Attachment 1-1

United States

Department of the Interior

DIGEST OF GRAZING DECISIONS

Issued During the period

July 1, 1993 -October 10, 2001

(IBLA Volumes 127 - 155)

May, 2002

Interior Board of Land Appeals Bureau of Land Management

Office of Hearings and Appeals Rangeland, Soils, Water and Air Group

Arlington, Virginia 22203 Washington, D.C. 20240
Attachment 1-2

FORWARD

This digest of grazing decisions of the Interior Board of Land

Appeals supplements three previous grazing decision digests:

• Digest of Grazing Decisions Under Federal Land

Policy & Management Act, 1979-Present. (1993);

• Department of the Interior Digest of Grazing

Decisions: 1959-1978. (1983); and, 

• U.S. Department of the Interior Grazing Decisions:

1936-1958. (1959).

Headings remain the same or similar to those found in previous

digests for purposes of consistency with topical categories used

by IBLA decision headnotes and with previous digests. There

are, however, some new sub-headings introduced in this digest. 

Topics not represented in this edition are shown as “reserved.”

Acknowledgment: Creation of this updated edition of the digest of grazing decisions was a joint effort of staff of the

IBLA in Arlington, Virginia and of BLM in Washington D.C.. Special thanks to Wyoming BLM Employee Arlan

Hiner for his work in compiling and creating this digest while on detailed assignment in Washington. Edited by

Kenneth M. Visser, BLM, and Margaret Walsh, IBLA. 
Attachment 1-3

TABLE OF CONTENTS

1. General ................................................................ 1

1.1 Authority of the Department ......................................... 1

1.2 Authority of Subordinate Officials .................................... 2

1.3 Advisory Boards Reserved

1.4 Validity of Regulations Reserved

1.5 Qualifications of Applicants Reserved

1.6 National Environmental Policy Act of 1969 ............................. 2

1.7 Public Participation / Affected Interest / Interested Public .................. 6

2. Adjudication ............................................................ 8

3. Appeal Procedures ...................................................... 12

3.1 Right of Appeal .................................................. 12

3.2 Service of Process ................................................ 15

3.3 Expiration of License Agreement Reserved

3.4 Scope of Proceedings .............................................. 17

3.5 Hearings and Hearing Examiners .................................... 24

3.6 Burden of Proof .................................................. 26

3.7 Sufficiency and Weight of Evidence .................................. 33

4. Apportionment of the Federal Range ........................................ 39

4.1 Area of Use ..................................................... 39

4.2 Use and Boundary Agreements Reserved

4.3 Individual Allotments Reserved

4.4 Lands Additionally Available Reserved

4.5 Designation for Classes of Livestock Reserved

4.6 Season of Use Reserved

4.7 Among Different Uses ............................................. 40

5. Base Property .......................................................... 41

5.1 Ownership or Control ............................................. 41

5.2 Failure to Offer Reserved

5.3 Intentionally Left Blank Reserved

5.4 Dependency by Use Reserved

5.5 Land Commensureability Reserved

5.6 Base Property - Water ............................................. 43

6. Cancellation and Reduction Reserved

6.1 Reduction as Penalty .............................................. 44

6.2 To conform with Base Property Qualifications .......................... 44
Attachment 1-4

6.3 To Conform with Grazing Capacity of Federal Range .................... 44

6.4 Reduced Area of Use .............................................. 44

7. Construction and Improvement Permits ..................................... 44

8. Exchange of Use ....................................................... 45

9. Free Use Reserved

10. Licenses and Permits .................................................... 46

10.1 General ......................................................... 46

10.2 Actual Use ...................................................... 51

10.3 Grazing Fee Billings .............................................. 52

10.4 Related to State Law .............................................. 52

11. Range Surveys, Monitoring and Evaluation .................................. 53

12. Special Rules Reserved

13. Transfers Reserved

13.1 Base Property .................................................... 61

13.2 Base Property Qualifications ........................................ 61

14. Trespass .............................................................. 61

14.1 General ......................................................... 61

14.2 Measure of Damage ............................................... 64

15. Wild and Free-Roaming Horses and Burros Act of 1971 ........................ 66

15.1 Herd Management ................................................ 66

15.2 Animal Care and Placement ......................................... 71

16. Grazing Leases (Section 15) .............................................. 76

16.1 General ......................................................... 76

16.2 Applications ..................................................... 76

16.3 Apportionment of Land Reserved

16.4 Assignment Reserved

16.5 Cancellation or Reduction Reserved

16.6 Preference Right Applications Reserved

16.7 Renewal ........................................................ 76
NEPA Attachment 1-5

1. General

1.1 Authority of the Department

The authority of the Office of Hearings and Appeals is delegated to it from the Secretary of the

Interior under 43 C.F.R. § 4.1, which provides that the office is an authorized representative of

the Secretary for the purpose of hearing, considering, and determining, as fully and finally as

might the Secretary, matters within the jurisdiction of the Department. Thus, an Administrative

Law Judge's authority in fashioning relief following a hearing on the merits is not limited by

jurisprudential constraints underlying injunctive relief analysis.

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN

UTE INDIAN TRIBE, Intervenors-Appellants, AMERICAN FARM BUREAU

FEDERATION, Amicus-Curiae, IBLA 94!264 140 IBLA 85 (Decided August 21, 1997)

The Office of Hearings and Appeals does not have the authority to review a biological opinion

issued by the Fish and Wildlife Service under section 7 of the Endangered Species Act, 16

U.S.C. § 1536 (1994), or BLM's implementation of the mandatory terms and conditions of an

incidental take statement attached to that opinion. 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

The issuance of a biological opinion does not deprive an Administrative Law Judge or this Board

of jurisdiction over a grazing appeal under 43 U.S.C. § 315h (1994) with respect to issues not

within the scope of the biological opinion. Therefore, this Board has the jurisdiction to

determine whether dismissal of the appeal for lack of jurisdiction was correct, because whether

OHA has jurisdiction under the Taylor Grazing Act is not within the scope of a biological

opinion. 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

On appeal from a decision of an Administrative Law Judge, the Board of Land Appeals possesses

all of the powers which the Judge had in making his initial decision. Accordingly, where the

record establishes that an Administrative Law Judge applied the wrong standard of proof to the

detriment of an appellant, it is within the authority of the Board to review the record de novo and

apply the correct legal standard without remanding the matter to the Hearings Division. 

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT (ON JUDICIAL

REMAND), IBLA 98-477, 152 IBLA 119 (Decided April 3, 2000) 
NEPA Attachment 1-6

1.2 Authority of Subordinate Officials

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation of wild horses or burros exists on a given area of the public lands and that action

is necessary to remove excess animals, the Secretary has authority to immediately remove excess

animals from the range so as to achieve appropriate management levels, restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation. 

REDWINGS HORSE SANCTUARY and ANIMAL PROTECTION INSTITUTE OF

AMERICA v. BUREAU OF LAND MANAGEMENT, IBLA 97-199 and 97-200, 148

IBLA 61 (Decided March 18, 1999)

Reliance upon the oral information, advice or opinion of any Federal officer or employee will not

bind the United States to vary the terms of a written grazing permit to conform to the

representations allegedly made by such officer or employee, absent proof of extreme

circumstances which would vitiate the permit. 

BERTRAND PARIS & SONS v. BUREAU OF LAND MANAGEMENT, IBLA 96-246

150 IBLA 146, (Decided August 27, 1999) 

1.3 Advisory Boards Reserved

1.4 Validity of Regulations Reserved

1.5 Qualifications of Applicants Reserved

1.6 National Environmental Policy Act of 1969

A decision adjusting user boundaries within a Federal grazing allotment was properly affirmed

upon a showing that BLM had consulted, cooperated, and coordinated the determination

concerning areas of allotted use by the grazers concerned in conformity to Departmental

regulation 43 CFR 4110.2-4.

M. L. INVESTMENT CO. v. BUREAU OF LAND MANAGEMENT, IBLA 92-102,

130 IBLA 376 (Decided September 15, 1994)

Editor's note: appeal filed, Civ. No. 90-0187-S-HLR (D. Idaho), motion to reopen case

filed Oct. 25, 1994; case had been remanded to agency for further proceedings on April

13, 1990; aff'd, (sum. judg. Sept. 30, 1996)

A finding by BLM that an 80-acre prairie dog study estimated to consume 1 AUM of forage

would have an insignificant impact on a 23,000-acre grazing allotment containing about 1,980
NEPA Attachment 1-7

AUM's of forage is affirmed; the record on appeal supports BLM's decision to proceed with the

study project based upon a hard look at the study taken during preparation of planning documents

including two EA's, a staff evaluation of the project, and a recovery plan developed jointly by the

State of Utah Division of Wildlife Resources and the U.S. Fish and Wildlife Service.

DAVID M. BURTON ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 95-256,

and 95-257, 135 IBLA 18 (Decided February 23, 1996) 

The BLM violated section 102(2)(C) of NEPA, as amended, 42 U.S.C. § 4332(2)(C) (1994), by

relying on the environmental impact statement prepared for its resource management plan for the

San Juan Resource Area as its environmental documentation supporting its authorization for

grazing on the Comb Wash Allotment within the resource area. Examination of the

environmental impact statement revealed that it did not provide any site-specific environmental

analysis of the impact of grazing on the resource values in five canyons on the allotment. 

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN

UTE INDIAN TRIBE, Intervenors-Appellants AMERICAN FARM BUREAU

FEDERATION, Amicus-Curiae, IBLA 94!264, 140 IBLA 85 (Decided August 21,

1997)

Tiering is an appropriate method of NEPA compliance. Tiering requires a minimum of two

NEPA documents. A general environmental document and a later-developed site-specific

environmental document which is tiered back to the earlier general document. In the absence of

a site-specific environmental document, tiering is impossible. When the record shows the lack of

a site-specific document, BLM may not justify site-specific actions by reliance on the general

environmental document.

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN

UTE INDIAN TRIBE, Intervenors-Appellants, AMERICAN FARM BUREAU

FEDERATION, Amicus-Curiae, IBLA 94!264, 140 IBLA 85 (Decided August 21,

1997)

An administrative law judge's dismissal of a grazing appeal on the grounds that the decision

appealed was not subject to appeal will be reversed, and the case remanded for hearing where the

action appealed was a final decision that may have modified the terms and conditions of the

grazing lease or created a grazing system outside the scope of that authorized by an

Environmental Assessment.

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 95-475, 145 IBLA 379 (Decided September 24, 1998)
NEPA Attachment 1-8

A party challenging a decision record and finding of no significant impact, based on an

underlying environmental assessment, must show that the determination was premised on a clear

error of law, a demonstrable error of fact, or that the analysis failed to consider a substantial

environmental question of material significance to the action for which the analysis was

prepared. Mere differences of opinion provide no basis for reversal of BLM's action if it is

reasonable and supported by the record on appeal.

COMMITTEE FOR IDAHO'S HIGH DESERT, ET AL. v. Bureau of Land Management,

IBLA 96-519, 149 IBLA 1 (Decided May 20, 1999)

Compliance with the National Environmental Policy Act of 1969 requires BLM to take a hard

look at the issues, identify relevant areas of environmental concern, and, where no EIS is

prepared, make a convincing case that the potential environmental impacts are insignificant. 

COMMITTEE FOR IDAHO'S HIGH DESERT, ET AL. v. Bureau of Land Management,

IBLA 96-519, 149 IBLA 1 (Decided May 20, 1999)

The decision to authorize temporary nonrenewable livestock grazing within the Jarbidge

Resource Area will be affirmed where the record establishes that the authorization is consistent

with grazing regulations at 43 C.F.R. § 4130.6-2 and the applicable land use plan, and where

certain lands are excepted or excluded from the EA/ROD. These include all Wilderness Study

Areas, Areas of Critical Environmental Concern and other lands under special designations;

scheduled rest pastures in intensely managed allotments; lands managed under current fire

rehabilitation plans; and riparian areas subject to specific management.

COMMITTEE FOR IDAHO'S HIGH DESERT, ET AL. v. Bureau of Land Management,

IBLA 96-519, 149 IBLA 1 (Decided May 20, 1999)

A BLM decision to allow cattle grazing at a spring based on a finding of no significant impact is

properly set aside and remanded when it appears from the record that a "unique water"

designated under state law in which existing water quality is required to be maintained and

protected includes the entire length of the stream for which the spring is the headwater and that

BLM failed to consider that fact in making its finding. 

NATIONAL WILDLIFE FEDERATION, ET AL. v. Bureau of Land Management, IBLA

96-535, 151 IBLA 66 (Decided October 28, 1999) 

A party challenging a decision record and finding of no significant impact, based on an

underlying environmental assessment, must show that the determination was premised on a clear

error of law, a demonstrable error of fact, or that the analysis failed to consider a substantial

environmental question of material significance to the action for which the analysis was

prepared. Mere differences of opinion provide no basis for reversal of BLM's action if it is

reasonable and supported by the record on appeal.
Public Involvement

1.7 Public Participation

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

Compliance with the National Environmental Policy Act of 1969 requires BLM to take a hard

look at the issues, identify relevant areas of environmental concern, and, where no EIS is

prepared, make a convincing case that the potential environmental impacts are insignificant. 

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

Where an appellant opposes BLM's choice among alternatives in a record of decision on the basis

of an environmental assessment and asks that the Board implement the appellant's choice of

alternatives, the Board will not entertain the appeal when: (1) reversal would require a new

NEPA process rather than implementation of appellant's choice and (2) a subsequent BLM

decision has already supplanted the record of decision in question.

VON L. AND MARIAN SORENSEN v. BUREAU OF LAND MANAGEMENT, IBLA

98-365, 155 IBLA 207 (Decided July 18, 2001) 

NEPA is primarily a procedural statute designed to ensure a fully informed and well-considered

decision after taking a "hard look" at the environmental effects of any major Federal action. The

Board, reviewing a BLM record of decision on the basis of an environmental assessment, will

ensure that the agency undertook full and adequate review but will not substitute its judgment for

that of BLM. 

VON L. AND MARIAN SORENSEN v. BUREAU OF LAND MANAGEMENT, IBLA

98-365, 155 IBLA 207 (Decided July 18, 2001) 

1.7 Public Participation / Affected Interest / Interested Public

Where an entity was not named as an "affected interest" under 43 CFR 4100.0-5 concerning a

BLM decision to grant a grazing permit and where there is no indication that the entity

participated in any other way in any of BLM's dealings with the granting of the permit, it lacks

standing to appeal the decision to the Board of Land Appeals, as it was not a "party to the case"

under 43 CFR 4.410(a). 

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

Attachment 1-9
Public Involvement

Attachment 1-10

An entity that applies for and receives status as an "affected interest" under 43 CFR 4100.0-5

prior to BLM's granting of an application for a grazing permit was a "party to the case" under

43 CFR 4.410(a). Where that entity has alleged and filed supporting evidence showing that its

members frequently use and enjoy areas of the grazing allotment affected by the permit for

diverse recreational, educational, scientific, and aesthetic pursuits, it has made an adequately

specific, colorable allegation that it is "adversely affected"by the appealed decision, completing

the showing required for standing under 43 CFR 4.410(a), so that a motion to dismiss for lack of

standing is properly denied.

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

Under 43 CFR 4160.1-1, BLM must do two discrete things: (1) it must serve a copy of a

proposed decision concerning an application for permit on any applicant unless BLM and the

permittee have reached a "documented agreement"; and (2) it must also send a copy of such

proposed decision to any entity named as an "affected interest" pursuant to 43 CFR 4100.0-5. 

The regulation is mandatory, and where BLM fails to comply, its decision approving the permit

application is properly set aside and remanded with instructions to re-adjudicate the application

in light of the objections of the "affected interest."

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

A decision by BLM denying an organization "affected interest status" in grazing matters is

properly set aside where BLM did not state therein why it felt the organization did not meet

relevant criteria. That failure violated not only the terms of a governing BLM State Office

Instruction Memorandum, but also the more general requirement, imposed by well-established

precedent, that its decision must contain a reasoned and factual explanation providing a basis

for understanding and accepting the decision, or alternatively, for appealing and disputing it

before this Board.

SOUTHERN UTAH WILDERNESS ALLIANCE v. BUREAU OF LAND

MANAGEMENT, IBLA 93-21, 131 IBLA 293 (Decided November 30, 1994)

The definition of "affected interest" at 43 CFR 4100.0-5 has two parts. The first is the

requirement that an individual express concern for management of a particular allotment in

writing. The second is the provision for discretionary determination by the authorized officer

that the individual should be granted affected interest status. To the extent a party's use of land
Adjudication Attachment 1-11

within an allotment has been and will be affected by BLM's management of grazing, there is a

factual basis for designating the party an affected interest. A written request for designation as an

affected interest which states that the party uses an allotment and expresses concern about the

management of livestock grazing provides a factual basis supporting a decision granting the

designation and precludes it from being arbitrary and capricious.

BEAR RIVER LAND & GRAZING, ET AL. v. THE BUREAU OF LAND

MANAGEMENT, IBLA 94-214, 132 IBLA 110 (Decided February 28, 1995)

Under 43 CFR 4160.3 and 4160.4 (1994), after a proposed multiple use decision was protested

by several members of a group of persons who were directly affected thereby, the proposed

decision did not become a final decision subject to appeal; an attempt to appeal the proposed

decision by a member of the affected group who did not protest was therefore properly dismissed

as premature.

SILVER CREEK RANCH, INC. v. BUREAU OF LAND MANAGEMENT, IBLA 95-

405, 135 IBLA 257 (Decided May 2, 1996)

Absent emergency conditions or an agreement between BLM and parties holding grazing

privileges in an allotment, 43 C.F.R. § 4160.1-1 (1991) required notification of those permittees

and provision of a period of time to protest prior to authorizing trailing through the allotment. 

BUREAU OF LAND MANAGEMENT v. WILLIAM J. THOMAN, IBLA 92-346, 139

IBLA 48 (Decided April 3, 1997)

When BLM is formulating the Federal action it contemplates taking in accordance with the

Taylor Grazing Act, and the Federal action requires a biological evaluation pursuant to the ESA,

BLM must seek input from affected permittees and lessees and the interested public. Following

receipt of this input, a proposed decision setting out Federal action which would necessitate a

change in the terms and conditions of a Taylor Grazing Act permit or lease must be served on the

affected permittees and lessees, who should be given an opportunity to protest. If a protest is

filed, the authorized officer must reconsider the proposed decision in light of the protestant's

statement of reasons for protest and other information pertinent to the case. At the conclusion of

the review of the protest, the authorized officer must serve the final decision on the protestant

and the interested public, and BLM must afford an opportunity for an appeal, as provided in

43 C.F.R. § 4160.3(c). 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

A decision of an Area Manager to assign fence maintenance responsibilities to a grazing

permittee will be set aside and remanded on appeal where the permittee establishes that the

assignment was arbitrary and capricious because no coordination or consultation was effected
Adjudication Attachment 1-12

with the permittee concerning the fence location or maintenance costs and the location selected

by BLM will be inordinately difficult and expensive to maintain.

