[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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