Grazing Regulations: Changes by the Bureau of Land Management

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The Bureau of Land Management (BLM) issued changes to grazing regulations (43 C.F.R. Part
4100) on August 11, 2006, after a three year review. Some portions of the regulations have been
enjoined. The previous major revision of grazing rules, which took effect in 1995, was highly
controversial. The 2006 changes addressed many of the same issues, and received mixed reviews.
BLM asserted that the 2006 changes were needed to increase flexibility for grazing managers and
permittees, to improve rangeland management and grazing permit administration, to promote
conservation, and to comply with court decisions. Critics contend that a need for change was not
justified and that changes adopted removed important environmental protections and
opportunities for public comment.
Under the 2006 changes, the BLM and a permittee could share title to structural range
improvements, such as a fence. Permittees could acquire water rights for grazing, consistent with
state law. The occasions on which BLM would be required to get input from the public on grazing
decisions were reduced. The administrative appeals process on grazing decisions was modified
and the extent to which grazing could continue in the face of an appeal or stay of a decision was
delineated. The definition of grazing preference was broadened to include a quantitative
meaning—forage on public land. Changes were made to the timeframe and procedures for
changing grazing management after a determination that grazing is a significant factor in failing
to achieve rangeland health standards. The three-year limit on temporary nonuse of a permit was
removed, and permittees are able to apply for nonuse of a permit for up to one year at a time.
Conservation use grazing permits were eliminated. Changes that have been enjoined relate
primarily to public participation, sharing title to range improvements, and fundamentals of
rangeland health. BLM also considered, but did not propose, certain changes due to adverse
public reaction or other considerations.
On June 17, 2005, BLM had issued a final environmental impact statement (FEIS) analyzing the
potential impact of proposed changes in the regulations, an alternative, and the status quo. On
March 31, 2006, BLM published an addendum to the FEIS addressing public comment received
after the closing date of March 2, 2004, primarily from the Fish and Wildlife Service. Final
regulatory changes took effect August 11, 2006.
BLM also considered, but did not make, changes to its grazing policies, which the agency had
believed could be carried out under existing rules. Potential changes that were examined included
the establishment of reserve common allotments to serve as backup forage when permittees’
regular allotments are unavailable; conservation partnerships between the BLM and permittees
whereby permittees work to improve environmental health in return for certain benefits;
voluntary allotment restructuring to allow multiple permittees to merge allotments; conservation
easement acquisition to preserve open space; and landscape habitat improvement to promote
species conservation and facilitate consultations under the Endangered Species Act.

Histor y ............................................................................................................................................. 1
Recent Efforts to Change Grazing Rules and Policies....................................................................2
Overview of Regulatory Process...............................................................................................3
Changes to Grazing Regulations...............................................................................................5
Share Title to Range Improvements....................................................................................6
Acquire Private Water Rights..............................................................................................6
Reduce Requirements for Public Involvement...................................................................6
Modify the Administrative Appeals Process.......................................................................7
Broaden the Definition of Grazing Preference...................................................................7
Remedy Rangeland Health Problems.................................................................................7
Remove Limit on Permit Nonuse.......................................................................................8
Eliminate Conservation Use Grazing Permits....................................................................8
Other Changes.....................................................................................................................8
Liti ga tion ............................................................................................................................. 9
Changes Not Proposed........................................................................................................9
Overview of Grazing Policy Process......................................................................................10
Grazing Policy Changes Considered........................................................................................11
Reserve Common Allotments (RCAs)...............................................................................11
Conservation Partnerships.................................................................................................11
Voluntary Allotment Restructuring...................................................................................12
Conservation Easements...................................................................................................12
Endangered Species Act Mitigation..................................................................................12
Conclusion ..................................................................................................................................... 12
Author Contact Information..........................................................................................................13