JOHN L. FALEN v. BUREAU OF LAND MANAGEMENT, IBLA 98-11R, 149 IBLA

347 (Decided July 21, 1999) 

The relevant regulations governing grazing administration at 43 C.F.R. Subpart 4160 provide that

proposed decisions shall be served on any permittee who is "affected" by the proposed actions,

terms or conditions, or modifications relating to the permit. Any person whose interest is

adversely affected by a final BLM decision under this part may appeal the decision for the

purpose of a hearing before an administrative law judge. A decision denying a grazing permittee

the right, pursuant to 43 C.F.R. Subpart 4160, to protest and appeal a BLM decision to construct

fencing on a riparian pasture in an allotment to exclude livestock from a critical source of water

on the ground the permittee was not affected by the decision is properly reversed and the case

will be referred for a hearing. 

ESPERANZA GRAZING ASSOCIATION v. BUREAU OF LAND MANAGEMENT,

IBLA 99-259, 154 IBLA 47 (Decided November 9, 2000) 

2. Adjudication

In determining the extent to which a grazing permittee's contributions and efforts have

contributed to an increase in available forage within an allotment, all expenditures which have

benefitted forage production, including those made by BLM, are properly considered. A

permittee has no right to receive more than a proportionate share of the forage increase as

determined by comparing the permittee's contributions to the total contributions made. 

DELMER AND JO MCLEAN v. BUREAU OF LAND MANAGEMENT, IBLA 90-

332, 133 IBLA 225 (Decided August 3, 1995)

With respect to the allocation in an allotment of additional forage available on a sustained yield

basis, the applicable regulation, 43 CFR 4110.3-1, first requires that the additional forage be used

to satisfy existing grazing preferences of those authorized to graze within the allotment and then

authorizes the allocation of the remaining forage either in recognition of the contribution and

efforts of individual permittees in increasing forage production or to permittees in the proportion

of their authorized use within the allotment or to other qualified applicants. 

DELMER AND JO MCLEAN v. BUREAU OF LAND MANAGEMENT, IBLA 90-

332, 133 IBLA 225 (Decided August 3, 1995)

A grazing decision establishing initial use levels by livestock for a grazing allotment based upon

actual prior use of the allotment (rather than on permitted use) is affirmed on appeal because it

conforms to a BLM management framework plan. A finding that the season of use for the

allotment must be modified to promote management objectives established by the same plan is
Adjudication Attachment 1-13

also affirmed upon a showing that the change is reasonable, based upon expert analysis of

observed vegetation, soil, and climatic conditions on the allotment.

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT, IBLA 94-17, 138

IBLA 82 (Decided February 3, 1997)

Editor's Note: appeal filed, Civ. No. 97-0265-S-LMB (D. Id. June 13, 1997), reversed

and set aside (to the extent affirms deferment of commencement of grazing use), by

stipulation (April 7, 1998); vacated by Riddle Ranches, Inc. v. BLM (On Judicial

Remand), 152 IBLA 119 (2000)

The BLM enjoys broad discretion in determining how to adjudicate and manage grazing

preference. Under 43 C.F.R. § 4.478(b), a BLM decision concerning grazing privileges will not

be set aside if it is reasonable and substantially complies with the provisions of the Federal

grazing regulations found at 43 C.F.R. Part 4100. The burden is on the objecting party to show

by a preponderance of the evidence that the decision is unreasonable or improper. 

WEST COW CREEK PERMITTEES v. BUREAU OF LAND MANAGEMENT, IBLA

95-206, 142 IBLA 224 (Decided January 22, 1998)

An appellant challenging the accuracy of a range study must show not just that the results of the

study could be in error, but that they are in fact erroneous. No error is established absent a

showing that BLM's range survey methods are incapable of yielding accurate information, that

there was a material departure from prescribed procedures, or that a demonstrably more accurate

survey has disclosed a contrary result. A party challenging a decision based on a BLM expert's

reasoned analysis must demonstrate by a preponderance of the evidence that the BLM expert

erred when collecting the underlying data, when interpreting that data, or when reaching the

conclusion. It is not enough to show that its expert disagrees or believes that a different course of

action or interpretation is available and supported by the evidence. A BLM denial of applications

to increase active grazing preference will be affirmed when monitoring studies indicate that

multiple-use management objectives for the grazing allotment are not being met and that

additional forage is not available on a sustained yield basis within the allotment. 

WEST COW CREEK PERMITTEES v. BUREAU OF LAND MANAGEMENT, IBLA

95-206 142 IBLA 224 (Decided January 22, 1998)

The Department has historically declined to adjudicate private disputes involving grazing leases

and has maintained the status quo until the parties have had an opportunity to settle their dispute

privately or in a court of competent jurisdiction. When a private party seeks to have a grazing

lease cancelled because the lessee has deeded the property to the party seeking to have the

grazing lease cancelled, and there is an ongoing dispute regarding the ownership of base

property, the proper course of action on the part of BLM is to decline to disturb the existing

conditions until resolution of the private dispute. 
Adjudication Attachment 1-14

H. ARVENE COOPER AND BRENT DAVID COOPER (Appellants) v. BUREAU OF

LAND MANAGEMENT (Respondent) LYNN A. JENKINS, I. (Intervenor),IBLA 95-

489, 144 IBLA 235 (Decided May 6, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 25, 1998

The Bureau enjoys broad discretion in determining how to adjudicate and manage grazing

preferences, and, under 43 C.F.R. § 4.478(b), a BLM decision concerning grazing privileges will

not be set aside if it is reasonable and substantially complies with the provisions of the Federal

grazing regulations found at 43 C.F.R. Part 4100. A BLM decision may be regarded as arbitrary,

capricious, or inequitable only when it is not supported by any rational basis, and the burden is

on the objecting party to show by a preponderance of the evidence that the decision is

unreasonable or improper. Therefore, a BLM determination of the carrying capacity of an

allotment will not be disturbed absent positive evidence of error.

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges,

and a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 C.F.R.

Part 4100. BLM's decision may be regarded as arbitrary, capricious, or inequitable only where it

is not supported by any rational basis, and the burden is on the objecting party to show that a

decision is improper.

KENNETH YOUNG v. BUREAU OF LAND MANAGEMENT, IBLA 95-221, 148

IBLA 221 (Decided April 20, 1999)

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges. 

When it issues a decision taking actions affecting the grazing privileges of a livestock permittee,

those actions may be regarded as arbitrary, capricious, or inequitable only if they are not

supportable on any rational basis, and an appellant seeking relief from such a decision has the

burden to establish by a preponderance of the evidence that the decision is unreasonable or

improper.

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

The Department has provided that an adjudication of grazing privileges will not be set aside on

appeal if it is reasonable and substantially complies with Departmental grazing regulations found

at 43 C.F.R. Part 4100. 43 C.F.R. § 4.478(b). In this manner, the Department has considerably

narrowed the scope of review of BLM grazing decisions by an Administrative Law Judge and by

this Board. 
Protests, Appeals, and Hearings Attachment 1-15

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39 (Decided 

March 1, 2000)

BLM enjoys broad discretion to determine how to adjudicate and manage grazing privileges, and

a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations. A BLM decision

may be regarded as arbitrary, capricious, or inequitable only where it is not supported by any

rational basis, and the burden is on the objecting party to show that a decision is improper. The

determination establishing a grazing allotment's carrying capacity will not be disturbed in the

absence of positive evidence of error. Where a party offers no contrary analysis of the carrying

capacity of the public lands to demonstrate that BLM's method of determining the carrying

capacity is in error, BLM's determination is properly adopted. The determination to issue a 100-

percent public land use permit rather than a percentage public land use permit will be affirmed

where the record supports BLM's determination and no rebuttal is presented. 

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS,

INTERVENOR, IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000)

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges,

and a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 CFR

Part 4100. BLM's decision may be regarded as arbitrary, capricious, or inequitable only where it

is not supported by any rational basis, and the burden is on the objecting party to show that a

decision is improper. 

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

3. Appeal Procedures

3.1 Right of Appeal

In order to establish standing to appeal under 43 CFR 4.410, an organization must show that it is

a party to a case and that it has been adversely affected by the appealed decision. Where an

appellant has participated before BLM during its consideration of the decision under appeal, it is

a party to the case. Where appellant makes a specific, colorable allegation that its members use

an area affected by a BLM decision, it is "adversely affected" within the meaning of 43 CFR

4.410(a). 

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)
Protests, Appeals, and Hearings Attachment 1-16

Under 43 CFR 4160.3 and 4160.4 (1994), after a proposed multiple use decision was protested

by several members of a group of persons who were directly affected thereby, the proposed

decision did not become a final decision subject to appeal; an attempt to appeal the proposed

decision by a member of the affected group who did not protest was therefore properly dismissed

as premature.

SILVER CREEK RANCH, INC. v. BUREAU OF LAND MANAGEMENT, IBLA 95-

405, 135 IBLA 257 (Decided May 2, 1996)

Timely filing a notice of appeal in the office of an Administrative Law Judge within the 30 days

allowed by 43 CFR 4.411(a) is necessary to give the Board jurisdiction over a decision by the

judge. Delivery of a notice of appeal to a secretary with instructions that it be sent does not

constitute transmittal of the notice of appeal under 43 CFR 4.411(a).

BUREAU OF LAND MANAGEMENT v. JOE B. FALLINI, JR.,IBLA 96-420, 136

IBLA 345 (Decided October 23, 1996)

Editor's Note: Reconsideration denied by Order dated February 24, 1997.

Under 43 C.F.R. § 4.472(a) an Administrative Law Judge should grant a motion of an association

of grazing permittees to intervene in appeals from a BLM decision that amends the grazing

system and monitoring sections of an allotment management plan.

NEVADA DIVISION OF WILDLIFE ET AL. v. BUREAU OF LAND

MANAGEMENT, TULEDAD GRAZING ASSOCIATION (Proposed Intervenor), 

IBLA 94-316, et al,, 138 IBLA 382 (Decided March 26, 1997)

When BLM is formulating the Federal action it contemplates taking in accordance with the

Taylor Grazing Act, and the Federal action requires a biological evaluation pursuant to the ESA,

BLM must seek input from affected permittees and lessees and the interested public. Following

receipt of this input, a proposed decision setting out Federal action which would necessitate a

change in the terms and conditions of a Taylor Grazing Act permit or lease must be served on the

affected permittees and lessees, who should be given an opportunity to protest. If a protest is

filed, the authorized officer must reconsider the proposed decision in light of the protestant's

statement of reasons for protest and other information pertinent to the case. At the conclusion of

the review of the protest, the authorized officer must serve the final decision on the protestant

and the interested public, and BLM must afford an opportunity for an appeal, as provided in

43 C.F.R. § 4160.3(c). 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

An administrative law judge's dismissal of a grazing appeal on the grounds that the decision

appealed was not subject to appeal will be reversed, and the case remanded for hearing where the
Protests, Appeals, and Hearings Attachment 1-17

action appealed was a final decision that may have modified the terms and conditions of the

grazing lease or created a grazing system outside the scope of that authorized by an

Environmental Assessment. 

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 95-475, 145 IBLA 379 (Decided September 24, 1998)

Where an appellant is a successor-in-interest by assignment to a predecessor who has been both

adversely affected and who is a party to a case, standing has been satisfied. 

JOHN L. FALEN v. BUREAU OF LAND MANAGEMENT, IBLA 98-11R, 149 IBLA

347 (Decided July 21, 1999)

Where holders of grazing permits failed to timely appeal 1992 Final Multiple Use Decision, they

were barred from challenging the validity of the adjustment prescribed therein to the extent that

the adjustments were based on studies and monitoring data in existence at the time the 1992

Decision was issued. 

BERTRAND PARIS & SONS v. BUREAU OF LAND MANAGEMENT, IBLA 96-246,

150 IBLA 146, (Decided August 27, 1999) 

A party who has availed himself of the opportunity to obtain administrative review of a decision

within the Department is precluded from relitigating the matter in subsequent administrative

proceedings and the Board will not revisit matters previously adjudicated without a showing of

compelling legal or equitable reasons.

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA

99-278, 150 IBLA 294 (Decided September 27, 1999)

The Department has provided that an adjudication of grazing privileges will not be set aside on

appeal if it is reasonable and substantially complies with Departmental grazing regulations found

at 43 C.F.R. Part 4100. 43 C.F.R. § 4.478(b). In this manner, the Department has considerably

narrowed the scope of review of BLM grazing decisions by an Administrative Law Judge and by

this Board. 

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39 (Decided 

March 1, 2000)

The relevant regulations governing grazing administration at 43 C.F.R. Subpart 4160 provide that

proposed decisions shall be served on any permittee who is "affected" by the proposed actions,

terms or conditions, or modifications relating to the permit. Any person whose interest is

adversely affected by a final BLM decision under this part may appeal the decision for the
Protests, Appeals, and Hearings Attachment 1-18

purpose of a hearing before an administrative law judge. A decision denying a grazing permittee

the right, pursuant to 43 C.F.R. Subpart 4160, to protest and appeal a BLM decision to construct

fencing on a riparian pasture in an allotment to exclude livestock from a critical source of water

on the ground the permittee was not affected by the decision is properly reversed and the case

will be referred for a hearing. 

ESPERANZA GRAZING ASSOCIATION v. BUREAU OF LAND MANAGEMENT,

IBLA 99-259, 154 IBLA 47 (Decided November 9, 2000) 

3.2 Service of Process

The timely filing of a notice of appeal is jurisdictional and an appeal filed more than 30 days

after receipt of the decision under appeal is properly dismissed. When the 30th day falls on a day

when the office is closed, the appeal period is extended to the close of the next day on which the

office is open.

COMMISSION FOR THE PRESERVATION OF WILD HORSES, ET AL v, BUREAU

OF LAND MANAGEMENT, IBLA 94-163, et al., , 133 IBLA 97 (Decided July 18,

1995)

Timely filing a notice of appeal in the office of an Administrative Law Judge within the 30 days

allowed by 43 CFR 4.411(a) is necessary to give the Board jurisdiction over a decision by the

judge. Delivery of a notice of appeal to a secretary with instructions that it be sent does not

constitute transmittal of the notice of appeal under 43 CFR 4.411(a).

BUREAU OF LAND MANAGEMENT v. JOE B. FALLINI, JR.,IBLA 96-420, 136

IBLA 345 (Decided October 23, 1996)

Editor's Note: Reconsideration denied by Order dated February 24, 1997.

Where appellants timely file a notice of appeal under 43 C.F.R. § 4.470 along with a request for

additional time to file a statement of reasons in support of their appeal, a decision dismissing the

appeal as untimely filed because no statement of reasons was filed within the 30-day appeal

period is properly reversed. 

ROBERT AND VIVIAN LEWIS v. BUREAU OF LAND MANAGEMENT, IBLA 98-

237 144 IBLA 235 (Decided June 4, 1998)

Editor's Note: Reconsideration granted, decision reaffirmed by Order dated Oct. 14,

1998.

When BLM is formulating the Federal action it contemplates taking in accordance with the

Taylor Grazing Act, and the Federal action requires a biological evaluation pursuant to the ESA,
Protests, Appeals, and Hearings Attachment 1-19

BLM must seek input from affected permittees and lessees and the interested public. Following

receipt of this input, a proposed decision setting out Federal action which would necessitate a

change in the terms and conditions of a Taylor Grazing Act permit or lease must be served on the

affected permittees and lessees, who should be given an opportunity to protest. If a protest is

filed, the authorized officer must reconsider the proposed decision in light of the protestant's

statement of reasons for protest and other information pertinent to the case. At the conclusion of

the review of the protest, the authorized officer must serve the final decision on the protestant

and the interested public, and BLM must afford an opportunity for an appeal, as provided in

43 C.F.R. § 4160.3(c). 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

It is incumbent upon BLM to ensure that its decision is supported by a rational basis which is set

out in the written decision and demonstrated in the administrative record accompanying the

decision. Parties affected by a BLM decision deserve a reasoned and factual explanation of the

rationale for the decision and must be given a basis for understanding it and accepting it or,

alternatively, appealing and disputing it. However, when the record demonstrates that the

appellant was able to overcome any difficulty it may have initially encountered when BLM failed

to present an adequate explanation of the basis for its decision and presented an informed and

organized appeal, the Board will not find that the appellant has been unduly prejudiced by BLM's

initial omission. 

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

There is a legal presumption, which is rebuttable, that official acts of public officers are regular. 

On the other hand, there is a presumption that mail properly addressed and with adequate postage

affixed, and deposited in an appropriate receptacle, is duly delivered. When these two

presumptions come into conflict and BLM states that it did not receive the instrument, the burden

is on the one asserting that it was delivered to show that it was, in fact, timely received by BLM.

PAUL C. LEWIS ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-178, 150

IBLA 76 (Decided August 16, 1999) 

Any document required or permitted to be filed, which was received in the proper BLM office,

either in the mail or by personal delivery when the office is not open to the public, will be

deemed to have been filed as of the day and hour the office next opens to the public under

regulations in effect on August 21, 1995. 43 CFR 1821.2-2(d) (1995).

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

3.3 Expiration of License Agreement Reserved
Protests, Appeals, and Hearings Attachment 1-20

3.4 Scope of Proceedings

A notice of appeal signed by an individual on behalf of other parties (two associations and

two individuals) is not a valid notice of appeal as to those other parties unless the signer is

authorized to represent them. Where the signer is neither an attorney, an officer in the

associations, nor a family member of the individuals, the signer does not meet the criteria

allowing her to practice before the Department on their behalf, and the notice of appeal is

properly dismissed as to the parties that she is not authorized to represent. 

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)

In order to establish standing to appeal under 43 CFR 4.410, an organization must show that it is

a party to a case and that it has been adversely affected by the appealed decision. Where an

appellant has participated before BLM during its consideration of the decision under appeal, it is

a party to the case. Where appellant makes a specific, colorable allegation that its members use

an area affected by a BLM decision, it is "adversely affected" within the meaning of 43 CFR

4.410(a). 

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)

Hearsay evidence is admissible in a grazing trespass hearing if it is relevant and material. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130

IBLA 119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed, (May

19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997). See also:

Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

In an appeal of a BLM decision adjudicating grazing privileges, neither an Administrative Law

Judge nor the Board of Land Appeals has authority to entertain a claim by one grazing applicant

of breach of the terms of a contract between the United States, acting through the Department of

the Navy, and one of the other applicants.

Smith v. BLM, 129 IBLA 304 (1994), modified, JERRY KELLY, Appellee v. BUREAU

OF LAND MANAGEMENT, Appellant, SHELDON W. LAMB, Intervenor-Appellant,

IBLA 91-451, 131 IBLA 146 (Decided October 31, 1994)

By regulation, 43 CFR 4.478(b), the Department has provided that an adjudication of grazing

privileges will not be set aside on appeal if it is reasonable and substantially complies with

Departmental grazing regulations found at 43 CFR Part 4100. 43 CFR 4.478(b). In this manner,
Protests, Appeals, and Hearings Attachment 1-21

the Department has considerably narrowed the scope of review of BLM grazing decisions by an

Administrative Law Judge and by this Board.

