    [House Hearing, 115 Congress]
    [From the U.S. Government Publishing Office]

              PRESERVING OPPORTUNITIES FOR GRAZING ON FEDERAL LAND

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

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                     THE INTERIOR, ENERGY, AND ENVIRONMENT

                                     OF THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 24, 2018

                                   __________

                               Serial No. 115-93

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Available via the World Wide Web: http://www.fdsys.gov
                           http://oversight.house.gov

                                      ________

                         U.S. GOVERNMENT PUBLISHING OFFICE

    31-370 PDF                     WASHINGTON: 2018

                  Committee on Oversight and Government Reform

                      Trey Gowdy, South Carolina, Chairman
    John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland,
    Darrell E. Issa, California              Ranking Minority Member
    Jim Jordan, Ohio                     Carolyn B. Maloney, New York
    Mark Sanford, South Carolina         Eleanor Holmes Norton, District of
    Justin Amash, Michigan                   Columbia
    Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
    Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
    Virginia Foxx, North Carolina        Jim Cooper, Tennessee
    Thomas Massie, Kentucky              Gerald E. Connolly, Virginia
    Mark Meadows, North Carolina         Robin L. Kelly, Illinois
    Ron DeSantis, Florida                Brenda L. Lawrence, Michigan
    Dennis A. Ross, Florida              Bonnie Watson Coleman, New Jersey
    Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
    Rod Blum, Iowa                       Jamie Raskin, Maryland
    Jody B. Hice, Georgia                Jimmy Gomez, Maryland
    Steve Russell, Oklahoma              Peter Welch, Vermont
    Glenn Grothman, Wisconsin            Matt Cartwright, Pennsylvania
    Will Hurd, Texas                     Mark DeSaulnier, California
    Gary J. Palmer, Alabama              Stacey E. Plaskett, Virgin Islands
    James Comer, Kentucky                John P. Sarbanes, Maryland
    Paul Mitchell, Michigan
    Greg Gianforte, Montana
    Michael Cloud, Texas

                         Sheria Clarke, Staff Director
                        William McKenna, General Counsel
                            Christen Harsha, Counsel
                             Kiley Bidelman, Clerk
                     David Rapallo, Minority Staff Director
                                     ------

              Subcommittee on the Interior, Energy and Environment

                       Greg Gianforte, Montana, Chairman
    Paul A. Gosar, Arizona, Vice Chair   Stacey E. Plaskett, Virgin
    Dennis Ross, Florida                     Islands, Ranking Minority
    Gary J. Palmer, Alabama                  Member
    James Comer, Kentucky                Jamie Raskin, Maryland
    Michael Cloud, Texas                 Jimmy Gomez, California
                                         (Vacancy)

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on July 24, 2018....................................     1

                                   WITNESSES

    Mr. John Helle, Owner Partner, Helle Livestock
        Oral Statement...............................................     4
        Written Statement............................................     7
    Mr. Scott Horngren, Staff Attorney & Adjunct Professor, Western
      Resources Legal Center
        Oral Statement...............................................    15
        Written Statement............................................    17
    Mr. Shannon Wheeler, Chairman, Nez Perce Tribe
        Oral Statement...............................................    22
        Written Statement............................................    24
    Mr. Dave Eliason, President, Public Lands Council
        Oral Statement...............................................    27
        Written Statement............................................    29

                                    APPENDIX

    Statement for the Record from the Wild Sheep Foundation,
      submitted by Chairman Gianforte................................    44

