U.S. GOVERNMENT PRINTING OFFICE

40–820 cc WASHINGTON : 1997

LIVESTOCK GRAZING

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON FOREST AND FOREST HEALTH

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

LIVESTOCK GRAZING ON PUBLIC DOMAIN NATIONAL

FORESTS

APRIL 8, 1997—WASHINGTON, DC

Serial No. 105–19

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

NICK LAMPSON, Texas

RON KIND, Wisconsin

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON FOREST AND FOREST HEALTH

HELEN CHENOWETH, Idaho, Chairman

JAMES V. HANSEN, Utah

JOHN T. DOOLITTLE, California

GEORGE P. RADANOVICH, California

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

MAURICE D. HINCHEY, New York

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

————— —————

————— —————

————— —————

BILL SIMMONS, Staff Director

ANNE HEISSENBUTTEL, Legislative Staff

LIZ BIRNBAUM, Democratic Counsel
(III)

C O N T E N T S

Page

Hearing held April 8, 1997 ..................................................................................... 1

Statements of Members:

Chenoweth, Hon. Helen, a U.S. Representative from Idaho; and Chairman, Subcommittee on Forest and Forest Health ..................................... 1

Crapo, Hon. Michael D., a U.S. Representative from Idaho ......................... 4

Hinchey, Hon. Maurice, A U.S. Representative from New York .................. 6

Statements of witnesses:

Bedke, Scott, Oakley, ID .................................................................................. 32

Prepared statement ................................................................................... 80

Budd-Falen, Karen, Esquire, Cheyenne, WY ................................................. 39

Prepared statement ................................................................................... 133

Burkhardt, Wayne, Professor Emeritus, University of Nevado–Reno and

University of Idaho–Moscow, Indian Valley, ID ......................................... 62

Prepared statement ................................................................................... 167

Connelley, Jim, Mountain City, NV ................................................................ 36

Prepared statement ................................................................................... 117

Glustrom, Leslie, Prescott National Forest Friends, Boulder, CO ............... 65

Prepared statement ................................................................................... 174

Hess, Karl, Senior Associate, The Thoreau Institute, Las Cruces, NM ....... 55

Prepared statement ................................................................................... 144

Kincannon, Linn, Idaho Conservation League, Ketchum, ID ....................... 59

Prepared statement ................................................................................... 153

LeVere, William, Forest Supervisor, Sawtooth National Forest, East Twin

Falls, ID ......................................................................................................... 7

Nelson, R.M. (Jim), Forest Supervisor, Toiyabe-Humboldt National Forest, Sparks, NV ............................................................................................. 7

Oldridge, Neil, American Sportfishing Association, Sagle, ID ...................... 57

Prepared statement ................................................................................... 148

Pollot, Mark, Esquire, Boise, ID ...................................................................... 34

Prepared statement ................................................................................... 85

Unger, Dave, Associate Chief, U.S. Forest Service, Washington, DC .......... 7

Prepared statement ................................................................................... 74

Additional material supplied:

Connelley, Jim: A report and observations on Wayne Hage-U.S. Forest

Service situation ........................................................................................... 131

Ecological Costs of Livestock Grazing in Western North America, by

Thomas L. Fleischner ................................................................................... 182

Grand jury finds public lands crimes committed ........................................... 122

Herbivory in the Intermountain West, by Dr. J. Wayne Burkhardt ............ 202

Sawtooth National Recreation Area Stanley Basin C&H Allotment Management Plan Draft EIS, 1990 ..................................................................... 134

Sawtooth penalty policy good for land, taxpayers, ranchers ......................... 162

The aloe juice man, by Christopher Palmeri .................................................. 199

The Story Behind the Pine Creek Ranch Takings Case ............................... 123

Tighter rules prepare forest for future ........................................................... 163

Communications received:

Agriculture Department: Memorandum of March 3, 1997, to District and

Area Rangers on Sawtooth National Forest Rangeland Management ..... 97

Kaiser, Ruth (Nat. Fed. Lands Conf.): Letter of August 8, 1991, with

attachment to Jim Connolley ....................................................................... 126

Mahoney, Steve (NV Dept. of Ag.): Memorandum of August 29, 1991,

to all board members .................................................................................... 133
(1)

LIVESTOCK GRAZING ON PUBLIC DOMAIN

NATIONAL FORESTS

TUESDAY, APRIL 8, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FOR- ESTS AND FOREST HEALTH, COMMITTEE ON RESOURCES, Washington, DC.

The Subcommittee met, pursuant to call, at 2:04 p.m., in room

1334, Longworth House Office Building, Washington, D.C., Hon.

Helen Chenoweth (Chairwoman of the Subcommittee) presiding.

Mrs. CHENOWETH. Ladies and gentlemen, the Subcommittee on

Forests and Forest Health will come to order. The Subcommittee

is meeting today to hear testimony on livestock grazing on public

domain national forests.

Under rule 4(g) of the committee rules, any oral opening statements at hearings are limited to the Chairman and the ranking minority member. Without objection, though, the Chairman will exercise the right to ask Mr. Crapo to give an opening statement also.

I welcome Mr. Crapo, my colleague from Idaho, and I want you

to know that Mr. Gibbons from Nevada will also be joining the

Subcommittee right away.

Although they are not members of the Subcommittee, again,

without objection, I would like to invite them to join us in these

proceedings.

STATEMENT OF HON. HELEN CHENOWETH, A U.S. REPRESENTATIVE FROM IDAHO; AND CHAIRWOMAN, SUBCOMMITTEE

ON FOREST AND FOREST HEALTH

Mrs. CHENOWETH. Livestock grazing on public lands is an issue

that has managed to be a topic of debate in one form or another

in every Congress over the past several decades. When we separate

the facts from the fiction, a very different picture emerges.

Much of the grazing heritage of the western United States is an

outgrowth of the period when settlers migrated there to grow crops

and raise animals on their homesteads. Those settlers established

a way of life that continues today. Their descendants still attempt

to make a living from ranching and livestock grazing, but under

very different and sometimes very difficult circumstances.

Some of the challenges are the same as those of a century ago,

adequate water supplies, disease, and predators. However, the government atmosphere regarding the availability of public land for

livestock grazing and the attitude toward rangeland management

has changed dramatically.

In the emotionally driven debate about livestock grazing on public lands, grazing has been continually viewed by opponents as hav-
2

ing a negative impact on the land; however, science shows a much

different picture. When done correctly, grazing is a natural and essential part of the rangeland environment. Because of the varied

nature of rangelands, proper care of the land as it pertains to livestock grazing can only be carried out by proper on-the-ground management.

This is why the Subcommittee will examine two specific cases of

management of livestock grazing on the public domain national forest to determine if what has happened in the Sawtooth and the

Humboldt-Toiyabe National Forests is indicative of the management of national forests throughout the west.

On March 3, 1997, William Levere, Forest Supervisor of the Sawtooth National Forest, sent a letter entitled ‘‘Sawtooth National

Forest Rangeland Management’’ to all permittees in the Sawtooth.

Contained in the letter was a ‘‘Direction for Uniform Action[s] Associated with Grazing Permit Violations.’’ Although this UAG contains significant changes to livestock grazing on the Sawtooth, it

was implemented without any public comment.