On August 11, 2006, revised grazing regulations of the Bureau of Land Management (BLM) took ¹²
effect (43 C.F.R. Part 4100). Some of the regulations have been enjoined. The agency also
considered related policy changes, but it appears that policy changes are no longer being
considered. The previous revision of grazing regulations culminated in comprehensive changes
effective August 21, 1995. The 1995 changes were the result of a several-year process of
evaluating ideas and shaping alternatives, and occurred in the midst of a decades-long dispute
over the ownership, management, and use of federal rangelands.
The 1995 changes were highly controversial, with criticism from many ranching interests that
those new rules weakened grazing privileges and would reduce livestock grazing on federal lands,
and from environmental organizations that the changes did not go far enough in protecting public
lands. Supporters saw the changes as improving resource and range management and broadening
participation in public land decisionmaking. Congress considered many of the 1995 changes as
part of legislative proposals or committee oversight. Congress also has examined the
development of the 2006 regulatory changes and related policy options through committee
oversight.
Among the changes made in 1995, many of which were reexamined by BLM during the
development of the 2006 regulatory changes, are those that:
• separated grazing preference from permitted use, so that a permittee’s³ preference
for receiving a grazing permit was not tied to a specific amount of grazing based ⁴
on historic levels (described as Animal Unit Months, or AUMs);
• allowed permittees up to three years of nonuse of their permits;
• authorized suspending or canceling a permit if a permittee is convicted of
violating certain state or federal environmental laws;
• eliminated the express requirement that a permittee be engaged in the livestock
business;
• replaced the term affected interest with interested public;
• allowed conservation use for the term of a grazing permit, thereby excluding
livestock grazing from all or a portion of an allotment;
• required title of permanent structural improvements to be held in the name of the
United States;
• required that water rights for livestock grazing be held in the name of the United
States, to the extent allowed by state law;

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• imposed a surcharge on a permittee who allows livestock not owned by the
permittee or the permittee’s children to graze on public land;
• eliminated Grazing Advisory Boards and replaced them with the broader interest
Resource Advisory Councils; and
• adopted rangeland management standards called Fundamentals of Rangeland
Health.
In issuing these changes, the Secretary of the Interior dropped the most contentious proposal—to ⁵
increase the grazing fee—due to the rancor this issue generated. However, dissatisfaction with
the 1995 changes among ranching interests led to a lawsuit ultimately decided by the U.S. ⁶
Supreme Court. The regulations, challenged on their face, were upheld by the courts as not
exceeding the authority of the Secretary, with one exception. The court struck down the rule
pertaining to conservation use for the term of a permit on the grounds that a grazing permit was
for grazing and the Secretary could more appropriately accomplish conservation use through the
land use planning process.

BLM took a two-pronged approach to the 2003-2006 iteration of grazing reform on public lands,
by issuing changes to grazing regulations and considering changes to grazing policies. Under this
Sustaining Working Landscapes initiative, first announced in March 2003, BLM sought to create
working landscapes that are both economically productive and environmentally healthy. Changes
to grazing regulations and/or policies could affect more than 18,000 grazing permits on 162
million acres of BLM land. The specific regulatory changes that were adopted and the policy
alternatives that were considered are discussed under separate headings below.
Conflict over livestock grazing on public lands has become common. Critics of the latest reform
effort asserted that the 1995 regulations were not in effect long enough to assess their
effectiveness and that the policy issues were too vague to assess their potential effects. They also
contended that BLM had not justified a need for regulatory and policy changes and that the
changes adopted remove important environmental protections and opportunities for public
comment. One concern voiced by environmentalists was that the changes would require more
monitoring than would be feasible, thus possibly preventing changes in grazing practices. Another
was that BLM and the Forest Service did not develop joint rules, advocated because many BLM
and Forest Service lands are similar and adjoining and permittees often have permits for livestock
grazing on both agencies’ lands. There was also some disappointment among environmentalists
that the reform effort did not encompass certain important issues such as altering grazing fees,
controlling noxious weeds, retiring grazing permits, and establishing processes for identifying
lands suitable for grazing.
Regulatory changes have been supported by some livestock organizations and range professionals
as helping both ranchers and the range. BLM asserted that regulatory changes were needed to