              PRESERVING OPPORTUNITIES FOR GRAZING ON FEDERAL LAND

                                  ----------

                             Tuesday, July 24, 2018

                      House of Representatives,
             Subcommittee on the Interior, Energy, and
                                           Environment,
                  Committee on Oversight and Government Reform,
                                                       Washington, D.C.
        The subcommittee met, pursuant to call, at 2:43 p.m., in
    Room 2247, Rayburn House Office Building, Hon. Greg Gianforte
    [chairman of the subcommittee] presiding.
        Present: Representatives Gianforte, Palmer, Comer, and
    Plaskett.
        Mr. Gianforte. The Subcommittee on the Interior, Energy,
    and Environment will come to order. Without objection, the
    chair is authorized to declare a recess at any time.
        I would like to thank everyone for being here and
    especially thank you for your patience in us having to run off
    and do some other business. But we are here, and I appreciate
    your travels. I will begin with my opening statement.
        Good afternoon. This Subcommittee on Interior, Energy, and
    Environment is meeting today to examine difficulties ranchers
    with Federal grazing permits face, as well as to discuss
    recommendations to improve cooperation between permittees and
    our Federal land management agencies.
        Access to public lands is critical for many people,
    including hikers, hunters, and fishermen. Today, though, we're
    here to specifically discuss livestock grazing on Federal land.
    As the Western Governors' Association says, ranchers are,
    quote, ``an important contributor to the customs, cultures, and
    rural economies of the West,'' end quote.
        The Public Lands Council estimates that grazing on Federal
    land contributes at least $1.5 billion to the economy and
    supports thousands of jobs. In fiscal year 2017, livestock
    producers held almost 18,000 grazing permits on BLM land and
    nearly 6,000 active permits on Forest Service land. These
    operators rely on access to public lands to produce food, wool,
    and even clothing, as my friend John Helle will be able to
    discuss later in his testimony. Those are a few of the obvious
    benefits of responsible utilization of Federal land.
        Both the BLM and Forest Service are charged with managing
    Federal land for multiple use and sustained yield. Ranching, a
    business that necessitates careful stewardship of natural
    resources, complements a number of those uses. Ranchers partner
    with the State's wildlife agencies, sportsman's organizations,
    and conservation groups to facilitate multiple use. Identifying
    opportunities to promote cooperation on Federal land will be an
    important part of our discussion today.
        To add additional perspective on this issue, without
    objection, I will enter a statement from Gray Thornton,
    President and CEO of the Wild Sheep Foundation, into the
    hearing record.
        Mr. Gianforte. I would like to thank Mr. Thornton for being
    here today in the audience and the Wild Sheep Foundation for
    their contribution to our conversation today.
        Unfortunately, one of the greatest challenges to grazing is
    special-interest litigation and the abuse of some of our core
    Federal environmental protection statutes. While Congress
    enacted these laws with good intentions, groups that are
    determined to drive ranchers off the Federal land have
    transformed them into tools to push certain uses over others.
    This is not what Congress intended, and it certainly does not
    support the agencies' multiple-use missions.
        Seeking workable solutions and finding common ground
    becomes that much more difficult when some special interests
    fundamentally oppose grazing and routinely turn to litigation
    instead of collaboration. Not only does the constant threat of
    litigation distract the BLM and Forest Service from their
    important missions and drain Federal resources, but it results
    in land-management decisions driven by fear and apprehension of
    the next wave of lawsuits. This is no way to manage our range
    lands.
        I know our witnesses today will help further the
    conversation about preserving opportunities for grazing while
    ensuring adequate protection of our range land and, above all,
    true multiple-use management.
        Part of the solution is to ensure our Federal grazing
    permit programs are fair, provide for meaningful permittee
    participation, and minimize uncertainty and delays. Producers
    struggle to defend their operations from seemingly endless
    attacks by well-funded activist organizations who enjoy
    incentives to litigate under current law.
        If the BLM and Forest Service continue to operate at the
    mercy of special-interest litigation and ranchers continue to
    face unnecessary livestock reductions, many ranchers may decide
    that they can no longer afford to graze on Federal land and
    will be forced to walk away from their business. This would
    have devastating consequences for local economies and our
    ranching families who hope to pass their way of life on to the
    next generation.
        The bottom line is that we need range land management that
    utilize sound science, provides for flexibility, and
    incorporates permittee input. Livestock producers whose
    livelihoods depend on understanding the local ecosystem develop
    specialized knowledge through years and sometimes decades of
    on-the-ground experience, and cutting them out of the land
    management process wastes unique expertise and jeopardizes
    range land health. BLM and Forest Service policies should
    encourage employees to develop productive working relationships
    with the producers rather than default to restricting access or
    trying to shield themselves from litigation.
        Thank you again to our witnesses for joining us today. I
    look forward to the hearing and your testimony on such an
    important topic.
        Mr. Gianforte. I now recognize the ranking member of the
    subcommittee, Ms. Plaskett, for her opening statement.
        Ms. Plaskett. Thank you very much, Mr. Chairman, and thank
    you, all of the witnesses and others who are here, for this
    hearing this afternoon.
        The Federal Government owns approximately 640 million acres
    of land in the United States. Most of that land is located in
    the Western States, but not all of it. In my own district, we
    have the beautifully preserved Virgin Islands National Park,
    which testifies to the important role the Federal Government
    can play in managing lands for the enjoyment of all people of
    this great country.
        Today, we will hear from local ranchers, as well as local
    producers, who benefit from permits to graze livestock on
    Federal lands. I am aware and sensitive to the generational
    land rights of those individuals and the need for the Federal
    Government to balance the interests of grazing with the rights
    of individuals to be able to go on to lands which they have had
    deeded to them for many years. I understand this.
        This is something that we are fighting and is a conflict in
    the Virgin Islands as well with those individuals who feel that
    the Federal lands are coming to encroach and become Big Brother
    on the land that they have used for many generations for their
    own livelihood. Those viewpoints are important, but there are
    also viewpoints that I am glad that this committee is going to
    hear from today as well.
        We will also hear the viewpoint of the Nez Perce Tribe,
    whose members are throughout the Western United States in
    central Idaho, parts of Washington, Oregon, and Montana.
    Chairman Wheeler, who is here, has stated in his written
    testimony that the bighorn sheep are culturally critical to
    that Tribe's existence. The Tribe has hunted the bighorn sheep
    to craft culturally significant items like bighorn bows and
    have used this wild sheep for food and for clothing. They are
    so significant to the Tribe that the Tribe's cultural right to
    hunt and use the sheep is protected by treaty.
        The bighorn sheep and the Nez Perce Tribe's critical
    relationship with this important species and is an example of
    how Federal Government agencies must balance commercial
    interests with cultural and environmental interests and treaty
    obligations when they manage Federal lands. This subcommittee
    has to balance the needs of many interests and must show the
    same concern for cultural and environmental interests and
    treaty obligations as we have for the commercial interests.
        I hope that our goal with this hearing regarding grazing on
    Western lands is the same, to support and advance the
    appropriate and sustainable use of Federal lands. I echo the
    chairman's sentiment that we must bring good science, good
    economics, sensitivity to cultural needs, as well as historic
    importance of the lands. As Chairman Wheeler has stated, and I
    quote, ``The Nez Perce Tribe considers recovery of the bighorn
    sheep population to huntable, healthy, and sustainable levels
    within our homeland and throughout their suitable historic
    habitat to be a top resource management priority. Our
    collective actions have the power to help or hinder this
    recovery.''
        Indeed, I understand this and share that sentiment for all
    of our testifiers today. A focus on commercial interests to the
    exclusion of cultural and environmental equities and treaty
    obligations and vice versa will hinder the recovery not only of
    bighorn sheep but the way of life for those that live in the
    West. I urge this subcommittee to consider Chairman Wheeler's
    testimony by the ways that the Federal Government can protect
    the environment and tribal culture as we examine different
    opportunities for grazing on public land.
        And I agree that we must collectively and be collaborative
    in that effort. While an attorney, I don't prefer litigation
    and hope that we can resolve our differences in a way that is
    amicable to the interests of all.
        Thank you very much, Mr. Chairman.
        Mr. Gianforte. Okay. And thank you.
        I am pleased to introduce our witnesses at this time. Mr.
    John Helle, owner/partner of Helle Livestock; Mr. Scott
    Horngren, staff attorney and adjunct professor at Western
    Resources Legal Center; Chairman Shannon Wheeler, Chairman of
    the Nez Perce Tribe; and Mr. Dave Eliason, president of the
    Public Lands Council.
        Welcome to all of you. I know you traveled to be here, and
    we appreciate your testimony, look forward to your testimony
    today.
        Pursuant to the committee rules, all witnesses will be
    sworn in before you testify. If you would, please stand and
    raise your right hand.
        [Witnesses sworn.]
        Mr. Gianforte. Let the record reflect that the witnesses
    answered in the affirmative. Please, you may now be seated.
        In order to allow time for our discussion today, we are
    going to ask that you each limit your comments to five minutes.
    There is a set of lights and things that will keep you on time
    there. As a reminder, that clock will tick down. It turns
    yellow when you have 30 seconds left and red when your time is
    up, and then we will move to our time of questioning. Also
    remember the microphones do not work automatically; you have to
    turn them on before you speak.
        So with that, we will start with Mr. Helle. You have five
    minutes.