The new rules put forward in the UAG contain changes from previous grazing rules that include replacing five gradually escalating

sets of penalties with two sets of penalties, both requiring ranchers

to explain violations in writing. The minimum penalty when permittees are unable to work out a mutually acceptable solution with

the Forest Service is suspension of 25 to 100 percent of the stock

or grazing days for three years plus payment for any unauthorized

foraging. The March 3 UAG’s maximum penalty for a second offense is total permit revocation plus payment for damages.

By the Sawtooth supervisor’s own admission, these were significant changes to the existing regulations, yet no public input was

requested as mandated by the National Environmental Policy Act

and the Administrative Procedures Act.

In response to the uproar caused by the release of the UAG on

March 3, the Forest Service said Friday, April 4, 1997, that they

would issue a revised interim UAG and open it up to a 30-day public comment period. In my view, this is at the very least an admission that mistakes were made in the promulgation of the March 3

UAG.

By many appearances, the UAG is the culmination of a pattern

by the Forest Service to try to eliminate livestock grazing dating

back to 1986. Until 1986, the Forest Service personnel in the Sawtooth had generally been an effective partner in the development

and improvement of grazing allotments. Unfortunately, this atmosphere changed in 1986 when new management was brought in to

the Sawtooth.

Some have argued that the UAG comes as the result of a direct

bias against livestock grazing by Forest Service personnel, which is

what we are going to try to determine today.

What is distressing to me is the fact that the Forest Service has

little, if any, scientific information to back up their punitive actions

that will continue to lead to the elimination of many families’ ability to provide for their own means. The argument that the permittees are not treating the land properly is not supported by science.

The fact is, the permittees have the most at stake in assuring the
3

health of the land and have done an excellent job in maintaining

their allotments.

It is particularly distressing to me that many of these draconian

sanctions contained in the March 3 UAG were implemented unilaterally and without public input. As the administration knows very

well, any and all regulations that have significant economic, social,

or cultural impact must go through the NEPA and APA public comment process.

In his March 3 letter, Mr. Levere states that the new UAG will

‘‘have major impacts both internal to the Forest Service and external to our range permittees and forest visitors.’’ This is by any

measure a recognition of the importance of the new UAG, yet

NEPA and the APA were not followed.

It is recognized by the Supreme Court and well grounded in the

law that ‘‘the acts of public officers (which includes the Forest Service) must, in order to be binding, be within the limits of the power

conferred (by Congress).’’

Further, Supreme Court decisions have stated ‘‘when dealing

with such public officers, one must inquire into their powers and

authority to bind the government, and is held to a recognition of

the fact that government agents are bound to fairness and good

faith as between themselves and their principal.’’ The Court went

on to say, ‘‘These general principals as to public officers have been

applied in the case of authority exercised by the Secretary of the

Interior,’’ and that is found in Volume 77 AmJur 2d, Section 89.

These hearings today are to actually inquire as the Supreme

Court suggests whether the government agents, in this case the

Forest Service, have acted within the authority conferred on them

by Congress and have acted in good faith on the Sawtooth and the

Humboldt-Toiyabe National Forests.

The Supreme Court has stated that it is the responsibility of the

governed, not the government, to inquire as to the bounds of the

Forest Service’s authority. That is what the permittees have done,

and that is precisely the reason that we are here today.

I look forward to receiving testimony from our witnesses and receiving the facts from all of you. Now, I would like to recognize my

colleague from Idaho for an opening statement, Mike Crapo.

Mr. CRAPO. Thank you, Madame Chairman, I appreciate the opportunity you have given me to participate in this hearing this

morning, and I would also like to welcome Scott Bedke, a citizen

of Oakley, Idaho, who is a constituent of mine, to this hearing.

Scott is one of the 195 permittees who run livestock on one of the

153 grazing allotments on over 2,100,000-plus acres on the Sawtooth National Forest. He and his family have grazed livestock on

public lands for many years.

I would also like to welcome Linn Kincannon, someone whom I

have worked with for a long time on issues such as this, who is

here representing the Idaho Conservation League and its point of

view. She is a resident of Ketchum, Idaho, and also a constituent.

I welcome her to this hearing, and I look forward to their testimony

as well as the testimony of everyone else here.

I might also add, Madame Chairman, that it is a pleasure to get

to call you Madame Chairman, I appreciate the fact that even
4

though I don’t sit on this Subcommittee that you have allowed me

to participate.

Mrs. CHENOWETH. Thank you, Mr. Crapo, and I also want to recognize the fact that I appreciate the fact that you are here at this

hearing when there was a leadership meeting called by the Speaker that you have chosen to be here instead of attending those meetings, and those are very important meetings especially at this time.

STATEMENT OF HON. MICHAEL D. CRAPO, A U.S.

REPRESENTATIVE FROM IDAHO

Mr. CRAPO. Thank you very much and I appreciate that opportunity. The reason I am here is because of the importance of this

issue to Idaho and to my district and to the West. In February, I

was briefed by Bill Levere, the forest supervisor of the Sawtooth

National Forest, on his proposed uniform grazing permit violations

action guide. This was several days before the proposed guidelines

were released.

At this meeting, I stated my opposition to the implementation of

these guidelines and relayed to him my deep concern with the approach that the Forest Service appeared to be taking with regard

to rangeland management in the Sawtooth National Forest.

Instead of fostering a cooperative approach to addressing rangeland management concerns, these new guidelines impose a rigid

and what I consider to be a confrontational style of management.

While every permittee should be required to adhere to the rules

and regulations of their permit and while we must assure that we

protect and preserve the resources of the United States, the magnitude of the penalties in these proposals and the rigidity of the

manner in which they are implemented do not fit the violations

and the circumstances, in my opinion.

These guidelines are another example of an approach to public

land management in a way which seemingly appears to many to

be an attempt to abolish grazing and other multiple uses for public

lands through the use of excessive and costly regulations.

In defense of these actions, the Forest Service states that the

Sawtooth National Forest rangers and permittees spend 90 percent

of their time dealing with ten percent of the permittees. However,

instead of identifying and dealing with this small percentage of

permittees who consciously fail to adhere to conditions of their permits, the Forest Service imposes a one-size-fits-all approach which

has not worked in the past.

Instead of dealing with problems in an effort to eliminate them,

the Forest Service has chosen to place all permittees in the same

situation. This will only increase problems and increase staff time

spent.

For example, these proposed guidelines force rangers to reduce a

permittee’s forage by 25 to 100 percent for an accidental violation

without consideration of past performance or circumstance. The

guidelines fail to make a distinction between a good permittee who

fails to close a gate and one who is a habitual offender. As this occurs, more and more pressure will be placed on the Forest Service

resources to deal with an increasingly hostile and difficult permittee public.
5

Originally, uniform action guidelines were only recommendations, and rangers had the authority to vary action based on individual circumstances. They could take extenuating circumstances

into account and give consideration for accidental and nonwillful

events. These new proposed guidelines, however, show absolutely

no flexibility.

