Impoundment and Sale of Cattle Trespassing on Federal Public Lands
CRS Report for Congress
Impoundment and Sale of
Cattle Trespassing on
Federal Public Lands
August 14, 2001
American Law Division
Congressional Research Service ˜ The Library of Congress
Impoundment and Sale of Cattle Trespassing on
Federal Public Lands
Several instances have occurred recently in several states where Bureau of Land
Management (BLM) personnel have impounded and sold cattle belonging to a federal
grazing permittee or other owner when the cattle were grazing on federal lands
without authorization to do so – which is to say, when the cattle were trespassing on
the federal lands. The impoundment and sale of cattle from the public lands may
become the subject of congressional interest and oversight.
The Federal Land Policy Management Act of 1976 for the first time provided
general authority for designated BLM personnel to undertake law enforcement
activities, but at the same time the agency was to achieve maximum feasible reliance
on state and local law enforcement officials for enforcement of federal laws and
regulations on the federal lands. In addition, the agency was to cooperate with state
and local officials in enforcing state and local law on the BLM-managed lands.
Regulations authorize the impoundment of offending cattle by an “authorized officer,”
which term is defined as any person authorized by the Secretary to administer grazing
regulations. This authority may reflect the statutory duty to prevent undue
degradation of the lands and the duty of a landowner to minimize harm from
trespasses. Following impoundment, cattle may be disposed of, either by the local
officials if a suitable agreement is in effect and they have taken the enforcement
action, or by the authorized officer if no suitable agreement is in effect or the BLM
manager chooses to act. The terms of disposal, sale and redemption rights are
governed in part by the federal regulations, and in part by state law to the extent
federal law and regulations are silent on an issue or local officials are carrying out
those actions. Additional guidance is provided in the BLM Grazing Handbook.
This report explores the authority of BLM personnel regarding unauthorized
cattle by reviewing the statutory authorities of BLM over the federal rangelands under
its administration, and the regulations and administrative materials implementing those
authorities in the context of grazing, trespass, impoundment and sale of unauthorized
livestock. The report will be updated as circumstances warrant.
Introduction ................................................... 1
Background .................................................... 1
Federal Laws and Regulations......................................2
Federal Jurisdiction over Land......................................5
Remedies Available for Trespass on Federal Lands......................5
FLPMA Provisions on Law Enforcement..............................7
Discussion .................................................... 11
Impoundment and Sale of Cattle
Trespassing on Federal Public Lands
Several instances have occurred recently in several states where Bureau of Land
Management (BLM) personnel have impounded and sold cattle belonging to a federal
grazing permittee or other owner when the cattle were grazing on federal lands
without authorization to do so – which is to say, when the cattle are trespassing on
the federal lands. Impoundment and sale of cattle from the federal public lands may
become the subject of congressional oversight. This report explores the authority of
BLM personnel regarding unauthorized cattle by reviewing the statutory authorities
of BLM over the federal rangelands it manages, and the regulations and administrative
materials implementing those authorities in the context of grazing, trespass,
impoundment and sale of unauthorized livestock.
The BLM manages grazing on many of the public lands in the West, principally
under the Taylor Grazing Act (TGA),1 the Federal Land Policy and Management Act
(FLPMA),2 and the Public Rangelands Improvement Act (PRIA).3 These statutes
provide considerable specific direction for the grazing program and also set out duties
and authorities to regulate and protect the public lands. The TGA and FLPMA also
set out penalties for violation of regulations, and FLPMA expressly addresses
enforcement activities by BLM personnel. In addition to these express provisions,
other laws and legal principles may pertain. This report will first examine the federal
statutes and regulations on these matters and then address how the federal provisions
and regulations might relate to state laws and procedures on these same topics, both
in general and as to impoundment and sale of livestock by BLM personnel.
1Act of June 28, 1934, ch. 865, 48 Stat. 1270, 43 U.S.C. §§ 315 et seq.