                           WITNESS STATEMENTS

                        STATEMENT OF JOHN HELLE

        Mr. Helle. Chairman Gianforte, Ranking Member Plaskett, and
    members of the subcommittee, thank you for the opportunity to
    visit with you today. I am John Helle, a third-generation sheep
    and wool producer from Dillon, Montana. I am here today to
    represent the Nation's 88,000 sheep producers and those that
    spend some time on Federal grazing lands.
        Over the years, we have expanded and diversified our
    ranching operation, preserving open space and adding economic
    value to our nation. Through the brand Duckworth, we have taken
    Helle wool from sheep to shelf all in the United States. We're
    proud to be able to convert a renewable resource into food and
    fiber while stewarding the land we run on.
        Since I was a kid, we've lost over 100,000 sheep in
    southwest Montana because of the effects of misguided policy
    enforcement. In fact, Dillon was at one point the world's
    largest shipping point for wool. Livestock grazing promotes new
    growth and enhances habitat for wildlife species like sage
    grouse. Our private land serves as the commensurate base for
    our Federal grazing permits, thus benefiting the public with a
    quasi-conservation easement on that well-stewarded land.
        However, family ranching faces a number of challenges that
    threaten the future of range land management West-wide. We have
    personally witnessed abuse of Federal law as our Forest Service
    allotments were targeted for legal action. Preceding the
    introduction of bighorn sheep into southwest Montana, our State
    wildlife agency and local interest, including us landowners,
    came together outlining a workable plan forward. Our ranch,
    along with others ----
        Mr. Gianforte. Excuse me, Mr. Helle, if you could just
    straighten your microphone, we will get a better recording ----
        Mr. Helle. Okay.
        Mr. Gianforte.--and we can all hear you. Thank you.
        Mr. Helle. Sorry. Our ranch, along with others, entered
    into an MOU detailing the obligation to preserve domestic
    grazing and support wildlife populations. Under State statute,
    the Department assured ranchers such as myself that the
    introduction of this species into areas where domestic
    livestock were present would not result in any harm to our
    ranching operation. This promise has proven to be false.
        In the end, our reward for working cooperatively with these
    agencies to introduce a bighorn sheep herd was three years of
    costly litigation. The consequence of losing here could be the
    loss of permits we've grazed for generations.
        Earlier this month, my attorney had to appear before a
    three-judge panel in the Ninth Circuit over an appeal on the
    fourth denial from the district court of an injunction on my
    grazing permit. This case arose from the same fact pattern
    earlier referenced on bighorn sheep habitat under the Forest
    Management Plan. Laws like EAJA encourage the propagation of
    litigation and excess legal filings. Thankfully, the Ninth
    Circuit denied their attempt, but my legal fees continue to
    accrue.
        Using this flawed logic and claims that only domestic sheep
    carry specified--specific pathogens, groups have pushed for
    effective separation between domestic sheep and bighorn sheep.
    This separation formed the basis for grazing policies like
    BLM's 1730 and species viability claims under the National
    Forest Management Act. These recommendations were developed
    without input from the domestic sheep industry or the U.S.
    Department of Agriculture Ag Research Service.
        Thanks to USDA research, we now know the pathogen blamed
    for these deaths in wildlife is found not only in domestic
    sheep but other wildlife species as well and are endemic in
    bighorn herds across our State. The presence of these pathogens
    is not indicative of overall bighorn herds' health, yet this
    continues to be the basis for closing active sheep allotments
    across the West and reducing sheep AUMs.
        Using these tactics to threat--and threats of litigation
    based on flaws Forest Service and BLM policy, artificial
    environmental groups offer Federal sheep allotment holders so-
    called buy-out agreements and then tout acceptance as a
    voluntary action. Citing threats of litigation and loss of
    livelihood to compel a sale is not voluntary; it's extortive.
    Due to these practices, it is impossible to accurately assess
    the number of AUMs our industry has lost.
        However, together with our ranching neighbors and
    conservation groups, we've formed an alliance to find shared
    values and common goals. Stewardship on the ranches in our area
    have demonstrated that we hold the key to successfully
    achieving the goals of the conservation community by protecting
    open space and wildlife corridors. Range science and land
    management is not about setting and adhering to strict
    standards. These tactics are ineffective unless we start
    thinking on a landscape scale.
        Unfortunately, land stewardship is not driving management.
    Rather, decisions are based on the fear of litigation. Methods
    that promote stewardship are the key to preservation of
    sustainable Federal lands management, and wildlife management
    is a State, not a Federal issue. These decisions must be made
    at the local level with input from local stakeholders, and NEPA
    must be streamlined to serve its originally intended purpose
    without spurring litigation.
        Thank you, and I look forward to your questions.
        [Prepared statement of Mr. Helle follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Okay. Thank you, Mr. Helle.
        At this time I would like to recognize Mr. Horngren for
    your statement.

                      STATEMENT OF SCOTT HORNGREN

        Mr. Horngren. Good afternoon, Mr. Chairman and Ranking
    Member Plaskett and members of the committee. I'm Scott
    Horngren, an attorney with the Western Resources Legal Center
    that provides real-world experience for students interested in
    supporting resources uses such as livestock grazing. We provide
    this practical education at Lewis & Clark Law School in Oregon
    where I'm an adjunct professor. However, my testimony today
    doesn't represent the position of the law school.
        I will discuss ways agencies can improve the cooperative
    working relationship with grazing permittees by streamlining
    the cumbersome agency procedures for renewal of grazing permits
    and eliminating the annual vulnerability of the grazing program
    to serial litigation.
        But first, I'll start with a great example of cooperative
    working relationships between grazing permittees and Federal
    agencies on the Nation's only sheep experiment station.
    Unfortunately, litigation disrupts that cooperative
    relationship and halts needed research to improve the health of
    sheep, both bighorn and domestic, and the health of range land.
        One important experiment station project involves how
    different variables affect transmission of pneumonia between
    domestic and bighorn sheep. The Western Watersheds Project,
    whose goal is to halt all public lands grazing, filed numerous
    lawsuits to halt sheep grazing in areas long used for research
    since 1924. In the most recent lawsuit, the Forest Service
    argued that, based on a prior settlement with Western
    Watersheds, grazing could continue and the research should be
    completed.
        But the court disagreed and enjoined grazing and completion
    of the five-year research project, which was in its final year.
    The American Sheep Industry's Association moved to intervene,
    given the wide application and benefit of the research to sheep
    producers. The court deferred ruling on the motion to intervene
    until after settlement discussions between Western Watersheds
    and the Forest Service.
        Last month, the Forest Service settled the case. It agreed
    to stop domestic sheep grazing on the allotments until further
    analysis under the National Environmental Policy Act, or NEPA,
    but it didn't include any commitment or deadline to conduct the
    analysis, and it agreed to pay $80,000 in attorney's fees to
    the plaintiffs.
        So Western Watersheds halted the very research designed to
    promote multiple use and inform how range conditions and other
    factors can influence disease transmission among the domestic
    and bighorn sheep. But there's no commitment by the Forest
    Service to complete the NEPA analysis.
        Another concern is that the process to renew 10-year
    grazing permits for ongoing grazing should be straightforward
    and meaningfully and timely involve the permittees like Mr.
    Helle. Most grazing allotments have been sustainably grazed by
    ranching families for half a century or longer. Congress should
    enact legislation that allows the Forest Service and BLM to
    renew grazing permits if the range land is in satisfactory
    condition using a more timely and less expensive categorical
    exclusion under NEPA rather than a lengthy and expensive EIS.
        Consultation between agencies about the effect of grazing
    on species listed under the Endangered Species Act is also
    disrupting grazing and undermines the cooperative relationship
    between agencies and permittees. Often, the permittee is only
    given a few days before the grazing season begins to review the
    draft biological opinion, which has been delayed for half a
    year or longer. Agencies should be directed to stop forcing
    permittees into the Hobson's choice between whether to delay
    turnout to meaningfully review this opinion or instead accept
    the opinion's overly restrictive conditions in order to turn
    the livestock out for the season. And then after the ESA
    consultation is done, the lawsuits come, bringing further
    delay.
        Finally, once a 10-year permit is renewed, the grazing's
    yearly grazing instructions that merely confirm the level of
    livestock use for particular pastures based on the annual
    variation in the forage and range conditions are also subject
    to litigation and should not be. The Ninth Circuit held that
    these annual operating instructions or AOIs are the new--are a
    new final agency action subject to litigation.
        A dissenting judge in that case argued that, quote, ``In
    pragmatic terms, if every AOI for every permit in every
    allotment every year is open to litigation, it is a little
    difficult to see how the grazing program can continue. If the
    purpose of the program is to feed animals, they need to eat now
    rather than at the end of some lengthy court process.
    Environmentalists should not have multiple bites at the
    litigation apple. Congress or the agency should clarify that
    these final agency actions do not include the annual
    instructions in the AOIs.''
        Thank you.
        [Prepared statement of Mr. Horngren follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Okay. Thank you, Mr. Horngren.
        At this time I will recognize Chairman Wheeler for your
    comments.

