[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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