2Act of October 21, 1976, Pub. L. No. 94-579, 90 Stat. 2744, 43 U.S.C. §§ 1701 et seq.
3Act of October 25, 1978, Pub. L. No. 95-514, 92 Stat. 1803, 43 U.S.C. §§ 1901 et seq.
Federal Laws and Regulations
As noted, the TGA, FLPMA and PRIA contain language directing the protection
of the federal lands. The TGA directs the Secretary of the Interior to regulate the
occupancy and use of the lands “to preserve the land and its resources from
destruction or unnecessary injury, to provide for the orderly use, improvement, and
development of the range ....”
FLPMA directs that the public lands be managed to “take any action necessary
to prevent unnecessary or undue degradation of the lands,”4 and the Secretary is
directed to issue regulations necessary to implement the provisions of the Act with
respect to the management, use, and protection of the public lands. PRIA directs that
the goal of management shall be “to improve the range conditions as feasible in
accordance with the rangeland management objectives established through the land
use planning process, and consistent with the values and objectives listed in sections
1901(a) and (b)(2) of this title.” These referenced provisions in turn address
rangeland conditions, and direct management to, among other things, “maintain and
improve the condition of the public rangelands so that they become as productive as
feasible for all rangeland values ...,” and “prevent economic disruption and harm to
the western livestock industry” by charging fees for grazing. Language also is
contained in the TGA that requires that grazing privileges be adequately safeguarded.5
FLPMA further states that “[t]he use, occupancy or development of any portion
of the public lands contrary to any regulation of the Secretary or other responsible
authority, or contrary to any order issued pursuant to any such regulation, is unlawful
and prohibited.”6 FLPMA also provides that any person “who knowingly and willfully
violates any such regulation which is lawfully issued pursuant to this Act shall be fined
no more than $1,000 or imprisoned no more than twelve months, or both.”7 The
TGA provides a fine of $500 for willful violation of that law or regulations after
actual notice thereof.8
In response to these statutory directions to protect and regulate the use of the
federal lands, BLM grazing regulations address range conditions and regulate
livestock numbers and use of the rangelands. As will be discussed, regulations
specifically authorize the impoundment and sale of livestock that is grazing either
without a permit or in violation of a permit. Regulations authorizing some form of
443 U.S.C. § 1732(b).
543 U.S.C. § 315b
643 U.S.C. § 1733(g).
743 U.S.C. § 1733(a).
843 U.S.C. § 315a.
impoundment have been on the books since at least the 1950's.9 Regulations were
adopted in modern form in 197810 and have changed little since that time.
The regulations currently distinguish among infractions that are nonwillful,
willful, or repeated willful. Violators are “liable in damages to the United States for
the forage consumed by their livestock, for injury to Federal property caused by their
unauthorized grazing use, and for expenses incurred in impoundment and disposal of
their livestock, and may be subject to civil penalties or criminal sanction for such
unlawful acts.”11 The BLM must provide written notice of allegedly unauthorized
livestock grazing to the owner, if known, along with the order to remove the
When a violation has been determined to be nonwillful and incidental
(presumably by the authorized officer), the authorized officer has discretion as to how
to correct the violation, assess damages, and otherwise settle the claim.13 “Authorized
officer” is defined as “any person authorized by the Secretary to administer the
grazing regulations.14 Penalties become more severe, depending on the character of
the violation. Monetary damages for unauthorized use can range from none at all in
some circumstances, to double the value of forage consumed for willful violations,15
and triple the value of forage consumed for repeated willful violations. Grazing
permits can be suspended or cancelled if damages are not paid.16 In addition to
suspension or cancellation for non-payment of damages, the authorized officer may
suspend or cancel a grazing permit or lease in whole or in part – and in some cases
must do so – for certain other violations. When the infraction is committed by a
nonpermittee, the infraction is to be referred to the “proper authorities” for
appropriate legal action by the United States against the violator,17 and TGA and
FLPMA penalties may be assessed.18 There is no elaboration on who the proper
Livestock can be impounded if either the owner is unknown or the permittee fails
to remove the livestock when ordered to do so.19 A separate notice of intent to
impound must be sent by certified mail or personally delivered to the owner or his
agent, or both, or be posted if the owner is unknown. Impoundment may occur any
9See, Hatahley v. United States, 351 U.S. 173 (1956).