                      STATEMENT OF SHANNON WHEELER

        Mr. Wheeler. Thank you, Mr. Chairman and subcommittee
    members.
        [Speaking native language.]
        Mr. Wheeler. My name is Shannon Wheeler. I'm with the Nez
    Perce Tribe. My people, the Nimiipuu or the Nez Perce, have
    lived in what is now central Idaho and parts of Washington,
    Oregon, and Montana for thousands of years. Thousands of us
    live there today. We continue to exercise our sovereign treaty-
    reserved rights to fish, hunt, gather, and pasture our
    livestock across our broad aboriginal territory, which today
    primarily consists of our Federal public lands. These lands are
    critically important to the Nez Perce people as it defines our
    culture, traditions of thousands of years and is memorialized
    in countless ways, including our treaty of 1855 with the United
    States Government, and that's 12 Stat. 957 of the--with the
    United States. And the current names of the Nez Perce-
    Clearwater and Wallowa-Whitman National Forest are a part of
    that to memorialize that.
        The manner in which these lands are managed in vital--are
    vital to the Nez Perce culture. Public land grazing is a
    complex and controversial topic. Our tribal members continue to
    exercise their treaty-reserved rights to pasture livestock on
    public lands within the Nez Perce homeland, which at one time
    was around 17 million acres that was our usual and accustomed
    areas, and we ceded over 13 million acres of reservation.
        We recognize that livestock grazing, when administered
    responsibly, can be an appropriate and sustainable use of
    lands, for us, such activity can be an important expression of
    our history, our wealth, and our culture.
        We also understand that in some areas and in some
    circumstances livestock's grazing is not appropriate. We have
    witnessed, as many members of the committee have, cases which
    livestock grazing has been conducted irresponsibly or in areas
    where the presence of livestock compromises other uses. These
    areas often provide critical habitat for our treat-reserved
    resources. Therefore, rights of the Tribe like the Nez Perce,
    livestock grazing, when authorized or conducted
    inappropriately, can compromise the exercise of our treaty
    rights that are--were reserved for us.
        One prime example of this is the Rocky Mountain bighorn
    sheep and the conflicts associated with domestic sheep grazing.
    As in many areas across the United States, the Nez Perce
    homeland once supported vast herds of bighorn sheep throughout
    a network of canyonlands and subalpine ridges. These animals
    were materially and culturally critical to the Nez Perce, as
    was stated before, for bows and for the under armor of the day
    was their hide that we used, was flexible and strong and we--
    being agile with that in that time--at that time of--that
    period.
        So to think about that, that resource itself, the animal
    itself that cannot speak for itself but--it does speak for
    itself but sometimes we don't listen. The animal, when he
    starts disappearing and he's not able to tell you what's going
    on with him but we recognize that his--the depletion of the
    herds are--we're here to speak for that animal today, and
    that's why I'm here.
        As--and today, these canyonlands and ridges remain in
    relatively healthy conditions and suitable for bighorn sheep,
    yet bighorn sheep have been greatly depleted across the vast
    portions of our homeland. Pneumonia caused by pathogens
    introduced by the region by domestic sheep has been identified
    by most scientists as the primary factor contributing to the
    significant decline and, in many cases, extirpation of numerous
    native bighorn sheep populations in the American West.
        At the time of European settlement in the West, the bighorn
    sheep populations numbered in the tens of thousands. Within our
    homeland, these animals now exist in small isolated
    populations. Pneumonia continues to be the culprit that
    suppresses these remnant populations. Unfortunately, this
    situation is common across much of the Western U.S., and
    transmissions of the pneumonia-causing pathogens from domestic
    to bighorn sheep remains the primary concerns of bighorn sheep
    managers. The bottom line is bighorn sheep cannot share the
    range with domestic sheep.
        The Nez Perce Tribe considers recovery of the bighorn sheep
    populations to huntable, healthy, and sustainable levels within
    our homeland and throughout their suitable historic habit--
    habitat to be a top resource management priority through recent
    science-based research.
        A tool has been developed known as a risk-of-contact model.
    This tool, embraced by the U.S. Forest Service, provides land
    managers with a science-based foundation of evaluating grazing
    proposals and alternatives. The Nez Perce Tribe recommends that
    this committee encourage Federal agencies to continue using the
    risk-of-contact model for evaluating domestic sheep grazing
    activities within our homeland.
        And some of this is all written testimony even though I'm
    not able to complete this. I would like to say this last and
    least. Proposals to transfer these public lands to State and
    private entities threaten access to and exercise of treaty-
    reserved rights that are resources on which they depend. The
    Nez Perce Tribe has been and remains categorically opposed to
    all such proposals. It is my hope that the perspective of the
    original inhabitants of these lands and the rights of resources
    reserved by the treaty with the United States are appropriately
    considered and prioritized. Under article VI, clause 3 of the
    Constitution, the supremacy law where treaties are the supreme
    law of the land and 12 Stat. 957, the treaty with the Nez Perce
    are a piece of that.
        So I thank you all for you time.
        [Prepared statement of Mr. Wheeler follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Yes, Mr.--Chairman Wheeler, your entire
    testimony will be read into the record, so we'll have that up
    there ----
        Mr. Wheeler. Okay. Okay.
        Mr. Gianforte.--so thank you for your comments.
        Mr. Eliason?

