Published November 9th, 2020 by Budd-Falen Law Offices, L.L.C.
Introduction. Dealing with the federal government, or any federal agency, can be stressful, time-consuming, and frustrating, and grazing permits managed by the BLM are no different. Grazing permittees are often unaware of their rights and responsibilities in grazing livestock on the public lands. In order to relieve some of that burden, this article attempts to provide a brief introduction to BLM grazing permits and some helpful advice. Grazing permits managed by the Forest Service are not addressed in this article.
Eligibility. To qualify for grazing use on the public lands an applicant must own or control base property and must be a citizen of the United States. A corporation authorized to conduct business in the state in which the grazing use is sought may also qualify for a grazing permit. Base property is simply land that is capable of being used in conjunction with a livestock operation which utilizes public lands. Base property does not have to be contiguous with the public lands. If a permittee loses ownership or control of all or part of the base property, the permit, to the extent it was based upon such lost property, shall terminate immediately without further notice from the BLM. Consequently, it is imperative that permittees keep track of their base property and refrain from selling it or subdividing it.
Terms and Conditions. Grazing permits include a variety of terms and conditions. Terms and conditions are requirements that permittees must comply with in order to keep their grazing permits. It is important that permittees routinely read and understand the fine print of their permit to make absolutely certain they do not accidentally commit an offense that may be grounds to suspend or cancel their permit.
The most basic terms and conditions relate to the placement of livestock on public lands, including the name or location of the grazing allotment; the number, kind, and class of livestock being grazed; and the season of use for grazing. It is unlawful to graze livestock on public lands in a time or place not authorized by the permit. Common situations that oftentimes result in suspension or cancellation of a permit include allowing livestock to trespass on other grazing allotments, grazing livestock in the wrong pasture, grazing livestock too early, grazing livestock past the removal date, and grazing too many livestock. Permittees should take care to comply with the basic terms and conditions of their permit, or receive permission from government personnel if they desire to do something not authorized by their permit. Livestock grazing use that is different from that authorized by a permit must be applied for prior to the grazing period and must be filed with and approved by the BLM before grazing use can be made.
Permittees are also subject to the terms and conditions of an allotment management plan, if such a plan has been approved. Allotment management plans often implement grazing rotation schedules, pasture schedules, and movement criteria based on resource conditions or monitoring. Permittees are responsible for knowing the terms and conditions set forth in allotment management plans and are responsible for the management of all livestock authorized to graze pursuant to their permit.
Finally, there are fees charged for grazing use. Billing notices are issued which specify fees due. Grazing fee payments are due on the date specified on the billing notice and must be paid in full within fifteen days of the due date, except as otherwise provided in the grazing permit. If payment is not made within that time frame, a late fee will be assessed. Grazing use cannot be authorized during any period of delinquency in the payment of amounts due, including settlement for unauthorized use.
Monitoring. Every grazing permit contains a timeframe by which all livestock must be removed from the public lands, or a timeframe by which livestock must be moved to the next pasture in the rotation. However, despite an explicit deadline, federal rules and regulations oftentimes require livestock to be moved or removed based on specific resource conditions or monitoring. For example, a permit may require that livestock be moved or removed when fifty-percent of the vegetation within the pasture has been grazed. This is referred to as “utilization.” Utilization refers to the amount of plant material that has been removed by animals during the grazing period. It can be based on either individual plants, key species, or an assessment of the entire management unit. However, most commonly the current year’s production of accessible forage plants is considered when assessing utilization.
The BLM will conduct occasional monitoring to determine when utilization or other requirements have been met. Nevertheless, permittees are required to know these standards and move or remove their livestock at the appropriate time. Determining when utilization standards have been met can be complicated. It is recommended that permittees not only leave to conduct monitoring themselves, but also hire a private rangeland consultant to assist them. Even though hiring a private consultant may threaten an already tight budget, a private consultant may help a permittee conduct their operation more efficiently and avoid costly disagreements with federal personnel.
