary, but because of the pressures of 
time, I will discuss that with you outside the hearing. That 
might be an area in which you could save some funding for your 
budget.
    Secondly, in my first round of questions, toward the end, 
you indicated that these were guidelines only, and the rangers 
did not have to follow them, is that correct?
    Mr. Levere. That is correct.
    Mr. Crapo. I would like to ask you, is that a practical 
reality? In reality, are any of the rangers not going to follow 
these guidelines?
    Mr. Levere. Yes, and in fact, I can give you a specific 
example. This last grazing season under which we had the 1995 
uniform action guide in place, one of my rangers took the 
liberty of working with the permittee at the local level and 
instead of imposing a 75-percent suspension which would have 
been the appropriate measure as outlined in the uniform action 
guide at that time, he elected to, in discussing with the 
permittee, the permittee was willing to take a voluntary 
reduction for a two-year period. They worked that out. It was 
less than 25 percent.
    Mr. Crapo. Wouldn't it be fair to say that in the vast 
majority of cases, you would expect your rangers to follow 
these guidelines?
    Mr. Levere. I would expect my rangers to evaluate the 
guidelines and make a decision that given that specific 
situation, do they fit; if they don't, then do something 
different.
    Mr. Crapo. What is the purpose of the guideline if you 
don't expect--we have heard a lot here about more certainty, 
more predictability, but if they really don't mean anything and 
the rangers can do whatever they want, what is the point?
    Mr. Levere. I do have the expectation that they follow them 
to a certain degree unless they can explain why they shouldn't 
be followed.
    In many cases, in fact, built into the newest version of 
the uniform action guide, if they follow option one, it is 
built in there our desire, our preferred option, that solutions 
are resolved at the local level and that they do deviate from 
the penalties as outlined.
    Mr. Crapo. Do you allow in the guidelines for variations in 
the penalty between voluntary and involuntary violations?
    Mr. Levere. No. We do not distinguish between that.
    Mr. Crapo. So that a fully intentional violation will 
receive the same penalty as an accidental violation under the 
guidelines?
    Mr. Levere. There is a range in the guidelines and I would 
think that if it is intentional and blatant that it actually be 
the upper end.
    Mr. Crapo. But the lower end is at least a 25-percent loss 
of the permit.
    Mr. Levere. That is correct.
    Mr. Crapo. Earlier in some of the other questions, we were 
discussing whether discretion has been removed, and you pointed 
out that you had bolded the fact that the forest officer still 
has the discretion to determine whether a significant violation 
has occurred.
    But you followed that with another sentence that I think 
makes the point. However, once a determination has been made 
that a violation has occurred, this guidance is recommended. I 
understand that you mean by that that this is guidance your 
rangers should follow unless, as you indicate, and I think it 
is good to hear in this hearing that you are going to be very 
open to letting them follow more flexible approaches that they 
determine to be better.
    But back to the point I was addressing in my first series 
of questions, sure, there is discretion in the ranger to 
determine whether a violation has occurred. But under these 
guidelines, once the ranger makes a determination that a 
violation has occurred, whether it is by accident or on 
purpose, then the ranger is expected under these guidelines to 
implement the penalties. Is that not correct?
    Mr. Levere. I think there are a couple options that they 
have available to them. If they look at that, under this 
direction, they are to issue a show-cause letter which proposes 
the 25-percent suspension, and discussions with the permittee 
that it shows that it was unintentional or accidental, it is at 
that time that the ranger can, in their decision letter, could 
offer a lesser penalty than those outlined in the uniform 
action guide.
    Mr. Crapo. But just to make the point that I was going at 
earlier once again, let us assume that there was a circumstance 
where some vandalism or some other act caused the fence to be 
taken down and there was a violation.
    The ranger, however, felt that the fence was down because 
of negligence or intentional action by the permittee, so the 
ranger issues a violation, and say he picks 50-percent loss of 
the permit or whatever he picks.
    Then the permittee has to go into the room with the ranger 
and convince the ranger that he didn't do it or something 
should be changed, and if he doesn't agree with the ranger, 
then the full penalty is imposed and he has to then appeal up 
the chain. Is that not the process that you are proposing?
    Mr. Levere. In the situation that you gave, if it was say, 
vandalism or a fence was cut and it wasn't done by the 
permittee and the ranger doesn't know that initially and they 
issue a show-cause letter, then the permittee comes in and 
makes their case, and it turns out in this situation that it is 
determined and that the ranger agrees that it wasn't the 
permittee's responsibility or the permittee did not do that, 
that it was vandalism by someone else, the uniform action guide 
recognizes that.
    Mr. Crapo. But it is all subject to the ranger agreeing, 
and if the ranger in his wisdom decides no, then it is over at 
that point, and the full penalties, what I consider to be very 
rigid penalties, are imposed.
    Mr. Levere. That is correct. The ranger then imposes the 
penalty as outlined in the uniform action guide or if they 
think there are extenuating circumstances, their decision 
letter could be a lesser penalty, but it is that ranger's call. 
That is within their authority, that is what I expect them to 
do.
    Mr. Crapo. Thank you.
    Mrs. Chenoweth. Thank you, Mr. Crapo. I would like to call 
on Mr. Vento.
    Mr. Vento. Did the ranger always have this type of 
discretion before and after this action guideline? This is 
nothing new, is it?
    Mr. Levere. That is correct. They have always had that 
discretion.
    Mr. Vento. So there is nothing new. All that is new is that 
there is more certainty and predictability.
    Do you review these actions? You mentioned 65 out of 195 
permittees. I guess more than one went to some folks, but do 
you review the actions when these are issued, these warnings 
are issued, or do you review the results? Is that correct, do 
you review each of those?
    Mr. Levere. The only time that I review those actions is if 
they are truly appealed. Under the new uniform action guide 
though, I will be monitoring to see if the option one, where 
they have worked it out at the local level, I want to monitor 
that to see how successful that is in this upcoming grazing 
season.
    Mr. Vento. Well, my point was that informally, do you 
monitor what happens? Did you informally monitor before what 
was happening?
    Mr. Levere. Yes.
    Mr. Vento. So you are concerned about the conduct of a 
ranger. If you have somebody out there that is overbearing or 
you look at that as part of how they do their job, if they are 
getting along to some extent.
    Mr. Levere. My expectation of my rangers when they are 
issuing a show-cause letter is to give me a heads-up on that, 
so I am aware of----
    Mr. Vento. I understand. I don't mean a formal review. You 
obviously do that, but you are actually in these action 
guidelines now saying in these guidelines that you are going to 
monitor it, that you are going to pay closer attention to it, 
is that correct? That is what you are trying to get across.
    Mr. Levere. That is correct.
    Mr. Vento. There was discussion about the water litigation 
that is going on, and you said you had 1,800 claims in the 
Sawtooth. How many claims totally are there that are in the 
Sawtooth that are not Forest Service claims? Do you know what 
the total range is?
    Mr. Levere. I don't know the answer to that.
    Mr. Vento. Would you say it would be thousands more?
    Mr. Levere. I wouldn't even want to speculate on that.
    Mr. Vento. Well, maybe for the record, we ought to look, 
but my point is, I would suggest to those that there are a lot 
of claims being made on the Federal lands, and I am sure many 
of them are appropriate. There are certain individuals that 
have various water rights there and claims that they made that 
should be recognized at the State level, and I am pleased to 
hear that the Forest Service has taken a very serious attitude 
with regard to protecting the Federal forests and other water 
rights that are necessary for this land to function properly in 
my judgment.
    Now, Mr. Unger, you had proposed that you had someone with 
you that could respond to whether or not in fact this is a NEPA 
action, and the chairwoman had run out of time, so I thought 
maybe I could take of my time, if it would be permitted, to 
hear from that person that you have here as to whether or not 
these action guidelines are in fact a NEPA action. There seems 
to be a lot of interest in that, and I think that it would be 
helpful for all of us if we could clarify it.
    Mr. Unger. Mr. Michael Gippert of the Office of the General 
Counsel will respond.
    Mr. Gippert. Yes. It would be our view that NEPA would not 
be triggered by this sort of an instrument that provides 
guidance, because as Mr. Unger really has pointed out, the 
primary reason is that it is a two-part test for NEPA to come 
into play, and that is whether it is a major Federal action 
significantly affecting the quality of the human environment.
    The human environment would not be affected by the uniform 
action guide, at least that would certainly be my advice to the 
Forest Service that there would be no application of NEPA in 
this instance.
    There is also a provision in the Council on Environmental 
Quality regulations that criminal and civil enforcement actions 
are exempt from NEPA because, of course, if they weren't, that 
would drag the whole system to a complete halt.
    Mr. Vento. That would be counterproductive, I guess. The 
reason that that was added, do you believe that that is 
counterproductive and a way to avoid civil and other types of 
penalty actions? Is that your point?
    Mr. Gippert. Right.
    Mr. Vento. Now, Mr. Unger pointed out that 16 forests have 
uniform action guides right now. Have you had any of these that 
have gone through any type of NEPA procedure or EIS procedure?
    Mr. Gippert. Not that I am aware of.
    Mr. Vento. And you have had no court test of any of it, is 
that correct?
    Mr. Gippert. No, there has been no court challenges that 
NEPA should be applied in this kind of a situation.
    Mr. Vento. I appreciate that. Mr. Nelson, on the Toiyabe 
and Humboldt, you have had how many years of experience with 
uniform action guides?
    Mr. Nelson. Personally, I became familiar with them in 
1992, so it would be five years.
    Mr. Vento. You said that they were working all right. Do 
you have an excessive number of violations? How many violations 
or how many warning letters have you had sent out?
    Mr. Nelson. I don't know the total. I did look at it for 
last year. We had 40 warning letters that went out, and we took 
13 actions in terms of--there were two cancellations. One was 
the result of a permit being waived back to the forest. The 
other was a cancellation because the permittee refused to pay 
his fees.
    The rest of them were in the 25-percent suspension range.
    Mr. Vento. He didn't forget to pay his fees because of 
vandalism, did he?
    Mr. Nelson. No, I don't think so.
    Mr. Vento. How many acres do you have on the Toiyabe-
Humboldt, do you know?
    Mr. Nelson. Well, the Humboldt is permitted for about 
245,000 AUMs. The Toiyabe is permitted for about 75,000 AUMs.
    Mr. Vento. So that is how many permits?
    Mr. Nelson. In terms of permits, I think there are 
approximately 170 permittees roughly on the two national 
forests.
    Mr. Vento. I am just trying to get some perspective. So you 
have had a cooperative effort that is going on in terms of if 
you make changes like this, it is your responsibility to try to 
communicate or educate the permittees.
    Mr. Nelson. We work with that all the time in terms of 
utilization standards. We have offered several courses to 
anyone who is interested in how to determine proper 
utilization.
    Mr. Vento. Of course, riparian areas, as Supervisor Levere 
pointed out, are of course one of the most serious areas in 
terms of where we really have to work a lot harder.
    Mr. Nelson. That is true.
    Mr. Vento. We did so much work on that in terms of 
oversight, and I think the Forest Service generally came out 
ahead, but it obviously is an ongoing concern in terms of 
weather and in terms of water, so I very much appreciate the 
work you are doing there, both of you, and commend you for it.
    I hope that this misunderstanding about these policy 
guideline issues can be worked out. Thank you. Thank you, 
Madame Chair.
    Mrs. Chenoweth. Thank you, Mr. Vento. I would like to call 
on the gentleman from Nevada, Mr. Gibbons.
    Mr. Gibbons. Thank you, Madame Chairman, and I want to join 
you in your comments about all of us wishing to have this 
forest or any forest in this country managed in the highest 
possible manner with the greatest possible outcome, and to you 
gentlemen, you obviously know that while we want the forest 
managed in the proper way, especially for those constituents 
that we may have in our districts, that sometimes, there is a 
disagreement, and our role here is not necessarily to ask you 
warm and fuzzy questions that make you look good, but we are 
here to answer and ask those questions that are concerning the 
constituents that have brought up to us.
    With that in mind, Mr. Nelson, and I am glad you are here, 
because you represent the Humboldt-Toiyabe National Forest, we 
have certain constituents sitting behind you that are going to 
testify afterwards, and would you assure this committee that 
your agency is not going to single them out for any particular 
action based on what they happen to say in disagreement with 
your policy if they testify here before us, because we will 
watch this action? Will you assure this committee that you will 
take no punitive action?
    Mr. Nelson. Yes, sir. That would be unprofessional to do 
that.
    Mr. Gibbons. OK. We talked a little bit about numbers of 
acres in the Humboldt and the Toiyabe National Forest that you 
manage, and the total number of grazing allotments in there 
that have originally started out, with what is occurring today, 
what is the general trend? Have they remained the same, has 
there been a decrease? What has happened?
    Mr. Nelson. In terms of the total allotments, as far as I 
know, the total numbers remain the same.
    Mr. Gibbons. How many vacancies are there?
    Mr. Nelson. I would estimate there is probably about 50 
vacancies on the two national forests, in that vicinity.
    Mr. Gibbons. Can you give us a percentage total?
    Mr. Nelson. Slightly over 300 allotments, so we are looking 
at 50 as a percentage of 300.
    Mr. Gibbons. I can give you the numbers. I just wanted to 
know if you knew them.
    First of all, on the Toiyabe, there are 122 grazing 
allotments. There are 43 vacant. That is a 35.2 percent.
    On the Humboldt National Forest, 199 allotments; there are 
16 vacancies, and that is a little over eight percent.
    What is the reason for this? Why are we seeing this high 
rate of vacancy?
    Mr. Nelson. The problem that I am having is finding the 
personnel to do the necessary analyses to reallocate the 
allotment resources. Our budget in 1994 was $1,500,000, and at 
that level, we can do a lot of things. In 1995, it dropped to 
roughly $900,000.
    Mr. Gibbons. So under this manpower and funding shortage, 
what is your projection as to your expectations of having these 
reviewed?
    Mr. Nelson. Right now, with the $700,000 budget roughly 
that we have, we can't even hardly get the permit 
administration job done to date. Unless the budget changes, no, 
I do not.
    Mr. Gibbons. Mr. Nelson, I have just one final area that I 
want to talk to you about. I am sure you knew that I would ask 
you about it, since this is an old area, old ground that we 
have communicated on before.
    Within the last couple of years, there has been a county 
grand jury investigation of some of the activities of your 
forest rangers in Elko County, has there not been?
    Mr. Nelson. Yes, sir.
    Mr. Gibbons. And you are aware of that?
    Mr. Nelson. Yes, sir.
    Mr. Gibbons. And you, when they subpoenaed your forest 
rangers, refused to let your forest rangers testify before this 
grand jury.
    Mr. Nelson. It was not me. It was the Regional Forester out 
of Ogden that refused to let them testify.
    Mr. Gibbons. And what was the reason for his refusal?
    Mr. Nelson. I am going to have to defer to Dave on that.
    Mr. Unger. I would be happy to respond to that. In matters 
of Federal land management, it has been traditional over the 
years for these matters involving litigation to be handled in 
Federal district court.
    Mr. Gibbons. This was not a civil matter, was it?
    Mr. Unger. I am going to have to ask Mr. Gippert to comment 
on this further.
    Mr. Gippert. What we did in that case was to move in 
Federal district court to quash the subpoena which is kind of 
standard practice, although this is a rare occurrence to have a 
Federal official subpoenaed before a State court proceeding.
    The Ninth Circuit affirmed the District Court's disposition 
of the subpoena.
    Mr. Gibbons. What were the issues that they were asking you 
to come forward to testify about?
    Mr. Gippert. I don't recall that we actually knew the 
issues nor would they actually be limited. Grand juries can 
explore whatever the grand jury is convened to explore.
    I know that the issues included Federal land management, 
though, and it is our general course of action to remove such 
matters to the Federal court system.
    Mr. Gibbons. Mr. Nelson, when the grand jury report was 
issued, did you find anything within that grand jury report 
that was helpful to you in the formulation of your plans or 
activities and the conduct of your management on the Forest 
Service lands?
    Mr. Nelson. Nothing I can recall, sir.
    Mr. Gibbons. You made no policy changes based on that grand 
jury report?
    Mr. Nelson. No, I have not.
    Mr. Gibbons. Thank you, Madame Chairman. That is all I 
have.
    Mrs. Chenoweth. Without objection, the Chair yields to Mr. 
Crapo an additional two minutes.
    Mr. Crapo. Thank you, Madame Chairman. I just wanted to 
follow up with Mr. Levere on the question of whether the 
rangers really do have to follow the UAG that you put into 
place, because your answers have intrigued me.
    Is it correct that if a ranger in your district chooses to 
ignore the UAG and never follows them, that there will be no 
consequence to that action?
    Mr. Levere. As long as my rangers are operating within the 
law, rules, and regulations, I don't have any recourse there. 
This is a recommendation for them to bring uniformity across 
the Sawtooth National Forest. It is my desire that they do 
follow it, but they have discretion.
    Mr. Crapo. And there is no consequences to them in their 
employment if they choose not to follow these guidelines?
    Mr. Levere. That is correct.
    Mr. Crapo. Mr. Unger, you indicated that there are 16 
forests that are using UAGs?
    Mr. Unger. Actually more than that. There are 16 in all of 
the regions other than Region 2 and all the forests in Region 2 
should be added to that, so a total of 25 that we have counted 
so far.
    Mr. Crapo. And do the rangers in those forests follow the 
UAG?
    Mr. Unger. To my knowledge, they have discretion in a 
manner similar to that that has been described here this 
afternoon. I have not read all of these guidelines. Some may 
vary from forest to forest because they have been developed----
    Mr. Crapo. What I am trying to get at here is, do the 
rangers follow the UAGs or don't they?
    Mr. Unger. Well, I would have to say that I would expect 
that they are using them, because they have used them for some 
years, and they are finding them useful, but I do not have any 
specific ability to report to you exactly how many cases they 
followed them or how many they did not.
    Mr. Crapo. Mr. Levere, did you want to follow up on that?
    Mr. Levere. Yes, Congressman. Just as an example, in 1996, 
there were 24 actions taken against 64 permittees. Only eight 
of those 24 actions resulted in show-cause letters.
    Some of those show-cause letters were consistent with the 
uniform action guide; some of them varied. Again, it depended 
on the situation, and that was the ranger's call.
    Mr. Crapo. Then no ranger can tell a permittee that he has 
to do this, that he has to follow the UAG?
    Mr. Levere. It is a recommendation to the ranger.
    Mr. Crapo. When they are supposedly negotiating around that 
table?
    Mr. Levere. That is correct.
    Mr. Crapo. All right. Thank you.
    Mrs. Chenoweth. Mr. Levere, I am interested in having you 
look at the display up here, and following Mr. Crapo's line of 
questioning, those rangers who on their own have decided to 
follow the UAG, if a permittee doesn't follow the UAG, there 
has been a dramatic change between the UAG of 1/27/95 and the 
one of 3/3/97, dramatic change, and if a permittee does not 
follow the UAG, he can have his numbers of animal units per 
month reduced from 25 to 100 percent, is that correct?
    Mr. Levere. The uniform action guides are not intended for 
the permittees.
    Mrs. Chenoweth. Pardon me?
    Mr. Levere. They are direction to the rangers and how they 
are recommended to enforce terms and conditions of the permit. 
What the permittee is held accountable for is the terms and 
conditions of their permit.
    Mrs. Chenoweth. Do you admit that it is quite a change from 
the previous guide? On 1/27, their first offense was a warning 
letter and asking them to remove their livestock within three 
days. Under 3/3, the first offense is a show-cause letter 
suspending 25 to 100 percent of the numbers or season for three 
years or cancel the permit.
    Mr. Levere. My reasoning for eliminating the warning 
letters from the Sawtooth uniform action guide is that I felt 
that warning letters were essentially ineffective and a waste 
of time for the Forest Service on the Sawtooth National Forest.
    What I saw was the situation where permittees that 
continued to violate on their allotment, they ignored warning 
letters, and they didn't have any effect on the behavior. Those 
situations where warning letters did have an effect, I felt the 
warning letter wasn't necessary. I verbally told my rangers 
instead of taking the time and wasting the taxpayers' money 
writing warning letters, if it is that minor of a situation, 
just call the permittee up and tell them verbally the 
situation.
    Again, that was my attempt at streamlining and being more 
efficient and effective.
    Mrs. Chenoweth. Well, Mr. Levere, we are under a great 
burden back here in the Congress, and that is to balance the 
budget, and what if we had the attitude that you are wasting 
our time and that maybe we ought to reduce your salary by 25 to 
100 percent because I am personally offended at the way you are 
handling these uniform action guides? How would you feel about 
that?
    Mr. Levere. I would feel that that would be a personal 
attack on me and something that I would think is not 
appropriate.
    Mrs. Chenoweth. Now, sir, you understand why there is so 
much tension at the Sawtooth National Forest. Number one, the 
fact that these guidelines are imposed inequitably depending on 
the permittee or the ranger, and the fact that this kind of 
directive has never gone through the public hearing process.
    It is absolutely punitive, arbitrary, and in my opinion, 
capricious.
    I am sorry about that. You mentioned also that you have 
been working with the Idaho Fish and Game. How long has it been 
since you have worked with the Fish and Game, and did they have 
input into the recommendations that you put forth or the policy 
or the new law, whatever it is, in the uniform action guide?
    Mr. Levere. My reference to Idaho Fish and Game is that 
they had purchased the base property of one of the permittees, 
and it was on that particular allotment--I believe it is the 
Big Cottonwood allotment.
    At that time, and this was a number of years ago, three or 
four, I believe, that the decision was to rest that allotment 
and then when we had the resources to evaluate that allotment, 
we would take a look at that and then decide on reissuance of a 
permit.
    It was in that--that was the reference to the Idaho Fish 
and Game. I did not consult with Idaho Fish and Game on the 
development of these uniform action guides.
    Mrs. Chenoweth. Mr. Levere, how many timber sales have you 
put up in the Sawtooth?
    Mr. Levere. I don't know the specific number, but----
    Mrs. Chenoweth. Within the last year.
    Mr. Levere. [continuing]--within the last fiscal year, the 
Sawtooth National Forest sold 18,000,000 board feet. That was 
in excess of our target on the Sawtooth National Forest.
    In fact, in Region 4 in terms of percent accomplishment on 
timber sales, given our target, the Sawtooth National Forest 
produced the highest percentage in timber accomplishment.
    Mrs. Chenoweth. You indicated that there was not enough 
money in the budget for grazing and yet we increased your 
budget, the budget for grazing to the Forest Service by 
$11,000,000 last year. That was not a reduction, and the amount 
allocated for resource planning which would include ecosystem 
management was $130,000,000?
    Mr. Levere. Uh-huh.
    Mrs. Chenoweth. Was there money taken from grazing 
management and placed by your decision into ecosystem 
management?
    Mr. Levere. No, there was not.
    Mrs. Chenoweth. There was no money that was allocated from 
grazing into ecosystem management?
    Mr. Levere. That decision was not made at my level.
    Mrs. Chenoweth. Was the decision made at your level, Mr. 
Unger?
    Mr. Unger. I would have to look at the records to see how 
the allocations were made. The budget was increased. Those 
funds were allocated to the regions and the regions then 
allocate the funds to the individual national forests, so we 
would have to see how those funds were allocated by the region 
and why in one forest or another they didn't receive what they 
would like to have.
    Mrs. Chenoweth. Mr. Unger, I wonder if we might have a full 
report for the committee's purpose with regard to what was 
allocated by Washington----
    Mr. Unger. Certainly.
    Mrs. Chenoweth. [continuing]--for grazing and for ecosystem 
management.
    Let me ask you, Mr. Levere, how many violations or what 
percentage of all the violations were resource damage related 
last year and were there violations, resource-damage 
violations, on Mr. Bedke's allotment?
    Mr. Levere. Last year, there was no penalty imposed on the 
Goose Creek allotment which is the allotment that Mr. Bedke 
runs on. Mr. Bedke is under a current 25-percent, I believe--
well, a suspension. I am not quite sure of the exact 
percentage, but it was 14 days in the spring and 14 days in the 
fall.
    That suspension was done in the previous grazing season, 
1995, and it is a two-year suspension.
    Mrs. Chenoweth. And that suspension was for what?
    Mr. Levere. That was for improper maintenance of 
improvements and cattle in the wrong unit on the allotment.
    Mrs. Chenoweth. Do you realize how much five percent means 
to a person whose income is dependent on that?
    Mr. Levere. Yes, I do.
    Mrs. Chenoweth. I appreciate your being here, gentlemen, 
very much, and I know this is a difficult hearing. I very much 
appreciate your being here.
    I would like to ask you to remain in the hearing room, and 
we would like to call you back later.
    Mr. Vento.
    Mr. Vento. I have one additional question to the two 
supervisors, by virtue of somebody appearing before the 
committee, they wouldn't receive favorable treatment either, 
would they, by virtue of your work in terms of management of 
these permittees? They wouldn't receive favorable treatment by 
virtue of that. Coming here doesn't immunize them from 
something, does it?
    Mr. Levere. That is correct.
    Mr. Vento. Thank you. Mr. Nelson, do you feel the same way?
    Mr. Nelson. Yes.
    Mrs. Chenoweth. Before I dismiss the panel, I also want to 
ask Mr. Levere, because individuals have called the problems to 
our attention, I want an assurance from you personally that 
there will be no retribution to the individuals that have 
sought a political solution or have had their name mentioned in 
the press.
    Mr. Levere. You do have my assurance. Like Mr. Nelson 
stated, anything otherwise would be unprofessional.
    Mrs. Chenoweth. Thank you.
    Mr. Crapo. Madame Chairman.
    Mrs. Chenoweth. Yes.
    Mr. Crapo. Madame Chairman, could I just follow up? I 
wasn't quite sure what the answer was to the question about 
whether there was a resource damage on the Goose Creek 
allotment.
    Is the action being taken with regard to the Goose Creek 
allotment based upon resource damage?
    Mr. Levere. It is based on not following the terms and 
conditions of the permit is what it is based on.
    Mr. Crapo. But does that involve resource--not following 
the permit can result in resource damage or it can be something 
else.
    Mr. Levere. In some situations, it does result in resource 
damage. In other situations, it does not, and the analogy that 
I like to use, it is like enforcing speed limits on the 
highway. You don't wait for the wreck to happen to write the 
ticket.
    Similarly, when it comes to enforcing the terms and 
conditions of a grazing permit, you don't wait necessarily in 
all cases for resource damage to happen before you issue 
essentially the ticket following the highway analogy.
    Mr. Crapo. Well, I understand that, and I am not trying to 
say that you have to wait for resource damage. I just wanted to 
understand whether there was resource damage in this case.
    Mr. Levere. In that situation, I am not sure whether there 
was or was not. What the determination was there, was there a 
violation of the terms and conditions of the permit, and the 
answer to that was the finding was yes, there was, and it was 
on that basis that the suspension was imposed.
    Mr. Crapo. But you are not aware of whether there was 
actual resource damage.
    Mr. Levere. No, I am not.
    Mr. Crapo. Thank you.
    Mrs. Chenoweth. Mr. Unger, I would like to present a letter 
to you. It is a letter asking for more information, and it is 
signed by Chairman Young and myself, and so I would like to 
have it delivered to you.
    I appreciate your being here. Thank you very much for your 
testimony.
    Mr. Unger. Thank you.
    Mrs. Chenoweth. I would like to now introduce the second 
panel, Mr. Scott Bedke from Oakley, Idaho; Mr. Mark Pollot, an 
attorney from Boise, Idaho; Mr. Jim Connelley from Mountain 
City, Nevada; and Karen Budd-Falen, attorney, from Cheyenne, 
Wyoming. I want to welcome you to the panel and before we get 
started, I would like to ask you to all stand and raise your 
right hand, and I will administer the oath.
    Will you swear or affirm under the penalty of perjury that 
you will tell the truth, the whole truth, and nothing but the 
truth so help you God?
    Let me remind the witnesses that under our committee rules 
they unfortunately must limit their oral statements to five 
minutes, but that their entire statements will appear in the 
record, and this record will be printed.
    We will also allow the entire panel to testify before 
questioning the witnesses, and before I recognize our first 
witness, I will recognize Mr. Gibbons to introduce his 
constituent, Mr. Jim Connelley.
    Mr. Gibbons. Thank you, Madame Chairman, and indeed, it is 
a great pleasure for me to have an opportunity to recognize 
someone who has traveled a great distance, because you can't 
get to Mountain City with an easy commute to Washington, D.C.
    This individual has come a long way to be here to present 
his concerns to this committee. Mr. Connelley has been a long-
time Nevada resident, a ranch manager since 1970, and 
especially on the public lands and he has been a great 
innovator of cow-calf ranching in Elko County, Nevada.
    Beginning in 1979, he had the general management authority 
over two additional ranches in northern California for a total 
capacity of around 1,000 head of cattle.
    Mr. Connelley was responsible for developing cross-breeding 
programs, purchasing cattle and equipment, developing grazing 
systems and allotment management plans for ranches, including 
the Toiyabe and Humboldt ranges.
    Mr. Connelley has more than 12 years of experience working 
in the legislative and regulatory arenas on issues pertinent to 
livestock operators. He has been most active in areas of water 
rights and public land issues.
    Mr. Connelley has also served three years as president of 
Nevada's Cattlemen's Association, and was chairman of the 
Public Lands Committee and regional vice president for the 
National Cattlemen's Beef Association.
    He has been elected three times to the board of trustees to 
Elko County School District, and was appointed by then-
governor, now U.S. Senator, Richard Bryan, to represent the 
livestock industry on the Nevada State Board of Agriculture.
    Madame Chairwoman, Mr. Connelley is indeed a man who has 
invested many years in understanding land use policies, and I 
personally feel he will be of great benefit to this 
Subcommittee in understanding the issues that come before us 
today, and again, I welcome Mr. Connelley.
    Madame Chairwoman, thank you very much for allowing me this 
gracious opportunity.
    Mrs. Chenoweth. I thank the gentleman from Nevada, and 
thank you for all of your effort, Mr. Connelley, in getting to 
Washington, D.C., and I thank the entire panel for being here.
    I would like to begin the testimony with Scott Bedke.