It is now mandatory that the direction of the new guidelines be

followed. The only discretion left to the ranger is in determining

whether or not the violation has occurred, and in my opinion, this

is not reasonable nor right.

I am additionally concerned with the lack of communication. For

example, Cassia County and the Forest Service have recently entered into a memorandum of understanding which is less than one

year old. This MOU was created to foster a better working relationship between the Forest Service, elected officials, and residents of

the area.

I am aware of the disagreement between the Forest Service and

the Cassia County commissioners on exactly what sort of communication is required by the MOU and by FLPMA on these guidelines. But notwithstanding this disagreement, the Forest Service

must work closer with the county commissioners and other involved on these issues.

This lack of communication extends to the guidelines we are here

to discuss today. Instead of receiving a warning letter or a notification of a violation as is currently prescribed, the new guidelines

dictate a show-cause letter for canceling a percentage of the permittee’s forage for all violations, no matter the severity.

This is not communication. This is intimidation. The Forest Service in this case is acting as the police, the judge, and the executioner. Ranchers under these new guidelines have far less opportunity to communicate with the Forest Service and are placed in

a position of potential real economic loss with very little recourse

and no access to a jury of their peers.

In raising these concerns, it has been explained to me that all

that the ranchers have to do is to communicate and bring their

concerns to the attention of the forest rangers, and that there will

be an effort to work things out with them.

The problem with that point of view, however, that approach is

that, first of all, the guidelines are still rigid and do not allow for

the flexibility necessary to deal with circumstances as they properly should be. Secondly, with such extensive potential penalties in

place and with the person that the ranchers are dealing with being

the one who has the discretion to implement the penalties, all the

rancher can do is plead for mercy rather than to deal with the Forest Service in an effort to try to avoid the extenuating and extreme

penalties.

This type of concentration of power can only lead to an increased

difficulty in communication and more time spent by Forest Service

personnel in dealing with the public.

I do want to applaud Mr. Levere for his recent decision to revise

the guidelines and open them up now for public comment and review. A decision of this magnitude should not be made in a vacuum, but with input from affected communities and individuals. I
6

want to suggest to the Forest Service that, during this comment period, it looks closely at alternatives for these guidelines.

As indicated in all of the letters that have been signed back and

forth on this, it is clear that the Forest Service has now recognized

that it must look to and receive public input to evaluate this new

proposal.

Madame Chairman, I again want to thank you for allowing me

to participate in this hearing, and I look forward to hearing from

the witnesses today.

Mrs. CHENOWETH. Thank you, Mr. Crapo, and now I would like

to welcome Jim Gibbons to the committee. Mr. Gibbons’ district includes the Toiyabe National Forest in Nevada, and it is a joy to

have you here.

I would be very pleased if you would like to submit a written

statement to the record.

Mr. GIBBONS. We will submit our opening statement for the

record.

[Statement of Mr. Hinchey follows:]

STATEMENT OF HON. MAURICE D. HINCHEY, A U.S. REPRESENTATIVE FROM NEW

YORK

Madame Chairman, this has been billed as an oversight hearing on livestock grazing policies on public domain National Forests. I suspect however from the witness

list that this is really a hearing on livestock grazing on the Sawtooth, Toiybe (Toyob-e) and Humboldt National Forests, especially Sawtooth.

It seems that Sawtooth National Forest Supervisor Bill LeVere has stepped on a

few toes in moving to implement a uniform policy on grazing permit violations, noting that the Forest Service has got to change the way it has been doing business.

I congratulate Supervisor LeVere and the other forest supervisors who are changing

the way the Forest Service has been doing business. If there ever was a program

in need of reform, it is the grazing program. The misguided legislative attempts that

took place in the last Congress highlighted again the serious shortcomings of the

grazing program. The fatally flawed efforts of proponents last Congress to enshrine

grazing at the expense of other multiple uses of our public lands and National Forests would have cut off useful and necessary reforms in grazing management.

Secretary Babbitt has proceeded to implement grazing management reforms on

public lands and contrary to the dire predictions, the sky has not fallen in. I suspect

the same would happen with the Forest Service. In fact, we should be going further

to eliminate grazing subsidies for corporations and large operators. Something is

wrong when we hear all this talk about the small rancher and come to find out that

just 12 percent of the permittees control 63 percent of the forage on National Forests.

I support the Forest Service objectives to protect and restore the health of the

land, to manage grazing in the broader context of multiple use-sustained yield, and

provide for grazing only in areas where it is suitable and appropriate. If we are

looking at grazing policies on National Forests, these are the policies the Forest

Service should be following.

Mrs. CHENOWETH. Thank you, Mr. Gibbons. Now, I would like to

call on the first panel. Dave Unger, Associate Chief of the United

States Forest Service from Washington, D.C.; and with him is William LeVere, Forest Supervisor, Sawtooth National Forest, East

Twin Falls, Idaho; and Mr. Jim Nelson, Forest Supervisor, Toiyabe

Humboldt National Forest, Sparks, Nevada. Gentlemen, welcome.

It is the intention of the Chairman to place all outside witnesses

under oath. This is something that we do with everyone, and this

is a formality of the committee that is meant to assure open and

honest discussion and should not affect the testimony given by the

witnesses.
7

I believe all of the witnesses were informed of this before appearing here today, and they have each been provided a copy of the

committee rules.

If you will please stand with me and raise your right hand, I will

administer the oath.

Do you solemnly swear and affirm that you will, under the penalty of perjury, tell the truth, the whole truth, and nothing but the

truth so help you God?

Let me remind the witnesses that under our committee rules,

they must limit their oral statements to five minutes, but that

their entire statement will appear in the record and we will also

allow the entire panel to testify before questioning a witness.

The Chairman now recognizes Mr. Dave Unger, Associate Chief,

U.S. Forest Service, to testify. Mr. Unger.

STATEMENT OF DAVE UNGER, ASSOCIATE CHIEF, U.S. FOREST

SERVICE, WASHINGTON, DC; ACCOMPANIED BY WILLIAM

LEVERE, FOREST SUPERVISOR, SAWTOOTH NATIONAL FOREST, EAST TWIN FALLS, IDAHO; AND R.M. (JIM) NELSON,

FOREST SUPERVISOR, TOIYABE-HUMBOLDT NATIONAL FOREST, SPARKS, NEVADA

Mr. UNGER. Thank you, Madame Chairman, and we appreciate

the opportunity to participate in this overview of the Forest Service

range management program.

I will summarize my statement briefly. As everybody on the committee knows, the Forest Service has been involved in managing

rangelands for nearly 100 years and has a long history of partnership with the livestock producers and others who rely on National

Forest System lands.

It is interesting that at the turn of the century when there was

a debate about whether livestock grazing should be allowed on the

forest reserves as they were called at that time, the person who

was to become the first Chief of the Forest Service, Gifford Pinchot,

argued that grazing should not be prohibited as some were calling

for, but instead should be regulated, and that view was based on

scientific range research, and we think that those early range scientists, by developing concepts such as carrying capacity and grazing systems that involved deferral and rotation, laid the foundation

for sustainable resource use.

