A stark victory in Utah

 

In May 1989, Gene Nodine, head of the BLM's Moab, Utah, office, told Arizona law professor Joe Feller: "You don't know enough about this (public-land grazing) to question what we're doing."

In retrospect, that was a rash statement. For in December 1993, John Rampton, an administrative law judge for the Department of Interior, ruled that Nodine and his successor, present District Manager Roger Zortman, improperly managed the grazing program Nodine said Feller didn't understand.

The land in question is Comb Wash - five spectacular canyons adjacent to Grand Gulch in southern Utah. The judge found the BLM guilty not just of breaking federal law, but of not living up to its internal cowboy culture. On many if not most BLM allotments, the agency attempts to manage the public land as if it were a well-run private cattle ranch. But the judge ruled that the Moab BLM was not a very good rancher. He said the agency had allowed the land to be so heavily used that it doesn't even produce cattle forage as well as it could.

And if you evaluate the Bureau of Land Management by the laws that the Congress has passed, then the Moab office is not just a bad cowboy, but a felon.

No one will go to jail as a result of the ruling. Promotions in the agency will probably occur in the future as in the past. Even the grazing permittee - an Indian tribe - has only lost the right to graze off 200 or so AUMs of forage - less than $400 worth of forage that grows in canyons rich in archaeological artifacts and potentially rich in recreation, riparian and wildlife resources.

But when Joe Feller and his allies - National Wildlife Federation attorney Tom Lustig and the Southern Utah Wilderness Alliance - took aim at the allotment, they had a larger target in view than Comb Wash. They hoped to set new physical and legal standards for how the BLM manages its land.

Feller, especially, has worked over the past five years to get Rampton's ruling. Now that he has it, he may be in a position to broadly influence federal grazing policy.

Feller didn't choose Comb Wash because it's particularly badly managed. The Arizona State University law professor says that if bad management were his criterion, he could have chosen almost any grazing allotment in the West. He chose Comb Wash because of the contrast between its paltry value as range and the potentially enormous value of its other resources.

Because Comb Wash has important non-range values, there was the risk that the BLM - once Feller put on the heat - would correct the imbalance. Fortunately for Feller, his pressure simply made BLM officials more determined to stay their course.

The BLM's and the tribe's stubborn resistance to change led to Rampton's ruling. His 36-page opinion is so strong that attorney Glen Davies, who represented the tribe on behalf of the Farm Bureau, claims the judge ignored his side's case. But the BLM and the rancher didn't have cases. Once Feller and his associates were able to bring the BLM to trial - where blustering and stonewalling and deliberate flouting of the law were of no avail - the judge had no choice but to reach the following conclusions:

First, that the BLM had allowed grazing in Comb Wash without asking: Is the grazing in the public interest? Do the benefits outweigh the costs? Federal law requires that the BLM make this determination.

Second, that Interior regulations require the BLM to involve the public in on-the-ground grazing management decisions. Rampton himself several years ago had ordered the Moab BLM to involve Feller in the Comb Wash decisions. Even after Rampton's order, the BLM continued to exclude Feller.

Third, that when grazing is judged to be in the public interest, law requires that the amount of grazing be balanced against other resources. But Rampton wrote, "BLM has not made a reasoned and informed decison in setting the stocking rate for the Comb Wash allotment."

Fourth, the judge ruled that the "BLM failed to comply with the National Environmental Policy Act" by failing to examine the impact of grazing on Comb Wash. The agency pretended to examine grazing impacts in its Resource Management Plan - an environmental impact statement covering all grazing allotments in the San Juan Resource Area. But the judge ruled that that EIS did not look at the ground. It was a document, Feller says, indistinguishable from most of the other EISes the BLM produced over the past 20 years. The BLM produced these useless, generic documents in obedience to the letter, but not the spirit, of Natural Resources Defense Council vs. Morton, a 1976 U.S. Supreme Court decision ordering the agency to examine grazing.

With exquisite timing, Judge Rampton's ruling coincides with the furor over Rangeland Reform "94. In Feller's view, Rangeland Reform "94 has procedural aspects that enraged public land ranchers - an end to subleasing, an end to privatization of water on public land, an end to rancher-only grazing advisory boards.

But Feller says nothing in the reform package would affect the ground. In particular, he says, the package does not require the BLM to balance grazing against other resources, and it makes only some progress toward controlling the intensity of grazing. Nor, he says, does it try to force the BLM to obey NRDC vs. Morton and the National Environmental Policy Act.

Finally, Feller charges that Rangeland Reform "94 steps backward from the public involvement rules former Interior Secretary James Watt implemented in 1981. Feller says the Babbitt proposal has a carefully crafted section that would prevent the allotment-level citizen involvement Feller used at Comb Wash.

"I think holding the judge's decision up against Rangeland Reform '94 is an interesting exercise," says Feller. "Look at each of the four points where the judge said the BLM isn't meeting the law. On each of those points, Rangeland Reform '94 doesn't meet the law, either."

What impact will Judge Rampton's decision have on grazing? Legally, not much. It's a low-level decison which applies to only one allotment in the West.

But the case may affect grazing through the public record it compiled over almost two years and the public attention the ruling may attract. The law-breaking actions of BLM officials are also having an internal effect on the Moab BLM, where employees just voted three to one to unionize. Some of that vote is a result of strains present in any office. But some of it has to do with the agency's refusal to let its employees operate within the law on natural resource issues. It's a form of collective whistleblowing.

The anger that drove Moab BLM employees to unionize brings to mind the one regret Joe Feller has about his Comb Wash case.

Although grazing policy on the Comb Wash allotment was no different, Feller believes, than on most other BLM allotments, and although the grazing permits were under the authority of high BLM officials - men like former district manager Nodine and present district manager Zortman and former area manager Edward Scherick - when the case went to trial, these men were nowhere to be found.

Instead, Feller said, the BLM put on the stand a range conservationist named Paul Curtis - the man whose job it was to measure grass height to determine how much forage was available.

According to Feller, the BLM claimed in depositions that Paul Curtis had made the grazing decisions. So the agency sent him onto the stand to be hammered by Feller for not having considered archaeological artifacts, the recreation value of the canyons, the status of the riparian habitat and other matters that should never - and were never - the sole responsibility of a range conservationist.

Although the Comb Wash decision presents us with a grim view of the BLM's approach to its employees, to the land and to the laws of the nation, it has a bright side. Given the strength and clarity of Judge Rampton's decision, there may be little need for Secretary Babbitt to spend a lot of time and energy trying to push a new range reform package past the West's senators.

The Congress has already passed the needed laws, starting in 1969 with the National Environmental Policy Act, and following with the Federal Land Policy and Management Act and Interior's rules for public involvement. The U.S. Supreme Court has interpreted the law in its NRDC vs. Morton decision.

The need now is for citizen action on the ground, an acceptance by public-land ranchers of this new era, and a determination by BLM employees to follow what Jack Ward Thomas told the Forest Service as soon as he took over as chief:

Obey the law and tell the truth.


Ed Marston is publisher of HCN.

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