            STATEMENT OF SCOTT BEDKE, OAKLEY, IDAHO

    Mr. Bedke. Thank you, Madame Chairman and members of the 
committee.
    The Bedke family has ranched in the Goose Creek area near 
Oakley, Idaho, since 1878. I am the fourth generation of Bedkes 
to ranch in this area and carry on a tradition that was begun 
when Rutherford Hayes was the president of the United States.
    This tradition predates Idaho statehood and also that of 
the organization of the Forest Service. We have held 
adjudicated grazing preference rights on BLM and Forest 
Service-managed grounds since the very first ones were issued.
    An underpinning philosophy indicative of our longevity in 
the cattle business has always been to take care of the grass, 
and the grass will take care of you. This philosophy and 
practice has guided the permittees on our allotment to always 
take the initiative and the lead in improving things on the 
public range that we call home.
    On the Goose Creek allotment in particular, we have 
developed water, planted hundreds of acres of new grass, and 
installed more than 25 miles of fences to further our goal of 
control and distribution of the livestock and also rotate the 
grazing use on the grass to ensure its perpetual health and 
vitality.
    Each of the numerous improvements on our allotment has come 
about because the permittees conceptualized the idea and then 
provided the labor and the funding necessary to install and 
construct these improvements. In fact, in 1983, the Goose Creek 
allotment was given an across-the-board 13-percent increase in 
cattle numbers and it should be noted that these types of 
increases are only given to permittees whose allotments are in 
excellent shape and where improvements result in additional 
forage. Increases do not come to permittees who are poor land 
stewards.
    I might add at this point that until 1986, the Forest 
Service had been willing partners in the developments and the 
improving of this allotment. The improvement of the resource 
was the ultimate goal of both the agency people and the 
permittees.
    In fact, well, we were all proud of this allotment. It was 
a showplace allotment for all. The Forest Service and the BLM 
sponsored numerous tours of this allotment emphasizing what 
could be done when all concerned parties worked together with 
cooperation, consultation, and coordination.
    In 1986, the atmosphere changed quite abruptly when new 
management personnel came to the district. I will go into that 
later. It would be interesting to compare the Goose Creek 
allotment file prior to 1986 and the one that has been compiled 
since. It would show a sad commentary on the abuse of power 
afforded a district manager with a certain personal and policy 
bias against public land grazing.
    This abuse of power has resulted in the formation of a new 
uniform action guide recently introduced in the Sawtooth 
National Forest. Regardless of the motivation behind the 
uniform action guide, it will prove to be a very effective 
means to achieve reduction and/or elimination of livestock 
grazing on the forest, especially when the UAG is backed up by 
the continuing biased interpretation of the standards and 
guidelines.
    Accidental, nonwillful events can result, under the new 
UAG, in suspension of 25 to 100 percent of the livestock 
numbers for three years. A second accidental, nonwillful 
occurrence can result in permanent permit cancellation, 
regardless of whether any kind of resource damage was the 
result.
    The forest management contends that of course, this type of 
arbitrary cancellation of permit will never occur, and that 
common sense will rule the day, that all we need to do is trust 
them. But regardless, the action guide says what it says. There 
does not have to be any latitude given, and at some point, some 
manager will take the uniform action guide literally and follow 
it to the letter and cancel our permits.
    It is not morally right that a mid-level bureaucrat can 
with a biased stroke of his pen eliminate my means of providing 
for my family and meeting my financial obligations for an 
occurrence that he deems to be an infraction, and one that 
everyone agrees does not result in resource damage.
    This is what worries me, my wife, and my mother the most, 
that based on the forest supervisor's memo dated 3/3/97 given 
to all the district rangers and the area managers is that 
ranchers who exercise appeal rights, those that support State 
management of public lands, or criticize the Forest Service, or 
try to obtain congressional intervention in the Forest Service 
actions will be classified as bad apples. I am glad to hear Mr. 
Tugaw is not considered a bad apple. I wish I could say the 
same.
    Therefore, does it not follow with my very presence at this 
hearing that I can expect administrative reprisal being as the 
forest supervisor describes as an aggressive permittee?
    This memo negatively singles out permittees who avail 
themselves to the appeals process and other processes designed 
to check and balance the system.
    The Eighth Amendment of the Constitution comes to mind. 
Granted, they were talking about criminal penalties, but the 
phrase ``nor excessive fines imposed'' comes to my mind. Should 
this not apply to situations like this?
    The guiding principle should be that the punishment must 
fit the crime. Is it not excessive to lose one's grazing right 
for three years because of a leaky water trough? Could this not 
be compared to your losing your automobile or having it 
impounded for a simple traffic violation? The Forest Service's 
administrative process should not be used to circumvent 
constitutional protections.
    Based on the same memo, grazing permit holders are being 
singled out because of perceived lack of governmental funding 
to the Forest Service. Ranchers are being threatened that if 
funding is not increased in the future, further reductions will 
have to be made. To severely penalize one multiple use over 
other multiple uses because of a lack of funding is clearly 
another indication of bias in the administration of the 
Sawtooth National Forest. Livestock grazing has clearly been 
relegated to a secondary status.
    What we are seeing here is an attempt by the Forest Service 
to coerce the rancher into putting pressure on his 
congressional representatives to increase funding for the 
Forest Service.
    The Forest Service has also said that if our grazing 
permits are canceled, they will be offered to other ranching 
interests. Our permits have been historically used as 
collateral for loans and taxed by the IRS. They have been 
bought, they have been sold, they have been traded as personal 
property since the first issuance of the grazing permits.
    To take these permits without compensation and give those 
permits to another who has no financial stake in the permit may 
very well lead to speculative transitory-type ranchers, those 
who come in with no intention of investing in or remaining on 
the allotments for an extended period of time. This type of 
ranching--transitory-type, speculative-type ranching 
interests--are not in the best interest of the land.
    In summary, one point remains. Those of us that hold 
permits on the Sawtooth National Forest are family ranchers. 
Our livelihoods depend on our ability to exercise our rights to 
graze our livestock on these public lands.
    Our intimate knowledge of and our vested economic personal 
interest in the land makes us a valuable asset in the long-term 
management of the public's lands. Ranchers want to be and must 
be part of the solution. Thank you.
    [Statement of Scott Bedke may be found at end of hearing.]
    Mrs. Chenoweth. Thank you, Mr. Bedke, for your testimony. 
Mr. Pollot.