                       STATEMENT OF DAVE ELIASON

        Mr. Eliason. Thank you, Chairman Gianforte--oh, excuse me.
        Chairman Gianforte, thank you, and Ranking Member Plaskett
    and members of the subcommittee, thank you. It's a pleasure to
    be here.
        My name is Dave Eliason. I'm a fourth-generation rancher
    from Tremonton, Utah. Currently, I serve as president of the
    National Public Lands. My testimony today is on behalf of
    22,000 cattle and sheep producers throughout the West who rely
    on Federal grazing permits.
        Like many Western ranch families, mine goes back
    generations on the same land in Box Elder County, Utah. Since
    1889, we've stewarded both our private ground and Federal land
    mixed in with it as if it were our own. Not only does our
    family rely on these--the health of these lands, so does our
    entire community. Staying in business for over 130 years has
    meant considerable change to our family operation. That means
    changing our herd to keep up with the times, acquiring new
    forage and water in dry years and--or implementing value-added
    programs to market our animals.
        Unfortunately, Federal land management policy has often
    failed to adapt with us. No matter the issue, whether it's sage
    grouse, feral horses, or bighorn sheep, commonsense decisions
    are all too often set aside. This is out of the proven fear
    that radical environmental groups will sue to stop easy--even
    basic conservation practice from moving forward.
        My family has been the target of at least two of these
    lawsuits. Once filed, the agencies hit the brakes and rush to
    appease the litigants. It's a sad, predictable pattern, and I
    wish I could say our story was unique, but it's not. It's the
    same story everywhere I travel as the president of Public
    Lands.
        Another favorite weapon of these litigants is the
    Endangered Species Act. In fact, of the 145 active petitions
    for listing, 46 percent come from three groups: Center for
    Biological Diversity, Defenders of Wildlife, and WildEarth
    Guardians. Ironically, these same groups will likely sue to
    impede recovery, leading to the ESA's poor success rate of only
    2 percent.
        Fortunately, solutions are being discussed as we speak.
    Senator Barrasso has introduced legislation based on bipartisan
    Western Governors' Association ESA policy resolution. PLC
    strongly supports this. With many solutions held hostage in a
    legal black hole, wildfire and frequent predictable--this is a
    predictable outcome of this pattern. The National Interagency
    Fire Centers estimates fuel treatment costs of the agency as at
    least $150 an acre. Ranchers perform that service at no cost to
    the taxpayers and everybody wins, ranchers, wildlife,
    sportsmen, and even the resource. Instead of embracing this
    tool, the agencies often reduce AUMs, eliminate grazing, and--
    just to appease the litigants.
        A prime example of this is the recent Martin fire in Nevada
    which consumed nearly a half a million acres. Ninety-nine
    percent of that greater sage grouse habitat and 82 percent was
    priority habitat. That's the best of the best. Unfortunately,
    due to the priority habitat management area designation and
    despite clear science that says grazing is compatible and
    necessary to conserve sage grouse, the area has not been grazed
    for at least two years. The resulting fuel load of over 2 tons
    per acre led to the devastating fire that could have easily
    been avoided.
        Responsible management of those resources, rather than the
    fear litigation, should have helped lessen the impact of this
    fire and many more like it. Streamlining NEPA and enhancing the
    use of category exclusion is essential to fixing this broken
    system, so is modernizing the ESA. Enhancing local input and
    leveraging boots-on-the-ground knowledge will dramatically
    improve outcomes for the species and shift the focus away from
    listing back to recovery where it belongs.
        No matter the law, we must eliminate unnecessary
    opportunities for litigation by giving agency personnel the
    tools they need to use common sense and work with the
    critical--with our critical--with the critical partners.
        In closing, Mr. Chairman, ranchers stand ready to address
    the most pressing challenges facing our public lands. From
    conservation of the greater sage grouse to preventing and
    fighting wildfires, ranchers want to be the partners on the
    ground. Further, Federal land managers in the West need
    ranchers to manage--help manage property, so why not let us
    help you preserving our public lands for generations to come?
        Thank you, and I look forward to your questions.
        [Prepared statement of Mr. Eliason follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Thank you, sir. And thank you to the panel
    for your testimony.
        We will now move to our questions, and I will recognize
    myself for five minutes to start.
        I want to start with this question of compatibility of
    grazing and multiple use. Can they coexist? Mr. Helle and Mr.
    Eliason, is that correct? We have discussed, you know, BLM and
    Forest Service both have as their missions the statement
    directive for multiple use and sustained yield. Can you
    describe how grazing is conducive to multiple use on Federal
    land? And really try and answer the question, can it coexist
    with other uses? Mr. Helle first.
        Mr. Helle. Thank you, Mr. Gianforte. Multiple use has been
    demonstrated on our forest for generations. We've got excellent
    hunting opportunities. There's recreation opportunities. And by
    working with conservation groups and--like the Montana chapter
    of Wild Sheep Foundation, we were able to sit down and work out
    ways that now the Gravelly Range has a huntable population of
    bighorn sheep and our domestic sheep on there, but it took, you
    know, grassroots work at the local level and--to build trust
    within these organizations to have that, you know, come
    through.
        And then when we sign an MOU and that's a contractual
    agreement with Fish, Wildlife, and Parks, us, and the Forest
    Service, the land management agencies, to have that not adhered
    to or that trust not there ----
        Mr. Gianforte. So having grazing on Federal land does not
    preclude other uses, including wild sheep populations?
        Mr. Helle. Correct.
        Mr. Gianforte. Okay. Mr. Eliason?
        Mr. Eliason. Yes, we're a great believer in multiple use. I
    mean, we promote--distribute water. We help maintain the
    resources as much as we can. The--it's been proven many times
    that sheep, cattle, and wildlife mix and they're a good
    combination. The worst thing we want is just to try to manage
    things for a single species. The best we can do is multiple use
    so the whole country can enjoy these lands.
        Mr. Gianforte. Yes. Mr. Helle, just to go back to that
    for--I am really curious about how you have resolved potential
    conflicts and how have you facilitated these discussions to
    achieve what you have done in the Gravellys?
        Mr. Helle. Well, we've formed a strategic alliance in the
    Ruby Valley to get together interests from conservation groups
    like the Greater Yellowstone Coalition, Wildlife Conservation
    Society, Nature Conservancy, and us landowners and permittee
    holders have come together to find where we have shared values.
    And we've found that we have very similar goals in the end to
    preserve that open space and that--you know, our commensurate-
    based property, the land that we use when we're not on the
    forest, is actually a huge public benefit that the public is
    receiving by having us have Federal grazing leases. So they've
    realized that that's the key and that's the network that holds
    these open spaces and wildlife corridors and all that we enjoy
    about southwest Montana.
        I'm speaking more because of--you know, but I'm sure that's
    true, you know, across the country. You know, there's 130
    million acres of private lands that are tied to Federal grazing
    land permit-holders, so in combining that with the 250 million
    acres of land that we graze on the Federal leases, that's
    400,000 acres of land protected by family ranchers who are very
    good stewards of the land.
        Mr. Gianforte. So in your experience, various groups,
    conservation, ag producers can work together and resolve issues
    at a local level?
        Mr. Helle. Definitely. We find that we have a lot of shared
    values and a lot of similar goals.
        Mr. Gianforte. Okay. Mr. Horngren, you discussed in your
    testimony some of the ways which Federal grazing programs are
    vulnerable to litigation. Does bad-faith special-interest
    litigation pose a threat to multiple use?
        Mr. Horngren. Absolutely, Mr. Chairman, and as an example,
    one of the plaintiffs in the sheep station case, which is
    designed to get information on this conflict or perceived