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increase flexibility for grazing managers and permittees, to improve BLM’s relationship with
ranchers, to improve rangeland management and permit administration, to promote conservation,
and to comply with court decisions. According to the agency, the changes are based on lessons
learned in implementing the 1995 regulations and thus improve upon those earlier regulations.
Further, the final rule recognizes the benefits of grazing, including the economic and social
benefits to rural communities and the preservation of open space, according to BLM.
BLM proposed changes to its grazing regulations on December 8, 2003 (68 Fed. Reg. 68451),
and on January 2, 2004, issued a draft environmental impact statement (DEIS) analyzing the
potential impact of the proposed changes. The DEIS also assessed the impacts of a slightly
different alternative and of keeping the existing grazing rules. Prior to proposing the changes,
BLM reviewed more than 8,000 public comments on regulatory issues that were submitted in
response to a March 3, 2003 advanced notice of proposed rulemaking.
In late January and early February of 2004, BLM held public meetings in the West and in
Washington, DC, to gather public comments on the regulatory proposal and DEIS. The proposal
and DEIS were open for public comment through March 2, 2004, during which time the agency
received more than 18,000 comments. The BLM considered these comments, and on June 17,

2005, issued a final environmental impact statement (FEIS) on proposed changes and ⁷

alternatives.
The proposed revisions in the FEIS met with mixed reaction, like those in the earlier DEIS. A
number of the key proposals, which were adopted, are discussed under “Changes to Grazing
Regulations” below. With regard to the environmental effects of the preferred alternative, the
FEIS stated (p. ES-5) that “most of the proposed regulatory changes have little or no adverse
effects on the human environment. Some short-term adverse effects may not be avoided because
of increases in timeframes associated with several components of this proposed rulemaking.”
This statement fueled concerns among environmentalists that the proposed changes could
eliminate public land protections and lead to unsustainable grazing practices. The FEIS stated that
to minimize the potential for adverse affects in the short-term, the BLM could “curtail grazing if
resources on the public lands require immediate protection or if continued grazing use poses an
imminent likelihood of significant resource damage.” Further, the BLM asserted that the long-
term outcome of the proposed changes would be better and more sustainable grazing decisions,
and that the changes “would be beneficial to rangeland health.”
A particular controversy surfaced over assertions by two members of the draft EIS team, a BLM
hydrologist and a BLM biologist (both now retired), that their scientific conclusions were
reversed by BLM because they did not support the new rules. Those conclusions apparently had
asserted that the proposed new rules could harm water quality and wildlife, including endangered
species. A BLM official is reported to have called the changes to the views of the two scientists a ⁸
part of the standard editing and review process. Further, a statement by the BLM contended that
the EIS team found their work to be “seriously lacking in the quality expected from each
contributor to the environmental impact analysis.” The statement alleged that the conclusions of

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the two team members were “based on personal opinion and unsubstantiated assertions rather
than sound environmental analysis. As a result, the work submitted by the two former BLM ⁹
employees was rewritten.”
BLM initially intended to publish a final grazing rule in the Federal Register in July 2005, with
an effective date in August 2005. However, on August 9, 2005, BLM announced its intent to
prepare a supplement to the FEIS. The delay was intended to allow the agency to address public
comment received after the comment period ended on March 2, 2004, primarily the views of the
Fish and Wildlife Service (FWS). On March 31, 2006, BLM issued an addendum to the FEIS that
addressed the FWS and other public comment and made relatively minor changes to its proposed ¹⁰
rules.
In its comment to the BLM, the FWS asserted that the proposed changes would “fundamentally
change the way BLM lands are managed temporally, spatially, and philosophically. These ¹¹
changes could have profound impacts on wildlife resources.” The FWS expressed overall
concern that the proposed revisions would make grazing a priority over other land uses, which
could be detrimental to fish and wildlife habitats and populations, for instance, management of
sage-grouse habitat. The agency further contended that the proposed changes could “constrain
biologists and range conservationists from recommending and implementing management
changes based on their best professional judgment in response to conditions that may compromise ¹²
the long-term health and sustainability of rangeland resources.”
In its addendum, BLM disagreed with the FWS assertion that the proposed rule would
fundamentally change BLM management of rangelands and that there could be profound impacts
on wildlife. BLM contended that the changes are primarily administrative and do not secure the
dominance of grazing over other land uses. BLM also rejected the assertion that its proposals
would constrain specialists from recommending changes, noting that changes can be made
through varied means, including modification of the terms and conditions of grazing permits.
While supporting some of the proposed grazing changes, the FWS identified a number of areas of
particular concern. They included potential effects of administrative inconsistencies between
BLM and the Forest Service on their management of fish and wildlife resources across ¹³
boundaries; diminished requirements for public consultation on site-specific actions, which have
the greatest potential for impacts to fish and wildlife; a phase-in of decreases (or increases) in
livestock use that are greater than 10%, which may not be immediate enough to prevent
irreversible harm to vegetation and wildlife; including a quantity of forage in the definition of ¹⁴
grazing preference, which may not account for other range attributes; allowing shared title to

