[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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40-820 cc WASHINGTON : 1997
------------------------------------------------------------------------------
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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
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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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