Smith v. BLM, 129 IBLA 304 (1994), modified, JERRY KELLY, Appellee v. BUREAU OF

LAND MANAGEMENT, Appellant, SHELDON W. LAMB, Intervenor-Appellant, IBLA 91-

451, 131 IBLA 146 (Decided October 31, 1994)

An appeal of an action is not moot if the action appealed is capable of repetition.

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 

135 IBLA 9 (Decided February 23, 1996) 

Under 43 CFR 4160.3 and 4160.4 (1994), after a proposed multiple use decision was protested

by several members of a group of persons who were directly affected thereby, the proposed

decision did not become a final decision subject to appeal; an attempt to appeal the proposed

decision by a member of the affected group who did not protest was therefore properly dismissed

as premature.

SILVER CREEK RANCH, INC. v. BUREAU OF LAND MANAGEMENT, IBLA 95-

405, 135 IBLA 257 (Decided May 2, 1996)

In keeping with the principle that the filing of a notice of appeal vests exclusive authority over

the matter under appeal with the Board of Land Appeals, BLM must forward the case (as

represented by BLM's case file) to the Board within no more than 10 working days so that it may

exercise its authority to resolve the dispute.

MICHAEL E. BURNS v. BUREAU OF LAND MANAGEMENT, IBLA 97-201, 139 IBLA 7

(Decided March 28, 1997)

An appeal will normally be dismissed as moot where, prior to the filing of a notice of appeal, the

action being challenged has already occurred and there is no effective relief which can be

afforded the appellant. Where, however, because of the limited duration of the challenged action

and the reasonable expectation that the action will recur, there exists a substantial likelihood that

a recurrence may evade review, dismissal of an appeal is not appropriate. 

BUREAU OF LAND MANAGEMENT v. WILLIAM J. THOMAN, IBLA 92-346, 139

IBLA 48 (Decided April 3, 1997)

The authority of the Office of Hearings and Appeals is delegated to it from the Secretary of the

Interior under 43 C.F.R. § 4.1, which provides that the office is an authorized representative of

the Secretary for the purpose of hearing, considering, and determining, as fully and finally as

might the Secretary, matters within the jurisdiction of the Department. Thus, an Administrative

Law Judge's authority in fashioning relief following a hearing on the merits is not limited by

jurisprudential constraints underlying injunctive relief analysis.
Protests, Appeals, and Hearings Attachment 1-22

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN

UTE INDIAN TRIBE, Intervenors-Appellants AMERICAN FARM BUREAU

FEDERATION, Amicus-Curiae, IBLA 94!264, 140 IBLA 85 (Decided August 21, 1997)

The effectiveness of a BLM decision to round up and remove wild horses during the pendency of

an appeal to the Board of Land Appeals is controlled by 43 C.F.R. § 4770.-3(c), not by 43 C.F.R.

§ 4.21-(a). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse

removal decision into full force and effect, and it "take[s] effect on the date specified, regardless

of an appeal." 

WILD HORSE ORGANIZED ASSISTANCE and COMMISSION FOR THE

PRESERVATION OF WILD HORSES v. BUREAU OF LAND MANAGEMENT, 

IBLA 95-312, 95-313, 141 IBLA 202 (Decided November 13, 1997)

The Department has historically declined to adjudicate private disputes involving grazing leases

and has maintained the status quo until the parties have had an opportunity to settle their dispute

privately or in a court of competent jurisdiction. When a private party seeks to have a grazing

lease cancelled because the lessee has deeded the property to the party seeking to have the

grazing lease cancelled, and there is an ongoing dispute regarding the ownership of base

property, the proper course of action on the part of BLM is to decline to disturb the existing

conditions until resolution of the private dispute. 

H. ARVENE COOPER AND BRENT DAVID COOPER (Appellants) v. BUREAU OF LAND

MANAGEMENT (Respondent) LYNN A. JENKINS, I. (Intervenor), IBLA 95-489, 144 IBLA

235 (Decided May 6, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 25, 1998. 

The existence of a BLM decision, adverse to a party to a case, is necessary to provide jurisdiction

for an appeal to the Board of Land Appeals. An appealable decision takes or prohibits some

action. A billing notice for grazing privileges established by prior planning documents is not a

final, appealable decision under 43 C.F.R. § 4160.3 or 43 C.F.R. § 4.470. An appeal of such a

billing notice is properly dismissed. 

DEFENDERS OF WILDLIFE ET AL. V. Bureau of Land Management, IBLA 97-479, 

144 IBLA 250 (Decided June 5, 1998)

Except for a few specific circumstances, the Board of Land Appeals will not entertain an appeal

when no effective relief can be afforded an appellant. A well-recognized exception to this rule is

that the Board will not dismiss an appeal when an issue raised by the appeal is capable of

repetition, yet evading review.
Protests, Appeals, and Hearings Attachment 1-23

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

The issuance of a biological opinion does not deprive an Administrative Law Judge or this Board

of jurisdiction over a grazing appeal under 43 U.S.C. § 315h (1994) with respect to issues not

within the scope of the biological opinion. Therefore, this Board has the jurisdiction to

determine whether dismissal of the appeal for lack of jurisdiction was correct, because whether

OHA has jurisdiction under the Taylor Grazing Act is not within the scope of a biological

opinion. 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

The Office of Hearings and Appeals does not have the authority to review a biological opinion

issued by the Fish and Wildlife Service under section 7 of the Endangered Species Act,

16 U.S.C. § 1536 (1994), or BLM's implementation of the mandatory terms and conditions of an

incidental take statement attached to that opinion. 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,

145 IBLA 154 (Decided August 6, 1998)

When BLM cancels a Private Maintenance and Care Agreement, the adopter has the burden of

establishing that BLM's action was improper. The adopter's assertions that the horses were well

maintained, together with statements of third parties attesting to the good physical appearance of

the horses, are insufficient to overcome physical evidence of substandard care and health

problems. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78, 

145 IBLA 309 (Decided September 17, 1998)

An administrative law judge's dismissal of a grazing appeal on the grounds that the decision

appealed was not subject to appeal will be reversed, and the case remanded for hearing where the

action appealed was a final decision that may have modified the terms and conditions of the

grazing lease or created a grazing system outside the scope of that authorized by an

Environmental Assessment. 

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 95-475, 145 IBLA 379 (Decided September 24, 1998)

A BLM plan for removing wild horses from a herd management area will be affirmed where

BLM has concluded that removal is necessary to restore the range to a thriving ecological

balance, and the appellants have failed to demonstrate that BLM committed any error in reaching

such conclusion. 
Protests, Appeals, and Hearings Attachment 1-24

TONI HUTCHESON MOORE ET AL., and AMERICAN MUSTANG & BURRO

ASSN., INC. v. BUREAU OF LAND MANAGEMENT, IBLA 97-541 and 97-547, 146

IBLA 168 (Decided October 29, 1998)

Under the doctrine of administrative finality — the administrative counterpart of the doctrine of

res judicata — when a party has had an opportunity to obtain review within the Department and

no appeal was taken, or an appeal was taken and the decision was affirmed, the decision may not

be reconsidered in later proceedings except upon a showing of compelling legal or equitable

reasons, such as violations of basic rights of the parties or the need to prevent an injustice.

TONI HUTCHESON MOORE ET AL., and AMERICAN MUSTANG & BURRO

ASSN., INC. v. BUREAU OF LAND MANAGEMENT, IBLA 97-541 and 97-547, 146

IBLA 168 (Decided October 29, 1998)

An Allotment Management Plan is an activity level document that implements land-use decisions

made in a Resource Management Plan or Management Framework Plan. An appeal of an

Allotment Management Plan which challenges a land-use decision to allow grazing and to what

extent is not likely to succeed on the merits and will not support a stay. 

OREGON NATURAL RESOURCES COUNCIL ACTION, OREGON NATURAL DESERT

ASSOCIATION v. Bureau of Land Management, IBLA 98-464, 148 IBLA 186 (Decided April

12, 1999) 

The Department's rules of practice require that a statement of reasons for appeal must

affirmatively point out error in the appealed decision. Where a statement of reasons enumerates

only arguments that pertain to an appeal of a grazing management decision that is pending before

an Administrative Law Judge, and where the statement of reasons does not allege or identify

specific error in the general land management decision pertaining to the grazing allotment, it is

appropriate to dismiss the appeal. 

OREGON NATURAL RESOURCES COUNCIL ACTION, OREGON NATURAL

DESERT ASSOCIATION v. Bureau of Land Management, IBLA 98-464, 148 IBLA 186

(Decided April 12, 1999) 

While it is true that on numerous occasions the Board has dismissed an appellant's argument as a

mere difference of opinion with BLM's experts, it has never been the practice of this Board to

accept the conclusory opinions of BLM's experts as a proper basis for a decision in the face of

conflicting testimony. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)
Protests, Appeals, and Hearings Attachment 1-25

Where holders of grazing permits failed to timely appeal 1992 Final Multiple Use Decision, they

were barred from challenging the validity of the adjustment prescribed therein to the extent that

the adjustments were based on studies and monitoring data in existence at the time the 1992

Decision was issued. 

BERTRAND PARIS & SONS v. BUREAU OF LAND MANAGEMENT, IBLA 96-246,

150 IBLA 146, (Decided August 27, 1999)

A party who has availed himself of the opportunity to obtain administrative review of a decision

within the Department is precluded from relitigating the matter in subsequent administrative

proceedings and the Board will not revisit matters previously adjudicated without a showing of

compelling legal or equitable reasons.

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA

99-278, 150 IBLA 294 (Decided September 27, 1999)

The Department has provided that an adjudication of grazing privileges will not be set aside on

appeal if it is reasonable and substantially complies with Departmental grazing regulations found

at 43 C.F.R. Part 4100. 43 C.F.R. § 4.478(b). In this manner, the Department has considerably

narrowed the scope of review of BLM grazing decisions by an Administrative Law Judge and by

this Board. 

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39 (Decided 

March 1, 2000) 

When the terms and conditions of a settlement agreement do not support an interpretation of one

of the parties to the agreement we will not read language into the agreement or interpret the

agreement in a manner that an administrative law judge has found does not conform to the intent

of the parties. 

WILLIAM J. THOMAN v. BUREAU OF LAND MANAGEMENT, GZ LIVESTOCK,

ET AL. (Intervenors), IBLA 90-411, 152 IBLA 97 (Decided March 30, 2000) 

Whether the Board will, in any given appeal, exercise its full de novo review authority is a matter

committed to its discretion. Where the parties allege and make a preliminary showing that,

subsequent to a hearing, new information has come to light which directly bears on the matter at

issue, the Board will normally decline to exercise its de novo review authority and will, instead,

remand the matter to the Hearings Division for a new fact-finding hearing. 

Riddle Ranches, Inc. v. Bureau of Land Management, 138 IBLA 82 (1997), vacated.

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT (ON JUDICIAL

REMAND), IBLA 98-477, 152 IBLA 119 (Decided April 3, 2000)
Protests, Appeals, and Hearings Attachment 1-26

On appeal from a decision of an Administrative Law Judge, the Board of Land Appeals possesses

all of the powers which the Judge had in making his initial decision. Accordingly, where the

record establishes that an Administrative Law Judge applied the wrong standard of proof to the

detriment of an appellant, it is within the authority of the Board to review the record de novo and

apply the correct legal standard without remanding the matter to the Hearings Division. 

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT (ON JUDICIAL

REMAND), IBLA 98-477, 152 IBLA 119 (Decided April 3, 2000) 

The Board of Land Appeals will not entertain an appeal when no effective relief can be afforded

an appellant. Where a challenged interim decision has been superceded by a final multiple use

decision, this Board will decline to entertain the appeal with respect to the interim decision

because no effective relief is available.

VON L. AND MARIAN SORENSEN v. BUREAU OF LAND MANAGEMENT, IBLA

98-365, 155 IBLA 207 (Decided July 18, 2001) 

A well-recognized exception to the rule of mootness is that the Board will not dismiss an appeal

when an issue raised by the appeal is capable of repetition, yet evading review. A decision on

appeal does not fall into this exception where the appellant did not appeal a subsequent BLM

decision supplanting the decision at issue. 

VON L. AND MARIAN SORENSEN v. BUREAU OF LAND MANAGEMENT, IBLA

98-365, 155 IBLA 207 (Decided July 18, 2001)

Where an appellant opposes BLM's choice among alternatives in a record of decision on the basis

of an environmental assessment and asks that the Board implement the appellant's choice of

alternatives, the Board will not entertain the appeal when: (1) reversal would require a new

NEPA process rather than implementation of appellant's choice and (2) a subsequent BLM

decision has already supplanted the record of decision in question.

VON L. AND MARIAN SORENSEN v. BUREAU OF LAND MANAGEMENT, IBLA

98-365, 155 IBLA 207 (Decided July 18, 2001)

3.5 Hearings and Hearing Examiners

The hearing before an ALJ provided by 43 CFR 4.470 for grazing appeals is authorized by sec. 9

of the Taylor Grazing Act, 43 U.S.C. § 315h (1988). This hearing is deemed to be a hearing "on

the record" as provided by 5 U.S.C. § 554(a) (1988). The standard of proof at such a hearing is a

preponderance of the evidence. 

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA

89-216, 127 IBLA 259 (Decided September 28, 1993)
Protests, Appeals, and Hearings Attachment 1-27

The procedures at 43 CFR Subpart 4150 for giving notice to the owner of livestock grazing

without authorization in violation of 43 CFR 4140.1(b)(1); ordering removal; and for

impounding unauthorized livestock are properly distinguished from the procedures for

adjudicating an alleged trespass and the amount of damages under 43 CFR Subpart 4160 and for

assessing penalties under 43 CFR Subpart 4170. Although proposed and final decisions subject

to appeal for a hearing before an Administrative Law Judge are required to adjudicate an alleged

trespass and assess damages or penalties, these are not a prerequisite to notice and impoundment

of livestock grazing without authorization. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130

IBLA 119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17,

1997). See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

Under 43 CFR 4.477, the administrative law judge may either place his or her decision into full

force and effect or revoke the full force and effect of a BLM decision only in the context of

issuing a final decision on the merits of the pending appeal.

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 95-481, 132 IBLA 19 (Decided June 30, 1995)

Editor's note: Reconsideration denied by order issued May 23, 1996.

The authority of the Office of Hearings and Appeals is delegated to it from the Secretary of the

Interior under 43 C.F.R. § 4.1, which provides that the office is an authorized representative of

the Secretary for the purpose of hearing, considering, and determining, as fully and finally as

might the Secretary, matters within the jurisdiction of the Department. Thus, an Administrative

Law Judge's authority in fashioning relief following a hearing on the merits is not limited by

jurisprudential constraints underlying injunctive relief analysis.

NATIONAL WILDLIFE FEDERATION ET AL. v. BUREAU OF LAND

MANAGEMENT, UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN

UTE INDIAN TRIBE, Intervenors-Appellants AMERICAN FARM BUREAU

FEDERATION, Amicus-Curiae. IBLA 94!264, 140 IBLA 85 (Decided August 21,

1997)

On appeal from a decision of an Administrative Law Judge, the Board of Land Appeals possesses

all of the powers which the Judge had in making his initial decision. Accordingly, where the

record establishes that an Administrative Law Judge applied the wrong standard of proof to the

detriment of an appellant, it is within the authority of the Board to review the record de novo and

apply the correct legal standard without remanding the matter to the Hearings Division. 
Protests, Appeals, and Hearings Attachment 1-28

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT (ON JUDICIAL

REMAND), IBLA 98-477, 152 IBLA 119 (Decided April 3, 2000) 

3.6 Burden of Proof

A person who has expressed an intent to commercially exploit an animal after receiving title is

not a qualified applicant. When determining whether an applicant is qualified it is proper for

BLM to ascertain an applicant's long-term intent in order to assure that the horse's humane

treatment and care will continue after title transfers. 

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA

158 (Decided May 10, 1993)

BLM properly cancelled a private maintenance and care agreement for a wild or free-roaming

burro upon receiving proof that the animal subject to the agreement was in a deteriorated

condition. Evidence offered by the burro's custodian to establish that a genetic defect was the

cause of the burro's observed hoof condition was not adequate to overcome contrary medical

evidence based on an actual examination of the adopted burro where the evidence of genetic

defect offered by the adopter related to other animals not covered by the maintenance agreement. 

JOHN P. WILEY v. BUREAU OF LAND MANAGEMENT, IBLA 90-238, 126 IBLA

261 ( Decided June 2, 1993)

BLM may properly cancel private maintenance and care agreements for wild horses and

repossess the horses when there is sufficient evidence of improper care of the adopted animals to

establish that the adopter violated the terms of the agreement. 

FREDDIE R. MASON v. BUREAU OF LAND MANAGEMENT,IBLA 92-259, 126

IBLA 28 (Decided April 13, 1993)

A BLM decision rejecting an application to adopt a wild horse on the ground that an applicant

has violated a regulation implementing the Wild Free-Roaming Horses and Burros Act will be

set aside if the applicant has not been convicted of the violation as provided in 43 CFR 4750.3-

2(a)(2), and a substantial issue exist as to an applicant's responsibility for the violation. The

regulation contemplates that issues of culpability will be resolved in a proceeding that would lead

to a conviction rather than an appeal to this Board. 

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA

158 (Decided May 10, 1993)

BLM properly cancelled a private maintenance and care agreement for a wild or free-roaming

burro upon receiving proof that the animal subject to the agreement was in a deteriorated

condition. Evidence offered by the burro's custodian to establish that a genetic defect was the
Protests, Appeals, and Hearings Attachment 1-29

cause of the burro's observed hoof condition was not adequate to overcome contrary medical

evidence based on an actual examination of the adopted burro where the evidence of genetic

defect offered by the adopter related to other animals not covered by the maintenance agreement. 

JOHN P. WILEY v. BUREAU OF LAND MANAGEMENT, IBLA 90-238, 126 IBLA

261 ( Decided June 2, 1993)

The standard of proof to be applied in weighing the evidence presented at a hearing held pursuant

to an appeal of a grazing decision issued by BLM is the preponderance of evidence test. Where a

decision determining grazing privileges has been reached in the exercise of administrative

discretion, the appellant seeking relief therefrom bears the burden of showing by a preponderance

of the evidence that the decision is unreasonable or improper.

Smith v. BLM, 129 IBLA 304 (1994), modified, JERRY KELLY, Appellee v. BUREAU

OF LAND MANAGEMENT, Appellant, SHELDON W. LAMB, Intervenor-Appellant,

IBLA 91-451, 131 IBLA 146 (Decided October 31, 1994)

By regulation, 43 CFR 4.478(b), the Department has provided that an adjudication of grazing

privileges will not be set aside on appeal if it is reasonable and substantially complies with

Departmental grazing regulations found at 43 CFR Part 4100. 43 CFR 4.478(b). In this manner,

the Department has considerably narrowed the scope of review of BLM grazing decisions by an

Administrative Law Judge and by this Board.