    conflict between domestic and bighorn sheep, Western Watersheds
    Project over the years has filed 170 lawsuits over ranching and
    other multiple-use activities on the Federal lands.
        Mr. Gianforte. Okay. Thank you. I am going to recognize the
    ranking member for her questions, and we will probably do a
    couple of rounds here.
        Ms. Plaskett. Okay. Good afternoon. I wanted to ask a
    question. In our discussion today, we talked about the
    Federal--really central to all of this is the Federal
    Government's role in managing Federal lands. Currently, the
    Bureau of Land Management and the Forest Service play an
    important role in overseeing grazing. Mr. Helle and Mr.
    Eliason, do you believe that there should be more or less
    Federal regulation and oversight of commercial grazing on
    Federal lands? Who wants to go first?
        Mr. Helle. Thank you, Ms. Plaskett. Federal oversight, you
    know, is important as those are public lands, but local input
    on local decisions would help manage those lands more
    appropriately. We are the experts that live on those lands and
    have those grazing permits, and sometimes it seems like they
    try and make decisions without our input. But, you know, I
    think that, you know, grazing lands are a dynamic system and
    they're very localized and they're different for each region,
    so offering regulation that is a blanket approach across many
    States and many different ecosystems may not be appropriate for
    more site-specific decisions that need to be made on the ground
    with the experts that the ranching community and the land
    managers have.
        Ms. Plaskett. Mr. Eliason?
        Mr. Eliason. Yes, in a simple word, I don't think we need
    any more rules and regulations. But generally speaking, the
    ranchers and the Forest Service and BLM get along good.
    Sometimes there are conflicts by these litigations, throws kind
    of a monkey wrench into things. But it's important that we do
    follow the rules and regulations. We're a law-abiding people.
    We've been in generations on these ranches. We, too--we
    understand that if we take care of the land, the land will take
    care of us. We--important rules and regulations are necessary
    in our society, but sometimes we can be overregulated.
        And I agree with Mr. Helle on the fact that we need local
    input. It's hard to manage things, say, in Washington State,
    back in Montana or Utah. So local input is very, very important
    that I think that people understand the local needs. Thank you.
        Ms. Plaskett. Okay. Mr.--Chairman Wheeler, the same
    question to you. Do you believe that there should be more or
    less Federal regulations and oversight of commercial grazing on
    Federal lands?
        Mr. Wheeler. Thank you for the question. I definitely
    believe that the Federal Government has a trust responsibility
    to the treaty of 1855 with the Nez Perce. The question that you
    ask for local input, I would know that we are on that
    landscape, so our input definitely is valuable to that
    decision-making process that ----
        Ms. Plaskett. Do you believe that the Tribe should be
    involved in any changes to Federal regulations and policy
    related to this?
        Mr. Wheeler. The--I think the ruling on it would be that
    the--was reserved for us and the resources that were on that
    landscape is--our biggest concern is that that is our ruling.
    Our ruling is already in place and our decision has been made
    for us over 140 years ago that these animals, this habitat, the
    fish, that was all reserved in the treaty of 1855, and our
    people haven't changed that much from that time. And so our
    input is that responsibility of the Federal Government to hold
    that in trust for us, and I believe that our--I guess that what
    you're asking then for this piece would be that our input is
    here; it's now, and that's what we're here to do.
        Ms. Plaskett. And do you think that the Federal Government
    has managed that properly, the interests of the Tribe along
    with the interests of other commercial interests which may
    appear to be at odds with one another?
        Mr. Wheeler. You know, I think that we've had a working
    relationship with the Forest Service, the USDA that, you know,
    now, they're starting to hear a little more of our concerns of
    how grazing is affecting the landscape out there. For example,
    if I may give an example, for one of our canvas areas where we
    dig roots out there, we don't only graze out there or hunt but
    we gather out there. And the livestock is going out into that,
    and there's no quarantine time for these animals before they
    get out to the range land or out to the Forest Service land
    that, you know, maybe at one time they were driven like a
    cattle drive, but now they're shipped out there. So wherever
    they were grazing, they're still packing those seeds of noxious
    weeds out to our--out to these lands where we gather. And I
    think that that aspect of it needs to be observed from a tribal
    standpoint of how that's reflecting on our resources that are
    out there.
        Ms. Plaskett. Okay. Thank you.
        Mr. Gianforte. Okay. So Federal grazing permittees are
    required to have an adjoining base property, and many ranchers
    operate on a combination of deeded land and then Federal land
    that has a grazing allotment on it. The value of the base
    property is in part depending on grazing access to the
    adjoining Federal land. Therefore, when the Bureau of Land
    Management or the Forest Service reduces AUMs on the grazing
    allotment, they're also reducing the value of the deeded land.
        Mr. Eliason, in your written testimony you describe the
    current ranch unit, as you refer to it, with deeded base
    property and attached Federal grazing permits. Could you please
    elaborate on how the private base property and the Federal
    grazing allotments are related and just how the system works?
        Mr. Eliason. Sure, I'd be glad to. Generally, most of the
    ranchers have base property. Usually, they spend--the animals
    will spend their winters on private property, and then in the
    summertime they'll go up onto the Federal forest and BLM
    grounds, so it's really quite a combination. If you were to
    reduce, say, the grazing on the Forest Service, that means that
    they can't carry. They have no place to go for those cattle.
    Most of these ranchers are appraised by the number of animals
    that they can carry year round, so if you cut the one side, you
    know, then it reduces the value of the ranch.
        And as you know may know very well that ranchers pay a lot
    of property tax for the counties, and many rural and--rural
    counties, that's the tax base. And a lot of counties like in
    Utah, 98 percent of the land is Federal, so they haven't got a
    big tax base, so it's very important these AUMs remain viable.
        Mr. Gianforte. So when a ranch that may have been on a
    deeded property for three or four or six generations, when the
    AUMs on the adjoining Federal land are diminished in some way,
    it actually reduces the property value of the underlying deeded
    land, is that correct?
        Mr. Eliason. Absolutely.
        Mr. Gianforte. Yes. Just to a follow-on, so just to be
    really clear, if the AUMs on the Federal lease are diminished,
    have you seen that in practice, and what is the effect on the
    underlying deeded ----
        Mr. Eliason. Well, generally, the effect is, well, then you
    got to use some of your private property to carry it, so you've
    got to have a lot less carrying capacity. So your value is
    less, your income is less, and sometimes if it cuts too much,
    the ranch is no longer viable.
        Mr. Gianforte. Okay. Mr. Helle, how long has your family
    ranched sheep in the area where you currently do so?
        Mr. Helle. My family immigrated from Austria into the--
    right after the turn of the century and started into livestock
    grazing before there was even a forest.
        Mr. Gianforte. The turn of the last century?
        Mr. Helle. Yes. And ----
        Mr. Gianforte. So ----
        Mr. Helle.--you know, over 100 years.
        Mr. Gianforte. Okay. And if you were no longer able to
    graze your sheep on the Federal land--on the neighboring
    Federal allotments, how would that affect the value of your
    ranch and your operation?
        Mr. Helle. Well, that's an interesting thing because I live
    in southwest Montana, and the--you know, the agricultural value
    of our operation would be greatly reduced. It would become to
    the point where my family could not make a viable living on the
    operation with it were it not for our Federal grazing permits.
    So that would put an undue, you know, risk of our private lands
    becoming necessarily, you know, open to the market for
    subdivision or trophy ranches or some of these other things
    that are not necessarily conducive to what we value in