        STATEMENT OF MARK POLLOT, ESQUIRE, BOISE, IDAHO

    Mr. Pollot. Thank you, Madame Chairman and members of the 
committee. I appreciate being given the opportunity to appear 
before you today to talk about what I think is a critical 
issue.
    As you may be aware, if you have had a chance to look at my 
testimony, it is ten and some-odd pages of testimony, and it is 
difficult to summarize that in five minutes, so I am going to 
focus on some of my most grave concerns, but I need to lay some 
groundwork first.
    There has been a prevailing attitude among some segments of 
the population of the rancher in the west as being the 
``welfare cowboy.'' I think it is important to understand that 
the reason that ranchers and timber harvesters and miners and 
other people are here in the west is because Congress invited 
them to come to the west, not out of the goodness of their 
hearts, not to give away something, but because the economic 
development of the west was in the best interests of the United 
States.
    People came to the west, gave up their lives in the east, 
and they did that, and they established themselves here and 
their families, and for generations, have taken care of the 
land.
    It is Congress' job, not that of the agencies, to set the 
policy for the United States, and that policy has always 
favored grazing on what have come to be called public lands in 
the west.
    There are those who oppose grazing, and they have gone to 
Congress any number of times to attempt to get Congress to 
alter that policy. Congress has never done so. Its actions have 
always been the Taylor Grazing Act, the Act of 1866, July 26. 
The Federal Land Policy Management Act has always been to 
support and protect grazing as one of the valuable and 
important uses of western lands out here.
    What happened as a result of that steadfastness by Congress 
has been a move to the agency level and a move to regulation by 
litigation, an example of which we heard here today in the 
opening testimony, that the Toiyabe National Forest put 
together its action guidelines not because it was the 
appropriate thing to do in its judgment, but because somebody 
sued them, and in the process of suing them and in the process 
of settling that lawsuit, circumvented the Administrative 
Procedure Act process and all the other processes that go into 
making this kind of decision on public lands.
    But one of the most important things that has happened is 
that the lobbying effort has shifted from Congress to the 
agencies themselves, and the agencies themselves have become a 
place of employment for those people who had their own 
environmental and land-use agenda prior to coming in the agency 
and in fact, join the agency as employees specifically to use 
those positions to implement their view of what sound policy on 
public lands should be.
    I was not at all surprised when the uniform action guide 
and Mr. Levere's accompanying memo were brought to my attention 
approximately two weeks ago. I was not surprised, and at the 
same time, I was unhappy and very concerned.
    I think it is important in looking at this issue today 
before this committee and elsewhere not to look at the uniform 
action guide including the modified version of that of four 
days ago in isolation, but to look at them in conjunction with 
Mr. Levere's March 3, 1997, memo which was to the district and 
area rangers with a clear instruction that this was to be 
shared with permittees. When you read it in its entirety and 
you look at it, you understand why Mr. Levere wanted to do 
this.
    It is clear to me after examining this document in 
particular and the uniform action guide that the purpose for 
the memo and the guide are as follows: A, to shift the 
responsibility from the agency for its management failures to 
Congress for having failed to give them the money that they 
believe that they need; B, to let those permittees who have 
been referred to as aggressive beware of following their legal 
and administrative remedies under penalty of being treated more 
harshly if they do so; C, to let the remaining permittees who 
are not aggressive be there to pressure the aggressive 
permittees under pain of a threat of an additional or different 
sanction, that is, removing all permittees from the national 
forest. It is never stated that we will do this, but it is 
suggested that if the UAGs do not meet with everyone's fancy, 
that these other more strenuous penalties may be applied, and 
certainly, this is going to cause other grazers to want to look 
at those who avail themselves of administrative and legal and 
political remedies askance. It becomes part of a strategy of 
divide and conquer, something which in my practice, I have seen 
far, far too much of.
    I am not, for example, comforted by the fact that prior 
panel assured us that the administrative remedies were 
available because part of this document is to discourage the 
use of those remedies, and nowhere in this document is there 
any hint that the forest or its managers ever considered 
whether they may have in part, in any part, been responsible 
for the breakdown of communication.
    The blame seems to be laid squarely at the feet of those 
permittees out there who are dissatisfied, and yet history has 
shown that for generations, these same ranchers and their 
families have tried to work with the forest. There is no 
explanation in here as to why they would suddenly decide that 
this avenue was no longer fruitful and useful.
    It is my experience that mature adults, when they find 
themselves getting into a situation over and over again, do ask 
themselves whether in fact they have done anything that might 
have contributed to the situation.
    Finally, and there is probably more that I will be 
discussing on this topic during questions, I am sure, but that 
is, I am not comforted by Mr. Levere's statement. For example, 
not to worry, there is discretion in the hands of the rangers 
out there, because he has said first of all, he is both 
informally monitoring and will in the event of an appeal be the 
one looking at whether or not that ranger properly exercised 
his discretion to apply or not apply the UAGs.
    In other words, the person responsible for putting the UAGs 
together and strongly through his letter recommending that they 
be followed is the same one who is going to review the decision 
to follow or not follow those UAGs. This gives me little 
comfort, and certainly, one of the areas that this committee 
and Congress should be looking at is the administrative appeal 
process which is in fact severely flawed in my view. Thank you.
    [Statement of Mark Pollot may be found at end of hearing.]
    Mrs. Chenoweth. Mr. Pollot, I thank you for your testimony. 
I would like to call now on Mr. Jim Connelley. Mr. Connelley.
    Mr. Connelley. Madame Chairman and members of the 
Subcommittee, thank you for the opportunity and I am sorry that 
he has left, but I thank Congressman Gibbons for the 
introduction.
    Mrs. Chenoweth. The Chair wants to assure you that my 
colleague will be back very shortly.
    Mr. Connelley. Thank you.

       STATEMENT OF JIM CONNELLEY, MOUNTAIN CITY, NEVADA

    Mr. Connelley. I have always had good working relations 
with the Forest Service. I was appointed to the Forest 
Service's livestock-big game review team in 1990 and was one of 
the original founders of the seeking common ground initiative 
that Mr. Unger mentioned here earlier.
    I have been recognized by the Forest Service for commitment 
and cooperation and progressive management of my Federal 
grazing allotment.
    I am here today testifying solely on my own behalf and have 
been actively involved in public land grazing for a number of 
years, participating in hundreds of hours of meetings with 
Forest Service and many, many range tours with Forest Service 
personnel.
    I have had broad exposure to all aspects of livestock 
grazing and policies on the Humboldt-Toiyabe National Forest.
    Based on these experiences, it is my opinion that the 
Forest Service, the range division in general and the Humboldt-
Toiyabe National Forest in particular, is an agency lacking 
practical scientific vision and direction. It is currently out 
of control in terms of defining an ecologically sound and 
viable grazing management program that seeks to cooperatively 
resolve livestock grazing problems on the ground with the 
involvement of interested parties.
    Some officers of the Humboldt-Toiyabe are making livestock 
management decisions based upon political agendas and then 
finding the science to support these decisions. I believe that 
grazing allotments on the Humboldt-Toiyabe have been and 
continue to be targeted for elimination of grazing, and that 
this goal is being achieved through the implementation of 
unrealistic, unscientific standards and guidelines imposed in a 
punitive manner.
    As a result, the range division on the Humboldt-Toiyabe 
have lost the respect of all but those whose agendas they 
support. Based on this agenda, the Humboldt-Toiyabe have all 
but assumed a siege mentality, blaming the commodity users for 
all of their problems and shortcomings on the lack of budget.
    Witness the State and national news coverage on the Carson 
City pipe bombings where Forest Service personnel were 
continually quoted as speculating that disgruntled ranchers or 
miners could be responsible. A suspect has yet to be identified 
or charged in these regrettable incidents.
    Virtually no effort is being made today by the Humboldt-
Toiyabe to work cooperatively with the grazing permittee to 
resolve grazing issues or problems on the ground once they have 
been identified.
    Furthermore, the current punitive approach to permit 
administration employed by the Humboldt-Toiyabe more closely 
resembles a police action as opposed to the cooperative 
regulatory approach to rangeland management.
    This big stick approach has only resulted in increased 
polarization, costly appeals, litigation, and more recently, 
the grand jury investigation which resulted in a finding of 
potential charges against Forest Service employees.
    Let me explain the basis for these opinions. Other 
testimony that this Subcommittee will hear documents the 
dramatic grazing decline on the Humboldt-Toiyabe since the 
implementation of the respective forest plans and UAGs.
    Most of this downward grazing trend can be attributed 
directly to the following factors. Strict and punitive 
enforcement by the Forest Service of unrealistic restrictive 
riparian grazing standards and guidelines adopted in the forest 
plan which lack scientific support and biological 
justification. In the intermountain west, riparian areas 
comprise only about one to two percent of the total land area.
    Difficulty in maintaining economically viable levels of 
grazing use on most allotments prior to exceeding the strictly 
enforced riparian standards, and three, refusal by the Forest 
Service to work cooperatively with affected permittees to 
address existing livestock distribution and riparian grazing 
issues through the application of tried and proven grazing 
management practices.
    The predominant attitude demonstrated on the Humboldt-
Toiyabe today has been total permittee compliance with the 
imposed grazing standards, regardless of the site-specific 
conditions or climactic variations or they will suffer the 
Forest Service's enforcement of substantial penalties in the 
form of suspensions or cancellations. No opportunity is 
afforded in this process for grazing permittee and Forest 
Service to come together and cooperatively evaluate management 
options to resolve an identified grazing issue.
    The simplistic reduction of livestock numbers through 
penalty permit actions will not, in itself, lead to a proposed 
reduction in animal impacts, nor will it solve the basic 
problem. It is important to remember that animal impacts for 50 
head of grazing livestock within a given area for two weeks 
will be relatively the same as 100 head in an area for one 
week.
    So the question is, what did you gain by imposing a penalty 
permit action that simply reduces the number of animals? Can 
you reasonably expect improved riparian resource conditions or 
have you simply penalized the rancher financially?
    In most cases, the latter situation is the result and being 
that these are predominantly family-owned operations with 
little capital behind them, they are brought one step closer to 
elimination. These are the same family farmers and ranchers 
that this administration as well as others before it have 
promised to save.
    Since the grazing permittee is the person who actually 
controls and manages the animals grazing, livestock control 
within a grazing allotment and its associated riparian areas 
can only be addressed and achieved through cooperative planning 
that involves the permittee.
    Without the opportunity to explore viable management 
options to address livestock control and riparian issues, 
unjustified and unnecessary administrative permit reductions 
continue today on both forests.
    In closing, I would like to offer the following solutions 
to resolve the previously described issues. This would include: 
one, initiate a congressional investigation to determine why 
the Humboldt-Toiyabe have not attained grazing output levels 
specified in the respective forest plans as required by the 
forest plans themselves and the National Forest Management Act; 
and two, the National Forest Management Act should be amended 
for purposes of de-emphasizing a dependency on standards and 
guidelines, at least as they relate to the livestock grazing 
program and in its place require the Forest Service to offer 
collaborative planning processes to evaluate alternative 
grazing practices prior to initiating penalty permit actions.
    Broad blanket application of grazing standards and 
requirements developed at the forest level do not adapt well, 
nor are they often applicable to addressing varying and site-
specific environmental conditions at the allotment level.
    With that, I see my time is about up. I will be happy to 
answer any questions.
    [Statement of Jim Connelley may be found at end of 
hearing.]
    Mrs. Chenoweth. Mr. Connelley, I thank you very much, and 
the Chair now recognizes Karen Budd-Falen, attorney. Ms. Falen.