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range improvements, which could make it more difficult to reallocate land use, such as to provide
quality habitat for wildlife; sharing of water rights, as water is the most important resource for
fish and wildlife; and requiring monitoring of rangeland standards, which has not been achievable
due to BLM funding and staffing limitations.
In response, BLM stated in its addendum that while it will coordinate with the Forest Service,
consistency of grazing regulations is not necessary and inconsistencies stem from the agencies’
different statutory requirements. With regard to diminished public consultation, BLM responded
that most if not all of the site-specific actions on grazing allotments that would affect fish and
wildlife are included in allotment management planning and the planning of range improvements.
Such planning requires public consultation. While the phase-in of reduced livestock use may
affect special status species outside those federally listed, any adverse effects are expected to be
limited to few grazing allotments, according to BLM. Changes can be made in a shorter time
period or even immediately; for instance, to protect sensitive species or other resources. Further, a
permittee’s preference does not necessarily have the highest priority in evaluating possible uses of
available vegetation, and shared title to range improvements does not diminish BLM’s ability to
redirect or reallocate land uses. With regard to sharing of water rights, BLM stated that water will
benefit multiple uses and that rights for wildlife (and other uses) will usually be held in the name
of the United States. The BLM does not anticipate that monitoring will overwhelm its capacity, in
part because only about 15% of allotments evaluated were not meeting land health standards, due
in significant part to livestock grazing.
Final grazing regulations were published on July 12, 2006, and took effect on August 11, 2006.
The regulatory changes are summarized in the following section. Some of these changes have
been enjoined, as described below in the “Litigation” section.
BLM had asserted that some of the regulatory changes would be substantive while others were
clarifications, but it was not clear which changes the agency believed would fall within each
category. This added to the uncertainty over which proposals were intended to, and likely to,
make major changes in public lands grazing. There had been a difference of opinion as to the
extent to which the regulatory effort should reinstate pre-1995 grazing provisions or substantially
modify other provisions of regulations. There continues to be disagreement as to the extent of the
environmental impact of the final changes and whether that impact would be primarily beneficial
or damaging in both the short- and long-terms.
Some of the key changes in the new regulations involve ownership of range improvements and
water rights, and opportunities for public input and appeals. Other changes pertain to terms and
conditions of permits and rangeland health. These areas were among the most controversial
among affected interests. These and some of the other key regulatory changes are discussed
below.