There are also a variety of things a permittee can do to help themselves if they cannot afford to hire a private consultant. In the modern world, virtually every person carries a camera and electronic organizer in their own pocket. Permittees should become accustomed to taking photographs and notes. And unlike the days of old, a person can take literally hundreds or thousands of photographs without having to deliver rolls of film to the local pharmacy. Simply stated, there is no reason why permittees should not document anything and everything that occurs on their allotments, as such information may become useful later if the government or a third-party challenges resource conditions or grazing practices. Photographs of fields of green, tall grass will counter allegations of drought or overgrazed pastures. Permittees should also take photographs of anything out of the ordinary, such as large herds of grazing wildlife, like deer or elk, or livestock trespassing from a neighboring allotment or private land.
Appeals. If the BLM issues an adverse decision against the permittee, the permittee has a right to appeal the decision to an administrative law judge. Even though the administrative law judge is employed by the Department of the Interior, they are considered a separate agency from the BLM and are non-biased, independent judges. Permittees only have thirty days to appeal from an adverse decision. Typically, permittees have the right to an evidentiary hearing, meaning they may call witnesses and experts, cross-examine the BLM’s witnesses, and present evidence. A decision issued by the administrative law judge may be appealed to the Interior Board of Land Appeals based in Washington, D.C.
It is noteworthy that interested third parties, such as environmental organizations, also have the right to appeal BLM decisions. In such case, the permittee may “intervene” in that appeal and provide a separate defense of the BLM’s decision under appeal. A permittee who intervenes may participate in any hearing and present their own evidence and witnesses. Also, an intervenor may appeal a decision from the administrative law judge to the Interior Board of Land Appeals. Permittees should not necessarily assume that government personnel will defend their own decisions, as oftentimes it is more expedient for the government to negotiate a settlement than see the appeal through to the end. By intervening, a permittee is more involved and can attempt to thwart any potential settlement to which it disagrees.
Trespass. Accusations of trespass are a troublesome part of life for a grazing permittee. If a permittee is accused of trespass, the BLM has the burden of proving its case. The BLM is obligated to prove when the trespass occurred, that the trespass occurred on public lands and not private lands, the number of livestock involved in the trespass, and that the livestock belonged to the permittee. Permittees should be mindful not to accidentally admit or confess to any of these parts of a trespass. Sometimes the BLM assumes that a trespass occurred, when in fact it has no evidence to support such a claim or has no evidence as to who is at fault.
Further, trespass is divided into two categories: willful versus non-willful. Willful means the trespass was done intentionally, or perhaps recklessly. Non-willful, on the other hand, means the trespass was not the permittee’s fault. Permittees should generally attempt to settle allegations of trespass by agreeing that the trespass was non-willful. Fines for non-willful trespasses are much smaller than fines for willful trespass. Also, a record of non-willful trespasses generally have no lasting impact on the permittee’s record of performance. Repeated instances of willful trespasses may result in cancellation of a grazing permit.
Conclusion. This article was only meant to provide a broad, generalized summary of BLM grazing permits. Permittees seeking guidance are encouraged to seek advice from lawyers with experience in these matters and familiarity with the BLM’s rules and regulations.
Brandon L. Jensen
Falen Law Offices, LLC
 Brandon L. Jensen is an Attorney with Falen Law Offices, LLC with a primary focus on property rights, environmental, and natural resources law. Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Idaho, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming. This article should not be understood to state or imply that any lawyers of this law firm are certified as specialists in a particular field of law. Colorado does not certify lawyers as specialists in any field. The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This article is informational and is not legal advice. Use of this article or contact with this law firm does not create an attorney-client relationship.
March 2nd, 2021Standing Up for Rural Constituents
February 18th, 2021BUYING A RANCH? HERE’S WHAT YOU NEED TO KNOW.
January 18th, 2021News Archive