Smith v. BLM, 129 IBLA 304 (1994), modified, JERRY KELLY, Appellee v. BUREAU

OF LAND MANAGEMENT, Appellant, SHELDON W. LAMB, Intervenor-Appellant,

IBLA 91-451, 131 IBLA 146 (Decided October 31, 1994)

The burden is on a right-of-way applicant, who challenges a BLM decision denying its

application, to demonstrate by a preponderance of the evidence that BLM erred in the collection

or evaluation of data supporting rejection and in its conclusions. The applicant's reliance on a

BLM engineering report, which concluded that a water-gathering and pipeline project was

marginally feasible, does not establish error in the denial, when the denial decision was based not

only on the engineering report, but on an environmental analysis prepared by BLM experts,

showing that granting the application would adversely affect public land values, including

grazing activities, wetlands, and wildlife and its habitat.

STEWART HAYDUK v. BUREAU OF LAND MANAGEMENT, IBLA 93-154, 133

IBLA 346 (Decided September 13, 1995)

A BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 C.F.R.

Part 4100 (1992). The burden is on the objecting party to show by a preponderance of the

evidence of record that a decision is in error. 
Protests, Appeals, and Hearings Attachment 1-30

DUNCAN MACKENZIE v. BUREAU OF LAND MANAGEMENT, IBLA 94-871, 140

IBLA 192 (Decided September 8, 1997)

Editor’s Note: This decision refers to leases but the issue appears to be issuance of a

grazing permit not a grazing lease.

The BLM enjoys broad discretion in determining how to adjudicate and manage grazing

preference. Under 43 C.F.R. § 4.478(b), a BLM decision concerning grazing privileges will not

be set aside if it is reasonable and substantially complies with the provisions of the Federal

grazing regulations found at 43 C.F.R. Part 4100. The burden is on the objecting party to show

by a preponderance of the evidence that the decision is unreasonable or improper. 

WEST COW CREEK PERMITTEES v. BUREAU OF LAND MANAGEMENT, IBLA

95-206 142 IBLA 224 (Decided January 22, 1998)

An appellant challenging the accuracy of a range study must show not just that the results of the

study could be in error, but that they are in fact erroneous. No error is established absent a

showing that BLM's range survey methods are incapable of yielding accurate information, that

there was a material departure from prescribed procedures, or that a demonstrably more accurate

survey has disclosed a contrary result. A party challenging a decision based on a BLM expert's

reasoned analysis must demonstrate by a preponderance of the evidence that the BLM expert

erred when collecting the underlying data, when interpreting that data, or when reaching the

conclusion. It is not enough to show that its expert disagrees or believes that a different course of

action or interpretation is available and supported by the evidence. A BLM denial of applications

to increase active grazing preference will be affirmed when monitoring studies indicate that

multiple-use management objectives for the grazing allotment are not being met and that

additional forage is not available on a sustained yield basis within the allotment. 

WEST COW CREEK PERMITTEES v. BUREAU OF LAND MANAGEMENT, IBLA

95-206, 142 IBLA 224 (Decided January 22, 1998)

A BLM plan for removing wild horses from a herd management area will be affirmed where

BLM has concluded that removal is necessary to restore the range to a thriving ecological

balance, and the appellants have failed to demonstrate that BLM committed any error in reaching

such conclusion. 

AMERICAN MUSTANG & BURRO ASSOCIATION, INC. and DAVE HILLBERRY

v. BUREAU OF LAND MANAGEMENT, IBLA 96-8, 144 IBLA 148 (Decided May 28,

1998)

The Bureau enjoys broad discretion in determining how to adjudicate and manage grazing

preferences, and, under 43 C.F.R. § 4.478(b), a BLM decision concerning grazing privileges will

not be set aside if it is reasonable and substantially complies with the provisions of the Federal

grazing regulations found at 43 C.F.R. Part 4100. A BLM decision may be regarded as arbitrary,
Protests, Appeals, and Hearings Attachment 1-31

capricious, or inequitable only when it is not supported by any rational basis, and the burden is

on the objecting party to show by a preponderance of the evidence that the decision is

unreasonable or improper. Therefore, a BLM determination of the carrying capacity of an

allotment will not be disturbed absent positive evidence of error. 

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

A BLM decision apportioning the carrying capacity of an allotment between livestock and wild

horses will be affirmed when an appellant urges another course of action but does not

demonstrate that BLM's allocation is unreasonable. 

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

The Department's rules of practice require that a statement of reasons for appeal must

affirmatively point out error in the appealed decision. Where a statement of reasons enumerates

only arguments that pertain to an appeal of a grazing management decision that is pending before

an Administrative Law Judge, and where the statement of reasons does not allege or identify

specific error in the general land management decision pertaining to the grazing allotment, it is

appropriate to dismiss the appeal. 

OREGON NATURAL RESOURCES COUNCIL ACTION, OREGON NATURAL

DESERT ASSOCIATION v. BUREAU OF LAND MANAGEMENT, IBLA 98-464,

148 IBLA 186 (Decided April 12, 1999) 

An Allotment Management Plan is an activity level document that implements land-use decisions

made in a Resource Management Plan or Management Framework Plan. An appeal of an

Allotment Management Plan which challenges a land-use decision to allow grazing and to what

extent is not likely to succeed on the merits and will not support a stay. 

OREGON NATURAL RESOURCES COUNCIL ACTION, OREGON NATURAL

DESERT ASSOCIATION v. Bureau of Land Management, IBLA 98-464, 148 IBLA 186

(Decided April 12, 1999) 

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges,

and a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 C.F.R.

Part 4100. BLM's decision may be regarded as arbitrary, capricious, or inequitable only where it

is not supported by any rational basis, and the burden is on the objecting party to show that a

decision is improper.

KENNETH YOUNG v. BUREAU OF LAND MANAGEMENT, IBLA 95-221, 148

IBLA 221 (Decided April 20, 1999)
Protests, Appeals, and Hearings Attachment 1-32

A party challenging a decision record and finding of no significant impact, based on an

underlying environmental assessment, must show that the determination was premised on a clear

error of law, a demonstrable error of fact, or that the analysis failed to consider a substantial

environmental question of material significance to the action for which the analysis was

prepared. Mere differences of opinion provide no basis for reversal of BLM's action if it is

reasonable and supported by the record on appeal.

COMMITTEE FOR IDAHO'S HIGH DESERT, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-519, 149 IBLA 1 (Decided May 20, 1999)

A BLM determination that a land use planning objective to stop downward trend on 10,603

acres, and manage for upward trend on 10,762 acres, in the long term, on a grazing allotment had

not been met, based on limited monitoring trend data, will be set aside when the record fails to

show a rational basis for failing to apply statistical analysis to that data, as recommended by the

Nevada Rangeland Monitoring Handbook, the handbook utilized by BLM in its monitoring

program. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A BLM determination that a land use planning objective to improve 7,952 acres to good

condition, and 2,014 acres to excellent condition, in the long term, on a grazing allotment had not

been met will be set aside when the case record fails to show any baseline data on ecological

condition for any particular acreage in the grazing allotment. . 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

While it is true that on numerous occasions the Board has dismissed an appellant's argument as a

mere difference of opinion with BLM's experts, it has never been the practice of this Board to

accept the conclusory opinions of BLM's experts as a proper basis for a decision in the face of

conflicting testimony. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

BLM may properly measure utilization in a grazing allotment using the key forage plant method. 

However, when the case record fails to establish a rational basis for selecting the highest utilized

key forage species from each transect in the allotment in developing use pattern maps for the

allotment and calculating average weighted utilization, BLM's conclusion that land use planning

objectives for utilization were not being met, which was based on those results, must be set aside. 
Protests, Appeals, and Hearings Attachment 1-33

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges. 

When it issues a decision taking actions affecting the grazing privileges of a livestock permittee,

those actions may be regarded as arbitrary, capricious, or inequitable only if they are not

supportable on any rational basis, and an appellant seeking relief from such a decision has the

burden to establish by a preponderance of the evidence that the decision is unreasonable or

improper.

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND MANAGEMENT,

IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

There is a legal presumption, which is rebuttable, that official acts of public officers are regular. 

On the other hand, there is a presumption that mail properly addressed and with adequate postage

affixed, and deposited in an appropriate receptacle, is duly delivered. When these two

presumptions come into conflict and BLM states that it did not receive the instrument, the burden

is on the one asserting that it was delivered to show that it was, in fact, timely received by BLM.

PAUL C. LEWIS ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-178 , 150

IBLA 78 [or 76?] (Decided August 16, 1999) 

When BLM cancels a Private Maintenance and Care Agreement, the adopter has the burden of

establishing that BLM's action was improper.

STEFANIE LEE v. BUREAU OF LAND MANAGEMENT, IBLA 97-502, 151 IBLA 1

(Decided October 14, 1999)

An Administrative Law Judge's decision reversing and remanding a BLM decision to the extent

BLM found that the former grazing preference holder had been compensated for range

improvements placed on the allotment after 1986 will be affirmed where the record establishes

that BLM issued permits for the range improvements after 1986 and the current grazing

preference holder has not shown error in the Administrative Law Judge's decision to remand the

matter to BLM for determinations of use, ownership, and valuation or removal of those

improvements. 

JERRY KELLY, Appellant v. BUREAU OF LAND MANAGEMENT, Respondent;

SHELDON W. LAMB, Intervenor, IBLA 99-332, 155 IBLA 58 (Decided May 9, 2001) 

BLM enjoys broad discretion to determine how to adjudicate and manage grazing privileges, and

a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations. A BLM decision

may be regarded as arbitrary, capricious, or inequitable only where it is not supported by any

rational basis, and the burden is on the objecting party to show that a decision is improper. The
Protests, Appeals, and Hearings Attachment 1-34

determination establishing a grazing allotment's carrying capacity will not be disturbed in the

absence of positive evidence of error. Where a party offers no contrary analysis of the carrying

capacity of the public lands to demonstrate that BLM's method of determining the carrying

capacity is in error, BLM's determination is properly adopted. The determination to issue a 100-

percent public land use permit rather than a percentage public land use permit will be affirmed

where the record supports BLM's determination and no rebuttal is presented. 

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS,

INTERVENOR, IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

BLM enjoys broad discretion in determining how to adjudicate and manage grazing privileges,

and a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 CFR

Part 4100. BLM's decision may be regarded as arbitrary, capricious, or inequitable only where it

is not supported by any rational basis, and the burden is on the objecting party to show that a

decision is improper. 

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

A party challenging a decision record and finding of no significant impact, based on an

underlying environmental assessment, must show that the determination was premised on a clear

error of law, a demonstrable error of fact, or that the analysis failed to consider a substantial

environmental question of material significance to the action for which the analysis was

prepared. Mere differences of opinion provide no basis for reversal of BLM's action if it is

reasonable and supported by the record on appeal.

THOMAS E. SMIGEL and BARBARA W. SMIGEL v. BUREAU OF LAND

MANAGEMENT, IBLA 99-85, 155 IBLA 158 (Decided July 17, 2001) 

Where an adopter, over a 8-month period following the implementation of a private maintenance

and care agreement, failed to provide shelter for adopted horses as required by that agreement,

the return of the horses to the adopter is properly conditioned upon a showing that she has, in

fact, provided shelter as required.

JULIE R. HAYSLIP v. BUREAU OF LAND MANAGEMENT, IBLA 2000-242, 155

IBLA 315 (Decided September 5, 2001) 

3.7 Sufficiency and Weight of Evidence

A BLM decision rejecting an application to adopt a wild horse on the ground that an applicant

has violated a regulation implementing the Wild Free-Roaming Horses and Burros Act will be
Protests, Appeals, and Hearings Attachment 1-35

set aside if the applicant has not been convicted of the violation as provided in 43 CFR 4750.3-

2(a)(2), and a substantial issue exist as to an applicant's responsibility for the violation. The

regulation contemplates that issues of culpability will be resolved in a proceeding that would lead

to a conviction rather than an appeal to this Board. 

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA

158 (Decided May 10, 1993)

The BLM properly cancelled a private maintenance and care agreement for a wild or freeroaming burro upon receiving proof that the animal subject to the agreement was in a

deteriorated condition. Evidence offered by the burro's custodian to establish that a genetic

defect was the cause of the burro's observed hoof condition was not adequate to overcome

contrary medical evidence based on an actual examination of the adopted burro where the

evidence of genetic defect offered by the adopter related to other animals not covered by the

maintenance agreement. 

JOHN P. WILEY v. BUREAU OF LAND MANAGEMENT, IBLA 90-238 , 126 IBLA

261 ( Decided June 2, 1993)

BLM properly canceled a private maintenance and care agreement for three wild horses and took

possession of a remaining wild free-roaming horse where the record established that the adopter

violated the terms of his agreement by selling the other two horses before title to them was issued

by BLM.

DARBY L. RYLAND v. BUREAU OF LAND MANAGEMENT, IBLA 90-164, 126

IBLA 371 (Decided June 30, 1993)

A decision to gather wild horses from a herd management area in order to avert deterioration of

the range and to pursue a thriving natural ecological balance in accordance with sec. 3(b) of the

Wild Free-Roaming Horses and Burros Act, as amended, 16 U.S.C. § 1333(b) (1988), is properly

affirmed where the record demonstrates that the decision is based upon a reasonable analysis of

data collected on an ongoing basis. 

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)

An order by Administrative Law Judge denying an appeal as frivolous will be vacated where

appellant's statement of reasons set out numerous specific objections to the propriety of BLM's

decision granting a grazing permit, along with citations to Departmental regulations and the BLM

Manual, presenting legitimate issues of fact and law requiring resolution.
Protests, Appeals, and Hearings Attachment 1-36

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

The Private Maintenance and Care Agreement and 43 CFR 4750.4-1(e) require financially

responsible adopters to assure the proper care and treatment of horses covered by the Private

Maintenance and Care Agreement. When the person providing care for an animal being adopted

for the adopting party informs BLM that the person adopting the animal has not paid care and

maintenance bills, and that the person providing care will no longer care for the animal, BLM is

justified in cancelling the Agreement and repossessing the animal. 

MARK L. WILLIAMS v. BUREAU OF LAND MANAGEMENT, IBLA 93-72 , 130

IBLA 45 (Decided July 12, 1994)

A finding of a grazing trespass will be affirmed where it is supported by a preponderance of the

evidence introduced at a hearing.

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130

IBLA 119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17,

1997). See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

A BLM decision cancelling private maintenance and care agreements and repossessing a wild

burro and a wild horse is properly affirmed where the evidence establishes that the adopter

violated the adoption agreement and the applicable regulation requiring adopter to notify BLM

within 7 days of discovery of an animal's escape; that a subsequent adoption was obtained without notice to BLM of the impoundment by animal control authorities of the escaped animal; and

the record indicates that the animals were maintained under conditions which threatened their

welfare.

LARRY PULLEY v. BUREAU OF LAND MANAGEMENT, IBLA 91-357 , 131 IBLA

7 (Decided September 22, 1994)

A trespass will be considered willful where the evidence objectively shows that the

circumstances did not comport with a finding that the trespasser acted in good faith or innocent

mistake. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130

IBLA 119 (Decided August 4, 1994)
Protests, Appeals, and Hearings Attachment 1-37

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17,

1997). See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

A BLM decision notifying the adopter that his wild horses had been repossessed and cancelling

his private maintenance and care agreement will be reversed where the record on appeal contains

insufficient evidence of improper care or abandonment of the adopted animals or any other

failure to comply with the terms of the agreement sufficient to justify such action. 

NOEL BENOIST v. BUREAU OF LAND MANAGEMENT, IBLA 92-588, 131 IBLA

138 (Decided October 31, 1994) 

The standard of proof to be applied in weighing the evidence presented at a hearing held pursuant

to an appeal of a grazing decision issued by BLM is the preponderance of evidence test. Where a

decision determining grazing privileges has been reached in the exercise of administrative

discretion, the appellant seeking relief therefrom bears the burden of showing by a preponderance

of the evidence that the decision is unreasonable or improper.

Smith v. BLM, 129 IBLA 304 (1994), modified, JERRY KELLY, Appellee v. BUREAU

OF LAND MANAGEMENT, Appellant, SHELDON W. LAMB, Intervenor-Appellant,

IBLA 91-451, 131 IBLA 146 (Decided October 31, 1994)

Under 43 CFR 4770.3(b), stays of decisions taking possession of wild horses and canceling

private maintenance and care agreements could not be granted and the decisions were properly

affirmed when there was admitted failure to comply with animal care instructions issued by the

authorized officer pursuant to 43 CFR 4760.1(d) after the horses were found in a deteriorated

condition by a BLM inspection.

WILLIAM J. AHRNDT ET AL. V. BUREAU OF LAND MANAGEMENT , IBLA 95-

209,and 95-210, 132 IBLA 126 Decided March 6, 1995

BLM properly canceled a private maintenance and care agreement and took possession of wild

horses when the adopter failed to produce the horses for inspection within 7 days of receipt of a

written request as required by his agreement and 43 CFR 4750.4-(c) and 4770.1(g).

JOE PEEPERS v. BUREAU OF LAND MANAGEMENT, IBLA 94-339 , 137 IBLA

324 (Decided 1996)

An application to adopt wild and free-roaming horses under 43 CFR Subpart 4750 is properly

rejected where the decision is supported by the regulations and observations of qualified BLM

personnel, and the party challenging the determination has not shown it to be unreasonable or

improper.
Protests, Appeals, and Hearings Attachment 1-38

JOHN LINJATIE v. BUREAU OF LAND MANAGEMENT, IBLA 93-299 , 15 IBLA

390 (Decided January 22, 1997)

A Private Maintenance and Care Agreement for wild horses is properly cancelled and the horses

are properly repossessed by the Federal Government when there is sufficient evidence of

improper care of the adopted horses to establish that the adopter violated the terms of the

Agreement by "inhumanely treating" the horses, by allowing them to suffer stress and injury

owing to action or failure to act that was not compatible with animal husbandry practices

accepted in the veterinary community. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78, 145

IBLA 309 (Decided September 17, 1998)

BLM properly cancelled a Private Maintenance and Care Agreement for wild free-roaming

horses and repossessed the horses when the adopter violated the terms of 43 C.F.R. § 4770.1(d)

by placing an advertisement in a newspaper for the sale of the horses before title was issued by

BLM, notwithstanding the fact that the adopter advised a potential buyer that the horses could not

be sold until title issued. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78,

145 IBLA 309 (Decided September 17, 1998)

When BLM cancels a Private Maintenance and Care Agreement, the adopter has the burden of

establishing that BLM's action was improper. The adopter's assertions that the horses were well

maintained, together with statements of third parties attesting to the good physical appearance of

the horses, are insufficient to overcome physical evidence of substandard care and health

problems. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78,

145 IBLA 309 (Decided September 17, 1998)

Under 43 C.F.R. § 4760.1(d), BLM has the discretionary authority to give an adopter of wild

horses reasonable time to complete required corrective actions in lieu of immediate repossession

of the horses and cancellation of the Private Maintenance and Care Agreement, or repossess the

horses immediately. If the record establishes that some of the horses were suffering from severe

hoof problems and all of the horses were kept in substandard facilities, BLM may properly

repossess and cancel the Agreement without allowing for corrective action.