   STATEMENT OF KAREN BUDD-FALEN, ESQUIRE, CHEYENNE, WYOMING

    Ms. Budd-Falen. Thank you very much. My name is Karen Budd-
Falen. I am an attorney from Cheyenne, Wyoming. I am also a 
fifth generation rancher on a family-owned ranch in Big Piney, 
Wyoming.
    The information I have to present to the Subcommittee today 
deals with further Forest Service inflexibility and failure to 
collect site-specific data which has led to forest-wide grazing 
reductions and livestock grazing on four national forests.
    The first case I want to discuss concerns the Humboldt and 
Toiyabe National Forests in Nevada. The original land use plans 
for the Humboldt and Toiyabe National Forests were promulgated 
by the Forest Service in 1986. Those plans contained numerous 
standards and guidelines such as strict utilization standards, 
stubble height requirements, and other ``resource protection 
measures.''
    At that time, the livestock industry in Nevada bitterly 
complained that one, they could not continue grazing on the 
Federal lands if these standards were enforced; two, that these 
standards were only and unreasonably applied to livestock 
grazing and not to wildlife or recreation use; and three, that 
the standards would not enhance or protect the range resource.
    Over the objections of the livestock industry, the 
standards were included in the land use plans. In opposition to 
the standards in 1986, the Nevada Land Action Association 
representing the livestock industry, sued the Forest Service. 
Their substantive complaints about the land use plans were 
never heard by the court, because the court dismissed the case 
saying that until the cattlemen could prove that they were 
harmed, they had no standing to sue.
    It is ten years later; the cattlemen's predictions have all 
come true. Under the standards and the guidelines in the 
Humboldt plan, 38,994 AUMs have been lost on the Humboldt 
National Forest. In terms of individual permittees, in ten 
years, the number of permits on the Humboldt National Forest 
have been reduced from 160 to 135.
    The same is true on the Toiyabe. In the past ten years 
since the implementation of the land use plan on the Toiyabe 
National Forest, the number of AUMs has been reduced by 35,654 
AUMs. In terms of permittees, in the last ten years, the number 
of permittees on the Toiyabe has been reduced from 75 to only 
44 remaining.
    There is a second case that I would like to bring to your 
attention that illustrates this exact same point. The situation 
occurs on the Apache-Sitgreaves National Forest in Arizona. The 
Apache-Sitgreaves, also known as the A-S, land use plan was 
promulgated around 1988. That plan also contains standards and 
guidelines to allegedly protect forest health.
    In 1995, the term grazing permits for 13 permits on the A-S 
were set for renewal. Because of a change in Forest Service 
policy, each renewal of the term permit was subjected to the 
NEPA analysis.
    At the end of the process, every single one of those 13 
term permits received a reduction in grazing of between 40 
percent and 85 percent.
    I think that these two cases illustrate some very common 
problems with Forest Service policy.
    Number one, rigid, restrictive utilization standards and 
guidelines result in the reduction or elimination of livestock 
grazing. This is especially true when the standards and 
guidelines are only applied to livestock and not to recreation, 
wildlife, or other multiple uses on the national forest.
    Number two, restrictive utilization standards are replacing 
individual allotment monitoring programs, such as monitoring 
for trend or condition. This means that the Forest Service, 
rather than being concerned with whether the individual 
allotment is in good ecological condition or whether it is 
increasing or decreasing in trend, is focusing simply on a 
utilization standard and whether that standard has been met. 
Since most of the time, utilization standards are not 
indicative of the health of the allotment, this method 
unnecessarily and needlessly eliminates livestock grazing 
without achieving a corresponding increase in the ecological 
health of the land.
    Number three, the Forest Service administrative appeals 
system does not provide due process. Forest Service 
administrative appeals are heard by the next higher line 
officer. There is no opportunity to ever cross-examine the 
Forest Service decisionmaker, to ever present your own experts, 
and to ever talk to an independent hearing officer.
    The Department of Agriculture does have an administrative 
appeals board, but Forest Service permittees, whether it is 
grazing permittees or timber producers or whoever, do not have 
access to this independent hearing board.
    I also have solutions to these problems that I would like 
to propose.
    Number one, the Forest Service should eliminate the forest-
wide standards and guidelines and the decisions based upon 
those standards and guidelines. Decisions must be made on an 
allotment-by-allotment basis or stream reach-by-stream reach 
basis. A decision designed in Washington, D.C., cannot apply in 
Big Piney, Wyoming, or Mountain City, Nevada, or anywhere else.
    Number two, mandate that trending condition monitoring be 
completed before any reductions in grazing are made. Trend and 
condition on BLM land is normally measured for at least three 
to five years before grazing permits can be reduced for 
resource damage. The same should be true for the Forest 
Service.
    Number three, mandate that grazing permittees have access 
to the Forest Service national appeals board or that they have 
a right to some sort of an administrative appeal before an 
independent hearing officer, not before the next higher line 
officer who probably recommended that the adverse decision be 
made in the first place.
    I thank you for the opportunity to present this information 
to you, and I would be happy to answer your questions.
    [Statement of Karen Budd-Falen may be found at end of 
hearing.]
    Mrs. Chenoweth. Thank you, Mrs. Falen. The chair now 
recognizes Mr. Crapo for questioning.
    Mr. Crapo. Thank you, Madame Chairman. I would like to 
address my first questions to Mr. Bedke. Welcome again, Mr. 
Bedke, and we appreciate your making the effort to be here to 
testify.
    You indicated that there was no resource damage on your 
allotment, is that correct?
    Mr. Bedke. That is correct.
    Mr. Crapo. Can you tell us just briefly what kind of a 
history there has been in terms of the new treatment that you 
feel that this allotment has received in the last period of 
years as compared to how it was treated in earlier years?
    Mr. Bedke. Like I tried to describe in my oral 
presentation, our allotment was viewed as a ``showplace'' 
allotment that we could--it is a good allotment resource-wise, 
and it was used to show other ranchers and other agency 
personnel what could be done when everybody worked together.
    Like I said, there has never been any resource damage, 
there have never been any penalties based on resource damage on 
this allotment.
    We are under suspension as was brought up earlier. This 
occurred--briefly, it is hard to describe what exactly took 
place, but suffice it to say that many small allotments were 
lumped into one big allotment here for the betterment or for 
the more efficient use of this mountain. So there were spring 
units set up and there were fall units set up, and there was 
never any differentiation between BLM and Forest Service ground 
within this allotment.
    In the fall of 1994, we were requested to have all the 
cattle on the BLM side of the line within the fall unit. Now, 
this is just a line on a map. There was no fence, there is 
nothing out there. I mean, Congressman, you wouldn't know when 
you crossed the line, and neither did my cows.
    We moved all the cattle. They requested to have all the 
cattle on the other side of the line for the last two weeks of 
the season, and we complied with that. We moved all the cattle 
on the 29th of October.
    On the second of November, 185 head had crossed the line, 
and that constituted a permit violation that they took action 
on. Another leg of the penalty was that in the same unit, there 
is a pipeline system that fills four water troughs. It was a 
dry year. There was only enough water to put water in one 
trough of this system, and the others were left dry so we could 
congregate what water we had in the one trough, and that was 
considered nonmaintenance of our improvements.
    Now, the supervisor at that time suspended the 
implementation of these penalties, because he found for the 
ranger yet suspended the penalties, walking the tightrope that 
only he understood he was faced with. We didn't quarrel, and so 
the first two years of the penalties go by.
    We get new management, we get other infractions of similar 
nature, and the suspension of the penalty has activated and 
that is the suspension that we are currently under.
    Mr. Crapo. Thank you. You would agree, wouldn't you, that 
all permittees must comply with the requirements of their 
permit?
    Mr. Bedke. That is our goal.
    Mr. Crapo. And do you feel that the current uniform action 
guidelines that are under proposal, the new proposed UAGs, will 
put a permittee such as yourself at a disadvantage in terms of 
trying to work out a proper resolution with the ranger when a 
problem does arise? If so, why? Just explain it briefly if you 
would.
    Mr. Bedke. Well, after having read the memo, I would just 
ask yourself, if you had been recently involved in an appeal 
process, if you had ever criticized the Forest Service, if you 
had participated on the governor of Idaho's Federal lands task 
force, or if you were here in Washington testifying on the very 
thing, you would have to consider--those were the things that 
he described as an aggressive permittee, so I guess I think I 
am warranted in my fears.
    Mr. Crapo. Thank you. Mr. Pollot, I welcome you again. You 
were here when we had a hearing on wolf recovery a year or two 
ago.
    Mr. Pollot. Yes, sir. Thank you.
    Mr. Crapo. I appreciate your coming back. I guess this 
question is both for you and Karen Budd-Falen, or Jim 
Connelley, I guess. Any of you may have information on this.
    Has the amount of cattle allowed to be grazed gone down 
under uniform action guidelines on other forests that you are 
aware of?
    Mr. Pollot. They most certainly have, Congressman. 
Certainly in the Toiyabe National Forest, the figures that have 
been cited to you by members of the committee as well as Karen 
certainly show that the numbers have gone down, and they have 
gone down fairly consistently.
    The curve on the Toiyabe National Forest is pretty steep.
    Mr. Crapo. I see my yellow light is already on, so my 
question is, do you believe that the reason for this reduction 
is the stiffness or the rigidity or the extremity in the 
penalties imposed under the uniform action guidelines which 
have been imposed?
    Mr. Pollot. I most certainly do.
    Mr. Crapo. And Ms. Budd-Falen, do you agree?
    Ms. Budd-Falen. Yes, sir, Congressman, I do agree. In fact, 
on the Toiyabe National Forest, I have been participating in 
studies contacting every single grazing permittee whose permit 
has been reduced or eliminated over the last ten years to 
determine if the reduction was based on market condition or was 
the result was implementation of the standards and guidelines 
and enforced by the uniform action guide.
    The permittees told me that in every single case, they 
would ``voluntarily'' remove their cattle, because they knew 
that the Forest Service penalty that could be imposed by the 
uniform action guide would eliminate those livestock anyway, 
and they didn't want a mark (or an adverse decision against 
them) on their Forest Service record, because once a permittee 
gets those kind of marks noting an infractions on a Forest 
Service record, the chances of the permittee ever getting 
another permit or going to another district and getting another 
permit are slim to none.
    Mr. Crapo. Thank you very much.
    Mrs. Chenoweth. Thank you, Mr. Crapo. The Chair recognizes 
Mr. Vento.
    Mr. Vento. Thanks. I note that there is a discussion here 
going on about whether or not the lack of use in the Toiyabe 
and Humboldt of allotments has to do with the reduction in 
force or in fact has to do with the fact that these uniform 
action guidelines are in place, so it has been in place, I 
guess, for some time there.
    The action guidelines are designed apparently to provide 
more certainty and predictability. That is at least the quest 
and that was a positive response when I asked that of the 
supervisors and of Mr. Unger.
    Either there are more violations now than there were 
before. I could ask one of the witnesses, Ms. Budd-Falen.
    Are there more violations now than there were before? Are 
there more warnings? Do you know that since you have checked 
out a ten-year record?
    If you don't know, it is all right. You can always answer 
for the record if you don't.
    Ms. Budd-Falen. In terms of warnings before the ten-year 
period and after the ten-year period, I cannot answer that.
    Mr. Vento. Well, maybe you could do some more homework on 
it and help us along those lines.
    Mr. Connelley, I note that you pointed out and I think 
rightfully so, the fact that the original plans in terms of how 
the range is managed in the area that you are referring to, I 
believe it was the Humboldt-Toiyabe, was it not, Mr. Connelley, 
that they hadn't been updated for some time.
    You point out that you believe that it would be desirable 
to do that, to update those plans to provide a better plan. 
Many requirements have been put in place as we gain new 
information or new knowledge in terms of the landscape, maybe 
endangered species and other provisions, and you think that 
that would be a great help if those plans were updated and 
approved, is that correct?
    Mr. Connelley. I agree that those plans need to be updated. 
The forest plan was dated 1985. It is mandated to be reviewed 
every ten years or at such time that its projected outputs fail 
to meet 90 percent of their projections.
    By the figures that Ms. Falen has given here today, the 
grazing output is far, far short of 90 percent of its 
projections, and the 1985 forest plan was mandated to be 
reviewed by 1995 regardless of outputs, and we are now in 1997 
and have asked specifically for a review of these plans and for 
reconsideration of standards and guides and all the other 
things that have come to pass, and that has not been 
forthcoming.
    Mr. Vento. You also point out in your testimony that it is 
your belief that they don't have the necessary personnel to do 
that. You testified to that, that the Forest Service didn't 
have the personnel to do it.
    Mr. Connelley. That is what they are telling us, that they 
don't have the personnel or the funding to do it, and I think a 
reallocation, as I have mentioned, would help, because what we 
are seeing is rangers on these districts saying, I am sorry, 
guys, we can't open that allotment again because we don't have 
any money.
    Mr. Vento. I certainly think in the Toiyabe and Humboldt--I 
don't know what the budgets are for each one. That question 
will probably come back up, but I think it is pretty clear that 
a lot of the resource management plans and other requirement 
plans for land use have been delayed because of funding. It 
doesn't take as high a priority.
    But they do an EIS in terms of reissuing some of the 
permits, don't they?
    Mr. Connelley. Congressman, you know what I do when I don't 
have the funds or the time to take care of calving during the 
winter or whatever? I work longer and I work weekends and I 
work nights.
    Mr. Vento. Right. I think most of the Forest Service 
personnel I know work pretty hard. I was sort of amazed that 
somebody would question the integrity of the individuals, 
because they work under contract just like you and just like 
Mr. Bedke.
    You had a contract. How many head of cattle do you run, Mr. 
Bedke, on these permits? You are on the Sawtooth, I guess, 
aren't you? What do you run on the Sawtooth?
    Mr. Bedke. We run 487 head.
    Mr. Vento. It is my impression that most of the permitted 
lands aren't fenced, are they? Are all the permits fenced 
around so you know just exactly where the lines are?
    Mr. Bedke. No. I know where the lines are but----
    Mr. Vento. Very, very few are, aren't they? You know where 
the lines are, but I wouldn't know where they are, would I?
    Mr. Bedke. No.
    Mr. Vento. And so this difference between BLM and Forest 
Service lands that you pointed out would be the same difference 
in terms of where a permit ends and begins. But the whole 
predicate is that you generally know, so obviously, in terms of 
number of cattle you run, when you run them there, how you run 
them there and treat them?
    Mr. Bedke. That is my very point, Congressman, is that 
there needs to be flexibility in these plans. We are trying to 
do the best that we can. That is our goal to do the best that 
we can.
    No one is hurt worse by mismanagement out there than me, 
and so that is why we are here pleading for flexibility, and 
this does not represent flexibility.
    Mr. Vento. If you want me to do micromanagement, I could do 
that. We could do it, but obviously, we would rather see some 
people that are professionals that are working on the land and 
are nonpartisan enforcing things.
    I notice one of the statements in your testimony sort of 
amazed me. You said that for a long time, that you could sell 
and lease and re-lease and trade allotments?
    Mr. Bedke. I never said lease.
    Mr. Vento. Well, you said sell. I could give you the exact 
quote in terms of your statement, but I was amazed by that, 
because I was under the impression that these were permits that 
are provided.
    Did I misunderstand something about what you are stating 
here in your remarks?
    Mr. Bedke. No, you didn't.
    Mr. Vento. I can read it. They have been bought, they have 
been sold, they have been traded as personal property since the 
first issuance of grazing permits.
    Mr. Bedke. That is still correct in that you, Mr. Vento, 
could not bring your cattle up and graze them on my allotment 
because I hold the permit.
    So there is value there, and there is added value to my 
ranch, my base property, my personal property at home because 
along with that property goes the right to graze cattle on the 
adjacent public lands.
    That right has been recognized by the IRS. We have been 
taxed, paid estate taxes. On one side, the government 
recognizes it as a property right, and the other side wants to 
take that property right away from us.
    Mr. Vento. I don't know. I mean, it is all right, you are 
entitled to your view, but I think that with regards to law----
    Mr. Bedke. I think the facts bear me out, and Congressman, 
we have no problem with----
    Mr. Vento. One of the provisions is that you can't sell and 
you can't--that you are supposed to personally be using it, and 
so that is why I was surprised by this particular statement in 
here.
    You are entitled to your own opinion, but there is the law 
and there is the contract that you signed in terms of the 
permit.
    Mr. Bedke. No quarrel with that.
    Mr. Vento. Yes, sir.
    Mrs. Chenoweth. Thank you, Mr. Vento. The Chair recognizes 
the gentleman from Nevada, Mr. Gibbons.
    Mr. Gibbon. Thank you, Madame Chairwoman. Mr. Bedke, are 
you allowed to have a permit on an allotment basis without an 
underlying base property ownership?
    Mr. Bedke. No.
    Mr. Gibbons. So the permit is attached the property 
ownership, is it not?
    Mr. Bedke. Yes.
    Mr. Gibbons. So there is a difference between what would be 
a normal permit under the consideration of normal course and 
scope of the law and a permit for a grazing allotment that is 
attached to your property?
    Mr. Bedke. Yes.
    Mr. Gibbons. That is what I thought. Have you ever been--
has your allotment ever been penalized for a resource damage 
assessment?
    Mr. Bedke. No, it has not.
    Mr. Gibbons. Mr. Connelley, thank you very much for coming 
here today from Mountain City. You mentioned the word attitude 
in your testimony.
    Can you elaborate and give us some examples of Forest 
Service attitudes that you have been dealing with and the 
grazing uses in the Humboldt and the Toiyabe grazing areas?
    Mr. Connelley. Yes, I could give you probably the rest of 
the day's worth in my experience with permittees on the 
Humboldt and the Toiyabe, but probably two specific incidents 
come to mind, and you alluded earlier to the grand jury 
investigation in Elko County.
    I don't think a grand jury investigation is something that 
is taken lightly, should not be taken lightly. The Forest 
Service declined to honor the subpoenas and testify before that 
grand jury and provide whatever information the grand jury 
asked for.
    The regional forester stated that, and this was relayed 
publicly on radio, TV, and the print media, that it was not in 
the best interests of the Forest Service to testify before the 
grand jury. This probably did more to obliterate any 
credibility that the Forest Service had than anything that I 
have ever seen them do. It immediately led to all sorts of 
speculation about, well, if it is not in the best interest to 
answer their questions and the subject of the grand jury is how 
they are managing the land, then there must be a negative 
connotation attached to that, and it has been the source of 
much controversy. It has become labelled as the arrogance of 
the Forest Service and the attitude of the Forest Service, and 
I think it is very unfortunate, and I am sorry to see that 
happen. I believe in the collaborative process, and I think 
that there was a failure here of monumental proportions.
    The other incident that is burned very deeply into my mind 
was when I was president of the Nevada Cattlemen's Association 
in 1990, I was invited by the forest supervisor to a ride, a 
two-day affair where we rode horseback through a section of the 
Toiyabe, camped overnight, and discussed land management 
issues. He had a number of examples to show us.
    There was a number of us on that ride, a number of 
cattlemen, a number of Forest Service employees and Dr. 
Burkhardt, who will testify later today, and in the evening at 
the camp-out that we had up at a station on the forest, a very 
heated discussion ensued by a former president of the 
Cattlemen's Association and the supervisor. This went on for a 
couple of hours.
    Toward the end of that discussion as it became clear that 
there were tempers flaring and there was really no amicable end 
to be reached, and perhaps you can attribute the situation here 
or the comments here to the heat of the discussion, but the 
supervisor and the other party in this heated discussion got up 
from the table. The supervisor turned to me and stated, ``Mr. 
Cattlemen's President, I will tell you something, that I am 
going to get the cows off the creek, and my philosophy is that 
you find the biggest fish in the pond, and you take him down, 
and when you get that accomplished, all the other fish will 
fall in line.'' I said thank you for that philosophy. I will 
remember it to my dying day.
    Mr. Gibbons. What did you take his meaning to be?
    Mr. Connelley. Well, that he had an agenda, and he was 
going to accomplish that agenda, and it was, Katie, bar the 
door.
    Mr. Gibbons. Did he have someone in mind that he was 
referring to as the biggest fish in the sea?
    Mr. Connelley. Well, it was a very short time later that 
the much-publicized Wayne Hage case came to all of the national 
media when the Forest Service took a police action and 
confiscated his cattle.
    Mr. Gibbons. What was the end of the court result that was 
filed?
    Mr. Connelley. It has not been ended yet. The result so far 
is that the Hage family has lost their ranch.
    Mr. Gibbons. Right. Mr. Connelley, what suggestions would 
you make to this committee to improve the situation on the 
Humboldt-Toiyabe National Forest that could also be used in all 
national forests where livestock grazing occurs?
    Mr. Connelley. I listed about three things in my testimony, 
but I will make it very short and simple. Let us get the 
politics out of land management and get the science back into 
it and get personal agendas and reactions, just set them aside.
    Mr. Gibbons. Thank you. Madame Chairman, I will yield back 
the balance of my time. Thank you very much.
    Mrs. Chenoweth. Thank you, Mr. Gibbons. The Chair yields an 
additional four minutes to Mr. Crapo.
    Mr. Crapo. Madame Chairman, I would hold off at this point.
    Mrs. Chenoweth. Thank you, Mr. Crapo. Mr. Vento, do you 
have additional questions?
    Mr. Vento. I notice that these disclosure statements do not 
include the grazing permits as a contract with the Department 
of Agriculture. Is there some counsel ruling on this that I am 
not aware of or what?