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The regulations reestablish a pre-1995 rule whereby title to a structural range improvement, such
as a fence, well, or pipeline, is to be shared by the BLM and a permittee (or others) if it is
constructed under a Cooperative Range Improvement Agreement. Title would be shared in
proportion to each party’s contribution to the cost of the improvement. The regulations also
continue to require documentation of a permittee’s contributions to improvements and
compensation if a permit is cancelled or passes to another. However, some advocated that
ranchers should receive more direct compensation for improvements, would be encouraged to
undertake and maintain improvements if they get title, and should be able to include
improvements as assets to secure loans for grazing. Opponents charged that shared title would
create private rights on public land and could hinder action to correct grazing abuses. They
contended that the government should hold title to improvements as they typically are important
for other uses, such as recreation and wildlife habitat. Still others believed that improvements for
grazing do not necessarily benefit other land uses, and thus permittees should not be rewarded
with title.
The new regulations allow permittees to acquire water rights, consistent with state law. Previous
rules required the federal government to follow state procedural and substantive law regarding
livestock watering rights, but directed that title to the rights be held by the United States to the
extent state law permitted. Before 1995, practices as to water rights for livestock grazing varied
and in some states could be acquired in the name of the permittee. Language allowing private
individuals to hold water rights was supported by some as providing an incentive for private
water development on public land, and protecting permittees from being denied water. It was
opposed by others who believed water rights should be in federal ownership to facilitate multiple
uses and to preclude private claims for compensation for water rights, and because states typically
do not allow grazing permittees on state lands to obtain water rights. Still others were concerned
that public resources will be given away at no cost.
BLM reduced the occasions on which it is required to involve the public in its decisions. For
instance, the agency is no longer required to get input from the public regarding designation and
adjustment of grazing allotment boundaries, the issuance or renewal of grazing permits, or
modification of the terms and conditions of permits that are not meeting management objectives
or the fundamentals of rangeland health. The agency also modified the definition of “interested
public” so that only individuals, groups, and organizations who participate in the decisionmaking
process on management of a specific allotment are maintained on the list of interested publics.
Supporters maintained that the changes would prevent delays and facilitate timely decisions.
Also, the agency viewed additional consultation as redundant, because the public already has
opportunities to participate during the planning processes and reviews under the National ¹⁵
Environmental Policy Act of 1969 (NEPA). The changes were criticized as restricting public
input which could lead to ill-considered decisions. They were further opposed on the grounds that
decisions at the planning level are too general and broad to allow specific evaluation and

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comment. Still others contended that environmental reviews under NEPA are not required for
some grazing decisions and where required are backlogged, and as a result public participation
under NEPA often is delayed.
The agency modified the administrative appeals process on grazing decisions and defined the
extent to which grazing should continue in the face of an appeal or stay of a decision. For
instance, the new rule provides that when a stay is granted on appeals to decisions involving
renewing, modifying, suspending, or canceling a permit or on transferring preference, the affected
permittee usually would continue grazing under the immediately preceding grazing authorization.
The changes were sought to provide permittees with continuity of operations when a decision
affecting their operations is appealed. They were opposed by some as limiting the ability of the
public to participate in grazing decisions, reducing the flexibility of land managers to take certain
actions based on what is best for resource conditions, and potentially continuing damaging
grazing practices.
Another rule change broadened the definition of grazing preference to include a quantitative
meaning—forage on public lands, measured in AUMs—tied to a permittee’s base property of land
or water. The definition continues to include a qualitative meaning—a superior or priority
position to obtain a permit. The revised definition, which is similar to pre-1995 rule language,
was intended to link forage allocations to base property, give ranchers certainty as to the size of
operations, and eliminate confusion as to the meaning of preference. Further, preference includes
both active use, defined as use currently available for livestock grazing based on livestock
carrying capacity and resource conditions, and suspended use, which is use that has been
allocated for livestock grazing in the past but is currently unavailable. The new definition was
opposed as infringing on the discretion of land managers to determine the extent of grazing that
should be allowed.
The new rules require both assessments and monitoring of resource conditions to support agency
determinations that grazing practices or levels of use are significant factors in failing to achieve
rangeland health standards or conform with guidelines on an allotment. They amend the
timeframe and procedures for changing grazing management after a determination that grazing
practices or levels are significant factors in failing to achieve standards or conform with
guidelines. One change allows a maximum of 24 months, rather than the current 12-month limit,
for developing remedial changes in grazing practices. However, BLM could extend the deadline
if responsibilities of another agency prevent completion within 24 months. Further, a change
would phase in grazing increases or decreases of more than 10% over a five-year period, unless ¹⁶
the changes must be made sooner under law (e.g., the Endangered Species Act) or the permittee
agrees to a shorter period. BLM maintained that these changes would provide a sound basis for
agency determinations and give the agency more time and flexibility in working with permittees
who are not meeting the standards. For instance, by allowing permittees to make gradual