1043 Fed. Reg. 29,058 (July 5, 1978).
1143 C.F.R. § 4150.1.
1243 C.F.R. § 4150.2.
1343 C.F.R. § 4150.2(b).
1443 C.F.R. § 4100.0-5.
1543 C.F.R. § 4150.3.
1643 C.F.R. §§ 4150.3(e) and 4160-1.
1743 C.F.R. § 4170.1-1(c).
1843 C.F.R. §§ 4170.2-1 and 4170.2-2.
1943 C.F.R. §§ 4150.2(c) and 4150.4.
time after 5 days from delivery of the notice up to 12 months from the effective date
of notice.20 Following impoundment, the owner has a chance to redeem the livestock,
and if they are not redeemed, they may be sold.21
The impoundment and sale regulations touch on the relationship of possible
actions by federal personnel to possible actions by non-federal personnel authorized
under state and local law. Impounded livestock “may” be turned over to the State for22
disposal if a “suitable agreement” is in effect. Similarly, livestock may be redeemed
or sold in accordance with state law if a suitable agreement is in effect prior to the
time of sale.23 However, the regulations allow the federal land managers to impound
cattle and to sell or dispose of trespassing cattle if no suitable agreement exists for
state and local authorities to do those tasks:
§ 4150.4 Impoundment and disposal.
Unauthorized livestock remaining on the public lands or other
lands under Bureau of Land Management control, or both, after
the date set forth in the notice and order to remove sent under §
4150.2 may be impounded and disposed of by the authorized
officer as provided herein. (Emphasis added.)
§ 4150.4-2. Impoundment.
After 5 days from delivery of the notice under § 4150.4-1(a) of
this title or any time after 5 days from publishing and posting the
notice under § 4150.4-1(b) of this title, unauthorized livestock
may be impounded without further notice any time within the 12-
month period following the effective date of the notice.
§ 4150.4-3 Notice of public sale.
Following the impoundment of livestock under this subpart the
livestock may be disposed of by the authorized officer under
these regulations or, if a suitable agreement is in effect, they may
be turned over to the State for disposal .... (Emphasis added.)
To analyze the relationship of the federal statutory and regulatory provisions to
state and local law, some general background on the legal status of the federal lands
and on principles of trespass is necessary.
2043 C.F.R. §§ 4150.4-1 and 4150.4-2.
2143 C.F.R. §§ 4150.4-4 and 4150.4-5.
2243 C.F.R. § 4150.4-3. The suitable agreement may be the contracts with local officials as
representatives of the relevant state under 43 U.S.C. § 1733. The authority to turn a matter
over to state authorities if a suitable agreement exists appears to be discretionary. We do not
address possible situations where the federal managers may believe that circumstances
warrant the federal personnel taking action even if a suitable agreement exists.
2343 C.F.R. §§ 41504-4 and 41504-5.
Federal Jurisdiction over Land
The federal government may have one of several types of jurisdiction over lands
and the scope and applicability of state law varies depending on the type of federal
jurisdiction. The federal government has “exclusive legislative” jurisdiction over the
District of Columbia and federal enclaves regarding which the relevant state has
consented to such jurisdiction under Art. 1, § 8, Cl. 17. State law does not apply to
these lands at all, except to the extent the federal government has directed that it may.