    Mrs. Chenoweth. The Chair yields to counsel.
    Mr. Simmons. That has been worked out with the minority, 
Mr. Vento, but the rule is that permits and those types of 
things were not to be included.
    Mr. Vento. I am not a fan of this particular process in any 
case, but I think it tends to be a transparent attempt to 
intimidate individuals that come before the committee, and I 
just think if we are going to have the rule, we are going to 
have to follow it.
    I am not aware of any agreement with the minority. There 
was certainly no consultation that I had with anyone on it, and 
so I just think it is something that you either ought to 
uniformly apply it if you have it than not.
    Madame Chairman, I point that out. I have no further 
questions at this time.
    Mrs. Chenoweth. Thank you, Mr. Vento. We will provide you 
with the rule. I would be happy to----
    Mr. Vento. I know the rule. It is how it is applied.
    Mrs. Chenoweth. All right. Mr. Pollot, you represented 
Wayne Hage, didn't you?
    Mr. Pollot. Yes, I did.
    Mrs. Chenoweth. Did you have any comments to add to Mr. 
Connelley's statements?
    Mr. Pollot. Certainly, the status of the case right now is 
that the Court of Federal Claims issued a decision and a 
summary judgment motion in which it said a variety of things, 
but not the least of which was that grazing on public lands is 
not necessarily and inevitably in all cases a ``mere 
privilege,'' that the government may withdraw at any time that 
it wishes to do so for any reason or no reason at all.
    In this case, the government did make a motion for interim 
appeal on the decision and summary judgment motion. The court 
denied leave to appeal that and so the case will be going 
forward. The trial will be divided into two parts, but 
certainly the observation that Mr. Hage has certainly been run 
out of business as a result of this is true, and this issue 
goes to a certain extent to what Congressman Vento was 
referring to here.
    The issue is that a permit may or may not be, depending on 
the circumstances here, a property right which may be 
transferred and so forth and so on. It would be an overbroad 
statement to say that because it is a permit, there are no 
property rights or even if it were a contract, because it is 
universally recognized that a contract is a property right and 
may in fact be taken by government regulation.
    It is not quite black-and-white.
    Mrs. Chenoweth. And a contract can also be breached, right?
    Mr. Pollot. And the difference between the two as far as 
the Claims Court is concerned is whether the government's 
action in doing what it did was authorized.
    If it was an authorized action, then perhaps what you end 
up with is a taking of the contract which must be compensated 
under the Fifth Amendment. If it was an unauthorized action, 
doing so, then it may be a breach of the contract for which the 
government may have to pay damages and may be subject to 
injunction to enforce the terms of the contract.
    Mrs. Chenoweth. Without objection, the Chair recognizes Mr. 
Gibbons for further questions.
    Mr. Gibbons. Thank you, Madame Chairwoman, and I apologize 
for asking you for your indulgence. I had one question I failed 
to ask Karen Budd-Falen, and I wanted to address the issues of 
known livestock production, reductions, or whatever that are 
coming off of the Humboldt-Toiyabe National Forest.
    Are you aware of these or any reductions in the livestock 
production numbers?
    Ms. Budd-Falen. Yes, Congressman. As I outlined in my 
testimony and since I am so terrible with numbers, I have to 
look at the numbers themselves, because I can't ever remember 
them.
    On the Humboldt National Forest, in ten years, 38,994 AUMs 
have been eliminated. In terms of people, out of the original 
160 permittees on the Humboldt, 135 remain.
    On the Toiyabe National Forest, 35,654 AUMs have been 
eliminated in the last ten years. There were 75 original 
permittees; that has been reduced to 44.
    Mr. Gibbons. Let me ask a follow-up question to that. Are 
the livestock reductions that you have just alluded to in the 
Humboldt and the Toiyabe National Forests the result of poor 
livestock market or other market conditions rather than 
noncompliance with the forest plan standards and guidelines?
    Ms. Budd-Falen. In working with the consulting organization 
that put together this information, we contacted each of the 
permittees on the Toiyabe National Forest whose permit had been 
reduced or eliminated. Their answers to that same question was 
uniform. Because of the way the uniform action guidelines 
enforces the land use plan, standards and guidelines we are 
talking about here today, the permittees cannot comply with 
their permits no matter what they did. Thus, the permittees 
would voluntarily remove their livestock, because if you get a 
permit violation noted on your grazing permit, you can't move 
to another forest and get another permit and you can't move to 
another area and get another BLM permit even.
    So permittees, when faced with the uniform action guide and 
the fact that their permits were going to be reduced or 
eliminated, most of the time will just voluntarily take their 
cows off the forest rather than having a black mark on their 
record which will follow them forever.
    Mr. Gibbons. Madame Chairwoman, thank you very much for 
your indulgence.
    Mrs. Chenoweth. Thank you, Mr. Gibbons. I would like to 
follow the line of questioning that Mr. Vento had initiated and 
ask Ms. Budd-Falen, Mrs. Budd-Falen, to follow up.
    Is there a property interest in the national forest 
permitting system in your opinion?
    Ms. Budd-Falen. I think what you have to do is separate the 
permit, the ten-year contract itself, from the thing that gives 
you the right to get a permit, which is the preference.
    If you look at the court decisions, the court decisions say 
that a permit itself, that is your piece of paper that the 
Forest Service signs, is not a property right. The courts, 
however, have never looked at the underlying preference itself, 
the thing that got you the permit in the first place.
    I think you have to think about what a preference is and 
what it means. If I want to place my cattle on the national 
forest, I can't go to the Forest Service and say give me a 
permit. I have to go and buy either the base property or 
livestock from another rancher and then buy his right to use 
his allotment. What you are purchasing from the rancher is his 
``preference''. I then take that preference to the Forest 
Service and say I bought this base property or I bought this 
livestock. I have a preference to use this allotment, now give 
me a permit to recognize my preference.
    The Internal Revenue Service in a case called Sufflebarger 
v. Tax Commissioner stated that the preference was a property 
right and taxable. For example, in the State of Wyoming, a 
grazing preference is taxed at one-third the value of fee 
simple.
    So for example, my grandparents just passed away. We went 
through all of the estate taxes, and the IRS came in, figured 
out the value of our base property private land, multiplied 
that by one-third to recognize our grazing preference on both 
BLM and Forest Service, and we paid that additional tax as 
well.
    The banks recognize a preference as collateral and will 
lend you money based on a preference as collateral.
    The Forest Service Use Book which is the first book that 
ever recognized your right to go out and get a permit on the 
Federal land adjudicated those preferences like a water right. 
The Forest Service under the 1906 use book would go into an 
area and they would look at all the ranchers who wanted a 
permit. At that time, there was always a lot more ranchers 
wanting a lot more forage than was available on the ground. So 
the Forest Service would come in and say, all right, if you 
have historically grazed your cattle in this area, if you have 
been contributing to the community, if you have base property 
or water right to sustain the livestock when they are not on 
the Federal land so that you can prove you are an ongoing 
ranching operation, then you get an adjudicated preference.
    It is almost like a water right, meaning that a portion of 
that Federal land would be adjudicated to you. That is how 
those original preferences were created, and for any rancher, 
you can go back to the very first adjudication to see how the 
rancher got his preference. In fact, the Forest Service has 
these little tiny yellow cards in the archives that talk about 
a rancher's original adjudicated right; that is the term that 
is actually used on those original Forest Service cards in the 
archives.
    Mr. Pollot already talked about the Hage case and how the 
court has ruled that a permit may or may not be property, 
depending upon the facts of the individual case.
    I think it is also interesting to note that the courts have 
determined that a lot of things are a property right. For 
example, a welfare entitlement is property. If you qualify for 
welfare; the government cannot come in and take that welfare 
payment without affording you due process.
    With regard to the Taylor Grazing Act, Judge Brimmer in his 
Wyoming court case ruled that the Taylor Grazing Act is a 
grazing statute and that it affords some sort of protection to 
a grazing right. One of the things that Judge Bremer looked at 
was section 9 of the Taylor Grazing Act which actually affords 
you due process, the right to a hearing under the Taylor 
Grazing Act when the BLM comes in and takes or reduces your 
grazing permit.
    I think if you start adding up all of these facts, at least 
in my opinion, the preference is some sort of a property right 
that should, at the minimum, be entitled to due process if the 
Forest Service comes and takes or reduces your grazing permit.
    Mrs. Chenoweth. Let me ask you, so I can have it very clear 
in my mind, the property right concept or the use/ownership 
right would adhere to the preference right. The permit which 
can be issued, say every ten years, sets the terms and 
conditions?
    Ms. Budd-Falen. For using the preference, that is correct.
    Mrs. Chenoweth. And has that historically been based on--
have the terms and conditions in a permit been historically 
based on what criteria?
    Ms. Budd-Falen. They are based on two criteria primarily. 
The first is the ten-year land use plan, the big, thick 
documents that the Forest Service creates which governs the 
management of that Forest Service unit for the ten-year period, 
such as the Humboldt-Toiyabe land use plans or the Apache-
Sitgreaves land use plan that set all the utilization standards 
that permittees have to live with.
    Your term permit then recognizes those conditions and in 
fact by law has to be uniform with the conditions set forth in 
those land use plans.
    That is why permittees are so concerned and so involved in 
the land use planning process, because that giant document 
governs their use of their allotment. Additionally, note that a 
land use plan is not a decision document, but the adoption of 
the land use plan has to comply with the National Environmental 
Policy Act. That sets the terms and conditions that will be 
forced into your term grazing permit, so if you don't comply 
with the term grazing permit, you are not complying with the 
land use plan and the uniform action guide will take action 
against you.
    Mr. Pollot. Madame Chairman, may I expand a little bit on 
this issue?
    The Hage court, for example, recognized basically that 
there may be a right to graze your cattle on Federal land which 
may be independent of the permit, for example, if that is in 
fact an appurtenance to your water right, and that, of course, 
is also going to depend on facts and circumstances.
    There are also other facts and circumstances. For example, 
in any State that was created out of the New Mexico territory, 
there will be people who have a right to graze on ``Federal 
land'' because of a territorial statute which, as you know, 
because it was ratified by Congress, is effectively an act of 
Congress, gave a possessory right in the surface which has been 
held by courts to be a property right in the surface to those 
people who stocked the range with cattle consistent with the 
amount of live water available to them, so there are other 
bases beside grazing preferences which would give a right which 
is independent of the grazing permit.
    Certainly, the government can create something beyond that 
right in a grazing permit, for example, to decide well, maybe 
you have the right to X-amount of AUMs, but we will allow you 
to graze Y-amount of AUMs provided that you adhere to the terms 
of our agreement.
    But the mere fact that a permit is involved or a preference 
is involved is not sufficient to decide whether there may not 
be other property rights including rights to graze on Federal 
land.
    Mrs. Chenoweth. Thank you, Mr. Pollot. I notice, counsel, 
Mr. Vento is speaking.
    Did you have a follow-up question as long as we are on this 
line of questioning, Mr. Vento?
    Mr. Vento. I am hearing a lot of ifs and maybes and so 
forth. We have to be guided by what the decisions are in terms 
of the court with regard to the permitting process. So 
certainly, it is interesting to listen to individuals expound 
on what they think may be a right, a property right, versus 
what is a permit, but as far as I know, there is a ten-year 
document out in terms of permits, and they are permitted to use 
the land.
    I understand the base issue in terms of water or the mixed 
ownership land pattern that exists, but I think that obviously, 
these are issues that have been set in law for a long time. 
There is a lot of disagreement about it, and it is interesting 
to hear viewpoints expressed, but they aren't particularly--I 
don't know that they lead us to some plan to legislate in this 
particular area.
    That is fine. I certainly don't--I appreciate the 
opportunity.
    Mrs. Chenoweth. Thank you. I would like to continue in that 
line of questioning to Karen Budd-Falen.
    If there is a possessory right and it has an equity value 
in the allotment, and there is a ten-year permit granted that 
sets terms and conditions based on the criteria of range 
conditions and so forth, does the permit, in your opinion, 
become a contract?
    We heard Mr. Vento mention the word contract. Mr. Pollot 
mentioned contract. Is the permit a contract to manage the 
allotment in a certain way?
    Ms. Budd-Falen. I believe that the permit is a contract. 
Unfortunately, not all the courts agree with that assessment, 
and there are court cases that say that the permit is not a 
contract because the bargain only goes one way.
    Mrs. Chenoweth. The bargain only goes one way?
    Ms. Budd-Falen. If the Forest Service doesn't have the 
money to fulfill its programs, the Forest Service can violate 
the contract.
    However, once the rancher signs on the dotted line, he must 
abide by every single term and condition in the contract, 
Forest Service regulations, the manuals, the handbooks, and the 
land use plan.
    I would also add that there was some question about the 
terms and conditions and whether those were negotiable in the 
term permit. The reality is that they are not.
    The Forest Service comes in, or the BLM for that matter, 
offers you a term permit. You take the terms and conditions 
written in the permit or you don't get a permit, and if you 
don't have a permit, you can't turn your cattle out.
    The idea that there is some sort of a negotiated basis for 
the grazing permit, while it may look like a negotiated 
contract, the reality is that they are not negotiated. You take 
what you can get.
    Mrs. Chenoweth. Maybe it is an adhesive contract, but is 
the preference right like a car and the permit is like a 
driver's license?
    Ms. Budd-Falen. I don't know if I would use that analogy. I 
think that it is really more like an adjudicated water right. 
You go to the State engineer, you prove beneficial use, you 
jump through all your hoops, you show that you have a right to 
use X-amount of water.
    Here, when the original rancher was out on that Federal 
land, he had to jump through a bunch of hoops, prove a bunch of 
things; he got a right to then go to the agency and say I want 
a permit for X-amount of AUM based on his water or based on his 
base land or based on the terms of the Guadalupe-Hidalgo Treaty 
or whatever.
    They set it up different in different ways, but it was like 
an adjudicated water right.
    Mrs. Chenoweth. It is an area that still is creating 
confusion, isn't it?
    Ms. Budd-Falen. Yes, it is.
    Mrs. Chenoweth. I hope we can do something about that one 
way or another.
    Mr. Pollot, let me ask you, there was a statement in the 
memorandum that was issued by Mr. Levere that said instead of 
discussing and attempting to resolve identified problems with 
the Forest Service, he sees a more adversarial role.
    Instead of attempting to work things out between the range 
permittees and the Forest Service, a more immediate response by 
some of the more aggressive range permittees is to seek 
remedies either through what I perceive to be a negative press 
targeted at individuals and/or the agency or through local 
political contact and hopefully, political influence over 
agency decisions, through formal administrative appeals and/or 
through potential litigation.
    Although all these remedies are within the legal rights of 
the affected range permittees, they frequently are not the most 
productive ones for the range permittees or for the Forest 
Service, from my perspective.
    As a constitutional expert, would this statement raise any 
serious constitutional questions in your mind?
    Mr. Pollot. Short answer, oh, yes. The First Amendment and 
Fifth Amendment and other provisions of the Bill of Rights were 
designed to protect the right of citizens, and in fact the duty 
of citizens to come forward and challenge the government when 
they think that the government is doing something that is 
inappropriate or improper or unconstitutional or is even simply 
bad policy.
    I think you are aware, Madame Chairman, that several years 
ago, I had a book that came out called ``Grand Theft and Petty 
Larceny: Property Rights in America'' and the first chapter in 
that book discussed the four, I guess you would call them 
horror stories, four people who were affected by government 
actions in pretty horrendous ways.
    I deliberately chose to include four people who do not deal 
with the government on a regular basis, and there were two 
reasons for that, one of which is I wanted to show that real 
people, not big, bad corporations, are people who are seriously 
affected by government actions. The second one was although I 
had many stories that I investigated and verified regarding 
people, who like the ranchers here and other people, have to 
deal with agencies on a regular basis. They did not want to 
have their stories told. They did not want to have their 
stories told even in disguised fashion, because they were 
concerned that the agencies, the next time they had to go 
before them, would retaliate.
    Certainly, one of the purposes, for example, of the Fifth 
Amendment's due process and takings clause protections is to 
ensure that government does not on some superficially plausible 
reason go out and regulate property in such a way that there is 
no protection, because to do so means that not only are your 
property rights affected but your First Amendment rights.
    As I testified in my direct testimony here, as I read Mr. 
Levere's letter, I saw in here a severe criticism of those 
people who did not simply accept the agency's word that there 
was a violation or how the violation came about, and in fact, 
to go back to Mr. Vento's earlier question about how many 
violations where he then used the word how many warnings, as 
though warnings and violations are synonymous.
    The fact is, a warning is the view of the government agent 
that a violation has occurred. The permittee should be free to 
either agree and therefore, sit down to try to work out a 
solution, or to disagree and decide that he is going to make 
use of the agency's processes, the judicial process, or the 
political process or the public comment through the media 
process to bring forth his concerns, get them on the record, 
and vindicate his rights.
    When you have a document like this which culminates in a 
statement like that which you read, which says this really 
isn't a productive use of our time; when you do this, I think 
you are being a bad rancher--and by the way, I can verify that 
Mr. Levere's letter is not the only expression of this 
sentiment in the Forest Service.
    In the context of Mr. Hage's case, in discovery, in Forest 
Service documents, I found a letter from a Forest Service 
employee to his supervisor in which two Nevada cattlemen, 
including I believe Mr. Connelley was one of those cattlemen 
who in an attempt to intervene, to mediate in a sense in the 
dispute between Mr. Hage and the Forest Service, asked whether 
if Mr. Hage were to withdraw his administrative appeal, whether 
that would help to cool things down and move them in some other 
direction.
    The response of the Forest Service employee, according to 
his own letter, was I told them yes, because that would show 
that Mr. Hage is being cooperative. The definition of 
cooperative apparently being if you don't take advantage of our 
own internal processes to air your grievance and get a 
decision, then that is cooperative, but if you pursue your 
appeal rights, you are being uncooperative.
    There are due process issues here, and I have received in 
my own practice a response to an appeal I filed in the Hell's 
Canyon matter, I believe it was, in which the Forest Service 
informed us in writing that you have no due process rights 
before the agency. You only have due process rights once you 
get to court.
    This is not an isolated incident. In my view, this is a 
pattern and practice of discouraging people from using their 
due process rights, their Fifth Amendment rights, their First 
Amendment rights to pursue their grievances whether in the end 
they are determined to be just or unjust grievances against the 
government.
    Mrs. Chenoweth. Thank you, Mr. Pollot. One final question 
that I have for Karen Budd-Falen.
    In your opinion, with the issue of the uniform action 
guide, has the Forest Service followed the requirements of NEPA 
and the requirements under the Administrative Procedures Act?
    Ms. Budd-Falen. Because the uniform action guide is not a 
``rulemaking'' and is not a change in policy, I am not sure 
that the APA is implicated.
    I have strong questions, though, as to whether the National 
Environmental Policy Act is implicated by the uniform action 
guide.
    The example I gave earlier is that land use plans must 
comply with the National Environmental Policy Act. Those aren't 
decision documents either, yet they affect ranchers on the 
ground and the courts have ruled that the Forest Service must 
comply with NEPA when they develop land use plans.
    There is also another Forest Service handbook section 
called the Civil Rights Handbook, which is a Forest Service 
internal policy manual. That manual states that if the Forest 
Service creates policy which affects ten or more permittees, 
the Forest Service must consider the civil rights implications 
of that action, and Mr. Levere's uniform action guide did not 
go through that process either.
    So I think that there have been violations of internal 
rulemaking and internal policy processes in creating the 
uniform action guide.
    Mrs. Chenoweth. I want to thank the witnesses very much for 
your testimony, for coming so far and offering very valuable 
testimony.
    At this time, I would like to call the third panel, and 
again, thank you very much.
    I would like to call the third panel and thank you all for 
waiting so long. It has been a long afternoon. I would like to 
welcome Karl Hess, Senior Associate of The Thoreau Institute of 
Las Cruces, New Mexico; my constituent, Neil Oldridge from the 
American Sportfishing Association, Sagle, Idaho; Leslie 
Glustrom, Prescott National Forest Friends, Boulder, Colorado; 
Linn Kincannon, Idaho Conservation League, from Ketchum, Idaho; 
Wayne Burkhardt, Professor Emeritus, University of Nevada-Reno, 
and University of Idaho-Moscow, who resides in Indian Valley, 
Idaho.
    Before we get started, if you will all please stand and 
raise your right hands, I will administer the oath.
    Do you solemnly swear under the penalty of perjury to tell 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Thank you. Let me remind the witnesses that under our 
committee rules, they must limit their oral statements to five 
minutes, but that their entire statement will appear in the 
record. We will also allow the entire panel to testify before 
questioning the witnesses.
    The Chairman now recognizes Mr. Karl Hess.