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reductions in grazing, adverse economic impacts would be minimized. The changes were opposed
as potentially allowing damaging practices to continue and requiring excessive documentation
even when damage is obvious. Opponents also claimed that BLM lacks staff and funds to collect
the necessary information formally.
The final rule removed the three-year limit on temporary nonuse of a permit by allowing
permittees to apply for nonuse of all or part of a permit for up to one year at a time, for as many
years as needed. The change was promoted as allowing for recovery of the land and providing
flexibility to ranchers who may not be able to graze for reasons including financial hardship,
drought, or overgrazing. Critics argued that the change did not address the underlying problem—
permitting grazing that exceeds the capacity of allotments. Others were concerned that
conservationists will obtain grazing permits and opt for extended nonuse. However, temporary
nonuse is allowed only if authorized by BLM and for no longer than one year at a time.
Regulations allowing BLM to issue long-term conservation use grazing permits were eliminated
to comply with court decisions that permits should be issued for grazing and that conservation
needs should be met through alternatives. Advocates of conservation use observed that the
practice allowed overgrazed land to be rested and that BLM should develop a legal alternative to
the conservation use language.
Other changes include:
• restricting BLM to taking action against a permittee convicted of breaking laws
while engaged in grazing only if the violation occurred on the permittee’s
allotment;
• emphasizing that reviews under NEPA will consider the social, economic, and
cultural impacts of proposed changes in grazing preference, in addition to the
ecological impacts;
• increasing administrative fees for livestock crossing permits, billings, and
preference transfers;
• providing that a biological assessment or evaluation by BLM under the ESA is
not an agency decision for purposes of protests and appeals;
• specifying that BLM will cooperate with state, tribal, local, and county grazing
boards in reviewing range improvements and allotment management plans on
public lands;
• stating that the temporary changes that BLM can make within the terms and
conditions of permits involve the number of livestock and period of use that
would result in temporary nonuse and/or forage removal; and

• requiring BLM to document observations supporting a reduction in grazing
intensity, and providing that reductions will be made through temporary
suspensions of active use rather than through permanent reductions.

Two lawsuits were filed to stop implementation of portions of the grazing regulations. Both cases
were filed in the U.S. District Court for the District of Idaho. Two different claims were made: ¹⁸
first, that the proposed regulations thwarted public participation, and second, that portions of the ¹⁹
regulations were adopted despite an inadequate review under NEPA. On August 11, 2006, the
district court ruled in favor of the plaintiffs in both lawsuits regarding the public comment ²⁰
disputes but rejected the other claims pertaining to NEPA. One of the two plaintiffs filed a ²¹
renewed motion addressing the NEPA claims. On September 25, 2006, the district court stayed ²²
other regulations based on the plaintiff’s NEPA claims. Those other regulations pertained to the
fundamentals of rangeland health, including standards and guidelines, and ownership of range
improvement.
Because of these lawsuits, BLM cannot use the 2006 regulations that were enjoined. Instead, the

1995 regulations apply in these areas. BLM issued an Instruction Memorandum to its field offices ²³

explaining BLM procedure as a result of the injunctions. An attachment to the memorandum ²⁴
shows what changes were made to the final regulations as a result of the injunctions.
BLM considered but did not propose many other changes to grazing regulations, according to the
proposed rule and FEIS. For instance, the agency considered adopting rule language to support
establishing and operating a new type of grazing unit, called a reserve common allotment, but did
not do so because of negative public reaction to the idea. The BLM also considered the issue of
forage reserves as part of its consideration of policy changes. (See below under “Grazing Policy
Changes Considered” for a discussion of reserve common allotments.) The agency also
considered allowing permit holders to temporarily lock gates on public lands, for instance to