Over other areas, the federal government may have partial exclusive legislative
jurisdiction – exclusive federal jurisdiction to which a state has consented, but only
for some particular purposes, rather than in general. The federal government may
have concurrent legislative jurisdiction over other lands, again with state consent, in
which case both the state and federal governments have general legislative jurisdiction
and state law applies unless federal law preempts it. Over still other areas, the federal
government has mere proprietary jurisdiction and state law applies fully unless and
until federal law preempts it. The consent of a state is not necessary for the federal
government to own land under Art. IV of the Constitution, or to enact preemptive
federal legislation pursuant to one of its constitutional powers. The type of
jurisdiction is indicative of the extent to which state law applies and the extent to
which federal preemption is necessary to give federal actions primacy.
Federal law can preempt state and local law, either expressly or by implication.
State law can be pre-empted in either of two general ways. If Congress
evidences an intent to occupy a given field, any state law falling within
that field is preempted .... If Congress has not entirely displaced state
regulation over the matter in question, state law is still pre-empted to
the extent it actually conflicts with federal law, that is, when it is
impossible to comply with both state and federal law, ... or where the
state law stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress.24
Typically, the federal government has only proprietary jurisdiction over the
public lands managed by BLM.25 Therefore, state law applies fully, except as
Congress has otherwise provided. As reviewed above, Congress has legislated on the
protection of the federal lands and grazing on them, and regulations have been
promulgated to implement those laws. But issues remain as to how those federal
authorities relate to state law.
Remedies Available for Trespass on Federal Lands
The federal government has two statuses with respect to its BLM lands within
a state. On the one hand, the federal government is a property owner under state law
24California Coastal Commission v. Granite Rock Company, 480 U.S. 572, 581 (1987),
25JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES: Report of the Interdepartmental
Committee for the Study of Jurisdiction over Federal Areas within the States, June, 1957.
and enjoys the same opportunities to protect its lands as does any other landowner in
that state. On the other hand, the federal government can and has preempted state
law with federal law as to those lands in some respects. How these two roles relate
may not always be clear.
There are several criminal penalties for trespass on the federal lands,26 including
penalties for trespass grazing resulting from driving or knowingly permitting livestock27
to enter any inclosure on the lands of the United States. As discussed above, federal
criminal penalties are available under FLPMA and TGA for violation of regulations,
and civil remedies also are set out in federal law and regulations. In addition, the
federal managers may have other avenues of redress available. Trespass is a “tort,”
a wrong done to the possessory interest of a landowner through the unauthorized use
of the owner’s land. A landowner has the right to end a trespass and collect damages
from a trespasser for any unauthorized use. But, under what is known as the “rule of
avoidable consequences,” a landowner also has the duty to minimize damages by
taking reasonable measures to halt or abate the harm, or risk forfeiting the part of the
damages that could have been avoided.28 In other words, an owner cannot sit back,
do nothing, let damages accrue, and then claim full damages. In the context of a
trespass by cattle, taking reasonable action arguably may consist of rounding up the
offending cattle, impounding them, and notifying the owner.
Exactly what remedies might be available under state law can vary. Under the
laws of many western states, “trespass” by cattle is complicated by a landowner’s duty
– or lack thereof – to fence land; either to fence his own cattle in or fence the cattle
of others out. In some states, a landowner has a duty to fence his livestock in or be
liable for their actions. Other states are “fence out” states in which cattle may roam
at large without liability, except in areas where an owner has fenced an area to keep
animals other than his own out.
Assuming a trespass can be shown, states vary as to when and how damages for
forage consumed by errant cattle may be collected. Regardless of fencing issues, in
many western states, a person is entitled to a lien against animals that a person fed,
for the value of the forage and feed.29 The owner of the livestock is liable to pay the
amount owed, or the livestock may be sold. Typically, these statutes apply to
situations where an owner arranged for another person (the “agistor”) to pasture or
feed cattle, but then failed to claim the animals or to pay for their care. (But it could
be asked whether a person who involuntarily fed trespassing cattle should have fewer
rights to recover the value of forage or feed than a person has who did so voluntarily.)
