Published November 20th, 2020 by Budd-Falen Law Offices, L.L.C.
The U.S. Forest Service has managed livestock grazing on national forests and national grasslands for over a century. 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 Forest Service’s grazing management authority, along with some bits of advice garnered from experience. Grazing permits managed by the BLM are not addressed in this article.
Eligibility for a Grazing Permit. Only citizens of the United States are eligible for a grazing permit. Legal entities, such as corporations or partnerships, are also eligible, but U.S. citizens must own at least eighty-percent of the stock of the corporation.
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 (i.e., the name or location of the grazing allotment); the number, kind, and class of livestock being grazed; and the season of use for grazing. Typically, grazing permits are issued for a term of ten years and may be renewed thereafter, albeit with the potential for new and potentially adverse terms.
Importantly, the permit will also contain language stating that the permit may be cancelled or suspended, in whole or in part, for failure to comply with its terms and conditions, Forest Service regulations, or annual operating instructions issued by the local ranger. 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.
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. A permittee must own both the livestock to be grazed and “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 ninety-percent of the livestock designated in the permit. 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 also precludes an operator from transferring the permit, as described below.
Transferring a Grazing Permit. Subleasing a Forest Service grazing permit is expressly prohibited. 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 back to the government 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.
There are some exceptions to these rules, but 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, such as 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 be a cancelled permit.
Suspending or Cancelling a Grazing Permit. As stated above, the permit will also contain language stating that the permit may be cancelled or suspended, in whole or in part, for a variety of reasons. A permit may be suspended or cancelled for making a false statement on the application, failing to comply with the terms and conditions of the permit itself, or for failing to comply with state or federal laws relating to livestock control, protection of air, water, soil and vegetation, fish and wildlife, and other environmental values. Common situations that oftentimes result in suspension or cancellation of a permit include allowing livestock to trespass on other grazing allotments, grazing livestock past the removal date, grazing too many livestock, and committing fish and game violations on forest service lands. Permittees would be advised to contact government personnel before trapping wolves or shooting bears which may be harassing or threatening the permittee’s livestock. Unintentionally violating wildlife laws may result in severe consequences from the Forest Service, especially if threatened or endangered species are involved.
Drought. The Forest Service may require a permittee to defer placing livestock on an allotment at the beginning of the season if the forage is not ready to be grazed. Similarly, the Forest Service may also require a permittee to remove livestock from the allotment before the end of the season if the available forage has already been consumed or to prevent damage to the lands in the event of a drought. Such decisions can be appealed, as discussed below, but permittees should obtain the services of a private rangeland consultant to dispute the claims of agency personnel regarding resource conditions.
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 appeal 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. If the appeal is likewise unfavorable, only then may one seek judicial review in federal court. Bear in mind, that a Forest Service appeal is conducted entirely on paper: there is no trial, no witnesses, no testimony, and no jury.
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. 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.
Conclusion. This article was only meant to provide a broad, generalized summary of Forest Service grazing permits. Permittees seeking guidance are encouraged to seek advice from lawyers with experience in these matters and familiarity with the Forest Service’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.
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