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protect private property by preventing cattle from leaving grazing allotments and to minimize
disturbances during lambing and calving seasons. The idea was opposed as preventing access by
other land users, such as hunters and recreationists; giving a special privilege to permittees; and
being currently prohibited by law.
BLM also did not propose altering the existing provisions under which a grazing fee surcharge is
placed on permittees who allow livestock neither they nor their children own to graze on public
land. The current surcharge provision was incorporated in 1995 to address concerns regarding the
potential for a permittee to make a substantial profit when subleasing grazing privileges. BLM
asserted that the current surcharge provision is equitable and that it did not want to address fee-
related issues as part of the reform effort.
The BLM originally had expected to address final grazing policy changes when the rulemaking
process was “substantially completed,” according to the agency. However, it appears that policy
changes are no longer being actively considered because some policy issues were discussed
during the regulatory process and there are competing priorities and resources.
On March 25, 2003, BLM first announced possible grazing policy changes as a complement to ²⁵
the regulatory changes that were being considered. According to BLM, the focus was on policy
changes that could be carried out under existing rules. The agency was seeking policy reforms to
promote citizen stewardship of public lands, provide flexibility to managers of livestock grazing,
and increase innovative partnerships. Policy changes considered included conservation
partnerships, voluntary allotment restructuring, conservation easement acquisition, endangered ²⁶
species mitigation/landscape habitat improvement, and reserve common allotments (RCAs).
RCAs would serve as livestock forage for permittees while their normal allotments undergo rest
or improvements, and might be used for unplanned needs. BLM also examined the establishment
of RCAs as a regulatory change, but did not propose rule language in this area. Some had asserted
that other policy options under consideration might have necessitated the adoption of new rules,
which would require opportunities for public comment. The distinction between policies and
regulations is not always clear, and when an agency must take action through formal rulemaking ²⁷
can be an issue.
BLM solicited public feedback on the policy options it considered through a series of public
workshops. While some support for policy changes was expressed, many members of the public
asserted that available information was inadequate to assess the policy changes, raised concerns
about the outlined options, or viewed the initial schedule for considering policy and rules changes
as too short. In response, BLM announced that it had extended the timeframe for developing
policy changes, but did not issue a schedule for completing actions. The agency also developed
and published on its website more detailed information on RCAs, conservation partnerships, and

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voluntary allotment restructuring. It noted that conservation easements were no longer being
pursued as a major policy tool, and that the concept of endangered species mitigation had evolved
to the broader notion of landscape habitat improvement. As part of its consideration of policy ²⁸
reforms, BLM reviewed the advice and recommendations of its Resource Advisory Councils.
Key policy changes that had been considered are discussed below.
RCAs would be created to provide livestock forage to permittees whose allotments undergo rest
or improvements, and might be used when drought, fire, flood, or other unplanned needs make
normal allotments unusable. BLM asserted that existing regulations allow the creation of RCAs
but with impediments. RCAs were supported as encouraging improvements (such as prescribed
burning) and recovery from heavy grazing, and necessary in emergencies so that ranchers would
not have to reduce herd size or sell out for lack of forage. Conservationists were concerned that
this approach did not address what they view as the fundamental issue—overstocking or grazing
unsuitable lands—and that RCAs would benefit ranchers who mismanaged their allotments.
Livestock groups feared a reduction in grazing and loss of water rights through nonuse, coercion
to participate, and use of RCAs as a subterfuge for conservation use. Key issues for both
supporters and critics included how much land, and which lands, would become part of RCAs
(e.g., vacant allotments, areas of nonuse); what would trigger their use; their term; how many
permittees would be allowed to graze simultaneously; and how forage would be allocated.
The goal of conservation partnerships between permit holders and the BLM would be to improve
environmental health. A permittee could enter into a performance-based contract with BLM to
undertake projects to restore streambanks, wetlands, and riparian areas; enhance water quantity
and quality; improve wildlife or fisheries habitat; support the recovery of threatened or
endangered species; and other actions. In return, the permittee could receive management
flexibility, increased livestock grazing, and stewardship grants to pay for investments in
conservation practices. Advocates noted that these arrangements would give permittees credit for
improvements they have been making, encourage and reward good stewardship, and enhance the
role of permittees in managing grazing allotments. Opponents contended that private property
rights could be impaired, the amount of available funding was unclear, the extent of resource
improvement was uncertain, permittees might receive benefits for little or no resource
improvement, and partnerships may not be entirely voluntary. Differences of opinion existed as to
a role for third parties, rewards for permittees, and dealing with intermingled private land.