Typically too, many states have statutes governing stray (usually defined as30
unbranded) livestock that allow for their impoundment and sale. Jurisdictions vary
2618 U.S.C. §§ 1851, 1852, 1853, and 1863.
2718 U.S.C. § 1857.
281 DAMAGES IN TORT ACTIONS, § 3.07 (2000); PROSSER AND KEETON ON TORTS 458
(5th Ed. 1984)
29See e.g., Ut. Code Ann. 38-2-1 (1953, 2000 Supp.); Wy. Stat. Ann. 29-7-101 (1999).
30Ut. Code Ann. 4-25-1 (1953, 2000 Supp.).
as to the range of formalities required to impound and sell livestock; some have
informal procedures that allow a rancher to impound and sell the cattle; others require
local law enforcement personnel to carry out the procedures.
As noted, the current federal grazing regulations authorize the federal range
managers to impound and sell livestock in accordance with the federal regulations, or
to let state and local authorities dispose of livestock when a suitable agreement on
such matters is in effect. As discussed, the pre-FLPMA regulations did not appear to
authorize BLM personnel to take such actions themselves, while the post-FLPMA
regulations do. The explanatory material accompanying the post-FLPMA 1978 and
1982 regulations show that public comments raised this point of why the regulations
did not require compliance with state law, but the issue was not fully discussed. The
issue is not why total reliance was not put on state law – this was never the pre-
FLPMA position – but rather why and to what extent FLPMA gave BLM personnel
the authority to carry out actions such as the impoundment and sale of unauthorized
animals themselves. To examine that question further, the law enforcement
provisions of FLPMA will be reviewed.
FLPMA Provisions on Law Enforcement
Section 303 of FLPMA (43 U.S.C. § 1733) provides that the Secretary may
authorize federal personnel or appropriate local officials to carry out his law
enforcement responsibilities with respect to the public lands and their resources. The
Secretary has several options to enforce federal laws and regulations. When the
Secretary determines that assistance is necessary, the Secretary may offer to contract
with appropriate local law enforcement officials to achieve “maximum feasible
reliance” upon local law enforcement officials in enforcing federal laws and
regulations. The Secretary also may designate federal personnel to carry out law
enforcement responsibilities with respect to the public lands and their resources, and
may request the Attorney General to institute a civil action for an injunction or other
order to prevent any person from utilizing public lands in violation of regulations.
The Secretary is also authorized to cooperate with the regulatory and law
enforcement officials of any state or political subdivision of a state in the enforcement
of state and local laws or ordinances.
The enacted language on law enforcement differs from the introduced language
in several respects. Both the House and Senate bills addressed the issue.
The Senate bill, S. 507, had many of the elements that ultimately were enacted.
Section 307 authorized the Secretary to request that the Attorney General institute
a civil action for an injunction or other appropriate order to prevent a person from
using the federal lands in violation of laws or regulations, and also authorized the
Secretary to designate employees to carry firearms, execute warrants and process, and
make arrests in certain circumstances. In addition, under § 308, the Secretary could
cooperate with local law enforcement officials and provide reimbursement to a state
or subdivision for help in the regulation of the use of the federal lands. The
committee report discussed the need to provide BLM personnel with law enforcement
authority to stop unlawful acts that were increasing on the lands “and in many
situations are ‘out of control’ or nearly so.”31 The report further noted that BLM’s
capability to enforce the lawful use of the lands was “almost non-existent.”32
While basic law enforcement traditionally is a state problem and
most major categories of public and private offenses are
adequately covered by state law, such laws do not apply to the
enforcement of special rules and regulations on Bureau
administered lands It is in this area that the most glaring
deficiency exists in both state and Federal laws.
