[Congressional Record Volume 157, Number 82 (Wednesday, June 8, 2011)]
[Senate]
[Pages S3609-S3610]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        GRAZING IMPROVEMENT ACT

  Mr. BARRASSO. Mr. President, I rise today to submit for the Record an 
article written by Karen Budd-Falen and published May 28, 2011, in the 
Wyoming Livestock Journal. The article's title is ``Leveling the 
Playing Field: Support for the Grazing Improvement Act of 2011.''
  The title of the article is instructive. Anyone living and working in 
rural communities knows the playing field is not level. The National 
Environmental Policy Act has become the preferred tool to delay and 
litigate grazing permit renewals for American ranchers.
  Livestock grazing on public lands has a strong tradition in Wyoming 
and all Western States. Ranchers are proud stewards of the land, yet 
the permitting process to renew their permits is severely backlogged 
due to litigation aimed at eliminating livestock from public land.
  During times of high unemployment and increasing food prices, we need 
to be encouraging jobs in rural economies. We need to be fostering an 
environment to raise more high quality, safe, American beef and lamb; 
not litigating less.
  That is why I introduced the Grazing Improvement Act of 2011. This 
legislation will provide the certainty and stability public grazing 
permit holders desperately need in order to continue supporting rural 
jobs, providing healthy food, and maintaining open spaces for 
recreation and wildlife.
  It is time to help level the playing field for hard working ranching 
families across the West. Their livelihood should not be held hostage 
by litigation and anti-grazing special interest groups. I thank my 
colleagues, Senators Enzi, Crapo, Hatch, Heller, Risch, and Thune, in 
supporting ranching families and this legislation.
  Mr. President, I ask unanimous consent to have printed in the Record 
the article to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From the Wyoming Livestock Roundup, May 28, 2011]

Leveling the Playing Field: Support for the Grazing Improvement Act of 
                                  2011

                         (By Karen Budd-Falen)

       If jobs and the economy are the number one concern for 
     America, why are rural communities and ranchers under attack 
     by radical environmental groups and overzealous federal 
     regulators?
       America depends upon the hundreds of products that 
     livestock provide, yet radical groups and oppressive 
     regulations make it almost impossible for ranchers to stay in 
     business. Opposition to these jobs comes in the form of 
     litigation by radical environmental groups to eliminate 
     grazing on public lands, radical environmental group pressure 
     to force ``voluntary'' grazing permit buy-outs from ``willing 
     sellers,'' and holding permittees hostage to the court 
     deference given to regulatory ``experts.'' The playing field 
     is not level and the rancher is on the losing side. The 
     Grazing Improvement Act of 2011 will level the playing field. 
     I urge your support.
       The Grazing Improvement Act of 2011 does the following:
       1. Term of Grazing Leases and Permits. Both BLM and Forest 
     Service term grazing permits are for a 10-year term. This 
     bill extends that term to 20 years. This extension does not 
     affect either the BLM's or Forest Service's ability to make 
     interim management decisions based upon resource or other 
     needs, nor does it impact the preference right of renewal for 
     term grazing permits or leases.
       2. Renewal, Transfer and Reissuance of Grazing Leases and 
     Permits. This section codifies the various ``appropriation 
     riders'' for the BLM and Forest Service requiring that 
     permits being reissued, renewed or transferred continue to 
     follow the existing terms and conditions until the paperwork 
     is complete. Thus, the rancher is not held hostage to the 
     ability of the agency to get its

[[Page S3610]]