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Voluntary allotment restructuring would allow two or more grazing permittees to merge
allotments. One or more of the permittees would not graze temporarily, while the others grazed
over the entire area, to achieve lighter grazing. Such restructuring was supported as improving
range conditions while maintaining the economic viability of permittees. Concerns included that
restructuring would reduce grazing and could already occur informally, operator to operator.
Issues involved when restructuring would be used and whether and how to compensate ranchers
who give up grazing privileges.
Conservation easements—land use restrictions—were being considered to preserve open space.
Under this arrangement, BLM would place conservation easements on its land identified for
disposal. Permittees would similarly restrict development on their private land in exchange for
acquiring the BLM lands with the easements. These easements were advocated as benefitting the
land, land managers, and permittees. However, BLM subsequently asserted that because they are
limited in their ability to use conservation easements, such easements were not currently a major
policy option. Easements have been opposed as reducing land values, limiting the management
discretion of private landowners, not necessarily providing a public benefit, and encumbering
land disposal.
BLM viewed the policy options listed above as providing opportunities to mitigate the effects of
livestock grazing on species listed under the ESA. Mitigation banks also were contemplated to
preserve or create habitat for listed species in exchange for mitigation credits. Such credits could
be sold to other land users to offset the impacts of development on listed species. This idea raised
concerns among livestock groups that grazing would be subordinated to conservation and private
property rights could be weakened, and among environmentalists that permittees would be
compensated for something the BLM already is obligated to protect. This concept was later
considered as Landscape Habitat Improvement, to promote species conservation and facilitate
ESA consultations. Habitat management would be pursued on a landscape basis, perhaps
involving lands under various ownerships, which presumes a larger geographic area than a
grazing allotment. Grazing permittees could form partnerships to promote species conservation
and maintain or improve habitat while continuing to graze public lands.

BLM pursued grazing reform for more than three years after notifying the public in 2003 of its
consideration of changes under its Sustaining Working Landscapes initiative. During that time,
evaluations of possible regulatory and policy changes proceeded on separate tracks. Changes to
regulations became effective August 11, 2006, although some of the changes were subsequently
enjoined. No policy changes were made as a result of this effort, and it appears that there is no
longer an initiative to review and revise grazing policies.
Many of the key regulatory changes contained in the final rule deal with provisions that took
effect in 1995, during the previous revision of grazing rules. Among them are changes to allow

shared title to range improvements, allow private acquisition of water rights, reduce requirements
for public involvement, modify the administrative appeals process, broaden the definition of
grazing preference, change the timeframe and procedures for remedying rangeland health
problems, remove the limit on permit nonuse, and eliminate conservation use grazing permits.
The changes met with mixed reaction. The revisiting of issues dealt with a decade ago, together
with other changes, was generally supported by livestock organizations and some range
professionals who see benefits both to the range and those grazing on public land. By contrast,
many environmental organizations and other range experts opposed the changes on the grounds
that a need for change had not been demonstrated and the particular changes could harm the
environment.
Public comment on the proposed regulatory changes, together with the DEIS assessing their
impact, was accepted through March 2, 2004. BLM evaluated the comments over many months,
before publishing an FEIS on June 17, 2005. The agency postponed developing a final grazing
rule to consider public comment received after the closing date, particularly from the Fish and
Wildlife Service. The BLM addressed this comment in an addendum issued March 31, 2006.
Final grazing regulations were published on July 12, 2006, and took effect a month later. Some of
the new regulations are not being implemented as a result of lawsuits, primarily changes
regarding public participation, sharing title to range improvements, and fundamentals of
rangeland health.
BLM had expected to focus on final policy changes after the completion of the rulemaking
process, but it appears that policy changes are no longer under consideration. Public feedback on
possible policy changes had shaped the proposals that were examined and extended the timeframe
for considering changes. Key policy issues that were considered related to RCAs, conservation
partnerships, voluntary allotment restructuring, conservation easement acquisition, and landscape
habitat improvement.
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