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78 ,

145 IBLA 309 (Decided September 17, 1998)

When, in evaluating a grazing allotment, BLM applies an incorrect riparian objective and uses

the failure to meet that objective as a basis for closing part of the allotment to livestock grazing,
Protests, Appeals, and Hearings Attachment 1-39

and the case record shows that the proper objective had been met, the closure action will be set

aside. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A decision of an Area Manager to assign fence maintenance responsibilities to a grazing

permittee will be set aside and remanded on appeal where the permittee establishes that the

assignment was arbitrary and capricious because no coordination or consultation was effected 

with the permittee concerning the fence location or maintenance costs and the location selected

by BLM will be inordinately difficult and expensive to maintain.

JOHN L. FALEN v. BUREAU OF LAND MANAGEMENT, IBLA 98-11R, 149 IBLA

347 (Decided July 21, 1999) 

A BLM decision cancelling a private maintenance and care agreement will be reversed where the

record on appeal contains insufficient evidence of improper care or abandonment of the horse

covered by the agreement or the existence of any other failure to comply with the terms of the

agreement sufficient to justify such action.

JOHN SAMPSON v. BUREAU OF LAND MANAGEMENT, IBLA 96-530, 150 IBLA

92 (Decided August 17, 1999) 

A BLM decision canceling a private maintenance and care agreement and repossessing a wild

horse is properly affirmed where the evidence establishes that the adopter violated the adoption

agreement by transferring the horse to another party for more than 30 days without notifying the

authorized officer. 

STEFANIE LEE v. BUREAU OF LAND MANAGEMENT, IBLA 97-502, 151 IBLA 1

(Decided October 14, 1999)

The Department has provided that an adjudication of grazing privileges will not be set aside on

appeal if it is reasonable and substantially complies with Departmental grazing regulations found

at 43 C.F.R. Part 4100. 43 C.F.R. § 4.478(b). In this manner, the Department has considerably

narrowed the scope of review of BLM grazing decisions by an Administrative Law Judge and by

this Board. 

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39

(Decided March 1, 2000) 

When the provisions of an agreement are unambiguous, parol evidence that an obligation is a

condition precedent to the other party's obligations is inadmissible. 
Apportionment Attachment 1-40

WILLIAM J. THOMAN v. BUREAU OF LAND MANAGEMENT, GZ LIVESTOCK,

ET AL. (Intervenors)(ON RECONSIDERATION), IBLA 90-411R, 155 IBLA 266

(Decided July 27, 2001)

BLM improperly cancelled a private maintenance and care agreement for wild horses and took

immediate possession of the horses on the basis that the adopter had failed to provide adequate

shelter and feed for her adopted horses, where BLM did so (1) during the period of an indefinite

extension of time granted to the adopter to provide shelter without providing notice that the

period for compliance had ended and that the horses were about to be seized; and (2) on the

strength of an unconfirmed report by a third party that the horses were about to be denied feed.

JULIE R. HAYSLIP v. BUREAU OF LAND MANAGEMENT, IBLA 2000-242, 155

IBLA 315 (Decided September 5, 2001) 

4. Apportionment of the Federal Range

4.1 Area of Use

A decision adjusting user boundaries within a Federal grazing allotment was properly affirmed

upon a showing that BLM had consulted, cooperated, and coordinated the determination

concerning areas of allotted use by the grazers concerned in conformity to Departmental

regulation 43 CFR 4110.2-4.

M. L. INVESTMENT CO. v. BUREAU OF LAND MANAGEMENT, IBLA 92-102, 

130 IBLA 376 (Decided September 15, 1994)

Editor's note: appeal filed, Civ. No. 90-0187-S-HLR (D. Idaho), motion to reopen case

filed Oct. 25, 1994; case had been remanded to agency for further proceedings on April

13, 1990; aff'd, (sum. judg. Sept. 30, 1996) 

While the Department will normally respect and give effect to range-line and allotment

agreements, the Department always retains the authority to override such agreements where they

are found to be incompatible with the proper administration of the Federal range. 

DELMER AND JO MCLEAN v. BUREAU OF LAND MANAGEMENT, IBLA 90-

332, 133 IBLA 225 (Decided August 3, 1995)

A grazing decision establishing initial use levels by livestock for a grazing allotment based upon

actual prior use of the allotment (rather than on permitted use) is affirmed on appeal because it

conforms to a BLM management framework plan. A finding that the season of use for the

allotment must be modified to promote management objectives established by the same plan is

also affirmed upon a showing that the change is reasonable, based upon expert analysis of

observed vegetation, soil, and climatic conditions on the allotment.
Apportionment Attachment 1-41

RIDDLE RANCHES, INC. v. BUREAU OF LAND MANAGEMENT, IBLA 94-17, 138

IBLA 82 (Decided February 3, 1997)

Editor's Note: appeal filed, Civ. No. 97-0265-S-LMB (D. Id. June 13, 1997), reversed

and set aside (to the extent affirms deferment of commencement of grazing use), by

stipulation (April 7, 1998); vacated by Riddle Ranches, Inc. v. BLM (On Judicial

Remand), 152 IBLA 119 (2000)

4.2 Use and Boundary Agreements Reserved

4.3 Individual Allotments Reserved

4.4 Lands Additionally Available Reserved

4.5 Designation for Classes of Livestock Reserved

4.6 Season of Use Reserved

4.7 Among Different Uses

A decision to make proportionate reductions in livestock and wild horse use that was based on

monitoring, research, and analysis of usage of the public lands and was shown to have been made

in consideration of the condition of the affected range in terms of available forage was properly

affirmed.

ANIMAL PROTECTION INSTITUTE OF AMERICA v. BUREAU OF LAND

MANAGEMENT, IBLA 94-56, 128 IBLA 150 (Decided January 13, 1994)

A BLM decision apportioning the carrying capacity of an allotment between livestock and wild

horses will be affirmed when an appellant urges another course of action but does not

demonstrate that BLM's allocation is unreasonable. 

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

BLM enjoys broad discretion to determine how to adjudicate and manage grazing privileges, and

a BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations. A BLM decision

may be regarded as arbitrary, capricious, or inequitable only where it is not supported by any

rational basis, and the burden is on the objecting party to show that a decision is improper. The

determination establishing a grazing allotment's carrying capacity will not be disturbed in the

absence of positive evidence of error. Where a party offers no contrary analysis of the carrying

capacity of the public lands to demonstrate that BLM's method of determining the carrying
Qualifications Attachment 1-42

capacity is in error, BLM's determination is properly adopted. The determination to issue a 100-

percent public land use permit rather than a percentage public land use permit will be affirmed

where the record supports BLM's determination and no rebuttal is presented. 

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS,

INTERVENOR, IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

5. Base Property

5.1 Ownership or Control

The Bureau of Land Management may properly cancel a grazing permit and preference where the

record shows that the operator transferred deeded land and the base property water rights for an

allotment; that the deeded land and water rights were pledged as security for a loan issued by the

Farmers Home Administration; and that upon foreclosure of that loan, ownership of the base

property was transferred to the Farmers Home Administration.

DALE D. SMITH v. BUREAU OF LAND MANAGEMENT, IBLA 91-467, 129 IBLA 304

(Decided May 25, 1994)

Editor's note: modified in Jerry Kelly v. BLM, 131 IBLA 146 (Oct. 31, 1994)

When the record supports a finding that the grazing lessee did not lose control of the base property

to which his grazing preference was attached, an Administrative Law Judge's decision setting aside

a Bureau of Land Management decision denying an application for a grazing lease in part and

reducing grazing preference and AUM's will be affirmed on appeal. 

D. RAY GORDON v. BUREAU OF LAND MANAGEMENT, IBLA94-194, 140 IBLA 112

(Decided August 26, 1997)

Editor’s Note: This decision refers to leases but the issue appears to be issuance of a grazing

permit not a grazing lease.

The Department has historically declined to adjudicate private disputes involving grazing leases and

has maintained the status quo until the parties have had an opportunity to settle their dispute privately

or in a court of competent jurisdiction. When a private party seeks to have a grazing lease cancelled

because the lessee has deeded the property to the party seeking to have the grazing lease cancelled,

and there is an ongoing dispute regarding the ownership of base property, the proper course of action

on the part of BLM is to decline to disturb the existing conditions until resolution of the private

dispute. 

H. ARVENE COOPER AND BRENT DAVID COOPER (Appellants) v. BUREAU OF

LAND MANAGEMENT (Respondent) LYNN A. JENKINS, I. (Intervenor), IBLA 95-489,

144 IBLA 235 (Decided May 6, 1998)
Qualifications Attachment 1-43

Editor's note: Reconsideration denied by Order dated Nov. 25, 1998 

Documents sent between parties subsequent to signing an agreement are not conclusive as to the

nature of the rights acquired under the agreement but are evidence of the parties' understanding of

the agreement. 

BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA 94-526 145 IBLA 78

(Decided July 16, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 9, 1998.

When a party applies to remove range improvements or be compensated because his interests in

grazing permits were terminated by a state court's foreclosure proceedings, BLM may properly deny

the application because documents establish that when the transfer of the permittee's interests had

occurred the permittee had been compensated for the value of the improvements, as required under

43 C.F.R. § 4120.3-5.

THELBERT WATTS v.UNITED STATES, IBLA 97-64, 148 IBLA 213 (Decided April 14,

1999)

Where BLM notifies prospective applicants for grazing use and preference that, if leased property

is offered as base property to qualify for grazing use, the term of the lease must be for 3 years, as set

forth in a BLM state Range Administration Policy, and an applicant offers base property land leased

for less than 3 years, the Administrative Law Judge's decision finding that the applicant failed to

qualify for grazing use and that BLM improperly awarded grazing use to the applicant will be

affirmed. 

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39 (Decided

March 1, 2000) 

5.2 Failure to Offer Reserved

5.3 Intentionally Left Blank Reserved

5.4 Dependency by Use Reserved

5.5 Land Commensureability Reserved

5.6 Base Property - Water

The Bureau of Land Management may properly cancel a grazing permit and preference where the

record shows that the operator transferred deeded land and the base property water rights for an

allotment; that the deeded land and water rights were pledged as security for a loan issued by the

Farmers Home Administration; and that upon foreclosure of that loan, ownership of the base

property was transferred to the Farmers Home Administration.
Range Projects Attachment 1-44

DALE D. SMITH v. BUREAU OF LAND MANAGEMENT, IBLA 91-467, 129 IBLA 304

(Decided May 25, 1994)

Editor's note: modified in Jerry Kelly v. BLM, 131 IBLA 146 (Oct. 31, 1994)

Under Departmental regulations, grazing preference was awarded an applicant commensurate with

the carrying capacity of base property during the qualifying priority period. The Federal range was

not classified but only the base property. Only base property may be properly described as "Class

1," while preference is stated in terms of AUM's, which are colloquially described as "Class 1" in

reference to the base property for which the preference was granted. 

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA 94-

526, 145 IBLA 78 (Decided July 16, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 9, 1998.

If AUM's do not fall within the definition of a Class 1 AUM, they are not Class 1 AUM's, regardless

of what the parties may have called them. The AUM's of grazing allowance which do not appear

on dependent property survey records as part of Class 1 base property qualifications are not Class

1 AUM's. 

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA 94-

526, 145 IBLA 78 (Decided July 16, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 9, 1998.

6. Cancellation and Reduction Reserved

6.1 Reduction as Penalty

6.2 To conform with Base Property Qualifications

6.3 To Conform with Grazing Capacity of Federal Range

6.4 Reduced Area of Use

7. Construction and Improvement Permits

A BLM decision rejecting a right-of-way application for a water-gathering and pipeline project, filed

pursuant to sec. 501 of the Federal Land Policy and Management Act of 1976, 43 U.S C. § 1761

(1988), will be affirmed where the record shows the decision to be a reasoned analysis of the facts

involved, made with due regard for the public interest.
EOU Agreements Attachment 1-45

STEWART HAYDUK v. BUREAU OF LAND MANAGEMENT, IBLA 93-154, 133 IBLA

346 (Decided September 13, 1995)

When a party applies to remove range improvements or be compensated because his interests in

grazing permits were terminated by a state court's foreclosure proceedings, BLM may properly deny

the application because documents establish that when the transfer of the permittee's interests had

occurred the permittee had been compensated for the value of the improvements, as required under

43 C.F.R. § 4120.3-5.

THELBERT WATTS v.UNITED STATES, IBLA 97-64, 148 IBLA 213 (Decided April 14,

1999)

A decision of an Area Manager to assign fence maintenance responsibilities to a grazing permittee

will be set aside and remanded on appeal where the permittee establishes that the assignment was

arbitrary and capricious because no coordination or consultation was effected with the permittee

concerning the fence location or maintenance costs and the location selected by BLM will be

inordinately difficult and expensive to maintain.

JOHN L. FALEN v. BUREAU OF LAND MANAGEMENT, IBLA 98-11R, 149 IBLA

347 (Decided July 21, 1999) 

The relevant regulations governing grazing administration at 43 C.F.R. Subpart 4160 provide that

proposed decisions shall be served on any permittee who is "affected" by the proposed actions, terms

or conditions, or modifications relating to the permit. Any person whose interest is adversely

affected by a final BLM decision under this part may appeal the decision for the purpose of a hearing

before an administrative law judge. A decision denying a grazing permittee the right, pursuant to

43 C.F.R. Subpart 4160, to protest and appeal a BLM decision to construct fencing on a riparian

pasture in an allotment to exclude livestock from a critical source of water on the ground the

permittee was not affected by the decision is properly reversed and the case will be referred for a

hearing. 

ESPERANZA GRAZING ASSOCIATION v. BUREAU OF LAND MANAGEMENT,

IBLA 99-259, 154 IBLA 47 (Decided November 9, 2000) 

An Administrative Law Judge's decision reversing and remanding a BLM decision to the extent

BLM found that the former grazing preference holder had been compensated forrange improvements

placed on the allotment after 1986 will be affirmed where the record establishes that BLM issued

permits for the range improvements after 1986 and the current grazing preference holder has not

shown error in the Administrative Law Judge's decision to remand the matter to BLM for

determinations of use, ownership, and valuation or removal of those improvements.

JERRY KELLY, Appellant v. BUREAU OF LAND MANAGEMENT, Respondent;

SHELDON W. LAMB, Intervenor, IBLA 99-332, 155 IBLA 58 (Decided May 9, 2001) 
Grazing Permits Attachment 1-46

8. Exchange of Use 

The existence of a longstanding regulation allowing exchange-of-use agreements implies that it is

within the Department's authority under the Taylor Grazing Act to exempt grazing, in the proper

circumstances, from the payment of annual fees. 

RALPH AND BEVERLY EASON v. BUREAU OF LAND MANAGEMENT, IBLA 94-

526,145 IBLA 78 (Decided July 16, 1998)

Editor's note: Reconsideration denied by Order dated Nov. 9, 1998.

9. Free Use Reserved

10. Licenses and Permits

10.1 General

An application for a grazing permit following transfer of ownership of base lands is an "application

for permit" within the meaning of 43 CFR 4160.1-1, governing proposed decisions on permits or

leases. Further, a BLM decision effectively extending the term of a grazing permit and recognizing

a new entity as permittee is a "proposed action relating to terms and conditions of permits" under that

provision.

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

Under 43 CFR 4160.1-1, BLM must do two discrete things: (1) it must serve a copy of a proposed

decision concerning an application for permit on any applicant unless BLM and the permittee have

reached a "documented agreement"; and (2) it must also send a copy of such proposed decision to

any entity named as an "affected interest" pursuant to 43 CFR 4100.0-5. The regulation is

mandatory, and where BLM fails to comply, its decision approving the permit application is properly

set aside and remanded with instructions to re-adjudicate the application in light of the objections

of the "affected interest."

OREGON NATURAL RESOURCES COUNCIL, OREGON NATURAL DESERT

ASSOCIATION v. BUREAU OF LAND MANAGEMENT, MC BEATY BUTTE

GRAZING ASSOCIATION, IBLA 93-672, 129 IBLA 259 (Decided May 17, 1994)

Prohibited acts of unauthorized grazing in violation of 43 CFR 4140.1(b) are subject to civil

penalties. The regulation at 43 CFR 4170.1-1(b) requires BLM to suspend or cancel, in whole or

in part, grazing use authorized under a grazing permit and grazing preference for repeated willful

violations of 43 CFR 4140.1(b)(1) including grazing without a permit or in violation of the terms

of a permit. 
Grazing Permits Attachment 1-47

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

The 1978 amendments to the grazing regulations effected such substantial changes in what was

formerly known as the Federal Range Code that the precedential value of Departmental adjudications

rendered prior to these amendments has been significantly reduced, particularly with respect to the

issuance and administration of grazing permits under sec. 3 of the Taylor Grazing Act, 43 U.S.C.

§ 315b (1988). 

DELMER AND JO MCLEAN v. BUREAU OF LAND MANAGEMENT, IBLA 90-332,

133 IBLA 225 (Decided August 3, 1995)

An Administrative Law Judge's determination that a BLM ear-tagging decision was arbitrary and

capricious will be affirmed where the record does not demonstrate that, under the extant

circumstances, ear-tagging would promote proper management of the public range.

JAMES D. WILCOX v. BUREAU OF LAND MANAGEMENT, IBLA 91-354,134 IBLA

57 (Decided October 5, 1995)

Absent emergency conditions or an agreement between BLM and parties holding grazing privileges

in an allotment, 43 C.F.R. § 4160.1-1 (1991) required notification of those permittees and provision

of a period of time to protest prior to authorizing trailing through the allotment. 

BUREAU OF LAND MANAGEMENT v. WILLIAM J. THOMAN, IBLA 92-346, 139

IBLA 48 (Decided April 3, 1997)

An appeal will normally be dismissed as moot where, prior to the filing of a notice of appeal, the

action being challenged has already occurred and there is no effective relief which can be afforded

the appellant. Where, however, because of the limited duration of the challenged action and the

reasonable expectation that the action will recur, there exists a substantial likelihood that a

recurrence may evade review, dismissal of an appeal is not appropriate.