Nearly half of all National Forest System lands lie within the

boundaries of grazing allotments, about 95,000,000 acres of land in

33 States. The Forest Service administers approximately 9,000 paid

permits which provide for about 9,900,000 head months of grazing

by cattle, horses, sheep, and goats, and of course, nearly all of this

permitted grazing is located in the western States.

Authorized grazing use on National Forest System lands has

been declining over the past ten years, from about 11,000,000 head

months in 1986 to about 9,000,000 head months for each of the

past three years. The reasons for the decline in authorized use over

this period include continued efforts to improve range in poor or

fair condition, more emphasis on restoring degraded riparian areas,

adjustments for effects on threatened and endangered species, and

other reasons including economic factors that affect permittee decisions.
8

Despite improvements in rangeland conditions since the turn of

the century, we have work to do. Currently, about 72,000,000 acres

of rangeland have management objectives that are identified in forest plans. About 71 percent of those acres meet or are moving toward the specified objectives, and that is good.

Another 11 percent do not meet those objectives or do not show

signs of improving, and another 18 percent are in an indeterminate

status due to the lack of current data which we think that we can

get up to date in the years immediately ahead so that we can remove those acres from that undetermined status.

Permittees, as the committee has recognized here in its statements, using the public land have made an agreement with the

Forest Service to use it in a certain way, and Forest Service officers

have discretion in administering permits to achieve the resource

utilization and protection purposes they are designed to serve.

In some cases, managers have chosen to use these uniform action

guides which are the subject of this hearing as a tool to obtain

more consistent and fairer actions by the Forest Service when permit violations occur. These guides are in use on the Sawtooth, the

Humboldt, and Toiyabe National Forests as well as many other

units in the western States.

I might mention that downsizing of the agency has required the

Forest Service to streamline its processes and cut costs. Examples

of specific actions to stretch our dollars include forging collaborative monitoring programs with some of our partners including

rangeland permittees and others, and we have formed other partnerships which have other similar opportunities, such as ‘‘Seeking

Common Ground’’ which is an effort in eight western States to develop demonstration projects to manage big game and livestock

grazing interactions and common habitats.

A new program, ‘‘Pulling Together Partnerships’’ is a program

that has the primary objective of managing noxious weeds on a

landscape basis across jurisdictional boundaries.

We are also working with other Federal agencies to try to

streamline consultation and analysis processes so we can be more

responsive to the permittees, the public, and local community

needs.

I will just conclude by saying managing rangeland resources is

an important task for the Forest Service. We appreciate the committee’s interest in this subject.

[Statement of Dave Unger may be found at end of hearing.]

Mrs. CHENOWETH. Thank you for your testimony, and I would

like to open with questions from Mr. Crapo.

Mr. CRAPO. Thank you very much, Madame Chairman. I appreciate the opportunity to question this panel.

As I have read the material that was put out by the Forest Service on this matter, it was pointed out that this was intended to be

a system in which there was a voluntary working relationship created between the permittees and the Forest Service. But, as I indicated in my opening statement, it is hard for me to see how that

will work.

I would like to encourage any of you to answer this question. It

seems to me that the notion that implementing a very heavy penalty and then requesting the rancher or permittee to come in and
9

basically work out the solution with the understanding that if they

don’t agree with whatever the solution that is being imposed is,

then the heavy penalty is going to be imposed, is hardly a voluntary working relationship. The final few sentences in the letter

that was sent out say that to those who aren’t willing to work on

this arrangement, we can either work together or we can work

against one another. The route you choose is yours. The consequences of each route are yours to accept or reject.

How is it an open, voluntary working relationship when the

agency has already proposed a very extensive penalty and is then

telling the permittee that they must either agree to whatever the

terms are as they negotiate with the ranger or suffer this extensive

penalty?

Mr. UNGER. Let me ask Mr. Levere to respond to that, but my

understanding of these kinds of guidelines which are in effect in a

number of forests in the west is to try to have a more consistent

basis for treating people fairly and equitably where they are found

to have violated the grazing permit provisions, but I will let Mr.

Levere respond directly to your question.

Mr. LEVERE. Yes, I feel the need to respond to that, and that

those are my words. I wrote them.

What we are after, and it may be a misinterpretation, and hopefully, the April 4 direction clarified that it is—that the permittee

has to voluntarily accept the penalty as proposed in the show-cause

letter, that the purpose is to promote that the permittee and the

local ranger at that level sit around a table, look at options, identify what the problem truly is, and then develop solutions to that

problem, and if they can come up with those solutions at that local

level where the ranger agrees that it is a solution to the problem

that he or she was concerned with, and it is a solution that the permittee can agree with, and again, this could be a solution that is

different from the penalty as proposed in the show-cause letter,

then essentially the problem is resolved at that level. Nothing further is taken on the show-cause letter. In fact, the April 4 direction

notes that we would actually stamp that letter and denote that,

that letter cannot be held against them for future penalties, and

that if they come to agreement at the local level, that, that won’t

be counted as what we have termed a first offense.

Mr. CRAPO. The point I am raising though is—and I will use

some of your other words from the letter—you state alternatively,

if those same range permittees are not willing to work these problems out on a voluntary basis, then my only conclusion is that they

are willing to accept the status quo and will have to live with the

consequences of operating under their current annual operating

plan and this new direction for uniform action.

The point I make is that if you cock the gun and put it to the

head of the permittee and say now, come to the table and talk with

me, and you lay out whatever options you discuss around the table,

the permittee knows that the cocked gun is still there.

I am wondering how it is going to result in a voluntary exchange

of discussion of options when the person whose finger is on the

trigger is also one of those negotiating in the room with regard to

what the options are going to be.
10

Mr. LEVERE. I don’t necessarily view it as a cocked gun to their

head that—what I view it is as them following up on the terms and

conditions of their permit which they signed and agreed to follow,

and we are imposing these penalties when they have violated those

terms and conditions, something that they have already agreed to.

Mr. CRAPO. That they have already agreed that they have violated the terms and conditions of the permit?

Mr. LEVERE. No, that they would follow the terms and conditions

of the permit.

Mr. CRAPO. But what if there is a disagreement? What if there

is a disagreement over whether there has been a violation?

Mr. LEVERE. If there is a disagreement over the violation, then

the ultimate call is the ranger out there to follow up——

Mr. CRAPO. But that is my point. The ultimate call of the ranger

is the ranger’s, and when the ranger says, no, I don’t agree with

you, there is a violation here, or it was intentional not accidental,

or whatever the ranger concludes—the ranger is the judge, the

jury, the investigator, and the executioner.

Mr. LEVERE. The ranger is the initiator, then there are other

steps that are taken after that. There are appeal rights under 36

C.F.R. 251 which the permittee has available. They can appeal that

ranger’s decision to my level. Then if they don’t agree with my decision, they can then appeal it above me to the Regional Forester

level, and then if they don’t agree after that, there is always the

litigation route.

Mr. CRAPO. But what you are suggesting here is that the option

that the permittee has is to either agree with the ranger or suffer

the penalties and hope that somewhere up the chain, at that point

in litigation, resolves the problem against the Forest Service, inside

the Forest Service’s own administrative system.

Mr. LEVERE. Those are two options, and a third option is that

they follow the terms and conditions of their permit and not find

themselves in that situation to begin with.