     STATEMENT OF KARL HESS, SENIOR ASSOCIATE, THE THOREAU 
               INSTITUTE, LAS CRUCES, NEW MEXICO

    Mr. Hess. Thank you, Madame Chairman. My name is Karl Hess, 
and I am a senior associate with the Thoreau Institute, and I 
believe my colleague, Randall O'Toole, has been before this 
committee in the past.
    For the past almost 100 years, the public lands or national 
forests have been a laboratory of sorts for prescriptive 
management, and it seems to me that the issue on the Sawtooth 
and the Toiyabe and Humboldt National Forests, what Mr. Crapo 
has referred to as the abuse of power, and what the Forest 
Service, I think, states is an appropriate action is not, in my 
opinion, a break in tradition of past management, merely a 
logical extension of prescriptive management.
    I think one has to only look at past congressional records 
to see a prodigious number of hearings of this nature that have 
dealt with conflicts such as this on various sides of the 
issue.
    In my written testimony, I refer to a different public land 
situation than the current one to highlight what I believe is 
the failure of prescriptive management, and what I refer to as 
the Diamond Bar Ranch in the Gila National Forest which is very 
close to my home.
    There, I suggested, actually that the existing public land 
grazing policy is broken, and it can't be simply fine-tuned 
either to help out ranchers or to help out other parties in the 
situation, environmentalists, for example.
    What the Diamond Bar highlights, in my opinion, and what 
the issue I think in the Sawtooth and Toiyabe highlights is one 
that there has been an enormous amount of public resources that 
have been misdirected and squandered in what is the 
micromanagement, the prescriptive management, of grazing 
activities. The grazing policies have failed precisely because 
their focus has been on what and how ranchers do things rather 
than on final outcomes.
    Secondly, public policy has failed ultimately because it, 
not the ranchers, not the Forest Service, not environmentalists 
or other

parties, have generally been the source of tremendous amount of 
contention and conflict on public lands, and again because 
public policy reduces management options and recourse to 
political or judicial interventions alone.
    What I suggest in my testimony and now that I talk about, 
is that there is another option to public land management based 
on prescription. As a matter of fact, it is an option that on 
one hand, was put forward in very forceful terms in the 
President's recent February, 1997, economic report, and at the 
same time has been supported by such conservative think tanks 
as the Competitive Enterprise Institute.
    It is an option that takes the cue, I think, from what 
Congress did in the last term, initiating agricultural policy 
to move away from a system of prescriptive management to one 
that is based on individual farmer responsibility and 
accountability, and one that depends more on market rather than 
government prescriptions for achieving allocation of resources.
    Specifically, in regard to public land grazing, what I am 
talking about is a system that is based on fully marketable 
forage use rights or privileges, depending from what direction 
you are coming from, with very long tenure; removal of 
government constraints to forage use rights, privileges; and 
removal of constraints to the marketability of those privileges 
to other people, specifically elimination of current nonuse 
limitations; removal of any kind of limitations; restrictions 
that say permits can be acquired only by those within the 
livestock business; elimination of base property requirements; 
elimination of prohibitions on subleasing; in a word, anything 
that interferes with the marketability of these and the 
restriction to any small limited group in society.
    Specifically, what this market approach would do, its broad 
implications, one, it would emphasize outcomes. We would no 
longer be interested in how ranchers go about achieving their 
ends. We would not be interested, for instance, where salt is 
placed. We would be interested in outcomes.
    There is no clear relationship between following specific 
rules and having particular kinds of good management. We have 
learned that when it comes to all other environmental areas and 
not just in this country but elsewhere.
    Secondly, it provides nonpolitical and nonjudicial channels 
for public participation in land use allocation and conflict 
resolution. More specifically, applied to the Diamond Bar, 
which is the example in my testimony, or I would argue to the 
Toiyabe, Sawtooth or any other national forest, what it would 
mean in specific terms is drastic deregulation; de-emphasis on 
telling people what to do; a realization that numbers of cows 
or the season of use, all of these issues are unimportant to 
the ultimate outcomes we all seek on public lands.
    In fact, in the 1970 Public Land Law Commission, that 
commission recommended that we change management on our public 
lands away from emphasis on numbers and other aspects, 
indicators of management to final outcomes.
    Secondly, in regard to the Diamond Bar, these market ideas 
would provide new and more productive channels for resolving 
the land use conflicts and land use resolutions, specifically 
in the case of the Diamond Bar, where essentially we have a 
lose-lose situation, where every party is losing. The taxpayer 
is losing; roughly $2,000,000 to deal with a ranch that is only 
worth about $750,000. The rancher is losing everything, and 
environmentalists are ending up with a decision that will still 
leave livestock on a piece of land which is the Leopold 
Wilderness which many of them would see better off without any 
livestock.
    With a market approach, it would allow environmentalists to 
have entered into a negotiation with the rancher prior to 
polarization, which now occurs; for them to acquire those AUMs; 
and to voluntarily put them into nonuse, which the Forest 
Service this time under their policy will not allow permanent 
destocking of the allotment, and it would, of course, have 
saved enormous amounts of money.
    The point to this, the point in talking about a market-
oriented approach to reform of public lands is this, that 
market economies don't wage war globally. What they wage is 
competition.
    Market forces when applied to public lands will get us away 
from political conflict and judicial contention and move us 
toward a more fruitful and productive solution.
    I will be happy to answer any questions later, and thank 
you for the opportunity to talk.
    [Statement of Karl Hess may be found at end of hearing.]
    Mrs. Chenoweth. Thank you, Mr. Hess, for your very, very 
interesting testimony.
    The Chair now recognizes Neil Oldridge.

STATEMENT OF NEIL OLDRIDGE, AMERICAN SPORTFISHING ASSOCIATION, 
                          SAGLE, IDAHO

    Mr. Oldridge. Thank you, Madame Chairman and members of the 
Subcommittee. I thank you for the opportunity to appear before 
you today to summarize my written testimony, presenting the 
views of the American Sport Fishing Association regarding 
livestock grazing on national forests.
    I reside as a contiguous neighbor to the Kaniksu National 
Forest in the great State of Idaho, and I own cattle grazing 
property totally surrounded by the Custer National Forest in 
southeastern Montana. My interests and my roots also run deep 
in hunting and fishing, and I have recently retired from a 30-
year directing businesses in both of these industries.
    As is made clear in the written testimony, the American 
Sport Fishing Association does not oppose responsible grazing 
on our public lands and considers properly managed grazing to 
be a very legitimate use of our national forests.
    We do, however, for very sound reasons, oppose overgrazing 
particularly when it damages riparian zones and degrades the 
quality of the water in our streams.
    Sport fishing is not a casual activity. It can't endure 
water quality degradation without a significant and negative 
impact to the American economy. Fifty million Americans spend 
$70 billion a year fishing. This fishing activity creates 1 
million full-time American jobs and generates $3.4 billion in 
taxes.
    In 1994, on U.S. Forest Service lands alone, American 
anglers spent 37 million days of fishing producing a total 
economic output of $5.3 billion; 65,000 American jobs; $1.3 
billion in wages; and $260 million in tax revenues, and that is 
just on national forest land.
    There are no mysteries to proper range and riparian zone 
management. Our professionals know what to do and what not to 
do. We have the knowledge and we have the tools to produce both 
quality beef and quality sport fishing opportunities.
    Most of our western ranchers with national forest grazing 
allotments are good operators, and I am sure that includes 
those who have testified here today, and they are good stewards 
of our public lands. Poorly managed grazing in riparian zones, 
however, can, has and will cause severe damage to our 
watersheds, our water quality, and the overall health of our 
fisheries. Overgrazing riparian zones is unquestionably a 
significant factor in the poor health of some of our western 
waters.
    All of us with a vested interest in public forests must 
recognize that if livestock grazing is not well managed, 
aquatic populations, including recreational fisheries, will be 
seriously impacted.
    In full recognition of the fact that different local 
problems often require different management techniques, the 
American Sportfishing Association recommends a host of 
management prescriptions which include the following: number 
one, establishing riparian zones along rivers and streams as 
separate riparian pastures; number two, excluding livestock 
from riparian pastures at certain times of the year when stream 
banks are most vulnerable; number three, resting riparian 
pastures for appropriate periods between grazings; four 
reducing riparian pasture AUMs, if that is what is necessary; 
and five, permanently excluding livestock from sensitive or 
badly damaged riparian zones if deemed appropriate by local 
management plans.
    How do we do this? A direct quote from the National 
Riparian Service Team's mission statement says, ``Restoration 
will not happen by regulation, changes in the law, more money, 
or any of the normal bureaucratic approaches. It will occur 
only through the integration of ecological, economical, and 
social factors and the participation of the affected 
interests.''
    Therein lies the solution to this issue. A new approach 
called cooperative riparian management programs brings ranchers 
and riparian management experts together to develop practical, 
local approaches to improving stream-side conditions through 
good local grazing practices.
    The Forest Service, the National Resource Conservation 
Service, and BLM are providing leadership for this very 
promising means of successful fisheries restoration and grazing 
management. The National Riparian Service Team whose mission 
statement was just quoted above in part are a product of this 
collaborative effort.
    The American Sportfishing Association urges Members of 
Congress to support the cooperative riparian management 
programs, interdisciplinary training, technical support, and 
field review components.
    In summary, we know what to do and we have the tools in 
place with which to do it. We can have it both ways. We can 
have good beef and good fishing.
    We must keep our efforts cooperative, on the ground, local, 
and driving by good management practice, good communication, 
and a whole lot of good common sense. Confrontation politics, 
pitting one user group or one industry against another, 
creating winners and losers, has not worked in the past, and I 
assure you that it will not work in the future.
    We stand now at a crossroads. The time is right to 
collectively focus our energies, ranchers, fishermen, agency 
professionals, conservationists, and all other affected groups. 
Be assured that the American sport fishing industry stands 
ready, willing, and able to work in a cooperative effort to 
restore our public waterways while continuing the maximum 
possible use of our national forests by the grazing industry.
    Thank you, Madame Chairman, for allowing me the opportunity 
to provide the ASA's views on this important public management 
issue. Thank you.
    [Statement of Neil Oldridge may be found at end of 
hearing.]
    Mrs. Chenoweth. Mr. Oldridge, I thank you so much for being 
here. It is a real personal privilege for me to have you here. 
I have always appreciated your opinions and listened to you.
    Mr. Oldridge. Thank you.
    Mrs. Chenoweth. You may have noticed a bit of confusion up 
here. I apologize for that, but we just got word, and you can 
hear the bells going off, that the Floor is requiring that we 
go vote, and Mr. Crapo and I have been trying to work out a 
strategy here to keep this committee hearing moving, so Mr. 
Crapo, in a short period of time, will be excusing himself from 
the committee, and he will vote, and then come back, and run 
the committee while I vote.
    That is the confusion, and I do want to thank you very much 
for being here.
    Now, I would like to call on my constituent--actually, you 
are from Ketchum, but you do a lot of business and are very 
active and a very good spokesman for the Idaho Conservation 
League in my district, too. Linn Kincannon.