BUREAUOFLANDMANAGEMENT v. WILLIAM J. THOMAN,IBLA 92-346,139 IBLA

48, (Decided April 3, 1997)
Grazing Permits Attachment 1-48

The BLM violated the multiple-use mandate of section 302(a) of the Federal Land Policy and

Management Act of 1976, 43 U.S.C. § 1732(a) (1994), when it authorized livestock grazing in five

canyons in the Comb Wash Allotment without engaging in a reasoned and informed decisionmaking

process showing that it had balanced competing resource values in order to best meet the present and

future needs of the American people. 

NATIONAL WILDLIFEFEDERATIONETAL. v.BUREAUOFLANDMANAGEMENT,

UTAH FARM BUREAU FEDERATION, and UTE MOUNTAIN UTE INDIAN

TRIBE,Intervenors-Appellants AMERICAN FARM BUREAU FEDERATION, AmicusCuriae, IBLA 94!264, 140 IBLA 85 (Decided August 21, 1997)

A BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 C.F.R. Part

4100 (1992). The burden is on the objecting party to show by a preponderance of the evidence of

record that a decision is in error. 

DUNCAN MACKENZIE v. BUREAU OF LAND MANAGEMENT, IBLA 94-871, 140

IBLA 192 (Decided September 8, 1997) 

Editor’s Note: This decision refers to leases but the issue appears to be issuance of a grazing

permit not a grazing lease.

With regard to the information to be reported, the Actual Grazing Use Report requests the permittee's

cooperation in providing accurate information. Permittees are also required to certify the

completeness and accuracy of their grazing use, as evidenced by signing the report, and further

warned of criminal penalties for "any false, fictitious, or fraudulent statements or representations."

These instructions or requirements constitute more than adequate notice that a permittee is required

to take appropriate steps to ensure that the data reported are accurate and complete, and that BLM

deems the information to be important to the conduct of its official duties. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

The Actual Grazing Use Report instructs permittees and lessees to include other information such

as death losses, disease, and unauthorized use by strays. This is intended to elicit any information

that reasonably bears upon the data and activities elsewhere reported on the form by the permittee.

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287 141

IBLA 10 (Decided October 20, 1997)

Until the Actual Grazing Use Report is submitted, its terms require the permittee or lessee to report

the cattle taken into, or gathered from, the allotment each day, without regard to whether they

previously had been removed. 
Grazing Permits Attachment 1-49

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

When BLM is formulating the Federal action it contemplates taking in accordance with the Taylor

Grazing Act, and the Federal action requires a biological evaluation pursuant to the ESA, BLM must

seek input from affected permittees and lessees and the interested public. Following receipt of this

input, a proposed decision setting out Federal action which would necessitate a change in the terms

and conditions of a Taylor Grazing Act permit or lease must be served on the affected permittees and

lessees, who should be given an opportunity to protest. If a protest is filed, the authorized officer

must reconsider the proposed decision in light of the protestant's statement of reasons for protest and

other information pertinent to the case. At the conclusion of the review of the protest, the authorized

officer must serve the final decision on the protestant and the interested public, and BLM must afford

an opportunity for an appeal, as provided in 43 C.F.R. § 4160.3(c). 

F. DUANE BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 96-155,145

IBLA 154 (Decided August 6, 1998)

An administrative law judge's dismissal of a grazing appeal on the grounds that the decision appealed

was not subject to appeal will be reversed, and the case remanded for hearing where the action

appealed was a final decision that may have modified the terms and conditions of the grazing lease

or created a grazing system outside the scope of that authorized by an Environmental Assessment.

NATIONALWILDLIFEFEDERATIONETAL. v.BUREAU OF LAND MANAGEMENT,

IBLA 95-475, 145 IBLA 379 (Decided September 24, 1998)

Denial of applications for grazing privileges is authorized by 43 C.F.R. § 4170.1-1(a) when the

evidence supports a violation of the grazing regulations by the applicant. 

KENNETH YOUNG v. BUREAU OF LAND MANAGEMENT, IBLA 95-221, 148 IBLA

221 (Decided April 20, 1999)

The decision to authorize temporary nonrenewable livestock grazing within the Jarbidge Resource

Area will be affirmed where the record establishes that the authorization is consistent with grazing

regulations at 43 C.F.R. § 4130.6-2 and the applicable land use plan, and where certain lands are

excepted or excluded from the EA/ROD. These include all Wilderness Study Areas, Areas of

Critical Environmental Concern and other lands under special designations; scheduled rest pastures

in intensely managed allotments; lands managed under current fire rehabilitation plans; and riparian

areas subject to specific management.

COMMITTEE FOR IDAHO'S HIGH DESERT, ET AL. v. Bureau of Land Management,

IBLA 96-519, 149 IBLA 1 (Decided May 20, 1999)

Reliance upon the oral information, advice or opinion of any Federal officer or employee will not

bind the United States to vary the terms of a written grazing permit to conform to the representations
Grazing Permits Attachment 1-50

allegedly made by such officer or employee, absent proof of extreme circumstances which would

vitiate the permit. 

BERTRAND PARIS & SONS v. BUREAU OF LAND MANAGEMENT, IBLA 96-246,

150 IBLA 146, (Decided August 27, 1999) 

A BLM decision to allow cattle grazing at a spring based on a finding of no significant impact is

properly set aside and remanded when it appears from the record that a "unique water" designated

under state law in which existing water quality is required to be maintained and protected includes

the entire length of the stream for which the spring is the headwater and that BLM failed to consider

that fact in making its finding. 

NATIONAL WILDLIFE FEDERATION, ET AL. v. Bureau Of Land Management, IBLA

96-535, 151 IBLA 66 (Decided October 28, 1999) 

Where BLM notifies prospective applicants for grazing use and preference that, if leased property

is offered as base property to qualify for grazing use, the term of the lease must be for 3 years, as set

forth in a BLM state Range Administration Policy, and an applicant offers base property land leased

for less than 3 years, the Administrative Law Judge's decision finding that the applicant failed to

qualify for grazing use and that BLM improperly awarded grazing use to the applicant will be

affirmed. 

KAY KAYSER-MEYRING, Appellee v. BUREAU OF LAND MANAGEMENT,

Respondent, KIRK SHINER Intervenor/Appellant, IBLA 97-431, 152 IBLA 39 (Decided

March 1, 2000) 

Allotment management plans are incorporated into grazing permits in accordance with 43 C.F.R. §

4120.2.

WILLIAM J. THOMAN v. BUREAU OF LAND MANAGEMENT, GZ LIVESTOCK, ET

AL. (Intervenors), IBLA 90-411,. 152 IBLA 97 (Decided March 30, 2000)

When the terms and conditions of a settlement agreement do not support an interpretation of one of

the parties to the agreement we will not read language into the agreement or interpret the agreement

in a manner that an administrative law judge has found does not conform to the intent of the parties.

WILLIAM J. THOMAN v. BUREAU OF LAND MANAGEMENT, GZ LIVESTOCK, ET

AL. (Intervenors), IBLA 90-411,. 152 IBLA 97 (Decided March 30, 2000) 

BLM enjoys broad discretion to determine how to adjudicate and manage grazing privileges, and a

BLM decision concerning grazing privileges will not be set aside if it is reasonable and substantially

complies with the provisions of the Federal grazing regulations. A BLM decision may be regarded

as arbitrary, capricious, or inequitable only where it is not supported by any rational basis, and the

burden is on the objecting party to show that a decision is improper. The determination establishing
Grazing Permits Attachment 1-51

a grazing allotment's carrying capacity will not be disturbed in the absence of positive evidence of

error. Where a party offers no contrary analysis of the carrying capacity of the public lands to

demonstrate that BLM's method of determining the carrying capacity is in error, BLM's

determination is properly adopted. The determination to issue a 100-percent public land use permit

rather than a percentage public land use permit will be affirmed where the record supports BLM's

determination and no rebuttal is presented. 

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS, INTERVENOR,

IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

Where a private landowner asserts that he is being damaged by another party's unauthorized grazing

on his land, his remedy lies in State court, and the Department is without authority to intervene in

the matter. A finding that issuance of a grazing permit by BLM for Federally-owned lands

aggravated or exacerbated unauthorized use of neighboring private lands by the permittee will be

vacated where unsupported by evidence of record.

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS, INTERVENOR,

IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

10.2 Actual Use

An accurate tally of cattle turned onto, and removed from, an allotment is necessary to assure not

only the accuracy of an Actual Grazing Use Report, but to assure that all of the cattle are removed

at the end of the grazing season, and in appropriate circumstances, the failure to report accurate

information at the close of the season may be sufficient to establish a violation of 43 C.F.R. §

4140.1(b)(8) (1992). Where BLM has not shown that the permittee's behavior demonstrated

recklessness, gross negligence, or indifference to the obligation to report accurate information, BLM

has not established a knowing or willful violation of the regulation. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287 ,141

IBLA 10 (Decided October 20, 1997)

A finding that a violation of a requirement to report the removal of cattle from an allotment was

knowing or willful, may be negated by a good faith belief that the requirement did not apply in the

circumstances of a given case. The issue is the reasonableness of the permittee's belief that the cattle

had been removed previously and Appellant's understanding of the nature of the reporting obligation

imposed by an Actual Grazing Use Report. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

In requiring a grazing permittee to "[u]se a separate line for every day that you either turn livestock

in or take livestock out of an allotment or pasture," the Actual Grazing Use Report requires a daily

entry for each movement of cattle onto, or off of, the allotment. The Actual Grazing Use Report is
Grazing Permits Attachment 1-52

designed to establish the amount of forage actually consumed by all of the permittee's cattle present

on the Federal range during the reporting period, and it is immaterial whether the forage was

consumed by cattle that returned to the allotment after being removed. Given the stated purpose and

objective of the report, it is not correct that a permittee whose cattle have returned to the allotment

after the end of the grazing season, but before the Actual Grazing Use Report has been filed, has no

obligation to report their removal in the Actual Grazing Use Report. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

10.3 Grazing Fee Billings

The existence of a BLM decision, adverse to a party to a case, is necessary to provide jurisdiction

for an appeal to the Board of Land Appeals. An appealable decision takes or prohibits some action.

A billing notice for grazing privileges established by prior planning documents is not a final,

appealable decision under 43 C.F.R. § 4160.3 or 43 C.F.R. § 4.470. An appeal of such a billing

notice is properly dismissed. 

DEFENDERS OF WILDLIFE ET AL. V. Bureau of Land Management, IBLA 97-479, 144

IBLA 250 (Decided June 5, 1998)

10.4 Related to State Law

A BLM decision to allow cattle grazing at a spring based on a finding of no significant impact is

properly set aside and remanded when it appears from the record that a "unique water" designated

under state law in which existing water quality is required to be maintained and protected includes

the entire length of the stream for which the spring is the headwater and that BLM failed to consider

that fact in making its finding. 

NATIONAL WILDLIFE FEDERATION, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-535, 151 IBLA 66 (Decided October 28, 1999) 

Under section 313(a) of the Clean Water Act of 1977, as amended, 33 U.S.C. § 1323(a) (1994),

BLM is generally required to comply with state water pollution laws when engaged in any activity

which may result in the runoff of pollutants. Under Arizona law, existing water quality is required

to be protected and maintained in surface water designated as a "unique water." 

NATIONAL WILDLIFE FEDERATION, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-535, 151 IBLA 66 (Decided October 28, 1999) 

Where a private landowner asserts that he is being damaged by another party's unauthorized grazing

on his land, his remedy lies in State court, and the Department is without authority to intervene in

the matter. A finding that issuance of a grazing permit by BLM for Federally-owned lands

aggravated or exacerbated unauthorized use of neighboring private lands by the permittee will be

vacated where unsupported by evidence of record.
Monitoring and Inventory Attachment 1-53

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS, INTERVENOR,

IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000)

11. Range Surveys, Monitoring and Evaluation

When, in evaluating a grazing allotment, BLM applies an incorrect riparian objective and uses the

failure to meet that objective as a basis for closing part of the allotment to livestock grazing, and the

case record shows that the proper objective had been met, the closure action will be set aside. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A BLM determination that a land use planning objective to stop downward trend on 10,603 acres,

and manage for upward trend on 10,762 acres, in the long term, on a grazing allotment had not been

met, based on limited monitoring trend data, will be set aside when the record fails to show a rational

basis for failing to apply statistical analysis to that data, as recommended by the Nevada Rangeland

Monitoring Handbook, the handbook utilized by BLM in its monitoring program. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A BLM determination that a land use planning objective to improve 7,952 acres to good condition,

and 2,014 acres to excellent condition, in the long term, on a grazing allotment had not been met will

be set aside when the case record fails to show any baseline data on ecological condition for any

particular acreage in the grazing allotment. . 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A decision to make proportionate reductions in livestock and wild horse use that was based on

monitoring, research, and analysis of usage of the public lands and was shown to have been made

in consideration of the condition of the affected range in terms of available forage was properly

affirmed.

ANIMAL PROTECTION INSTITUTE OF AMERICA v. BUREAU OF LAND

MANAGEMENT, IBLA 94-56, 128 IBLA 150 (Decided January 13, 1994)

A decision to gather wild horses from a herd management area in order to avert deterioration of the

range and to pursue a thriving natural ecological balance in accordance with sec. 3(b) of the Wild

Free-Roaming Horses and Burros Act, asamended, 16 U.S.C. § 1333(b) (1988), is properly affirmed

where the record demonstrates that the decision is based upon a reasonable analysis of data collected

on an ongoing basis. 
Monitoring and Inventory Attachment 1-54

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)

BLM's decision to gather wild horses will be affirmed where it is based upon appropriate

management levels for herd management areas based on analysis of grazing utilization, trend in

range condition, actual use, and observational data demonstrating that maintenance of the herd at the

prescribed levels of horse population will restore and maintain the range in a thriving natural

ecological balance and prevent deterioration of the range, in accordance with sec. 3(b) of the Wild

Free-Roaming Horses and Burros Act.

ANIMAL PROTECTION INSTITUTE OF AMERICA v. BUREAU OF LAND

MANAGEMENT, IBLA 93-308 and 94-14, 131 IBLA 175 (Decided November 2, 1994)

A decision determining the appropriate management level for wild horses based on monitoring of

forage condition, range usage, an inventory of wild horse numbers, and application of a desired

stocking formula to determine grazing capacity may be affirmed where the record supports a finding

that removal of horses in excess of the appropriate management level is necessary to restore the

range to a thriving ecological balance.

COMMISSION FOR THE PRESERVATION OF WILD HORSES, ET AL. V. BUREAU

OF LAND MANAGEMENT, IBLA 94-163, et al., 133 IBLA 97 (Decided July 18, 1995)

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation exists on a given area of the public lands and that action is necessary to remove

excess animals, the Secretary has authority to immediately remove excess animals from the range

so as to achieve appropriate management levels, restore a thriving natural ecological balance to the

range, and protect the range from the deterioration associated with overpopulation.

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 135

IBLA 9 (Decided February 23, 1996) 

BLM may take preventative action, and is not required to wait until the range is damaged before

removing wild horses. Proper range management dictates herd reduction before it causes damage

to the range land. If the record establishes current resource damage or a significant threat of resource

damage, removal is warranted. 

MICHAEL BLAKE ETAL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 135

IBLA 9 (Decided February 23, 1996) 

The goal of wild horse management is to maintain a thriving natural ecological balance among wild

horse populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration

associated with overpopulation. A determination that removal is warranted must be based on

research and analysis, and on monitoring programs which include studies of grazing utilization,

trends in range condition, actual use, and climatic factors. 
Monitoring and Inventory Attachment 1-55

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 135

IBLA 9 (Decided February 23, 1996) 

A BLM decision implementing a wild horse area management plan and capture plan based on an

appropriate management level which will avert deterioration of the range and preserve a thriving

natural ecological balance in accordance with sec. 3(b) of the Wild Free-Roaming Horses and Burros

Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the record demonstrates that the

decision is based upon a reasonable analysis of data collected on an ongoing basis. 

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-657 , 138

IBLA 170 (Decided February 10, 1997)

A BLM decision implementing a wild horse area management plan is affirmed when it is founded

on a reasoned analysis of monitoring data supporting reduction of a horse population to restore a

range to a thriving natural ecological balance and prevent its deterioration.

COMMISSION FOR THE PRESERVATION OF WILD HORSES ET AL. v. BUREAU OF

LAND MANAGEMENT, IBLA 94-126, 94-127 and 94-128, 139 IBLA 327 (Decided July

14, 1997)

The goal of wild horse management is to maintain a thriving natural ecological balance among wild

horse populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration

associated with overpopulation. Allocation determinations must be based on research and analysis,

and on monitoring programs which include studies of grazing utilization, trends in range conditions,

actual use, and climactic factors.

DON AND MARTHA P. SIMS v. BUREAU OF LAND MANAGEMENT, IBLA 95-203,

141 IBLA 1 (Decided October 16, 1997)

A decision by BLM allocating livestock and wild horse use that is based on monitoring, research,

and analysis of usage of the public lands and is shown to be made in consideration of the condition

of the affected range in terms of availability is properly affirmed. 

DON AND MARTHA P. SIMS v. BUREAU OF LAND MANAGEMENT, IBLA 95-203,

141 IBLA 1 (Decided October 16, 1997)

A BLM decision implementing a wild horse area management plan and capture plan based on an

appropriate management level which will avert deterioration of the range and preserve a thriving

natural ecological balance in accordance with section 3(b) of the Wild Free-Roaming Horses and

Burros Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the record demonstrates

that the decision is based upon a reasonable analysis of data collected on an ongoing basis. 

JOEY R. DEEG v. BUREAU OF LAND MANAGEMENT, IBLA 94-858 ,141 IBLA 67 

(Decided October 27, 1997)
Monitoring and Inventory Attachment 1-56

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation of wild horses or burros exists on a given area of the public lands and that action is

necessary to remove excess animals, the Secretary has authority to immediately remove excess

animals from the range so as to achieve appropriate management levels, restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation. 

WILD HORSE ORGANIZED ASSISTANCE and COMMISSION FOR THE

PRESERVATION OF WILD HORSES v. BUREAU OF LAND MANAGEMENT, IBLA

95-312, 95-313, 141 IBLA 202 (Decided November 13, 1997)

An appellant challenging the accuracy of a range study must show not just that the results of the

study could be in error, but that they are in fact erroneous. No error is established absent a showing

that BLM's range survey methods are incapable of yielding accurate information, that there was a

material departure from prescribed procedures, or that a demonstrably more accurate survey has

disclosed a contrary result. A party challenging a decision based on a BLM expert's reasoned

analysis must demonstrate by a preponderance of the evidence that the BLM expert erred when

collecting the underlying data, when interpreting that data, or when reaching the conclusion. It is

not enough to show that its expert disagrees or believes that a different course of action or

interpretation is available and supported by the evidence. A BLM denial of applications to increase

active grazing preference will be affirmed when monitoring studies indicate that multiple-use

management objectives for the grazing allotment are not being met and that additional forage is not

available on a sustained yield basis within the allotment. 