Mr. CRAPO. With the ranger being the one who decides whether

they have done that subject to these extensive penalties?

Mr. LEVERE. That is that ranger’s job.

Mr. UNGER. And that would be the case, Mr. Crapo, under the

system without the uniform guidelines. The ranger, if he felt a violation had occurred, would make the decision as to whether that

violation had occurred and make the decision which then, if the

permittee felt was unfair, would be subject to appeal under the——

Mr. CRAPO. I understand that, and I don’t disagree with the fact

that we need rangers on the ground who are doing their jobs and

doing them well and making these decisions and assuring that we

protect our resources.

My point is that under the old guidelines and under the old approach, the rangers had a range of options that they could work

with, and there truly was an opportunity to deal with one another.

Now, under these new guidelines the ranger can say this is an intentional violation, and if you don’t agree with me, then take her

up the chain, but your permit is at least 25 percent eliminated if

not 100 percent eliminated. Is that not correct?

Mr. LEVERE. That is what the uniform action guide says and that

is for uniformity so that we are responding consistently across the
11

forest, but it is a guide, and the rangers, depending on the situation, can deviate from that guide if they see fit. They have always

had that flexibility.

Mr. CRAPO. So they don’t have to follow the guideline?

Mr. LEVERE. No, it is guidance.

Mr. CRAPO. I see my time is up, Madame Chairman. Thank you

very much.

Mrs. CHENOWETH. We will have a second round of questioning,

and I also would like to ask the members of the Forest Service to

stay for the entire hearing, because we will have other witnesses,

and we would like to be able to call you back. Thank you very

much.

Mr. Gibbons. Before Mr. Gibbons begins his questioning, I would

like to recognize Mr. Kildee and Mr. Vento, and the fact that they

are with us today. I will call on you in the order in which you came

into the committee. Mr. Gibbons.

Mr. GIBBONS. Thank you, Madame Chairman. Mr. Unger, you

talked a lot about the uniform action guide and Mr. Crapo got into

that a little bit. These are to afford opportunities under the uniform action guide, are they not, afforded to the permittee to meet

with the Forest Service people, the forest ranger, to seek a cooperative solution to the problem or to the permit violation. Is that not

correct, what you are saying?

Mr. UNGER. That is my understanding, yes.

Mr. GIBBONS. Would you help us on this committee, Mr. Unger,

by referencing that part of the uniform action guide that permits

this to take place? Would you point us to that segment and tell us

where these opportunities are listed out and where they are referenced?

Mr. UNGER. I will ask Mr. Levere to respond to that directly in

terms of the guides that we are discussing on his forest, but of

course, the permittee and the ranger have every opportunity at any

time to meet together and cooperatively discuss problems that may

be viewed in the relationship from either side.

Mr. GIBBONS. We are referencing all of this discussion and all of

this colloquy over the uniform action guide and how that relates to

individual permittees’ opportunities to resolve on a voluntary basis

the permit violation that Mr. Crapo has talked about in terms of

when that action takes place, how that comes before the Forest

Service, what the permittee’s opportunities are to voluntarily resolve in a cooperative fashion.

I would just like to know where that is referenced in these uniform action guides so that perhaps these permittees have a better

understanding of just exactly what their opportunities are.

Mr. UNGER. Let me ask Mr. Levere to respond.

Mr. LEVERE. I would like to reference page two of the interim directive that I issued on April 4.

Mr. GIBBONS. Is that this year?

Mr. LEVERE. Yes.

Mr. GIBBONS. So we are talking an agreement that is exactly

four days old?

Mr. LEVERE. Yes.

Mr. GIBBONS. Go ahead.
12

Mr. LEVERE. On page two under—and this is one of the examples

in order to answer your question where the violation would be

grazing excess numbers. In there, it says that under a first offense,

there are two options, and this is identified as the preferred option

in that interim directive, that upon receipt of show-cause letter,

permittees meet with the unit ranger. A solution to the identified

problems on the allotment are agreed to by the unit ranger and

voluntarily accepted by the permittees. The agreement is documented and signed by all parties.

Mr. GIBBONS. So up until April 4, 1997, this voluntary agreement

was not put in writing.

Mr. LEVERE. It was not explicitly contained in the uniform action

guide on the Sawtooth National Forest.

Mr. GIBBONS. What about other forests, like the HumboldtToiyabe area? Mr. Nelson.

Mr. NELSON. The Humboldt-Toiyabe has had a uniform action

guide since—well, the Humboldt since 1987.

Mr. GIBBONS. 1987, OK.

Mr. NELSON. And the Humboldt-Toiyabe since 1991. We have a

little bit different system that we utilize than the one that the

Sawtooth has put together.

There was a National Wildlife Federation lawsuit, I think in

1995, and as a result—against the Forest Service on the Humboldt

for not enforcing grazing standards properly, and we tried to settle

that out of court in cooperation with the Nevada Land Action Association, the Wildlife Federation, and the Forest Service. We worked

on developing a uniform action guide that everyone could agree on.

We did that, the court agreed with it, and we have implemented

it now in both national forests.

This action guide separates willful violations versus unwillful

violations. If it is apparent that the violation is unwillful, then we

normally issue a warning letter to the permittee and the warning

letter will describe what the violation is, will describe some remedies for correction, and then that will be the end of it. If it continues to occur, then we move into the actions as outlined.

It is a guide and the ranger has total discretion to use it or not

to use it. It is primarily there. I think it helps both the permittee

and the agency to provide for uniformity across the two forests in

terms of decisionmaking.

You could have a situation easily without a uniform action guide

where the penalties on two separate ranger districts could be quite

different, one being much more severe than the other for basically

the same thing.

In terms of willful violations of the permit, then we move right

into suspension. The first suspension is recommended to be 25 percent for a three-year to five-year period.

Mr. GIBBONS. Let us get back to the question I asked Mr. Unger

who deferred to Mr. Levere about where in your uniform action

guide is this cooperative, voluntary agreement written that you will

work with the permittees to resolve their problems. Is it in your

agreement? Is it written like Mr. Levere just stated on April 5 or

April 4 of this year?

Mr. NELSON. I will back up a little bit. We issue——
13

Mr. GIBBONS. I am just saying, is it written in your uniform action guide?

Mr. NELSON. It is not specifically in the uniform action guide, but

every year, we develop operating plans in cooperation with the permittee that talk about the various requirements and agreements on

how we are going to graze the forthcoming year.

Mr. GIBBONS. Mr. Nelson, I have just a very little bit of time left,

and I want to ask you a question before we go on.

The discretion you talked about in the ranger to determine

whether it is willful or unwillful in terms of the permit violation,

what guidelines do you give your rangers to make that determination and how are they to determine whether it is a willful or

unwillful violation?

Mr. NELSON. A lot of times, it is a judgment call, but sometimes,

it is fairly easy to make. If someone has put their cows out a month

in advance of when they are supposed to, you would have to consider that willful. If there are cows that show up in a unit that

they are not supposed to be in because a fence is down, you would

have to assume that was unwillful.

It is a judgment call, but it is usually not that difficult.