    STATEMENT OF LINN KINCANNON, IDAHO CONSERVATION LEAGUE, 
                         KETCHUM, IDAHO

    Ms. Kincannon. Thank you, Madame Chairman, and I am happy 
to be here today. I am Linn Kincannon. I am from Ketchum, as 
you said, and I appreciate the opportunity to meet you and Mr. 
Crapo here today.
    I work for the Idaho Conservation League. It is Idaho's 
oldest and largest statewide grass roots conservation group, 
and I am also a member of the Upper Snake Resource Advisory 
Council which consists of various folks from different user 
groups who have gotten together to advise the BLM on various 
resource issues, and we were amazingly successful in writing 
grazing standards and guidelines during the last year for 
grazing on public lands with ranchers on the committee.
    I am also lucky to be the mother of two great kids, and 
because of that, I have a very personal interest in the future 
of our public lands because they are an important and priceless 
part of our national heritage, and I think that those kids 
deserve a chance to fish and swim in clean water, and to picnic 
and play along shady streams, and also to view and hunt 
wildlife and other animals on the public lands.
    But those rights have been lost or at least they are at 
risk in many places. Ranchers often say, and Scott Bedke said 
it today, why would I harm the land when I depend on it for my 
livelihood.
    I think that shows that ranchers know a lot about managing 
cattle and about their business and about the forage that is 
important for their cows, but they often don't know about the 
species, native species, that have been lost through 
overgrazing, and they often don't know whether a stream is 
functioning in a healthy condition and why it is important for 
it to do so.
    The fact is, those are multiple use lands, and they need to 
be managed to support all the uses, not just grazing, and I am 
not criticizing their ability to manage those lands for 
grazing. Clearly, they are able to do that.
    But I have included in my testimony a number of photos, and 
they are just representative of hundreds of photos that tell 
the same sad story. The first one is Trout Creek on the 
Sawtooth National Forest. The first picture shows an exclosure, 
which means that livestock have been fenced out for five years, 
and you can see the components of a healthy, functioning stream 
there. The banks are covered with deep-rooted plants that hold 
them in place and prevent erosion. Tall grasses catch sediment 
during floods, keeping the water clean. The stream is narrow 
and deep, which provides good habitat for fish, keeps the water 
cool, and there are also willows growing along the stream that 
provides habitat for ground nesting game birds and also for 
migratory songbirds whose populations are in trouble, 
incidentally.
    Photo number two is upstream from the Trout Creek 
exclosure. It shows the obvious effects of overgrazing. I am 
not saying that the entire stream looks like that, but it 
certainly doesn't look like the land in the exclosure.
    I will skip ahead. There are other photos, but I would like 
to skip ahead to photo five, which is a section of Shoshone 
Creek when there was season-long cattle grazing along that 
creek. Photo six shows that, with a change in grazing 
management (cattle haven't been excluded there, as I understand 
it) but you can see some improvement in that stream. There are 
actually some grasses growing on the bank and stabilizing it.
    Photo seven is an aerial view of the upper East Fork of the 
Salmon River in the Sawtooth National Recreation Area. The 
steep terrain forces cows to stay in the narrow valley bottoms 
until all the forage is gone, and that damages the streams. As 
you know, Congressman Crapo, this is typical of central Idaho 
terrain. It has high recreation values and a lot of recreation 
use there.
    Photo eight is a closeup of Bowery Creek which is in that 
drainage that you can see in the photo, and again, the effects 
of overgrazing are evident there.
    With all the controversy and the concern over livestock 
grazing over the last few years, there have really been very 
few changes on the ground, and why is that?
    One thing is that enforcement of terms and conditions of 
grazing permits by both the Forest Service and the BLM has been 
pretty poor. Leaving cows behind when it is time to move them 
or allowing them to drift back are a couple of examples that 
can cause overuse and some of the problems that I have shown in 
those photos.
    I think we need to ask the question, how can we improve 
enforcement of those terms and conditions to help ensure that 
the kind of damage we see in those photos becomes a thing of 
the past.
    I think a shortage of funds is a problem also. Conditions 
on the land need to be monitored so we can tell the effects of 
grazing management, and cows must be moved before they 
overgraze the vegetation or trample stream banks, and they need 
to be kept where they are supposed to be.
    Assuming agencies won't have enough funding to do those 
things, how can permittees be helped to assume these 
responsibilities so the conditions will improve? I believe, 
based on my experience with the RAC, that improved enforcement 
will benefit ranchers who are doing a good job.
    When cows trespass from another allotment or overgrazing 
upstream cause problems downstream, those ranchers suffer. But 
they have said to me, I am not going to tell my neighbor, cause 
a fight, embarrass my neighbor; it is simply not something I am 
going to do, but I want the agencies to enforce those terms and 
conditions and fence maintenance, et cetera, so that I am not 
put in that position and my allotment is not damaged.
    I have to say, though, that enforcement and accountability 
I don't think are the whole answer. The problems on the public 
land aren't all caused by bad operators. In some places, the 
standards probably aren't sufficient to protect fish habitat 
and wildlife habitat and recreation opportunities.
    Management changes are needed which incorporate the 
scientific knowledge that has been gained over the years, and 
that acknowledge the multiple-use aspect of the land, the 
increasing importance of recreation.
    Fortunately, there is plenty of information available on 
how to graze with fewer adverse effects. Wayne Elmore of the 
BLM and professors at Oregon State University have experimented 
with grazing systems that have improved stream conditions 
without eliminating grazing, and I know Wayne Burkhardt has 
worked on some of that as well.
    I think that Supervisors Levere and Nelson are trying to do 
something to address the problems here by enforcing terms and 
conditions, and if the committee finds that that is not a good 
thing to do, well, I wish you would say what is, because 
something needs to happen to address these problems. They are 
of great concern.
    I don't believe that it is a favor to ranchers to say we 
are going to maintain grazing management as we have always 
done, because more and more recreationists are coming to the 
public lands, and they are going to say, we demand a change. 
Help ranchers get their ecological house in order so they can 
point with pride to streams and wildlife populations instead of 
the kind of problems that we see in so many places.
    Thank you, and I am sorry I went over my time.
    [Statement of Linn Kincannon may be found at end of 
hearing.]
    Mr. Crapo. [Presiding] Thank you very much, Linn, and we 
appreciate your testimony and your patience in waiting today. 
Mr. Burkhardt.

STATEMENT OF WAYNE BURKHARDT, PROFESSOR EMERITUS, UNIVERSITY OF 
  NEVADA-RENO AND UNIVERSITY OF IDAHO-MOSCOW, INDIAN VALLEY, 
                             IDAHO

    Mr. Burkhardt. Thank you, Congressman, it is a pleasure to 
be before the committee again, and again, it is on grazing 
matters, and in fact, I find it rather ironic that something 
that humans have been involved in for thousands of years, 
probably the second or third oldest human endeavor, is grazing. 
Something of that tenure still generates or now generates such 
immense controversy, and I think there are reasons why that 
happens.
    Certainly, part of that lies within the change in our own 
society. We have become almost entirely an urban society, and 
grazing certainly is a rural activity. Urban people want those 
lands protected as God and motherhood stuff and so do I. They 
are important to all of us.
    But I am also struck here today that there is something 
vastly wrong in the way we are going about doing that. The 
disconnect that was so damned apparent here in these hearings 
today between the standards and the policing action and 
resource issues, a major disconnect. I have been sitting here 
listening to this, and I have the feeling the Forest Service is 
a policing agency, not a land management agency.
    I have taught range management and proper ways to graze and 
Lord knows we have grazing problems, and we ought to be dealing 
with them, but I have been involved in this business for 30-
some years and taught grazing management practices for many of 
those and still do.
    When I look at the standards and guides and I look at the 
uniform guides which are the subject of this hearing, I don't 
see anything in there that relates to what I have taught for 
years as appropriate approaches to grazing management.
    First of all, standards and guides utilization----
    Mr. Crapo. Mr. Burkhardt, could I interrupt you? I have 
four and a half minutes to vote. The Chairman is not back, so I 
am going to ask if we could recess for a minute and have you 
continue your testimony when she arrives back.
    She should be coming in the door any minute.
    Mr. Burkhardt. That would be fine.
    Mr. Crapo. I apologize for this. It always happens, so the 
committee will be in recess for a few minutes.[Recess]
    Mr. Crapo. Ladies and gentlemen, I apologize for that 
delay. When we got over there, we found out that instead of it 
being two 15-minute votes, it was one 15 and one five, so our 
plans didn't work anyway.
    Representative Chenoweth may or may not be able to make it 
back because she is involved in a meeting over in the Speaker's 
office that starts in just a few minutes as well.
    We will see where we go from here, and Mr. Burkhardt, 
again, I apologize for interrupting you mid-sentence, and 
welcome you to start again.
    Mr. Burkhardt. Thank you, Congressman Crapo. I mentioned 
that I was struck here by the disconnect between what we have 
been discussing largely this afternoon and real grazing 
management.
    I see the standards and guides often being used and set up 
in a way to guarantee that grazing management cannot succeed, 
being used as a vehicle to reduce grazing on public lands to 
some token activity that is no longer a political headache.
    I see that as a very concerted agenda and having little to 
do with setting up a scenario where ranchers can be successful 
in grazing management.
    Over the years in teaching grazing management, one of the 
things--first of all, let me back up a minute. Large animal 
grazing on the landscape is a natural biologic process. It has 
been present on this landscape, the far west, for millions of 
years. The absence of large grazing animals is unnatural, and 
yet in this business, we so often exclude the animals in the 
form of an exclosure, see what happens, and say, oh, that 
should be our goal. The fossil record indicates that large 
grazing animals should be part of the system.
    Now, if we look at those natural grazing systems, I think 
they provide a model for us on how we should manage livestock 
grazing, a very sustainable model. It is important to me, it is 
important to a lot of folks, Linn here and many others, that 
grazing be practiced in a way that the resource is sustained as 
well as the use of the resource.
    If we look at natural grazing systems, I cannot find one 
example where utilization standards, double-height standards, 
are a functional component of making those natural herbivories 
sustainable.
    These standards, utilization standards or otherwise, are 
conventions of man, not part of natural grazing systems. They 
were designed to control, designed to be the only management 
tool available to us when we were practicing season-long, 
every-year grazing.
    We have long known that season-long grazing is an 
inappropriate grazing strategy. The western rangelands did not 
evolve under that kind of a herbivore influence, and we have 
major resource problems when we practice that.
    Utilization standards was our tool for dealing with that, 
and an ineffective and inappropriate one at the time. We have 
learned a great deal more about how to appropriately manage 
large animal grazing. Timing of grazing, rest, rotation of that 
use, those are the features of natural grazing systems, the 
African Serengeti, the bison on the plains, the Pleistocene 
megafauna, it does not matter. You look at any natural 
herbivory. It functions on the basis of timing, rotation, rest, 
grazing. Not one of them function on the basis of utilization 
levels.
    In terms of livestock grazing, when we practice rotation 
grazing that is designed to fit the resources of that 
allotment, we do not have the creek bottom problems that we are 
all agonizing over. We have healthy riparian areas. It is 
important to the fisheries; it is important to the wildlife.
    When we impose artificial standards like the utilization 
standards and the guides that we are talking about here, what 
do you see on that chart as the remedy for a problem? A cut, a 
25-percent cut or more, whatever.
    Let us think about that for a minute. Grazing problems on 
the Sawtooth, grazing problems on the Humboldt or elsewhere in 
the west at this point in our history are largely what I call 
selective grazing problems. In other words, there are those 
special portions of the landscape that the grazing animal wants 
to concentrate in, the creek bottoms and the spring areas, 
those favorite areas.
    So we got a grazing problem, and we don't reach a 
utilization standard in those creek bottoms, those riparian 
areas, and we implement a cut. What is the impact of 
implementing that cut? Does it solve that grazing problem in 
the riparian area?
    The next year with 25 percent less or 50 percent less 
livestock out there, the utilization level on the riparian 
areas, those preferred areas, is as high as it ever was, 
because the cattle just simply stay there until it is all gone.
    What we have accomplished by that, though, is we have 
increased the portion of the allotment that gets no use. This 
is an absurd approach to managing grazing, and we have known 
for many years that it didn't work, and yet it is a knee-jerk 
reaction, and that is why--it is a reaction I encounter on 
virtually every allotment I am called into to work on to help 
solve the grazing problem.
    The agency proposal always is, we got use problems out 
here, let us cut. So we make a cut and the use problems on 
those areas remain the same. We haven't solved the problem.
    We need to build in rest, rotation of that use, and it 
needs to be done on a cooperative level. I am appalled to think 
we are sitting here talking about 25 percent, 50 percent, or 
more cuts in response to violation of things like water troughs 
or fences or cows not being in the right unit when the units 
aren't even fenced. What in the hell is going on?
    This is not grazing management. That is policing action. By 
the implementation of conservative use limits or stubble-height 
limits, what we have done is put the livestock rancher in an 
absolutely impossible position. He cannot, if he wanted to, 
accomplish that and stay in business. We have not solved the 
resource problem, and we have given folks with an agenda 
against grazing ample opportunity to beat up the rancher and 
the agency for not solving the resource problem.
    I think Mr. Hess' comments about we ought to tailor grazing 
management, livestock grazing management, to the end product, 
the health of the resource, not did you abide by some term and 
condition in your permit.
    What is the endpoint? Is the trend of the resource in a 
positive direction or in a negative direction, and if not, then 
look at why.
    I would urge the committee in its deliberations to think 
strongly about the problem, as Mr. Hess said, of prescriptive 
management. It has to be cooperative.
    If it is prescriptive, the permittee and the agency wind up 
head-to-head, fighting. When we are in a confrontation mode, 
our attention turns from managing the grazing to how to get the 
best of the other person. Our energies are siphoned off to the 
side into a fight.
    We need to refocus that. Public land grazing may be 
analogous to a marriage, and far too often, it is an unholy 
marriage between the permittee and the agency people, and when 
that happens, we all know it is not a very successful marriage.
    We need collaborative management. The Forest Service or the 
BLM and the grazing permittee should be working together, not 
knocking heads, and I recognize the fact that we have 
uncooperative, poor ranchers and in that case, rather than 
across the board edicts that stifle incentive and 
cooperativeness for all permittees, focus your attention on the 
problems.
    With that, I see my time is up, Mr. Chairman, and I 
appreciate the chance to visit with you.
    [Statement of Wayne Burkhardt may be found at end of 
hearing.]
    [``Herbivory in the Intermountain West'' may be found at 
end of hearing.]
    Mr. Crapo. Thank you. I gave you a little extra time since 
we interrupted you in the middle of your first comments.
    Leslie, why don't you go ahead? Thank you.