WEST COW CREEK PERMITTEES v. BUREAU OF LAND MANAGEMENT, IBLA 95-

206, 142 IBLA 224 (Decided January 22, 1998)

A BLM plan for removing wild horses from a herd management area will be affirmed where BLM

has concluded that removal is necessary to restore the range to a thriving ecological balance, and the

appellants have failed to demonstrate that BLM committed any error in reaching such conclusion.

AMERICAN MUSTANG & BURRO ASSOCIATION, INC. and DAVE HILLBERRY v.

BUREAU OF LAND MANAGEMENT, IBLA 96-8, 144 IBLA 148 (Decided May 28,

1998)

A decision determining the appropriate management level for wild horses based on monitoring of

forage condition, range usage, an inventory of wild horse numbers, and application of a desired

stocking formula to determine grazing capacity may be affirmed where the record supports a finding

that removal of horses in excess of the appropriate management level is necessary to restore the

range to a thriving ecological balance. 

COMMISSION FOR THE PRESERVATION OF WILD HORSES v. BUREAU OF LAND

MANAGEMENT, IBLA 96-102 and 96-103, 145 IBLA 343 (Decided September 23, 1998)
Monitoring and Inventory Attachment 1-57

A BLM plan for removing wild horses from a herd management area will be affirmed where BLM

has concluded that removal is necessary to restore the range to a thriving ecological balance, and

the appellants have failed to demonstrate thatBLM committed any error in reaching such conclusion.

TONI HUTCHESON MOORE ET AL., and AMERICAN MUSTANG & BURRO ASSN.,

INC. v. BUREAU OF LAND MANAGEMENT, IBLA 97-541 and 97-547, 146 IBLA 168

(Decided October 29, 1998)

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation of wild horses or burros exists on a given area of the public lands and that action is

necessary to remove excess animals, the Secretary has authority to immediately remove excess

animals from the range so as to achieve appropriate management levels, restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation. 

WILD HORSE SPIRIT LIMITED v. BUREAU OF LAND MANAGEMENT, IBLA 96-39,

147 IBLA 317 (Decided February 18, 1999)

If the Secretary (or his designate) determines, on the basis of information available, that an overpopulation of wild horses or burros exists on a given area of the public lands and that action is necessary to remove excess animals, the Secretary has authority to immediately remove excess animals

from the range so as to achieve appropriate management levels, restore a thriving natural ecological

balance to the range, and protect the range from the deterioration associated with overpopulation.

REDWINGS HORSE SANCTUARY and ANIMAL PROTECTION INSTITUTE OF

AMERICAv.BUREAU OF LAND MANAGEMENT, IBLA 97-199 and 97-200, 148 IBLA

61 (Decided March 18, 1999)

While it is true that on numerous occasions the Board has dismissed an appellant's argument as a

mere difference of opinion with BLM's experts, it has never been the practice of this Board to accept

the conclusory opinions of BLM's experts as a proper basis for a decision in the face of conflicting

testimony. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)
Monitoring and Inventory Attachment 1-58

A BLM determination that a land use planning objective to stop downward trend on 10,603 acres,

and manage for upward trend on 10,762 acres, in the long term, on a grazing allotment had not been

met, based on limited monitoring trend data, will be set aside when the record fails to show a rational

basis for failing to apply statistical analysis to that data, as recommended by the Nevada Rangeland

Monitoring Handbook, the handbook utilized by BLM in its monitoring program. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

When, in evaluating a grazing allotment, BLM applies an incorrect riparian objective and uses the

failure to meet that objective as a basis for closing part of the allotment to livestock grazing, and the

case record shows that the proper objective had been met, the closure action will be set aside. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

A BLM determination that a land use planning objective to improve 7,952 acres to good condition,

and 2,014 acres to excellent condition, in the long term, on a grazing allotment had not been met will

be set aside when the case record fails to show any baseline data on ecological condition for any

particular acreage in the grazing allotment. . 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

BLM may properly measure utilization in a grazing allotment using the key forage plant method.

However, when the case record fails to establish a rational basis for selecting the highest utilized key

forage species from each transect in the allotment in developing use pattern maps for the allotment

and calculating average weighted utilization, BLM's conclusion that land use planning objectives for

utilization were not being met, which was based on those results, must be set aside. 

FILIPPINI RANCHING CO. AND PARIS RANCH v. BUREAU OF LAND

MANAGEMENT, IBLA 96-150, 149 IBLA 54 (Decided May 26, 1999)

Where holders of grazing permits failed to timely appeal 1992 Final Multiple Use Decision, they

were barred from challenging the validity of the adjustment prescribed therein to the extent that the

adjustments were based on studies and monitoring data in existence at the time the 1992 Decision

was issued. 

BERTRAND PARIS & SONS v. BUREAU OF LAND MANAGEMENT, IBLA 96-246,

150 IBLA 146, (Decided August 27, 1999)

A BLM decision amending a wild horse area management plan will be upheld where the decision

is predicated on a reasoned analysis of monitoring data such as grazing utilization, trend in range

condition, actual use, and other factors which demonstrate that reduction of the appropriate
Monitoring and Inventory Attachment 1-59

management level will restore the range to a thriving natural ecological balance and prevent a

deterioration of the range, in accordance with sec. 3(b) of the Wild Free-Roaming Horses and Burros

Act, as amended, 16 U.S.C. § 1333(b) (1994). 

AMERICAN HORSE PROTECTION, INC. AND JOEY R. DEEG v. BUREAU OF LAND

MANAGEMENT, IBLA 93-71 and 94-284, 134 IBLA 24 (Decided October 3, 1999)

A BLM decision authorizing the removal of wild horses determined to be excess from certain areas

of public land based on an appropriate management level which will avert deterioration of the range

and preserve a thriving natural ecological balance in accordance with section 3(b) of the Wild FreeRoaming Horses and Burros Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the

record demonstrates that the decision is based upon a reasonable analysis of data collected on an

ongoing basis. 

ANIMAL PROTECTION INSTITUTE OF AMERICA, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-489, 96-490 and 96-492, 151 IBLA 396 (Decided February

15, 2000) 

BLM enjoys broad discretion to determine how to adjudicate and manage grazing privileges, and a

BLM decision concerning grazing privileges will not be set aside if it is reasonable and substantially

complies with the provisions of the Federal grazing regulations. A BLM decision may be regarded

as arbitrary, capricious, or inequitable only where it is not supported by any rational basis, and the

burden is on the objecting party to show that a decision is improper. The determination establishing

a grazing allotment's carrying capacity will not be disturbed in the absence of positive evidence of

error. Where a party offers no contrary analysis of the carrying capacity of the public lands to

demonstrate that BLM's method of determining the carrying capacity is in error, BLM's

determination is properly adopted. The determination to issue a 100-percent public land use permit

rather than a percentage public land use permit will be affirmed where the record supports BLM's

determination and no rebuttal is presented. 

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS, INTERVENOR,

IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

The relevant regulations governing grazing administration at 43 C.F.R. Subpart 4160 provide that

proposed decisions shall be served on any permittee who is "affected" by the proposed actions, terms

or conditions, or modifications relating to the permit. Any person whose interest is adversely

affected by a final BLM decision under this part may appeal the decision for the purpose of a hearing

before an administrative law judge. A decision denying a grazing permittee the right, pursuant to

43 C.F.R. Subpart 4160, to protest and appeal a BLM decision to construct fencing on a riparian

pasture in an allotment to exclude livestock from a critical source of water on the ground the

permittee was not affected by the decision is properly reversed and the case will be referred for a

hearing. 

ESPERANZA GRAZING ASSOCIATION v. BUREAU OF LAND MANAGEMENT,

IBLA 99-259, 154 IBLA 47 (Decided November 9, 2000) 
Unauthorized Grazing Use Attachment 1-60

12. Special Rules Reserved

13. Transfers Reserved

13.1 Base Property

13.2 Base Property Qualifications

14. Trespass 

14.1 General

A trespass will be considered willful where the evidence objectively shows that the circumstances

did not comport with a finding that the trespasser acted in good faith or innocent mistake. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

Hearsay evidence is admissible in a grazing trespass hearing if it is relevant and material. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

The procedures at 43 CFR Subpart 4150 for giving notice to the owner of livestock grazing without

authorization in violation of 43 CFR 4140.1(b)(1); ordering removal; and for impounding

unauthorized livestock are properly distinguished from the procedures for adjudicating an alleged

trespass and the amount of damages under 43 CFR Subpart 4160 and for assessing penalties under

43 CFR Subpart 4170. Although proposed and final decisions subject to appeal for a hearing before

an Administrative Law Judge are required to adjudicate an alleged trespass and assess damages or

penalties, these are not a prerequisite to notice and impoundment of livestock grazing without

authorization. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)
Unauthorized Grazing Use Attachment 1-61

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

A grazing trespass appealed by the livestock owner will be upheld where the livestock were grazed

on a permit issued to a third party without filing with BLM a document transferring control of the

livestock to the permittee and specifying the brand, numbers of livestock, and anticipated periods

of use as required by BLM. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appealfiled, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

A finding of a grazing trespass will be affirmed where it is supported by a preponderance of the

evidence introduced at a hearing.

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

A finding of trespass against a livestock owner grazing his cattle on an allotment permitted to a third

party will be upheld where the grazing permit is applied for on an annual basis, the permit for the

current season authorizes grazing of cattle bearing the brand of the permittee, and no control

document for the current season transferring control from the livestock owner to the permittee

specifying the brand, numbers of livestock, and anticipated periods of use has been filed with BLM.

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 Decided August 4, 1994

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

An accurate tally of cattle turned onto, and removed from, an allotment is necessary to assure not

only the accuracy of an Actual Grazing Use Report, but to assure that all of the cattle are removed

at the end of the grazing season, and in appropriate circumstances, the failure to report accurate

information at the close of the season may be sufficient to establish a violation of 43 C.F.R. §

4140.1(b)(8) (1992). Where BLM has not shown that the permittee's behavior demonstrated

recklessness, gross negligence, or indifference to the obligation to report accurate information, BLM

has not established a knowing or willful violation of the regulation. 
Penalties Attachment 1-62

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

In determining whether grazing trespasses are "willful," intent sufficient to establish willfulness may

be shown by evidence which objectively shows that the circumstances did not comport with the

notion that the trespasser acted in good faith or by innocent mistake, or that his conduct was so

lacking in reasonableness or responsibility that it became reckless or negligent. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

Under 43 C.F.R. § 2920.1-2(a), any use, occupancy or development of the public lands, other than

casual use, without authorization, shall be considered a trespass. "Casual use" includes only shortterm noncommercial activity. 43 C.F.R. § 2920.0-5(k). Where the record shows that unauthorized

use included long-term grazing and the erection of buildings, it was not casual use. Even though the

parties may have used the land under the belief that this was Western Shoshone land and not public

land, their good faith is irrelevant to liability for trespass, but may be considered only as to whether

the trespass was intentional.

CARRIE AND MARY DANN, ET AL. v. Bureau of Land Management, IBLA 98-372,

147 IBLA 81 (Decided December 18, 1998)

When the evidence shows (1) unauthorized grazing use; (2) prior trespass; and (3) willfulness as to

each, a BLM decision finding repeated, willful trespass will be upheld. 

WILLIAM J. THOMAN v. BUREAU OF LAND MANAGEMENT, GZ LIVESTOCK, ET

AL. (Intervenors), IBLA 90-411, 152 IBLA 97 (Decided March 30, 2000)

Where a private landowner asserts that he is being damaged by another party's unauthorized grazing

on his land, his remedy lies in State court, and the Department is without authority to intervene in

the matter. A finding that issuance of a grazing permit by BLM for Federally-owned lands

aggravated or exacerbated unauthorized use of neighboring private lands by the permittee will be

vacated where unsupported by evidence of record.

JAMES ROSS v. BUREAU OF LAND MANAGEMENT; BERT JENKS, INTERVENOR,

IBLA 96-405 and 96-406, 152 IBLA 273 (Decided May 26, 2000) 

14.2 Measure of Damage

Prohibited acts of unauthorized grazing in violation of 43 CFR 4140.1(b) are subject to civil

penalties. The regulation at 43 CFR 4170.1-1(b) requires BLM to suspend or cancel, in whole or

in part, grazing use authorized under a grazing permit and grazing preference for repeated willful

violations of 43 CFR 4140.1(b)(1) including grazing without a permit or in violation of the terms

of a permit. 
Penalties Attachment 1-63

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997). 

In assessing the propriety of cancelling a grazing permit and preference in whole or in part, a "severe

reduction" in grazing privileges (i.e., a permanent loss of privileges or a temporary loss of significant

privileges for a period of years) may be imposed where the trespasses were both repeated and willful;

involved fairly large numbers of animals; occurred over a fairly long period of time; and often

involved a failure to take prompt remedial action upon notification of the trespass. Any mitigating

circumstances are also properly considered. 

WAYNE D. KLUMP v. BUREAU OF LAND MANAGEMENT, IBLA 93-559, 130 IBLA

119 (Decided August 4, 1994)

Editor's note: Appeal filed Civ.No. 94-578 TUC RMB (D.Ariz. Aug. 23, 1994), dismissed,

(May 19, 1995), appeal filed, No. 95-16109 (9th Cir. May 30, 1995), aff'd, (March 17, 1997).

See also: Klump v. U.S., No. 94-309C (Fed.Cl.); 38 Fed.Cl. 243 (June 23, 1997).

In determining the severity of a reduction in grazing privileges, the reduction must be gauged in

terms of its impact on all of the grazing use authorized under a particular grazing permit. The aim

is not to target the offending grazing use, but by curtailing all or part of a permittee's nearby

permitted use, to reform the permittee's grazing practices in that area. The BLM may suspend or

cancel all or part of a trespasser's grazing privileges under other permits, whether in one or more

grazing districts or in one or more states. 

BUREAU OF LAND MANAGEMENT v. BURGHARDT CO., IBLA 92-75, 138 IBLA 365

(Decided March 20, 1997)

The BLM properly penalizes a grazing permittee for unauthorized grazing on the public lands.

However, a 2-year suspension of all fall/winter grazing privileges in two allotments (i.e., 11 percent

of all permitted grazing use) and a permanent cancellation of all grazing privileges in one allotment

will each be deemed too severe where, although the current trespass was willful and repeated, the

duration of the trespass was fairly short. In such circumstances, the penalty will be modified

commensurate with the violation, but designed to reform the trespasser's behavior.

BUREAU OF LAND MANAGEMENT v. BURGHARDT CO., IBLA 92-75, 138 IBLA 365

(Decided March 20, 1997)

A finding that a violation of a requirement to report the removal of cattle from an allotment was

knowing or willful, may be negated by a good faith belief that the requirement did not apply in the

circumstances of a given case. The issue is the reasonableness of the permittee's belief that the cattle

had been removed previously and Appellant's understanding of the nature of the reporting obligation

imposed by an Actual Grazing Use Report. 
Wild Horses and Burros Attachment 1-64

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

Reductions of 21 percent for 2 years have been deemed appropriate in other cases involving willful

and repeated trespasses, but not for a first-time, nonwillful, 10-AUM trespass. 

BALTZOR CATTLE CO. v. BUREAU OF LAND MANAGEMENT, IBLA 94-287, 141

IBLA 10 (Decided October 20, 1997)

Anyone properly determined by BLM to be in trespass shall be liable to the United States for (1) the

reimbursement of all costs incurred by the United States in the investigation and termination of a

trespass; (2) the rental value of the lands for the time of the trespass; and (3) either rehabilitation of

the lands harmed by the trespass or payment of costs incurred by the United States in so doing. 

CARRIE AND MARY DANN, ET AL. v. Bureau of Land Management, IBLA 98-372, 147

IBLA 81 (Decided December 18, 1998)

Denial of applications for grazing privileges is authorized by 43 C.F.R. § 4170.1-1(a) when the

evidence supports a violation of the grazing regulations by the applicant. 

KENNETH YOUNG v. BUREAU OF LAND MANAGEMENT, IBLA 95-221, 148 IBLA

221 (Decided April 20, 1999)

15. Wild and Free-Roaming Horses and Burros Act of 1971

15.1 Herd Management

A decision to make proportionate reductions in livestock and wild horse use that was based on

monitoring, research, and analysis of usage of the public lands and was shown to have been made

in consideration of the condition of the affected range in terms of available forage was properly

affirmed.

ANIMAL PROTECTION INSTITUTE OF AMERICA v. BUREAU OF LAND

MANAGEMENT, IBLA 94-56, 128 IBLA 150 (Decided January 13, 1994)

A decision to gather wild horses from a herd management area in order to avert deterioration of the

range and to pursue a thriving natural ecological balance in accordance with sec. 3(b) of the Wild

Free-Roaming Horses and Burros Act, as amended, 16 U.S.C. § 1333(b) (1988), is properly affirmed

where the record demonstrates that the decision is based upon a reasonable analysis of data collected

on an ongoing basis. 

AUDUBON SOCIETY OF PORTLAND, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 93-540, 128 IBLA 370 (Decided March 11, 1994)

BLM's decision to gather wild horses will be affirmed where it is based upon appropriate

management levels for herd management areas based on analysis of grazing utilization, trend in

range condition, actual use, and observational data demonstrating that maintenance of the herd at the
Wild Horses and Burros Attachment 1-65

prescribed levels of horse population will restore and maintain the range in a thriving natural

ecological balance and prevent deterioration of the range, in accordance with sec. 3(b) of the Wild

Free-Roaming Horses and Burros Act.

ANIMAL PROTECTION INSTITUTE OF AMERICA v. BUREAU OF LAND

MANAGEMENT, IBLA 93-308 and 94-14, 131 IBLA 175 (Decided November 2, 1994)

A decision determining the appropriate management level for wild horses based on monitoring of

forage condition, range usage, an inventory of wild horse numbers, and application of a desired

stocking formula to determine grazing capacity may be affirmed where the record supports a finding

that removal of horses in excess of the appropriate management level is necessary to restore the

range to a thriving ecological balance.

COMMISSION FOR THE PRESERVATION OF WILD HORSES, ET AL. V. BUREAU

OF LAND MANAGEMENT, IBLA 94-163, et al., 133 IBLA 97 (Decided July 18, 1995)

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation exists on a given area of the public lands and that action is necessary to remove

excess animals, the Secretary has authority to immediately remove excess animals from the range

so as to achieve appropriate management levels, restore a thriving natural ecological balance to the

range, and protect the range from the deterioration associated with overpopulation.

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 135

IBLA 9 (Decided February 23, 1996) 

The goal of wild horse management is to maintain a thriving natural ecological balance among wild

horse populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration

associated with overpopulation. A determination that removal is warranted must be based on

research and analysis, and on monitoring programs which include studies of grazing utilization,

trends in range condition, actual use, and climatic factors. 

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677,

135 IBLA 9 (Decided February 23, 1996) 

BLM may take preventative action, and is not required to wait until the range is damaged before

removing wild horses. Proper range management dictates herd reduction before it causes damage

to the range land. If the record establishes current resource damage or a significant threat of resource

damage, removal is warranted. 