Mr. GIBBONS. Are there no guidelines——

Mr. NELSON. There are no guidelines to define what is willful or

what isn’t willful, but it is usually fairly obvious.

Mr. GIBBONS. Thank you, Madame Chairman.

Mrs. CHENOWETH. Thank you, Mr. Gibbons. I would like to recognize Mr. Kildee.

Mr. KILDEE. Thank you, Madame Chairman. Mr. Levere, does

anything in the Sawtooth uniform action guide change any terms

or conditions of a grazing permit?

Mr. LEVERE. No, they do not.

Mr. KILDEE. No change at all?

Mr. LEVERE. No change.

Mr. KILDEE. Does the UAG deal solely with violations of a grazing permit?

Mr. LEVERE. Yes.

Mr. KILDEE. Does anything in the UAG eliminate the right to an

administrative or judicial appeal of a grazing violation decision?

Mr. LEVERE. No, it does not.

Mr. KILDEE. So they can appeal within your agency beyond the

ranger on the ground?

Mr. LEVERE. That is correct.

Mr. KILDEE. And there are several levels administratively they

could appeal?

Mr. LEVERE. Yes. There is a two-level appeal.

Mr. KILDEE. Hopefully, this would not have to happen, but they

could have a judicial appeal if they did not feel satisfied with the

administrative appeal?

Mr. LEVERE. Yes, that is correct.

Mr. KILDEE. Does the Sawtooth UAG eliminate administrative

discretion in dealing then with a grazing violation?

Mr. LEVERE. No, it does not. In fact, there have been statements

made that I removed that discretion from the rangers when I

issued the March 3, and in that March 3 UAG, in the second paragraph on the second line, it stated that the delegated forest officer
14

still has the discretion and authority to determine whether a significant violation has occurred based on the merits of the individual situation.

When I issued the clarified direction on April 4, I bold-faced and

capitalized that statement in an attempt to clarify that.

Mr. KILDEE. What has the general reaction of the ranchers been

to the Sawtooth UAG?

Mr. LEVERE. Well, it has been mixed. I was very concerned about

what I would call some of the good permittees who did voice some

concerns, and that did concern me, and that is why I elected to

clarify the direction last Friday in my April 4 memo.

Some of the permittees are very concerned. I guess my intent is

that this shouldn’t concern those permittees that are following the

rules and obeying the terms and conditions of their permits. As far

as those permittees that are not obeying the rules, not following

the terms and conditions of their permit, my objective is that they

should be concerned.

Mr. KILDEE. In your April 4, someone mentioned that it was four

days old. That was in response to some of the concerns that have

been expressed by some of the ranchers.

Mr. LEVERE. It was in response to some of those concerns with

a few of the key permittees. I went out and solicited their comments, and then one of the other reasons, not that I was in violation of any procedure or process as has been hinted at here today,

it is that I heard some folks wanted the opportunity for a public

comment period, and since becoming forest supervisor of the Sawtooth National Forest, I will let my record stand that I listen to

people and I respond to what I hear. I decided to allow for a public

comment period in a notice that announced that in response to

comments that I heard from the public. It was not that I had violated any procedure, rule, or law.

Mr. KILDEE. Thank you very much for your response, Mr. Levere.

Thank you, Madame Chairman.

Mrs. CHENOWETH. I would like to now call on Mr. Vento.

Mr. VENTO. Thank you. Supervisor Levere, how many permittees

do you have on the Sawtooth?

Mr. LEVERE. We have 195.

Mr. VENTO. And how many acres? That is what, some 300-plus

acres of grazing land?

Mr. LEVERE. We have approximately 2,000,000 acres on the Sawtooth National Forest and approximately 80 percent of that is

under grazing permit.

Mr. VENTO. Has there been any reduction or an increase in that

in recent years?

Mr. LEVERE. Essentially, it has remained stable in terms of the

amount of use. We have three allotments that we currently do not

graze on. Two of those are in the Sawtooth Wilderness, and one of

those is the Big Cottonwood allotment on the Twin Falls range district.

Mr. VENTO. Is that weather or environmental-related or simply

that there is no bid on it?

Mr. LEVERE. Essentially, those in the Sawtooth Wilderness, if

any of you have been there, there is uncertainty whether they are

suitable or capable for livestock grazing. On the Big Cottonwood,
15

that was a situation where the permittee sold their base operations

to Idaho Fish and Game, and we then made the decision to rest

that allotment with the intent of going back at a later date and

evaluating that allotment.

Mr. VENTO. So you couldn’t put into a guideline all of the specifics or into a permit all the specifics, because that is something

that is dependent upon basically the weather, is that correct?

Mr. LEVERE. Yes, to a certain degree, that is correct.

Mr. VENTO. Are there other factors as well that enter into it?

Mr. LEVERE. Yes. There are many factors that go into it. One of

the factors right now that is probably holding us up in taking a serious look at the Big Cottonwood allotment and reissuing that permit is just budget.

Mr. VENTO. So when you are talking about budget, you have had

a reduction in the number of personnel that you have to in fact

serve and to monitor these allotments. Is that what you are saying?

You have 190 allotments and you don’t have the personnel to do

the job, is that right?

Mr. LEVERE. Well, we have the same amount of personnel, but

in order to charge appropriately in terms of what they are working

on and with the budget we get, we are having to have that personnel work on other tasks such as timber sales, things like that.

Mr. VENTO. But these uniform guidelines didn’t wipe out any law

or any other procedures. It sounds like they put in place something

that is more determinate, predictable, and certain with regards to

what penalties and sanctions would be in place as opposed to something that was less specific, is that correct?

Mr. LEVERE. Yes. That is correct.

Mr. VENTO. So it is determinate. You know what to expect if certain things happen and before, it hadn’t been quite that explicit,

is that right?

Mr. LEVERE. Yes. That is correct. In fact, if you would allow me,

I always say a picture is worth a thousand words, and I could show

you some pictures of what I am trying to stop out there.

Mr. VENTO. You are talking about some problems with riparian

areas maybe?

Mr. LEVERE. Yes.

Mr. VENTO. You are talking about fences that are chronically

broken maybe?

Mr. LEVERE. I have some examples. Would you like me to——

Mr. VENTO. So that ends up kind of tripping over from Supervisor Nelson’s example from something which is an accident to

something that really isn’t excusable, that really we need to answer.

Now, Supervisor Nelson, you have had the Toiyabe and Humboldt for a while, you have been out there, as I recall.

Mr. NELSON. That is correct. Yes.

Mr. VENTO. And the fact is, you have had these same type of uniform guidelines or uniform action plan in place and what has been

the experience with it? Is it working?

Mr. NELSON. Yes. It works very well. We have consistency across

the forests and I think the permittees know what to expect if they

violate it.
16

Mr. VENTO. Let us cut to it. Has this resulted in more violations

or less violations?

Mr. NELSON. I don’t think it affects the number of violations at

all. It helps us, I think, get some compliance in terms that we

might not have.

Mr. VENTO. Through some clarity?

Mr. NELSON. Yes.

Mr. VENTO. You came to this not completely voluntarily in this

case, is that right?

Mr. NELSON. That is correct.