To date, the Bureau’s attempts to solve such problems by using
the only tools available to it, persuasion, cooperation, and
education, have not been successful. Every evidence indicates
that without enforcement authority and authority to cooperate
with State and local law enforcement agencies as spelled out in
[section 308 of S. 507], the Bureau’s situation will continue to
deteriorate. Some examples of past problems are shown
The report goes on to discuss that in the previous Congress, some Members had
expressed concern about providing general law enforcement authority to
Departmental personnel who lacked the intensive training and experience of State and
local law enforcement personnel. The committee expressed the opinion that “the
better alternative is to authorize the Secretary to contract with State and local officials
for general law enforcement on the national resource lands. This authority is provided
in section 308.”34 Nonetheless, the bill also authorized special BLM enforcement
personnel to enforce “all Departmental laws and regulations” on all Department of
the Interior lands. The report then describes § 308 as conferring on the Secretary
authority to cooperate with state and local law enforcement agencies in “enforcement
of State and local laws on national resource lands.”35 (Emphasis added.)
Sen. Henry M. Jackson, then Chairman of the Senate Committee on Energy and
Natural Resources, noted that “[p]erhaps the most critical finding of the Public Land
Law Review Commission [the Commission that had studied all then current laws
pertaining to the lands managed by BLM] is the appalling absence of the enforcement
authority so necessary for any land management agency. The National Resource
31S. Rep. No. 94-583 at 57 (1975), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL
LAND POLICY MANAGEMENT ACT OF 1976, prepared for the Committee on Energy and
Natural Resources, United States Senate, April, 1978. GPO Publication 95-99, hereafter
referred to as “LEG. HIST.,” at 122.
32Id., at 58, reprinted in LEG. HIST., supra, at 123.
35Id., at 60, reprinted in LEG. HIST., supra, at 125..
Lands Management Act would provide the BLM with authority similar to that already
possessed by the Park Service and the Forest Service.”36
The House bill, H.R. 13777, contained more detail on enforcement. It included
language in § 302(c) that authorized the Secretary, when he determined that
assistance was necessary “to enforce any Federal law or regulations” relating to the
public lands or their resources, to contract with state and local law enforcement
officials for the enforcement of federal law and regulations “with the view of
achieving maximum feasible reliance upon such regulatory and law enforcement
officials in administering such regulations and laws.” The Secretary was to negotiate
these contracts annually with such officials, whose authorities to arrest, etc. were set
out. The Secretary could reimburse the state or subdivisions and could provide
training as he deemed necessary. Under the bill at this stage, if, and only if, such a
contract was declined, or the state or locality lacked the authority to enter into one,
could the Secretary designate federal personnel to carry out enforcement
responsibilities on the public lands.
The committee report reiterates that federal personnel were not authorized to act
unless contractual assistance was unavailable. The report pointed out that the
boundaries of the public lands are poorly marked or not marked at all, making it
difficult for members of the public to know when in fact they were on public lands.
In addition, the report continues, the rules and regulations for the public lands are
numerous and not too well known. Therefore, the Secretary was authorized to
contract for assistance in enforcing federal law and regulations, and to cooperate with
State and local enforcement officials, financially and otherwise, to assist in the
enforcement of “State and local laws and ordinances where such activities will assist
in the administration and regulation of use and occupancy of the public lands. The
Committee expects the Secretary of the Interior to construe this authority broadly, for
the purpose is to provide financial assistance to States and their subdivisions where
the existence of large areas of public lands deprives the governmental entity of
adequate enforcement of laws and ordinances as they apply to the public lands.”37
Again, only if state and local enforcement was not available could designated federal
personnel act as enforcement officials.
In dissenting views printed as part of the committee report, Rep. John F.
Seiberling and others had described the enforcement authority as “unworkable” and
the enforcement authority of BLM employees as “totally inadequate.”
Normally, the only remedy available for BLM officials is to make
a citizen’s arrest, or call the local sheriff, who may be many miles
distant and who also may be philosophically unsympathetic to
Federal Regulations.” ...
This bill does nothing to improve that situation. It directs the
Secretary to offer “reasonable” contracts to state and local law
36122 CONG. REC. S 2366 (daily ed. February 25, 1976), reprinted in LEG. HIST. supra, at
37H.R. Rep. 94-1163 at 14-15 (1976), reprinted in LEG. HIST., supra, at 444-445.
enforcement officials whenever their help is needed to enforce
Federal laws and regulations. Only if those authorities refuse
such a contract can the Interior Department exercise
enforcement authority. Thus BLM officials would still have to
call the local sheriff.