    southwest Montana as far as protecting that open space and
    those wildlife corridors and all that we enjoy about that.
        So, you know, I'd like to say that it kind of goes both
    directions. The Federal grazing leases, yes, they give us the
    agricultural opportunity to make our ranches more valuable and
    keep us in agriculture, so that's a public benefit that the
    public receives by, you know, almost a semi-conservation
    easement of those private lands that are intermingled within
    the public lands.
        Mr. Gianforte. And as I understand it, because the
    regulations require adjacent base property, these grazing
    allotments typically transfer with the deed of the home ranch.
    Is that ----
        Mr. Helle. Yes, correct. You have to--you know, there's
    some laws and regulations around the transfer, but you can
    either sell the base property or the livestock in certain
    instances that are connected to that permit.
        Mr. Gianforte. And the--ultimately, the price that someone
    might pay for that home place is in part affected by what
    grazing allotments are available, and diminishing the AUMs on
    the Federal land diminishes the value of the home place.
        Mr. Helle. Correct.
        Mr. Gianforte. Yes, okay.
        Mr. Helle. On an agricultural basis.
        Mr. Gianforte. Yes. Thank you very much. And I'll recognize
    the ranking member for her questions.
        Ms. Plaskett. Thank you. Mr. Wheeler, you were talking
    about the effect that the comingling has on the bighorn sheep.
    Can you give us some more examples of how commercial sheep
    grazing on Federal lands have affected the population?
        Mr. Wheeler. Thank you for the question. You know, looking
    at the sheep themselves or the bighorn sheep, you know, the
    outdoor industry, you know, if you talk numbers there, $850-
    billion-a-year economic driver, and that supports over 7.5
    million jobs in this country, but, you know, the--when they
    start--these boundaries start coming into this habitat, this
    suitable habitat, that--for the bighorn sheep, and when they
    comingle, then the reduction of the herds in, say, the Hells
    Canyon area has been reduced and, you know, we have jet boat
    excursions. And every one of those--I couldn't say maybe the
    majority of those trips that go up the Hells Canyon up the
    Snake River all have bighorn sheep on their advertisements. I
    don't believe they have domestic sheep, but they do have the
    bighorn sheep going up there, and those are being reduced.
        And just the importance of the bighorn sheep as far as the
    petroglyphs that are thousands and thousands of years old, our
    past tribal members have depicted bighorn sheep on there, and,
    you know, the book Yellow Wolf: His Own Story, he talks about
    the bighorn sheep and being able to hunt those.
        And, you know, I just think that, you know, when these
    boundaries are set, you know, we're not against grazing, you
    know, on Federal lands, but we are against when they're
    affecting the habitat of wildlife that is reserved by us and
    our resource and ----
        Ms. Plaskett. Do you know if there are other indigenous
    cultures who are similarly affected as yours, maybe not with
    bighorn sheep but with others in Federal grazing or Federal
    land areas?
        Mr. Wheeler. Yes, there's our sister tribes, the Umatilla
    Tribe, the Yakama Nation, the Warm Springs Tribe, the Upper
    Snake River Tribes. There's the Shoshone-Paiutes, Shoshone-
    Bannocks, the CSKT Tribe all within this area are near us that
    all have had bighorn sheep populations depleted.
        Ms. Plaskett. And do you know of depletion of other things
    other than bighorn sheep and--or do you know of or any of you
    gentlemen who are testifying know of instances where the
    cultural viability and cultural issues such as--or livelihood
    of tribes have been successfully worked out with commercial
    grazing or with other domestic grazing activity?
        Mr. Wheeler. I can say to one of those is the bison that
    are--have that issue. The moose in our area now have declined.
    You know, there's probably numerous reasons, but for the--
    specifically to the bighorn sheep is the domestic sheep and the
    pneumonia and the pathogens that are carried by them when they
    intermingle. So the boundaries, I believe, are the important
    issue with being able to come to a--some type of agreement to--
    you know, like I had mentioned, we're not against grazing but
    we are against that affecting the suitable habitat of the
    bighorn sheep.
        Ms. Plaskett. So your concern is with the increasing
    grazing area or grazing that goes outside of the treaty
    agreement?
        Mr. Wheeler. Yes.
        Ms. Plaskett. And could you explain to the subcommittee how
    treaty rights could be affected by increasing grazing in
    Federal lands?
        Mr. Wheeler. Yes, thank you for the question again. So if
    you look back at the reserve rights of a treaty, with us is 12
    Stat. 957, and in that treaty what the United States there was
    rights reserved to hunt, to fish, to gather in all usual and
    accustomed areas. And that was part of our sustenance that we
    could gather our foods, and we could also--it was also tied to
    our sacred economic security that we had as far as the value of
    what this resource meant to us as far as trade, trade to other
    tribes and trade throughout the region. A lot of the different
    materials that were traded were secured in that treaty as well,
    so then the treaty, which is--which was in 1855 then was
    ratified in 1858 or 1859, and then the U.S. Constitution, which
    is article VI, clause 3, which is the--I mentioned the
    supremacy law that treaties are the supreme law of the land
    that--those rights were reserved in that, and if those
    depletion of those herds and those depletion of those resources
    are affected, then our treaty is affected by the depletion of
    those resources.
        Ms. Plaskett. Thank you. Thank you very much. I yield back.
        Mr. Gianforte. Okay. Thank you. Mr. Helle, your operation
    has been involved in a number of lawsuits. Do you feel that the
    fear of future litigation is something that hangs over you and
    other ranchers in your area?
        Mr. Helle. Well, definitely. I worry that other people
    might be, you know, looking at the sheep industry as--and we
    need people to come into the sheep industry, but the risk of
    these lawsuits hanging over our industry is definitely changing
    people's perspective on the ability to increase and expand our
    industry. The lamb industry in America, we import over half of
    what the domestic consumption is. Wool is critical for our
    military, and we import a lot of wool, too. And we're seeing,
    you know, really good prices for wool right now. The lamb
    market is good, so the opportunities in the sheep industry are
    great from an economic perspective.
        But from, you know, the litigation side of things and, you
    know, a lot of the Western domestic sheep production has--you
    know, has been dependent on some public lands grazing, so we're
    putting at risk a--you know, an infrastructure and everything
    else that would hold that industry together to, you know, draw
    that in. So ----
        Mr. Gianforte. So ----
        Mr. Helle.--I mean, economically, it looks good, but
    litigation-wise, that ----
        Mr. Gianforte. So not knowing when the litigation is coming
    or from which direction really adds uncertainty to your ability
    to plan your business?
        Mr. Helle. Definitely.
        Mr. Gianforte. Yes.
        Mr. Helle. You know, I think that our Federal agencies--
    land management agencies make a lot of decisions based on the
    fear of a litigant coming in ----
        Mr. Gianforte. Okay.
        Mr. Helle.--rather than on sound management.
        Mr. Gianforte. Mr. Eliason, have you heard from other
    ranchers around the country who are concerned about their
    allotments or permits facing litigation?
        Mr. Eliason. Oh, sure. And I've experienced it, too. And a
    lot of times these radical environment groups that file these
    lawsuits really intimidate the local forest and BLM because it
    brings on so much more work and fear there. In 1982 we had a
    big fire in our--one of our allotments. They would come in and
    reseeded it, and so it carried a lot more. So the BLM gave us
    what they call temporary non-renewables. They wouldn't give us
    anything permanent, but they gave us--but we had fire on these
    every year. So for 25 years we went on being able to use these
    temporary non-renewables.
        Western Watershed Project, one of these radical
    environmentalist groups, sent a letter to the BLM saying that
    it was going to sue the BLM if they continued to let us run on
    this temporary non-renewables. We immediately got a cancelation
    of our temporary non-renewables. We had to stop it right then.
    We eventually went to court and we was able to get those back,