Mr. VENTO. Mr. Unger, is this policy with regard to this uniformity and this plan in this particular mode, this streamlining is

something you are trying to institute throughout the Forest Service

today and encouraging it?

Mr. UNGER. No. We have no national policy. These uniform action guidelines have been adopted forest by forest in about 16 forests that we know of, and all the forests in Region 2 which is another ten, so about 25 forests have these, and those decisions have

been made at the local level.

Mr. VENTO. Can you make any judgment about whether they

have resulted in unfair treatment or resulted in some specific problems that—I suppose every one of these, you learn as you go along,

but is there something here that——

Mr. NELSON. To my knowledge, this is the first time that there

has been any serious concern about the institution of uniform

guidelines.

Mr. VENTO. Part of the process here, Mr. Levere, is to provide

some education ahead of time, and in retrospect did you in fact try

to consult and visit and explain to folks what was happening beforehand?

Mr. LEVERE. In the almost two years that I have been on the

Sawtooth National Forest, the range program is a key program on

the forest and when I have interacted with permittees, we are always trying to promote good stewardship on the lands. We are trying to emphasize the need to follow the terms and conditions of the

permits, and we did that.

In 1995, we issued an initial uniform action guide and based

upon the performance that I saw in the 1996 grazing season, I felt

the need to issue this updated uniform action guide.

Mr. VENTO. Have there been some specific problems that you are

trying to resolve? You said you had a lot of examples.

I guess maybe you have some photographs you wanted to show

us and pass around, I think, that probably would be useful to see

what you are talking about. Do you have them here?

Mr. LEVERE. I would like to take that opportunity.

Mr. VENTO. I would like to see that.

Mr. LEVERE. This first example is a picture of salting down into

a riparian area, and this is all that occurred in the 1996——

Mr. VENTO. This is barred by the agreement that they signed,

that you don’t put salt down in a riparian area.

Mr. LEVERE. Essentially, that is exactly the place where you

shouldn’t do salting. Here is another——

Mr. VENTO. Because it concentrates the cows down there.
17

Mr. LEVERE. In this particular area, there were 17 piles of salt

in a riparian area in direct violation of the terms and conditions

of the permits for that specific location.

Here is an example of some overgrazing on the forest. Here is another one of overgrazing right there by the stream. A lot of people

would debate whether or not we can accurately measure that. I

publicly made the statement that my 12-year-old son knows that

that is overgrazed, folks. It is not that we are making a borderline

call.

Here is an example of the maintenance of improvements. Here

is a water trough. The responsibility of maintenance goes to the

permittees. Here is an example of that.

It is this kind of thing that I am trying to stop, and I guess I

would like to make the statement that this is your public land,

your national forest. Is this the way you want it managed?

Mr. VENTO. I am glad you are trying. My time is up.

Mrs. CHENOWETH. Mr. Vento, I thank you and I would like to

call on the——

Mr. VENTO. You are welcome, Madame Chairman.

Mrs. CHENOWETH. I would like to call on the gentleman from

California, Mr. Doolittle.

Mr. DOOLITTLE. Madame Chairman, if I may, I think I will reserve my time at this point.

Mrs. CHENOWETH. Thank you. Mr. Levere, you have mentioned

in your uniform action guidelines issued March 3, 1997, and you

have mentioned in the press that there are good apples and there

are bad apples. Can you tell me who the bad apples are?

Mr. LEVERE. Well, there are certain permittees that have had a

history of not following the terms and conditions of their permits,

and who have received penalties in the past, and frankly, I would

prefer not naming names.

I don’t know all of them specifically. There are some examples

this last year where we had certain permittees have violations. In

the 1996 season, 64 of our 195 permittees received some type of

violation notice. Most of those were warning letters.

Mrs. CHENOWETH. Let me ask you, is Scott Bedke or Bud Bedke

considered a bad apple or Joe Tugaw considered a bad apple?

Mr. LEVERE. The Goose Creek permittees—that is an allotment

where we have had some challenges. Mr. Tugaw did receive a

warning letter this last grazing season. I am not sure that I would

consider Mr. Tugaw a bad apple. Everybody is entitled to a mistake.

Mrs. CHENOWETH. Mr. Tugaw is past president of the Idaho Cattle Association, and I do see here on page two of your uniform action guide that you say ‘‘I see an ever-increasing breakdown in the

communication between the Forest Service and the permittees instead of discussing and attempting to resolve problems with the

Forest Service, I see a more adversarial role occurring instead of

attempting to work things out between the permittees and the Forest Service. The more immediate response by some of the more aggressive range permittees is to seek remedies either through what

I perceive to be negative press targeted at individuals and/or the

agency or through local political contact and hopefully, political in-
18

fluence over agency decisions through formal administrative appeals and/or through potential litigation.’’

You go on to say that in your uniform action guide that, ‘‘Although all of these remedies are within the legal rights of the affected range permittees, they frequently are not the most productive ones for the range permittees or the Forest Service from my

perspective.’’

Would you please explain that statement?

Mr. LEVERE. Essentially, that is the crux of what I am trying to

do, is to try to get the permittees to meet with the Forest Service

at the local level to resolve these issues. I am not trying to allude

that those other options that the permittees have available to

them—they are clearly within their right to do so.

I would hope though that they won’t pursue those other options

in lieu of meeting with the Forest Service, and that is essentially

what I was after, and that is the crux of our new uniform action

guide to again, try to promote and encourage permittees to meet

with rangers at the local level to resolve their problems.

That is the desired outcome.

Mrs. CHENOWETH. Have you issued or read or studied many uniform action guides or policies or have you studied NEPA or how

these guidelines are issued under NEPA, and do you feel that

statement is proper in the issuance of uniform action guidelines?

Mr. LEVERE. To my knowledge, the issuance of uniform action

guides are not—NEPA is not required to do that. The authorities

under which we administer terms and conditions of grazing permits are in FLPMA. Section 204(a) in FLPMA authorizes the Secretary to suspend, cancel, modify, and issue permits. That, in turn,

is if you go to—I believe it is 36 C.F.R. 222.4, that then authorizes

the Chief of the Forest Service to suspend, modify, cancel, and

issue permits, and then if you go to the Forest Service manual, if

you look under Forest Service manual 22.04——

Mrs. CHENOWETH. I do understand that.

Mr. LEVERE. [continuing]—that gives me my authority.

Mrs. CHENOWETH. It does, and my question though was not answered. Do you think this type of statement is proper in the

issuance of uniform action guidelines plus your closing statement

which said, ‘‘I am confident that most will accept the personal responsibility and accountability that goes along with the UAG. However, there is also no doubt in my mind that there will be a few

range permittees who will not be willing to work with us. To those

few, I can only offer these words of advice. We can either work together or we can work against one another. The route you choose

is yours. The consequences of each route are yours to accept or reject. I think I have made my offer and my intention clear. Now, the

choice is yours.’’

Do you realize, Mr. Levere, that the National Environmental Policy Act and your own guidelines set up specific methods under

which new action guidelines should be issued? There is such a term

under NEPA. The Supreme Court has ruled on it often as a major

Federal action, and a major Federal action requires an environmental impact statement.