STATEMENT OF LESLIE GLUSTROM, PRESCOTT NATIONAL FOREST FRIENDS, 
                       BOULDER, COLORADO

    Ms. Glustrom. Thank you, Mr. Crapo, and I appreciate your 
patience. You have had a long day, and I will also summarize my 
testimony. I would also like to thank you for your commitment 
to managing the resource, ensuring that terms and conditions of 
grazing permits are complied with, but doing it in a way that 
is fair to all sides. I think it is just that kind of 
perspective that is needed if we are going to move forward.
    I have been on the other side of the agency many times, and 
I know what it feels like to be blindsided. I know what it 
feels like to be treated cavalierly, and it is as Chairwoman 
Chenoweth said, you get really upset, and I understand some of 
that.
    I also want to second, though, Linn Kincannon's comments 
that if the agency is not proceeding in a way that is fair, 
that is somehow being too rash, or not giving enough time or 
not allowing enough time for cooperation, help them learn how 
to do that in a way that doesn't hamstring the agency, because 
as you said, we need rangers on the ground doing their job.
    I have lived right next to a national forest for 13 years 
that is in terrible shape where it is not necessarily the 
ranger's fault. They are good people, but they have been 
incapable of doing the job they needed to do because of the 
political and cultural constraints. I really appreciate your 
support for rangers on the ground doing what they need, and if 
they are not doing it well, help them learn how, but don't 
hamstring them.
    In a nutshell, I see that as really a key thing for 
representatives from all western States to be helping the 
agency learn how to do it, because believe me, I know they 
don't always do it in the best way possible, but don't try and 
turn them off either, because that has been happening for a 
century, and the result, you can see from the pictures in my 
testimony.
    My pictures are from the Prescott National Forest in west 
central Arizona. When they did their land management plan, the 
Forest's own data found that 99 percent of the riparian (or 
stream-side areas) on the forest were in poor or very poor 
condition.
    I often say it is a little bit like having 99 percent of a 
heart attack. It is not a good situation. The top picture on 
the cover of my testimony gives you some feel for what I spent 
13 years hiking through. I spent hours and hours and hours and 
hours hiking through what should be riparian areas but instead 
are barren wastes. It is a riparian area, whether it is in 
Arizona or not, and you can have grasses and trees and well-
defined stream channels.
    There were 31 native species of fish in Arizona. We have 
almost lost all of them because as you can see, we are not 
going to have any fish living in places like this.
    I have a whole basement full of pictures. This is not an 
unusual situation. It is unusual in that through a little bit 
of encouragement from me, the Forest Service did agree to fence 
it--more than a little bit, but I helped build the fence just 
so that they could see that this isn't just the way it is in 
Arizona.
    The bottom picture shows the same area. The tree, the main 
juniper is almost occluded, but you can start to see the area 
recovering, but this recovery is very much the exception.
    I have a whole series of reports that I have prepared on 
allotment visits that I did last year. Every picture in here is 
a violation of forest plan standards and guidelines. Not only 
did I not get a response to any of these when I sent them to 
the Forest Service, nothing has been done about any of those.
    I could go out tomorrow and find an equal or many times 
more that number of forest plan violations. I know we can't do 
it, but I can easily take you out and for every hour we spend 
on the forest, I can show you a dozen forest plan violations.
    We need the rangers out there, we need them doing their 
job. They may need some help learning how to do it in a way 
that is fair and a reasonable process, but please, don't 
hamstring them.
    I guess maybe we could just take a minute and look at the 
pictures on page four. It has been a long day, so I will try 
not to go on too long.
    Mr. Crapo. Looking at pictures is easier anyway.
    Ms. Glustrom. If we look at the top picture on page four, 
it shows the grazing allotments on the Bradshaw District of the 
Prescott National Forest. You can see how steep these areas are 
and their questionable suitability for livestock grazing. Then, 
the middle picture shows kind of a similar but a little closer-
up perspective. If you are a cow, cows need about 25 pounds, 
sometimes 30 pounds of forage a day, and you are a cow, and it 
is July in Arizona, where are you going to find that 25 pounds 
of forage if you are looking at that middle picture?
    The little green tufts you see are snakeweed. They can't 
eat that, because it will cause abortions, so there is nothing 
to eat in the foreground, there is nothing to eat in the middle 
ground, and if you walk, which I have done and did for 13 
years, just walked and walked and walked, there is nothing to 
eat in the background, either. That goes on and on--it is about 
a 1,000,000-acre forest.
    The forest's own data shows 99 percent of riparian areas 
are in poor and very poor condition. They almost never do range 
analyses on their allotments. I finally got them to do one, and 
they found out that 98.6 percent of the allotment in the middle 
picture there, 98.6 percent of that allotment is in poor or 
very poor condition.
    The permittee on that allotment, as on most of the 
allotments on the Prescott National Forest is not an old-time 
rancher. He is not like Scott or the folks you have heard from. 
He is a multi-millionaire. He has been written up in Forbes 
magazine. I have attached the Forbes article; it is the second 
page from the back. His name is Rex Maughan, and he markets in 
a pyramid scheme. He markets aloe vera products, has major aloe 
vera plantations all over the world. Forbes estimates--I have 
no idea how rich this man is, but Forbes estimates on the 
bottom of the back side of the page is that his personal take 
must have been in the tens of millions of dollars every year.
    When you think about people who have permits to graze on 
the public lands you have to think about the Rex Maughans too. 
You see, I have ten years of experience. Mr. Maughan happens to 
be the richest of the permittees that I have tried to deal 
with, although I have never met him, because he has never come 
to the table.
    When you think about these permittees, I think you have to 
include thinking about the Rex Maughans. In over ten years of 
work, I have only worked with one permittee who really depends 
on their public lands permit for their income.
    I realize I am running out of time. I would just ask you to 
remember those things, and my testimony includes ideas for how 
we can move forward, have a vision for the future that includes 
the responsible permittees, keeping them on the land, keeping 
them in business, keeping the true ranchers out there working 
and using the public lands, and starting to make some decisions 
about whether we should still continue to manage all of these 
areas for livestock grazing.
    Thank you.
    [Statements of Ms. Glustron and Jeff DuBonis may be found 
at end of hearing.]
    Mr. Crapo. Thank you, Leslie, and let me say to the Forest 
Service personnel who are here, I know that the Chairman had 
asked you to stay. I understand that you have some other events 
or need to be other places at 6:00.
    I am not going to take very much longer, so you are welcome 
to stick around and hear what I say at the end here, or you are 
welcome to take off. I appreciate your staying here throughout 
the hearing.
    I wanted to get back for this panel to make sure that I got 
a chance to ask some questions. The testimony from this panel 
has caused me to decide I want to make a little statement first 
and then ask you to respond to that, if you would.
    It seems to me that we have a problem not just in grazing 
but in our environmental management policy in this country, and 
it has been addressed in one way or another by every one of the 
speakers on this panel and actually by all of the panelists 
today, but particularly on this panel.
    My way of saying it, and I guess I am just going to say 
this and then ask you to each take just a short couple of 
minutes to respond.
    I don't want to go through a whole big long round of 
statements again, but it seems to me that there are at least 
two areas of our national approach to environmental law that 
are wrong, and they are wrong, I believe, for the environment 
and for the economy, and in that sense for people.
    By the way, I don't mean to presume that I have identified 
everything or that I am even right here. It is just that it 
seems that these two jump out at me.
    The first is that it seems to me that our system of 
enforcement, if you will--no, that is the wrong word. The fact 
that I used that word shows the problem. The system of 
solution-finding is adversarial, and even to the point that 
when we say that we are going to create a system that involves 
public input, that system is one which essentially boils down 
to a series of what we call hearings or opportunities for 
public comment on a decision that has been made already and put 
out there to be evaluated in some context on some issue that 
has already ripened into a dispute.
    The hearing is not an event at which people come together 
to collaborate and decide how to solve a problem. It is an 
event at which they come together to do battle. Each side uses, 
or most often, each side uses that hearing as an opportunity to 
make their case for the media, to make their case for potential 
litigation, to make their case for the decisionmaker, or 
whatever it is, but it is not where they sit down at a table 
and talk to the other side about what their point of view is 
and how they might be able to find common ground.
    It is my belief that there is common ground or that there 
are better solutions in most cases. This thought is not 
original with me, but if you think of an X-Y axis, with X being 
the axis for good for the economy, and Y being the axis for 
good for the environment, many of the solutions are down where 
the axis crosses. They are low for the environment and low for 
the economy, many of the solutions that we get driven toward, 
but that there are solutions that are further out.
    I am not describing this very well for you, but where you 
go further out the graph that are higher for the economy and 
higher for the environment, and I think those exist in most 
cases, and I think there is a creative ability among Americans, 
if they can work together in a system to find solutions where 
they collaborate, that they can find answers that are further 
out on that chart, if you will.
    Anyway, my first point is, our system is adversarial and it 
is statutorily and regulatorily designed to create conflict. 
Now, maybe that is an overstatement, but it seems to me that 
that is a big part of the problem.
    Secondly, and perhaps I should have started with this, many 
of the decisions are driven by distant decisionmakers, and by 
that, I mean we often--it is a common thing to criticize the 
bureaucrats in Washington, the Congressmen in Washington, 
whoever it is, and it is not always the Congressmen in 
Washington or the bureaucrats in Washington or whoever who are 
making these decisions, but so often, the policy decisions as 
to how we will manage our public lands are made by 
decisionmakers who do not live where the problem is and have 
not had the opportunity to sit down around the table with the 
stakeholders who live there.
    It seems to me that if you get people who know the 
allotment or who know the steam or who know the circumstances 
and sit them down at a table, someone who has walked the area, 
to sit them down at a table that they can find better solutions 
for that particular piece of the world than someone who lives 
somewhere else and who is working from a more generic 
understanding of the issues.
    Again, that is my perspective. Now, I don't know where that 
leads us in terms of the solutions we are trying to achieve in 
this hearing.
    It is pretty obvious, I think, from my questions earlier, 
that I believe that the UAG has been proposed moves us further 
down that adversarial model, and it heightens the potential for 
adversarial relationships.
    It is pretty obvious that the Forest Service does not 
believe that and does not intend for that to be the case, and 
different people fall in different places along that 
perspective, but I would like to ask if you would each take 
maybe a minute or so, and if you don't want to respond to what 
I have said, just say whatever might still be on your mind that 
you haven't said and give me your perspective here on how we 
can solve this problem or the approach to the environment in 
general, and I guess we will just start at the end here again 
with Mr. Hess.
    Mr. Hess. Thank you. Well, I would, I think, in general 
agree with you. I guess the analogy----
    Mr. Crapo. By the way, I will try to be a timekeeper here, 
because I know nobody is great at keeping time to two minutes.
    Mr. Hess. One of the analogies that one of my colleagues 
used is a grocery store, and using your examples, it is as 
though we have people living thousands of miles away from the 
grocery store deciding on the goods that will be stocked in 
that grocery store and then asking for public input as to 
whether that stocking is correct or not.
    Of course, that is conducive to a tremendous amount of 
conflict, and in terms of how we manage our public lands, in 
terms of the outcomes that we are seeking, it is not dissimilar 
to that, and the reason that I have suggested market 
approaches, approaches that would open up the system of public 
land ranching voluntarily to market negotiations, it would 
allow people essentially, using the metaphor of the grocery 
store, to decide through their sort of vote in the marketplace 
of what goods will be stocked.
    The fact is, in riparian-area management, there probably is 
no final, ultimate correct solution. Even with good management 
from the perspective of a credible range of scientists that may 
not produce outcomes that are desirable by other groups.
    But as it stands now, those other groups don't have other 
alternatives, don't have other options. Environmental groups 
cannot acquire leases--in general, leases to allotments and 
totally destock.
    In New Mexico, just to summarize, there is a wonderful 
example of how this cooperation works. The Southwest 
Environmental Center has established a program on State grazing 
lands where they said, we would like to sublease from any 
rancher voluntarily their riparian areas for a period of five 
years, and we will build the fences, put in the grazing 
management--not the management, but restore the riparian area. 
At the end of five years, the fences, everything is yours to do 
as you want. All we want is an opportunity to participate and 
enter into a voluntary subleasing agreement.
    It is a market solution, it is win-win, and it is one that 
is very conducive to ending conflict.
    Mr. Crapo. Thank you, and that is one idea about how to 
maybe get there. Mr. Oldridge.
    Mr. Oldridge. I think you are very perceptive, Congressman 
Crapo; you put it very well.
    A couple of summary comments that I would add. This problem 
can't be solved here. It cannot be solved in Washington.
    You can't impose your will on ranchers and the multiple 
users of the forest lands, and I think that is best issued in 
terms of a resolution by saying whose land is it. Once again, 
it is not a real thought, but the land does not belong to the 
grazer. That land also, by God, does not belong to the Forest 
Service.
    It is our land, and the Forest Service's charge is to 
manage that land to the very best of their abilities, to make 
the widest range of benefits available to the public that they 
are serving, and that means grazing, and that means fishing, 
and that means bird watching, and that means all of the things 
that we like to do on our public lands.
    Get it out of Washington, put it at local levels, insist 
that these things happen, insist that resolutions are in fact 
effected, because we know how to do it and that will go a long 
way toward resolving this issue.
    Mr. Crapo. Thank you. Linn.
    Ms. Kincannon. I think I have said in my testimony that I 
had had a positive experience on the Resource Advisory Council 
working with ranchers and other folks to try to work on some 
issues. We will see what happens when we go out on the ground 
and try to implement them, but so far, so good.
    My experience in the general arena when I first went to a 
ranching meeting several years ago was I never said anything 
during the meeting except who I was and that these were public 
lands. That was it, and what the ranchers said to me was you 
don't know anything about cattle management, you have no right 
to be here, you have nothing to say to us that we are 
interested in, goodbye.
    Mr. Crapo. Well, everybody has to be at the table.
    Ms. Kincannon. But I think beyond that--what has made the 
RAC successful is the BLM has said if you don't figure out what 
to do, we will.
    I hate to say you've got to have a hammer to make people 
negotiate, but they have to have something to lose if they 
don't negotiate. If they can maintain the status quo by doing 
nothing, why wouldn't they? That is a smart business move.
    Mr. Crapo. That is always a good point. If either side, and 
I don't mean there is just two sides, but if any group at the 
table has the ability to win by doing nothing, then they have 
no incentive to move forward, and that is a part of the whole 
solution that needs to be concerned. Thank you.
    Ms. Kincannon. Thank you.
    Mr. Burkhardt. It would seem to me, Congressman, that the 
Forest Service's job would be to make this work in terms of 
sustainable use of natural resources on the forest lands, to 
make it work, and as you perceived there, we have a very 
adversarial situation and always seem to have a top-down 
prescriptive type of management. Those guarantee that it isn't 
going to work.
    I think life would be much more pleasant, plus resource 
conditions would be better if indeed we were going at this in a 
way that works.
    Resource use for human needs and services is absolutely 
appropriate. Every population of organisms on this planet 
extract their livelihood from the natural resources around 
them, humans included, and we should do that. Our goal should 
not be to put natural resources off limits, look but don't 
touch. That is absurd, and the only way we get around these 
adversarial situations in my mind is to get it on not a 
prescriptive edict-type of management, but cooperative, local-
level planning.
    I think you are focused on something not only in this 
matter but our other environmental efforts, the Endangered 
Species Act, and otherwise, you are focused on two points that 
are dear to my heart.
    Mr. Crapo. Thank you very much. Leslie.
    Ms. Glustrom. I think they learned in timber that you don't 
really get anywhere by standing at either end of Main Street 
and shooting at each other, and we are going to learn that on 
this issue, too, and I have been involved in the issue for a 
while.
    I am actually heartened by today because I hear a number of 
people saying we are not going to get there by shooting at each 
other. How are we going to move forward?
    I think your ideas, Mr. Crapo, are really valuable. I would 
like to add that in order for them to really work, to really, 
truly move away from an adversarial kind of position, there are 
three fundamental principles that everyone has to have when 
they come to the table, and I believe you have those, but I 
will be honest, many permittees don't.
    I have spent many, many hours, not as many hours as hiking, 
but many, many hours in meetings that should have been 
cooperative but that have been essentially useless. We have 
generated mountains of paper and gotten nothing done on the 
ground.
    What has been missing out of those, and I think this is a 
role that D.C. and the congressional delegations can really 
help with, are three fundamental points. The first point is 
that this is public land, and while ranchers may--and I don't 
want to speak too broadly, but the permittees I have dealt with 
have had an attitude that says, ``Well, yeah, it is public 
land, but the public doesn't have any role in the management of 
it.''
    The first point is that it is public land and the public 
has a role in the management of it. I think that is what the 
RACs have done.
    Secondly, rules and regulations need to be complied with. 
Again, I am not trying to speak too broadly, but my experience 
is that essentially, every permittee I have dealt with is like 
a spoiled child.
    I am a mother, I know what a spoiled child acts like. I 
know if you tell a spoiled child that they can't write on the 
wall any more, and if they are spoiled, they are going to kick 
and scream on the floor, and if you don't want to deal with 
that temper tantrum, and you say, OK, go ahead and write on the 
wall, they are going to keep writing on the wall forever, and 
then if you beat up on the principal when the principal tells 
them not to write on the wall in school--and frankly, that is a 
mindset that I have run into for ten years, and it is extremely 
frustrating.
    Their attitude seems to be, ``This is our land. We do with 
it as we please, and anybody who tries to do something about it 
will be intimidated.''--they have tried to intimidate Bill and 
Linn and me and many other people in very serious ways. You 
don't necessarily want to hear that story, but believe me, it 
is no fun dealing with these spoiled children. They are not all 
spoiled, but a whole bunch of them are.
    This is the second thing they need to hear from their 
congressional delegation is that this is public land, there are 
rules and regulations. You can have a role in being involved 
with them, but you don't get to do whatever you want on the 
public land.
    The third point is that we need to protect the resources. 
They are public resources, and we need to protect them for 
future generations and so that we are managing the public lands 
as the Multiple Use Act says, ``in the combination that best 
meets the needs of the American people.'' I think with that 
kind of direction, your ideas can actually be hugely helpful, 
but without that direction, we will keep spending a lot of 
time, generating a lot of paper, and not getting anything 
changed. That is my experience.
    Mr. Crapo. Thank you very much. Those were all very helpful 
comments, and I just want to tell you, I can only speak for 
myself, but I think that my sentiments are shared by both sides 
of the aisle here in Congress by most of us, and we obviously 
have some very broad differences in perspective and philosophy 
and point of view here on the committee.
    I believe that at a general principle level, virtually all 
of us can agree that we want to protect and preserve the rich 
heritage that we have in our public lands. I can tell you one 
of the reasons that I live in Idaho is for the clean air and 
the clean water and the tremendous environmental opportunities 
we have. It disheartens me when I see our environment in Idaho 
degraded.
    On the other hand, I am a strong believer that, within that 
context, we can have public land usage, grazing, timber 
harvest, mining, and other usage--irrigation, whatever it may 
be. It just means that we are going to have to work together.
    It is interesting to me that very often when you hear those 
who are on the multiple-use side of the issue begin speaking to 
a group, they say I am an environmentalist and I believe in the 
environment. I just did that, by the way. Then they get on to 
their point, OK? And when you hear somebody on the other side 
of it, they say I am not trying to run everybody out of a job. 
Some of you just did that in your testimony, and I am not 
trying to destroy the economy, but we got to protect the 
environment.
    I believe that most people fall in that category. Most 
people, and I don't know whether it is 99 percent or 89 percent 
or whatever, but the vast majority of Americans, wherever they 
live, want to protect the environment and they don't want to do 
so in a way that unreasonably destroys the economy, the natural 
resource-based opportunities that we have.
    Within those parameters, we have to find a way, and I think 
it is a collaborative way. I think something in the concepts 
that we have talked about here today, somewhere in there, there 
is a kernel of the approach that is going to be a much better 
solution than our current system. We have to find a way to move 
forward so that we can reach those solutions that are better 
for everybody.
    Anyway, thank you all for your patience and coming today. I 
assure you that although the Members here have dwindled, your 
testimony is well received, and this hearing will be adjourned.
    [Whereupon, at 6:20 p.m., the Subcommittee was adjourned; 
and the following was submitted for the record:]
    [Additional material submitted for the record follows.]
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