    but that's a lot of time. A lot of times the BLM and Service
    will do things so they don't upset the cart.
        Mr. Gianforte. So you had a longer-term grazing allotment
    agreement, and it went to this temporary ----
        Mr. Eliason. Non-renewable.
        Mr. Gianforte.--non-renewable ----
        Mr. Eliason. Yes.
        Mr. Gianforte.--which basically means it's ----
        Mr. Eliason. You had to renew them every year.
        Mr. Gianforte. It seems like it's a hand-to-mouth
    experience ----
        Mr. Eliason. Yes.
        Mr. Gianforte.--where you have very little certainty about
    the future.
        Mr. Eliason. Exactly.
        Mr. Gianforte. And it makes it hard to--being a business
    guy, it makes it hard to plan, doesn't it?
        Mr. Eliason. Exactly.
        Mr. Gianforte. Yes. Mr. Horngren, you proposed legislation
    clarifying that, quote, ``annual operating instructions,'' end
    quote, should not be considered final agency actions. Under the
    current system that allows legal challenges to annual operating
    instructions, is there potential for agencies to have to
    litigate similar issues repeatedly?
        Mr. Horngren. Yes, there is, Mr. Chairman. And that
    litigation can occur on the same forest or spread out among
    forests throughout the West. For example, right now, the
    Western Resources Legal Center is helping defend, as
    codefendants, lawsuits against the Forest Service on the
    Fremont-Winema Forest in Oregon. We had two of those lawsuits,
    which recently were completed in the last year on the
    Stanislaus National Forest in California and on BLM lands in
    Arizona. Some of those same issues are brought up again and
    again.
        Mr. Gianforte. And how would the changes you propose
    regarding annual operating instructions benefit both permittees
    and Federal agencies?
        Mr. Horngren. It would make the Federal agency job a lot
    easier and less expensive, and it's not trying to do an end run
    around litigation or shut anybody off from litigation. It's
    just acknowledging that the big decisions are made in the
    permit for the 10-year period. You get your shot there. Often,
    you can win; maybe you lose. But once that opportunity is done,
    implementation of that decision on a year-to-year basis
    shouldn't continually be subject to litigation.
        Mr. Gianforte. So that would allow all participants to have
    their voice?
        Mr. Horngren. Yes.
        Mr. Gianforte. It gets sorted out in a collaborative way
    but then gives the ranchers certainty for 10 years before the
    individual decisions can be challenged?
        Mr. Horngren. That's right.
        Mr. Gianforte. Okay. Thank you. One last question if I
    could, Mr. Horngren. Do you believe that the current grazing
    permit administration process grants ranchers adequate level of
    certainty for their operation and allows long-term planning?
        Mr. Horngren. No. It's difficult, particularly with the
    Endangered Species Act and the way that's set up now about the
    consultation that I mentioned. And the permit process is very
    uncertain because you don't know what another agency, Fish and
    Wildlife Service or National Marine Fisheries Service, is going
    to shove down the throat of the Forest Service or BLM in the
    name of protecting the fish and wildlife.
        Mr. Gianforte. Okay. Thank you.
        Does the ranking member have additional questions?
        Ms. Plaskett. No.
        Mr. Gianforte. Okay. I would like to touch on a couple--
    I'll recognize myself for one more round of questions, and then
    we'll wrap up our discussion today.
        A report by the Congressional Research Service based on
    data from the Bureau of Land Management and Forest Service
    states that in the fiscal year 2016 out of the 12 million
    animal unit months that could have been authorized for use on
    BLM land, only about 8,700,000 were actually used. In the same
    year on Forest Service land, only 6,800,000 head months were
    used out of 8,200,000 that were available that could have been
    authorized. Mr. Eliason, do you believe accounts for the nonuse
    of millions of animal unit months--what do you believe accounts
    for these nonuse of the animal unit months?
        Mr. Eliason. Well, there are several reasons. There are a
    lot of--especially certain areas, there's a lot of what we call
    vacant allotments, and sometimes they want to transfer them to
    sheep from cattle, to sheep to cattle, or vice versa or they
    want to make some changes. Right now, the real problem is
    getting the NEPA done on those in order to get the--these
    allotment back into use. Sometimes, some of these allotments,
    you know, this is a hard record--the country--that you don't
    want to. But generally, what's been really causing a problem
    lately is being able to get the NEPA done on it. These vacant
    allotments, one of the big challenges is that's on the bottom
    list they're getting the NEPA. And as we know, there's a huge
    backlog getting NEPA done. And so with the vacant allotments,
    they're probably not going to get done. I know a lot of those
    allotments are just waiting for the NEPA to get done so they
    can get them back into use.
        Mr. Gianforte. So streamlining the NEPA process ----
        Mr. Eliason. That's right.
        Mr. Gianforte.--would be a benefit? Okay. Could you explain
    the concept of voluntary nonuse for those who may not be
    familiar with the term?
        Mr. Eliason. Yeah, voluntary nonuse is just--you know,
    whether it's--you know, maybe it's a really dry year or, you
    know, financially hard times come up on it, and so sometimes
    you have to take temporary non-renewables.
        Mr. Gianforte. But that's to be ----
        Mr. Eliason. Or not--but ----
        Mr. Gianforte. To be a good steward of the land?
        Mr. Eliason. Yes. You know, a lot of times it's for the
    benefit of the ground, and so we don't graze it. And at other
    times, you know, like I say, sometimes it's financial reasons.
    Usually, on the Forest Service they allow you three years. BLM
    sometimes you can go on for a long time. But generally
    speaking, a lot of times it's--they're not being used because
    of the health of the resource.
        Mr. Gianforte. Yes. Mr. Helle, are you aware of any
    ranchers who have had animal unit months reduced or been
    threatened with a reduction or have you experienced it
    yourself?
        Mr. Helle. Thank you, Mr. Gianforte, for that question
    because recently, a--an episode occurred up in our Upper Ruby
    where there was some maintenance done on a project that
    required some road building in that. So it was--it happened
    that the--it was in a roadless area, and when that--Forest
    found about it, the ranger--I guess it was authorized by the
    recreation person and maybe the range conservationist, but when
    the forest ranger got word from a bystander or somebody that
    saw it, then things were just--kind of fell out of place at
    that point. And then I think they threatened to, you know, not
    let the cattle go into that, and if they would go into that
    area, that they would threaten them with a reduction in their
    AUMs when all that was thought to have been prearranged and
    worked out.
        And it was just a lack of communication I think that had
    that, but that's what happens when you don't involve the
    permittees and when you're making decisions and stuff. So it
    was unfortunate ----
        Mr. Gianforte. Okay.
        Mr. Helle.--that they were threatened with reductions.
        Mr. Gianforte. For Mr. Helle and Mr. Eliason, have you ever
    seen situations where voluntary nonuse has not been voluntary?
        Mr. Eliason. Yes, a good example of that is the national
    monuments. When these places are made into national monuments,
    the rules and regulations become so severe and so hard that
    it's just not worth it. So a lot of times, that's--that caused
    the vacant allotment. But a lot of times it's because of the
    welfare of the range.
        Mr. Gianforte. Okay. Mr. Helle?
        Mr. Helle. It's hard to say because I've seen a lot of
    sheep ranchers just go out of business, so I don't know what
    the underlying things were or if there was some offer or
    something. But I know in Beaverhead County there was, you know,
    lots of sheep run on forest land, and there's very few of them
    now.
        Mr. Gianforte. Okay. Well, I want to thank the witnesses
    for your testimony today. The hearing record will remain open
    for two weeks for any member to submit a written opening
    statement or questions for the record.
        If there's no further business, without objection, the
    subcommittee stands adjourned.
        [Whereupon, at 3:49 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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                   Material Submitted for the Hearing Record

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