Published April 1st, 2019 by Budd-Falen Law Offices, L.L.C.
Brian Gregg Sheldon – Falen Law Offices, LLC
The U.S. Forest Service has managed livestock grazing on its portion of the public lands for over a century. Despite this long history, the agency’s actual guidelines for day-to-day management of a public lands’ livestock operation remain somewhat obscure to the average person. The process for acquiring, transferring, and appealing permits and permit-related decisions may seem a bit mystifying — particularly for an operator who is more familiar with the system used by the Bureau of Land Management. This article aims to give a short overview of the practical operation of the Forest Service’s grazing management authority, along with some lessons garnered from experience.
Anatomy of a Grazing Permit. Every Forest Service grazing permit is based on a standard form. It will state: the permittee’s contact information; a description of the range being grazed (e.g., a map of relevant public and private land); the number, kind, and class of livestock being grazed; the period of use for grazing; and the grazing allotment(s) with which the permit will be associated. Typically, grazing permits are issued for terms of ten years and may be renewed thereafter, albeit with the potential for new and potentially adverse terms.
Significantly, the permit will also contain language stating that the permit may be cancelled or suspended, in whole or in part, for failure to abide by the terms and conditions of the permit and/or for failure to abide by any applicable laws, regulations, or instructions of the Forest Service. This includes penalties for making false statements to the agency, and for violating environmental or wildlife laws. Relatedly, operators should take care that some activity authorized by a state permit of some sort (e.g., a hunting license) does not interfere with federal laws and regulations such as the Endangered Species Act. For example, while it may be perfectly legal to obtain a license to trap coyotes that are harming your livestock, the traps you set for the coyotes could inadvertently trap and injure a wolf (or some other listed species). Even though your trap was otherwise lawful and any impact to the wolf was accidental, you could still face legal penalties for violating the Endangered Species Act, including adverse consequences to your grazing permit.
Obtaining a Grazing Permit. To apply for a term grazing permit from the Forest Service, a would-be permittee must meet a number of qualifications. Of primary concern here is the requirement that a permittee own both the livestock to be grazed and the “base property” associated with a specific federal grazing allotment. While simple in concept, this qualification requirement can present a headache for a permittee because it prevents leasing livestock or land or dividing ownership of same between different persons and/or corporate entities — a notable difference from the Bureau of Land Management’s permits. Moreover, if a permittee disposes of all or a portion of the land or livestock in question, the permit may be subject to cancellation.
Furthermore, every operator should be aware of the requirement to “validate” a grazing permit. Validation consists of a Forest Service employee personally verifying that the permittee has turned out at least 90% of the livestock designated in the permit on the relevant allotment. The validation process need only occur once. While validation may sound like a formality, it is nonetheless a crucial one – failure to validate one’s permit renders it subject to cancellation. Moreover, failure to validate a permit precludes an operator from transferring the permit, as described below.
Transferring a Grazing Permit. Transferring a Forest Service permit can be difficult because the transfer process is intertwined with the qualification requirements described above.
Strictly speaking, a permit is not transferred between two different parties. Instead, the original permittee “waives” his or her permit via a standard waiver form and, if the Forest Service accepts this waiver, issues a new permit to the new permittee for the remainder of the term period. Waiver forms will generally be approved provided the new permittee is qualified and the prior permit was validated to begin with. However, the approval of the new permit is conditioned on the new permittee purchasing the livestock and base property of the previous permittee. If the new permittee purchases both the land and the livestock from the previous permittee, this presents no problem. However, issues can arise when the would-be new permittee acquires only the previous owner’s livestock or the base property, but not both.
According to the Forest Service Handbook on grazing, if the party purchases only the base property, the operator will need to have the new herd of livestock ready to graze with proof of ownership and branding information ready. Any livestock associated with the previous permit must be removed and the new herd put on within 30 days of the execution of the waiver form.
Conversely, the Handbook states that if the party purchases only the previous owner’s livestock, they must obtain the required amount of property necessary to support the permit. This may require re-designating nearby private land as the base property associated with the permit, which is a separate process that the Forest Service may, within its discretion, not approve. Moreover, livestock purchased as part of a permit must be the same livestock that were permitted at the time of the purchase.
In addition, operators should be wary of entering into any “buy-back” agreements – both with livestock and with base property. Livestock that has previously grazed on Forest Service land may not be resold to the original owner within two years of the purchase without prior approval of the Forest Supervisor. Similarly, base property purchased from a permittee in connection with issuance of a new permit must not be transferred back to the original owner within two years of the purchase without prior approval. Violation of the “two-year” rule may result in a cancellation of the permit.
Operators should be aware that all the above-mentioned requirements for qualifying for and transferring permits are strictly enforced by the Forest Service. The Forest Service has “seen it all” when it comes to creative attempts to finagle base property or livestock ownership, and any attempt to circumvent these requirements will dealt with harshly by the agency. While certain isolated exceptions exist — e.g., for foreclosed mortgages and “escrow” waivers, as well as the possibility of obtaining a conditional one-year permit if base property or livestock requirements are not met through no personal fault of the permittee — the end result of trying to bend the rules may well be a cancelled permit.
Appealing an Unfavorable Decision. If your permit or transfer application is denied, or if your permit is renewed with unfavorable terms, it may be necessary to appeal the decision. Unfortunately, those operators who are familiar with the Bureau of Land Management’s appellate procedures will find that the Forest Service does things differently. Comparatively speaking, there are fewer due process rights available to an appellant. Pursuant to the Forest Service’s grazing regulations the Forest Service appeals process typically consists of a single appeal to the Forest Supervisor (assuming the original decision was issued by a District Ranger), although a higher-level “discretionary review” is sometimes available in rare instances involving large-scale land management decisions. If the appeal is likewise unfavorable, then one may seek judicial review in federal court.
Based on our experience with Forest Service appeals, a couple of points are worth bearing in mind. First, an operator should be aware that the Forest Service has very strict formal requirements for its appeals and is known to reject appeals for not following formatting guidelines. This is why seeking legal assistance in the preparation of your appeal is often a good idea. Second, if you are appealing a decision to cancel or to not renew a permit based on resource conditions and/or grazing practices, it is strongly recommended that you obtain the services of a rangeland consultant to provide a technical basis to ground your appeal and rebut any claims by the agency. This is especially true if your appeal reaches the level of “post-decisional” agency review or judicial review in federal court, as you will face an uphill battle owing to inherently deferential standards of review in each instance.
Conclusion. The Forest Service’s grazing management authority is highly discretionary. Any applicant must own both the base property and livestock to qualify for the permit and must properly validate the permit before seeking to transfer it via waiver. Special care must be given when acquiring a permit via waiver so that base property and livestock requirements are met – particularly if new livestock or new base property will be designated. Permittees must be transparent about their operational structure to avoid penalties from the agency. Finally, while a permittee is allowed an administrative appeal of any adverse decision, the technical difficulty inherent in this administrative proceeding means it is a good idea to seek the help of legal counsel and rangeland consultants before filing your appeal.
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