MICHAEL BLAKE ETAL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-677, 135

IBLA 9 (Decided February 23, 1996) 

A BLM decision implementing a wild horse area management plan and capture plan based on an

appropriate management level which will avert deterioration of the range and preserve a thriving

natural ecological balance in accordance with sec. 3(b) of the Wild Free-Roaming Horses and Burros

Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the record demonstrates that the

decision is based upon a reasonable analysis of data collected on an ongoing basis. 
Wild Horses and Burros Attachment 1-66

MICHAEL BLAKE ET AL. v. BUREAU OF LAND MANAGEMENT, IBLA 93-657, 138

IBLA 170 (Decided February 10, 1997)

A BLM decision implementing a wild horse area management plan is affirmed when it is founded

on a reasoned analysis of monitoring data supporting reduction of a horse population to restore a

range to a thriving natural ecological balance and prevent its deterioration.

COMMISSION FOR THE PRESERVATION OF WILD HORSES ET AL. v. BUREAU OF

LAND MANAGEMENT, IBLA 94-126, 94-127 and 94-128, 139 IBLA 327, (Decided July

14, 1997)

A decision by BLM allocating livestock and wild horse use that is based on monitoring, research,

and analysis of usage of the public lands and is shown to be made in consideration of the condition

of the affected range in terms of availability is properly affirmed. 

DON AND MARTHA P. SIMS v. BUREAU OF LAND MANAGEMENT, IBLA 95-203,

141 IBLA 1 (Decided October 16, 1997)

The goal of wild horse management is to maintain a thriving natural ecological balance among wild

horse populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration

associated with overpopulation. Allocation determinations must be based on research and analysis,

and on monitoring programs which include studies of grazing utilization, trends in range conditions,

actual use, and climactic factors.

DON AND MARTHA P. SIMS v. BUREAU OF LAND MANAGEMENT, IBLA 95-203,

141 IBLA 1 (Decided October 16, 1997)

A BLM decision implementing a wild horse area management plan and capture plan based on an

appropriate management level which will avert deterioration of the range and preserve a thriving

natural ecological balance in accordance with section 3(b) of the Wild Free-Roaming Horses and

Burros Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the record demonstrates

that the decision is based upon a reasonable analysis of data collected on an ongoing basis. 

JOEY R. DEEG v. BUREAU OF LAND MANAGEMENT, IBLA 94-858 , 141 IBLA 67

(Decided October 27, 1997)

The effectiveness of a BLM decision to round up and remove wild horses during the pendency of

an appeal to the Board of Land Appeals is controlled by 43 C.F.R. § 4770.-3(c), not by 43 C.F.R. §

4.21-(a). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse removal

decision into full force and effect, and it "take[s] effect on the date specified, regardless of an

appeal." 

WILD HORSE ORGANIZED ASSISTANCE and COMMISSION FOR THE

PRESERVATION OF WILD HORSES v. BUREAU OF LAND MANAGEMENT, IBLA

95-312, 95-313, 141 IBLA 202 (Decided November 13, 1997)
Wild Horses and Burros Attachment 1-67

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation of wild horses or burros exists on a given area of the public lands and that action is

necessary to remove excess animals, the Secretary has authority to immediately remove excess

animals from the range so as to achieve appropriate management levels, restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation. 

WILD HORSE ORGANIZED ASSISTANCE and COMMISSION FOR THE

PRESERVATION OF WILD HORSES v. BUREAU OF LAND MANAGEMENT, IBLA

95-312, 95-313, 141 IBLA 202 (Decided November 13, 1997)

A BLM plan for removing wild horses from a herd management area will be affirmed where BLM

has concluded that removal is necessary to restore the range to a thriving ecological balance, and the

appellants have failed to demonstrate that BLM committed any error in reaching such conclusion.

AMERICAN MUSTANG & BURRO ASSOCIATION, INC. and DAVE HILLBERRY v.

BUREAU OF LAND MANAGEMENT, IBLA 96-8, 144 IBLA 148 (Decided May 28, 1998)

A BLM decision apportioning the carrying capacity of an allotment between livestock and wild

horses will be affirmed when an appellant urges another course of action but does not demonstrate

that BLM's allocation is unreasonable. 

NEVADA DIVISION OF WILDLIFE, ET AL. v. BUREAU OF LAND MANAGEMENT,

IBLA 96-164, 145 IBLA 237 (Decided August 25. 1998)

A decision determining the appropriate management level for wild horses based on monitoring of

forage condition, range usage, an inventory of wild horse numbers, and application of a desired

stocking formula to determine grazing capacity may be affirmed where the record supports a finding

that removal of horses in excess of the appropriate management level is necessary to restore the

range to a thriving ecological balance. 

COMMISSION FOR THE PRESERVATION OF WILD HORSES v. BUREAU OF LAND

MANAGEMENT, IBLA 96-102 and 96-103, 145 IBLA 343 (Decided September 23, 1998)

A BLM plan for removing wild horses from a herd management area will be affirmed where BLM

has concluded that removal is necessary to restore the range to a thriving ecological balance, and

the appellants have failed to demonstrate that BLM committed any error in reaching such conclusion.

TONI HUTCHESON MOORE ET AL., and AMERICAN MUSTANG & BURRO ASSN.,

INC. v. BUREAU OF LAND MANAGEMENT, IBLA 97-541 and 97-547, 146 IBLA 168

(Decided October 29, 1998)

If the Secretary (or his designate) determines, on the basis of information available, that an

overpopulation of wild horses or burros exists on a given area of the public lands and that action is

necessary to remove excess animals, the Secretary has authority to immediately remove excess

animals from the range so as to achieve appropriate management levels, restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation. 
Wild Horses and Burros Attachment 1-68

WILD HORSE SPIRIT LIMITED v. BUREAU OF LAND MANAGEMENT, IBLA 96-39,

147 IBLA 317 (Decided February 18, 1999)

If the Secretary (or his designate) determines, on the basis of information available, that an overpopulation of wild horses or burros exists on a given area of the public lands and that action is necessary to remove excess animals, the Secretary has authority to immediately remove excess animals

from the range so as to achieve appropriate management levels, restore a thriving natural ecological

balance to the range, and protect the range from the deterioration associated with overpopulation.

REDWINGS HORSE SANCTUARY and ANIMAL PROTECTION INSTITUTE OF

AMERICAv.BUREAUOFLAND MANAGEMENT, IBLA 97-199 and 97-200, 148 IBLA

61 (Decided March 18, 1999)

A BLM decision amending a wild horse area management plan will be upheld where the decision

is predicated on a reasoned analysis of monitoring data such as grazing utilization, trend in range

condition, actual use, and other factors which demonstrate that reduction of the appropriate

management level will restore the range to a thriving natural ecological balance and prevent a

deterioration of the range, in accordance with sec. 3(b) of the Wild Free-Roaming Horses and Burros

Act, as amended, 16 U.S.C. § 1333(b) (1994). 

AMERICAN HORSE PROTECTION, INC. AND JOEY R. DEEG v. BUREAU OF LAND

MANAGEMENT, IBLA 93-71 and 94-284, 134 IBLA 24 (Decided October 3, 1999)

A BLM decision authorizing the removal of wild horses determined to be excess from certain areas

of public land based on an appropriate management level which will avert deterioration of the range

and preserve a thriving natural ecological balance in accordance with section 3(b) of the Wild FreeRoaming Horses and Burros Act, as amended, 16 U.S.C. § 1333(b) (1994), will be upheld where the

record demonstrates that the decision is based upon a reasonable analysis of data collected on an

ongoing basis. 

ANIMAL PROTECTION INSTITUTE OF AMERICA, ET AL. v. BUREAU OF LAND

MANAGEMENT, IBLA 96-489, 96-490 and 96-492, 151 IBLA 396 (Decided February

15, 2000) 

15.2 Animal Care and Placement

BLM may properly cancel private maintenance and care agreements for wild horses and repossess

the horses when there is sufficient evidence of improper care of the adopted animals to establish that

the adopter violated the terms of the agreement. 

FREDDIE R. MASON v. BUREAU OF LAND MANAGEMENT, IBLA 92-259, 126

IBLA 28 (Decided April 13, 1993)

The Wild Free-Roaming Horses and Burros Act authorizes the Secretary to make excess wild horses

available for private maintenance and care by qualified individuals. An applicant must have no prior

conviction for inhumane treatment of animals or for violation of the Act or its implementing

regulations. 
Wild Horses and Burros Attachment 1-69

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA 158

(Decided May 10, 1993)

A person who has expressed an intent to commercially exploit an animal after receiving title is not

a qualified applicant. When determining whether an applicant is qualified it is proper for BLM to

ascertain an applicant's long-term intent in order to assure that the horse's humane treatment and care

will continue after title transfers. 

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA 158

(Decided May 10, 1993)

A BLM decision rejecting an application to adopt a wild horse on the ground that an applicant has

violated a regulation implementing the Wild Free-Roaming Horses and Burros Act will be set aside

if the applicant has not been convicted of the violation as provided in 43 CFR 4750.3-2(a)(2), and
Wild Horses and Burros Attachment 1-70

a substantial issue exist as to an applicant's responsibility for the violation. The regulation

contemplates that issues of culpability will be resolved in a proceeding that would lead to a conviction rather than an appeal to this Board. 

MARVIN COOK v. BUREAU OF LAND MANAGEMENT, IBLA 91-299, 126 IBLA 158

(Decided May 10, 1993)

BLM properly cancelled a private maintenance and care agreement for a wild or free-roaming burro

upon receiving proof that the animal subject to the agreement was in a deteriorated condition.

Evidence offered by the burro's custodian to establish that a genetic defect was the cause of the

burro's observed hoof condition was not adequate to overcome contrary medical evidence based on

an actual examination of the adopted burro where the evidence of genetic defect offered by the

adopter related to other animals not covered by the maintenance agreement. 

JOHN P. WILEY v. BUREAU OF LAND MANAGEMENT, IBLA 90-238, 126 IBLA 261

(Decided June 2, 1993)

BLM properly canceled a private maintenance and care agreement for three wild horses and took

possession of a remaining wild free-roaming horse where the record established that the adopter

violated the terms of his agreement by selling the other two horses before title to them was issued

by BLM.

DARBY L. RYLAND v. BUREAU OF LAND MANAGEMENT, IBLA 90-164, 126 IBLA

371 (Decided June 30, 1993)

The Private Maintenance and Care Agreement and 43 CFR 4750.4-1(e) require financially

responsible adopters to assure the proper care and treatment of horses covered by the Private

Maintenance and Care Agreement. When the person providing care for an animal being adopted for

the adopting party informs BLM that the person adopting the animal has not paid care and maintenance bills, and that the person providing care will no longer care for the animal, BLM is justified

in cancelling the Agreement and repossessing the animal. 

MARK L. WILLIAMS v. BUREAU OF LAND MANAGEMENT, IBLA 93-72, 130 IBLA

45 (Decided July 12, 1994)

A BLM decision cancelling private maintenance and care agreements and repossessing a wild burro

and a wild horse is properly affirmed where the evidence establishes that the adopter violated the

adoption agreement and the applicable regulation requiring adopter to notify BLM within 7 days of

discovery of an animal's escape; that a subsequent adoption was obtained without notice to BLM of

the impoundment by animal control authorities of the escaped animal; and the record indicates that

the animals were maintained under conditions which threatened their welfare.

LARRY PULLEY v. BUREAU OF LAND MANAGEMENT, IBLA 91-357, 131 IBLA 7

(Decided September 22, 1994)

A BLM decision notifying the adopter that his wild horses had been repossessed and cancelling his

private maintenance and care agreement will be reversed where the record on appeal contains
Wild Horses and Burros Attachment 1-71

insufficient evidence of improper care or abandonment of the adopted animals or any other failure

to comply with the terms of the agreement sufficient to justify such action. 

NOEL BENOIST v. BUREAU OF LAND MANAGEMENT, IBLA 92-588, 131 IBLA 138

(Decided October 31, 1994) 

It is error for BLM to repossess a wild horse and allow it to be readopted prior to notice to the

original adopter of the repossession of the horse and cancellation of the private maintenance and care

agreement. Such action by BLM defeats the ability of the adopter to reclaim the repossessed animal

through the administrative review process.

NOEL BENOIST v. BUREAU OF LAND MANAGEMENT, IBLA 92-588, 131 IBLA 138

(Decided October 31, 1994) 

Under 43 CFR 4770.3(b), stays of decisions taking possession of wild horses and canceling private

maintenance and care agreements could not be granted and the decisions were properly affirmed

when there was admitted failure to comply with animal care instructions issued by the authorized

officer pursuant to 43 CFR 4760.1(d) after the horses were found in a deteriorated condition by a

BLM inspection.

WILLIAM J. AHRNDT ET AL. V. BUREAU OF LAND MANAGEMENT, IBLA 95-209

and 95-210, 132 IBLA 126 (Decided March 6, 1995)

BLM properly canceled a private maintenance and care agreement and took possession of wild

horses when the adopter failed to produce the horses for inspection within 7 days of receipt of a

written request as required by his agreement and 43 CFR 4750.4-(c) and 4770.1(g).

JOE PEEPERS v. BUREAU OF LAND MANAGEMENT, IBLA 94-339, 137 IBLA 324

(Decided 1996)

An application to adopt wild and free-roaming horses under 43 CFR Subpart 4750 is properly

rejected where the decision is supported by the regulations and observations of qualified BLM

personnel, and the party challenging the determination has not shown it to be unreasonable or

improper.

JOHN LINJATIE v. BUREAU OF LAND MANAGEMENT, IBLA 93-299, 15 IBLA 390

(Decided January 22, 1997)

A Private Maintenance and Care Agreement for wild horses is properly cancelled and the horses are

properly repossessed by the Federal Government when there is sufficient evidence of improper care

of the adopted horses to establish that the adopter violated the terms of the Agreement by

"inhumanely treating" the horses, by allowing them to suffer stress and injury owing to action or

failure to act that was not compatible with animal husbandry practices accepted in the veterinary

community. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78, 145

IBLA 309 (Decided September 17, 1998)
Wild Horses and Burros Attachment 1-72

When BLM cancels a Private Maintenance and Care Agreement, the adopter has the burden of

establishing that BLM's action was improper. The adopter's assertions that the horses were well

maintained, together with statements of third parties attesting to the good physical appearance of the

horses, are insufficient to overcome physical evidence of substandard care and health problems. 

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78, 145

IBLA 309 (Decided September 17, 1998)

Under 43 C.F.R. § 4760.1(d), BLM has the discretionary authority to give an adopter of wild horses

reasonable time to complete required corrective actions in lieu of immediate repossession of the

horses and cancellation of the Private Maintenance and Care Agreement, or repossess the horses

immediately. If the record establishes that some of the horses were suffering from severe hoof

problems and all of the horses were kept in substandard facilities, BLM may properly repossess and

cancel the Agreement without allowing for corrective action.

LARRY VANDEN HEUVEL v. BUREAU OF LAND MANAGEMENT, IBLA 95-78, 145

IBLA 309 (Decided September 17, 1998)

A BLM decision cancelling a private maintenance and care agreement will be reversed where the

record on appeal contains insufficient evidence of improper care or abandonment of the horse

covered by the agreement or the existence of any other failure to comply with the terms of the

agreement sufficient to justify such action.

JOHN SAMPSON v. BUREAU OF LAND MANAGEMENT, IBLA 96-530, 150 IBLA

92 (Decided August 17, 1999) 

A BLM decision canceling a private maintenance and care agreement and repossessing a wild horse

is properly affirmed where the evidence establishes that the adopter violated the adoption agreement

by transferring the horse to another party for more than 30 days without notifying the authorized

officer. 

STEFANIE LEE v. BUREAU OF LAND MANAGEMENT, IBLA 97-502, 151 IBLA 1

(Decided October 14, 1999)

When BLM cancels a Private Maintenance and Care Agreement, the adopter has the burden of establishing that BLM's action was improper.

STEFANIE LEE v. BUREAU OF LAND MANAGEMENT, IBLA 97-502, 151 IBLA 1

(Decided October 14, 1999)

Where an adopter, over a 8-month period following the implementation of a private maintenance and

care agreement, failed to provide shelter for adopted horses as required by that agreement, the return

of the horses to the adopter is properly conditioned upon a showing that she has, in fact, provided

shelter as required.

JULIE R. HAYSLIP v. BUREAU OF LAND MANAGEMENT, IBLA 2000-242, 155

IBLA 315 (Decided September 5, 2001) 
Grazing Leases Attachment 1-73

BLM improperly cancelled a private maintenance and care agreement for wild horses and took

immediate possession of the horses on the basis that the adopter had failed to provide adequate

shelter and feed for her adopted horses, where BLM did so (1) during the period of an indefinite

extension of time granted to the adopter to provide shelter without providing notice that the period

for compliance had ended and that the horses were about to be seized; and (2) on the strength of an

unconfirmed report by a third party that the horses were about to be denied feed.

JULIE R. HAYSLIP v. BUREAU OF LAND MANAGEMENT, IBLA 2000-242, 155

IBLA 315 (Decided September 5, 2001) 

16. Grazing Leases (Section 15)

16.1 General

A BLM decision concerning grazing privileges will not be set aside if it is reasonable and

substantially complies with the provisions of the Federal grazing regulations found at 43 C.F.R. Part

4100 (1992). The burden is on the objecting party to show by a preponderance of the evidence of

record that a decision is in error. 

DUNCAN MACKENZIE v. BUREAU OF LAND MANAGEMENT, IBLA 94-871, 140

IBLA 192 (Decided September 8, 1997)

Editor’s Note: This decision refers to leases but the issue appears to be issuance of a grazing

permit not a grazing lease. 

16.2 Applications

When the record supports a finding that the grazing lessee did not lose control of the base property

to which his grazing preference was attached, an Administrative Law Judge's decision setting aside

a Bureau of Land Management decision denying an application for a grazing lease in part and

reducing grazing preference and AUM's will be affirmed on appeal.

D. RAY GORDON v. BUREAU OF LAND MANAGEMENT IBLA 94-194, 140 IBLA 112

(Decided August 26, 1997)

Editor’s Note: This decision refers to leases but the issue appears to be issuance of a grazing

permit not a grazing lease.

16.3 Apportionment of Land Reserved

16.4 Assignment Reserved

16.5 Cancellation or Reduction Reserved

16.6 Preference Right Applications Reserved

16.7 Renewal
Grazing Leases Attachment 1-74

An administrative law judge's dismissal of a grazing appeal on the grounds that the decision appealed

was not subject to appeal will be reversed, and the case remanded for hearing where the action

appealed was a final decision that may have modified the terms and conditions of the grazing lease

or created a grazing system outside the scope of that authorized by an Environmental Assessment.

NATIONALWILDLIFEFEDERATIONETAL. v.BUREAUOFLAND MANAGEMENT,

IBLA 95-475, 145 IBLA 379 (Decided September 24, 1998)