... For many years the National Park Service, U.S. Forest Service
and Fish and Wildlife Service have had effective enforcement
authority on the lands they manage. Curiously, the bill gives the
necessary authority for the California Desert but does not do so
for the rest of our public lands, where the same kinds of38
Several Members commented on the floor that the lack of adequate BLM
enforcement authority in the reported bill was unwise and would compromise the new39
management authorities the bill would provide.
Rep. Seiberling offered an amendment that would leave in place the language
directing the Secretary to achieve “maximum feasible reliance” on local law
enforcement personnel to enforce Federal laws and regulations, but would also
provide “backup authority to designate trained Federal personnel to carry out these
enforcement responsibilities when needed.”40 Rep. Seiberling stated that allowing the
Secretary to enforce only after state and local law enforcement officials refused an
annual contract was not adequate, and noted that BLM currently had only seven
special agents who were authorized to investigate natural resource violations, but had
to call on another federal agency to make arrests, or attempt to persuade state or local
officials to make an arrest if a state or local law had also been violated. At times state
law was not adequate and federal enforcement personnel also might not be available:
... But many States do not have specific laws protecting the
diverse resources of the public lands, and enforcement of State
laws is uneven, because of the variation in laws throughout the
Although the FBI can sometimes assist, that agency cannot take
on an interstate transportation of stolen property case unless it
involves property valued at a minimum of $50,000. In cases
involving wildlife violations, the Fish and Wildlife Service has
authority for migratory birds and endangered species, but its
enforcement personnel are severely overburdened and thus not
always able to assist BLM.41
38Id., at 233, 660.
39122 CONG. REC. H. 7588 (daily ed. July 22, 1976)(remarks of Reps. Forsythe and Downey)
reprinted in LEG. HIST., supra at 674.
40122 CONG. REC. H 7613 (daily ed. July 22, 1976), reprinted in LEG. HIST., supra at 699.
Rep. Jim Santini spoke against the establishment of what he termed “a Federal
police force” within states, both on general principle and because he asserted that the
additional duties would be a burden to BLM and the officers might not be adequately
trained. “We have had tragic episodes in trying to pervert and convert the botanist
into a law enforcement officer when he is confronted with resistance.”42 Rep. Santini
defended the reported bill language that conditioned BLM enforcement authority on
local enforcement officials being unavailable. Rep. Seiberling again asserted that the
current bill language – requiring BLM to negotiate annually with all relevant law
enforcement entities – was unworkable, and the amendment giving BLM law
enforcement authority prevailed.43
The conference report states that both the Senate and House had similar
provisions for law enforcement with some marked differences that were acted upon
(c) The conferees accepted the policy in the House amendments
that the Secretary of the Interior seek maximum feasible reliance
in his discretion upon local law enforcement officials in enforcing
Federal laws and regulations. The Secretary is expected to keep
this goal in mind, as well as his authority to assist local law
enforcement officials in enforcing local laws and regulations, as
he carries out his primary responsibility of assuring adequate law
enforcement for the public land areas.44
FLPMA directed the BLM to achieve maximum feasible reliance on state and
local law enforcement officials for enforcement of federal laws and regulations on the
federal lands, while at the same time providing that agency with the general authority
for designated BLM personnel to undertake law enforcement activities. In addition,
the agency was to cooperate with state and local officials in enforcing state and local
law on the BLM-managed lands.
As discussed, the post-FLPMA regulations authorize the impoundment of
offending cattle by the “authorized officer,” which term is defined as “any person
authorized by the Secretary to administer regulations in this [grazing] part.”45
Possibly these managers are authorized to take these actions because they would not
be arresting violators. Possibly too, this authority may reflect the statutory duty to
prevent undue degradation of the lands and the duty of a landowner to minimize harm
from trespasses. Following impoundment, the cattle may be disposed of, either: 1)
by the authorized officer under the federal regulations if no suitable agreement is in
43122 CONG. REC. H 7614 (daily ed. July 22, 1976), reprinted in Leg. Hist., supra, at 700.
44H.R. Rep. No. 94-1724 at 60 (1976), reprinted in LEGIS. HIST., supra, at 930.