     job done--a job that is admittedly harder because of radical 
     environmental appeals, litigation and FOIA requests.
       This bill also codifies the ability of the BLM and Forest 
     Service to ``categorically exclude'' grazing permit renewal, 
     reissuance or transfer from the paperwork requirements under 
     National Environmental Policy Act (NEPA) if the permit or 
     lease continues current grazing management on the allotment. 
     Minor modifications to a permit or lease can also be 
     categorically excluded from NEPA if monitoring indicates that 
     the current grazing management has met or is moving toward 
     rangeland and riparian objectives and there are no 
     ``extraordinary circumstances.'' Finally, this section allows 
     the BLM and Forest Service to continue to set their priority 
     and timing for permit renewal or reissuance.
       3. Applicability of Administrative Procedure Act. This 
     provision is really what levels the playing field for the 
     rancher, against the environmental ``willing buyer'' and the 
     arbitrary decisions of the governmental regulator.
       First, this provision applies a real decision making 
     process, with an independent hearing officer or judge, to 
     Forest Service administrative appeals. Currently, legal 
     challenges to Forest Service decisions are heard by the 
     ``next higher Forest Service line officer.'' There have long 
     been allegations that this system is significantly skewed so 
     that the Forest Service decision maker is ``almost always 
     right.'' For example, out of the 28 decisions that were 
     administratively appealed in Forest Service Region 2 
     (Wyoming, Colorado, Kansas, Nebraska, South Dakota) from 2009 
     to the present, only two were rejected as being legally or 
     factually wrong. In that same time period, in California, out 
     of 78 appeals, only 13 decisions were either rejected or 
     withdrawn. In Arizona and New Mexico, the Forest Service 
     ``independent review by the next higher line officer'' only 
     found 15 out of 83 decisions were deficient. In other words, 
     just considering these three Forest Service regions, the 
     agency found itself right 85 percent of the time. In a fair 
     and equal system, no one is right that many times!
       This provision would change that pattern so that Forest 
     Service grazing permittees would appeal the decisions they 
     believed were legally, factually or scientifically wrong to 
     an independent law judge and the Forest Service would have to 
     show why its decision is right, rather than the permittee 
     having to show why the decision is wrong. The permittee would 
     also be able to cross-examine Forest Service ``experts'' on 
     the reasons for the decision and the agency would have to 
     supply some justification for its decision. It is critical 
     that Forest Service permittees have the ability to protect 
     themselves from arbitrary decisions--an ability they do not 
     have now.
       Second, this Act would level the playing field for BLM 
     permittees. Like the Forest Service provisions discussed 
     above, this bill ``changes'' the current appeals system by 
     requiring the BLM to prove its decision is legally and 
     scientifically correct, rather than forcing the permittee to 
     prove why the decision is legally and scientifically wrong.
       Additionally, the OHA has determined that when the BLM 
     issues a decision adversely affecting a permittee's grazing 
     privileges, the BLM decision can still be upheld, even if the 
     BLM did not comply with all of the grazing regulations. In 
     short, under the current appeals system, the permittee's 
     experts have to show why the BLM experts are wrong (a burden 
     that is very hard to carry) and the BLM decision can still be 
     held to be correct, even if the BLM only substantially 
     complied with its regulations. This is not a level playing 
     field and a problem that absolutely needs corrected.
       Finally, this section also returns to the law the 
     ``automatic stay'' provisions eliminated by the Bruce Babbitt 
     ``Range Reform `94'' regulations, except for decisions of a 
     temporary nature and except in emergency situations.
       In truth, this bill is more than mere technical changes to 
     erroneous agency regulations--it gives some very real 
     protection to the permittees. For example, the Ruby Pipeline 
     ``donation'' to Western Watersheds Project to purchase 
     grazing preferences on a ``willing seller'' basis only works 
     if the permittee is honestly ``willing to sell.'' However, if 
     the permittee is always behind the curve in protecting his 
     grazing permit and the only way he can ``win'' is by 
     ``voluntarily selling'' his permit for pennies on the dollar, 
     the word ``willing'' is truly compulsion. And, in the case of 
     the Forest Service, the current administrative appeals 
     process is like asking your father to change the decision of 
     your mother, when your mother and father agreed on the 
     decision before it was dictated to you.
       Finally, this bill reverses the U.S. Justice Department 
     capitulations to environmental groups during the course of 
     recent litigation. These ``settlements'' have significantly 
     restricted the BLM's and Forest Service's ability to 
     legitimately use categorical exclusions to renew grazing 
     permits. Neither the Justice Department nor the federal 
     bureaucrats should be allowed to make Congressional policy 
     without the Congressional branch of government.
       Make no mistake--this is not just a public lands ranchers' 
     bill; this bill will help preserve family ranches, rural 
     communities and the American beef supply. This is an American 
     jobs bill! I urge your support and ask that you request your 
     Congressional representatives support this bill.

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