4543 C.F.R. § 4150.4 and 4100.0-5 respectively.
effect that provides for local law enforcement officials to take such action, or there
is such an agreement but the BLM manager chooses to act; or 2) by the local officials
if there is a suitable agreement in effect and the authorized officer does not take46
action. The terms of disposal, sale and redemption rights are governed in part by
the federal regulations, and in part by state law to the extent federal law and
regulations are silent on an issue, and to the extent a suitable agreement is in effect
and the BLM manager chooses to take that alternative.47
The federal regulations do not provide a great deal of detail on how
impoundment and sales are to be carried out, but additional guidance is available in
the BLM Grazing Handbook. Although this material is not binding to the extent
regulations are, the guidance does seem to reflect a basic posture of compliance with
state and local law that comports with the type of federal jurisdiction and with
statutory and regulatory requirements. Many aspects of the holding and transport of
livestock are addressed in the Grazing Handbook.48
To summarize, federal range managers are authorized under federal regulations
to impound trespassing cattle. If a suitable agreement with state and local law
enforcement entities is in effect, then allowing the state and local law enforcement
personnel to handle the sale and disposal of trespassing cattle is probably the avenue
that should be pursued first, unless some circumstances indicate that the federal
managers should take action nonetheless. In the absence of a “suitable agreement,”
or arguably if circumstances warrant, federal officials may act. It appears that range
managers are among those authorized by current regulations to act in this
circumstance, in addition to specially designated BLM law enforcement personnel.
If federal personnel take action, it appears they must comply with federal laws and
4643 C.F.R. § 4150.4-3.
4743 C.F.R. § 41504-3 through 4-5.
48For example, as to impoundment, the Handbook states at H-4150-1.42A that impoundment
may be accomplished by BLM employees or under contract, with supervision by the
authorized officer. H-4150-1.42B states: “Holding facilities, if practical, should be located
on public lands and owned by the Federal Government. If Federal facilities are not available,
a formal lease arrangement may be made to use other facilities. The impounded livestock
must be provided adequate care and security to prevent their unauthorized removal. Whenever
impounded livestock are to be moved, the authorized officer must coordinate with the State
brand inspector before the move is initiated.”
During the time stock are held by the federal government, H-4150-1E states that: “The
Federal Government accepts responsibility for impounded animals unless the action is taken
by local law enforcement officials under State law.”
As to sale, H-4150-1.43A states: “Prior to the sale of impounded livestock, close
coordination with the State brand inspector is required to ensure that the buyer will be
permitted to move the livestock from the sale site. The authorized officer publishes a Notice
of Sale in a local newspaper and posts the notice at the county courthouse and at a post office
near the land involved ....” Under .43B, “Impounded livestock may be turned over to the State
for disposal if the State has estray or similar laws which permit disposal of such livestock, and
an agreement exists which allows the BLM to recover damages and costs incurred ....”
regulations or they may be subject to liability.49 As a general rule, state and local law
must also be followed, although there could be circumstances when that might not be
49In Hatahley v. United States, 351 U.S. 173 (1956), the Supreme Court found federal range
agents liable under the Federal Tort Claims Act for disposing of Indian horses without giving
proper notice. The Court, at 181, found a narrow area of liability in which “a government
agent can act beyond his actual authority and yet within the scope of his employment.” Under
the pre-FLPMA regulations (43 C.F.C. § 161.1 et seq.) in effect in 1956, a range manager
could either proceed “under local impoundment law and procedure, if practicable; otherwise
he may refer the matter through the usual channels for appropriate legal action by the United
States against the violator.” The Court viewed the notice required by the federal regulations
as a condition precedent to taking further action.