On page one of your own uniform action guidelines, you state

that this UAG is important and you go on to say important in that
19

it will no doubt have major impacts both internal to the Forest

Service and external to our range permittees and forest visitors.

So you have indicated that this is a major Federal action, and

indeed it is, in my opinion. I agree with you, and yet there was no

notice, there was no issuance of an environmental impact statement or economic impact statement, there was no attempt to put

these uniform action guides in the form of rules and regulations

and publish them in the Code of Federal Regulations.

I am concerned because this has been such an extraordinary

process. My concern is, as I have said to Mr. Dombeck, I honestly

and very sincerely want to see the Forest Service be all it can be,

and I share with you the vision of Teddy Roosevelt and Gifford Pinchot.

Mr. Unger, I want your forest supervisors to be the best there

is, and my comments are not personal, but rather my desire is to

make sure everybody operates on the same page, and that page has

been laid down by Congress, in NEPA and the APA.

Mr. UNGER. Could I respond to that, Madame Chairman?

Mrs. CHENOWETH. Yes.

Mr. UNGER. It is my understanding as well as Mr. Levere’s that

NEPA does not apply in this way to the issuance of guidelines of

this kind because they don’t cause the particular environmental result and are therefore categorically excluded as administrative actions, and thus, don’t require the development of environmental

analysis or impact statement.

Mrs. CHENOWETH. Mr. Unger, and we can call on your attorneys

or other attorneys who are here, but the courts have agreed over

and over again that a major Federal action is the key that kicks

in an environmental impact statement and I think it is National

Helium v. Morton issued in the late ’70’s that stated that with that

also goes an economic impact statement.

So if we are to require or even suggest that there should be an

environmental impact statement on a single reissuance of a permit

and yet no environmental impact statement on a major policy

change in two forests, then somehow, even NEPA becomes punitive

in its application, and that is what we want to get away from.

Mr. UNGER. Well, I would agree with that, but I believe the test

is whether there is a significant environmental impact expected

from the action, and the action of issuing these guidelines does not

result in any decision in and of itself. It sets forth guidelines for

decisions to be made, and it is those decisions then that a test has

to be applied as to whether there is a significant environmental impact.

Mrs. CHENOWETH. And I just returned to my opening statement,

and that is that the agencies need to operate within the umbrella

of authority conferred on them by Congress and when it is perceived that they step outside that authority, then our free system

reacts and it causes hearings like this.

Mr. UNGER. We would certainly want to dispel any perception

that we are acting outside the bounds of Congress.

Mrs. CHENOWETH. So with regards to what triggers an environmental impact statement, I would urge you to have your attorneys

look back at Supreme Court decisions and the history of NEPA and
20

the debate that ensued around the passage of NEPA so we can get

back on the same page.

Mr. UNGER. We would be happy to do that. In fact, we have a

representative of our Office of General Counsel here today, if you

want to explore this further now or we can do it at a future time.

Mrs. CHENOWETH. Thank you very much. At this time, I would

like to call the gentleman from California, Mr. Doolittle.

Mr. DOOLITTLE. I have no questions at this point, Madame Chair.

Mrs. CHENOWETH. Thank you, Mr. Doolittle. I would like to return for another round of questioning to Mr. Crapo.

Mr. CRAPO. Thank you, Madame Chairman, and I have three or

four issues I want to get through in my five minutes, so I am going

to try to be hurrying along here.

Most of the questions will be to you, Mr. Levere, since the forest

you supervise is in my district.

First of all, you indicated earlier that you were facing serious

budget problems, and with regard to the budget issue, one of the

concerns I have is that it is my understanding that a lot of time

is being used by the range cons under the water adjudication that

we are doing in the State of Idaho, is that correct?

Mr. LEVERE. That is correct.

Mr. CRAPO. And do you know how many thousand claims or how

many claims have been filed by the Forest Service in that adjudication?

Mr. LEVERE. I can only speak for the Sawtooth. We have approximately 1,800 claims filed with the court.

Mr. CRAPO. That is an issue that I am probably going to want

to talk with you about separately at some time, but the concern I

have is that range cons are being used for all of that activity when

it is my understanding that other agencies are using other personnel who are not in such critical circumstances, sometimes even

temporary hires to do the work that is necessary.

Is there a reason that you are not doing that?

Mr. LEVERE. Yes. Essentially, the advice that I have been given

and just to give you an idea, about 35 percent of our range cons’

time last year was spent on the field verification for water adjudication, and in order to have credence in court, if we get to that

point, that we need qualified individuals that are out there doing

that field verification that have the appropriate credentials that if

we do get eventually into court and need their testimony there,

that they are credentialed individuals to do that, and that is why

we have our range cons performing that work and not just seasonal

employees that have no credentials whatsoever.

Mr. CRAPO. All right. It is my understanding that that is not necessarily necessary, but because of the pressures of time, I will discuss that with you outside the hearing. That might be an area in

which you could save some funding for your budget.

Secondly, in my first round of questions, toward the end, you indicated that these were guidelines only, and the rangers did not

have to follow them, is that correct?

Mr. LEVERE. That is correct.

Mr. CRAPO. I would like to ask you, is that a practical reality?

In reality, are any of the rangers not going to follow these guidelines?
21

Mr. LEVERE. Yes, and in fact, I can give you a specific example.

This last grazing season under which we had the 1995 uniform action guide in place, one of my rangers took the liberty of working

with the permittee at the local level and instead of imposing a 75-

percent suspension which would have been the appropriate measure as outlined in the uniform action guide at that time, he elected

to, in discussing with the permittee, the permittee was willing to

take a voluntary reduction for a two-year period. They worked that

out. It was less than 25 percent.

Mr. CRAPO. Wouldn’t it be fair to say that in the vast majority

of cases, you would expect your rangers to follow these guidelines?

Mr. LEVERE. I would expect my rangers to evaluate the guidelines and make a decision that given that specific situation, do they

fit; if they don’t, then do something different.

Mr. CRAPO. What is the purpose of the guideline if you don’t expect—we have heard a lot here about more certainty, more predictability, but if they really don’t mean anything and the rangers can

do whatever they want, what is the point?

Mr. LEVERE. I do have the expectation that they follow them to

a certain degree unless they can explain why they shouldn’t be followed.

In many cases, in fact, built into the newest version of the uniform action guide, if they follow option one, it is built in there our

desire, our preferred option, that solutions are resolved at the local

level and that they do deviate from the penalties as outlined.

Mr. CRAPO. Do you allow in the guidelines for variations in the

penalty between voluntary and involuntary violations?

Mr. LEVERE. No. We do not distinguish between that.

Mr. CRAPO. So that a fully intentional violation will receive the

same penalty as an accidental violation under the guidelines?

Mr. LEVERE. There is a range in the guidelines and I would think

that if it is intentional and blatant that it actually be the upper

end.

Mr. CRAPO. But the lower end is at least a 25-percent loss of the

permit.

Mr. LEVERE. That is correct.

Mr. CRAPO. Earlier in some of the other questions, we were discussing whether discretion has been removed, and you pointed out

that you had bolded the fact that the forest officer still has the discretion to determine whether a significant violation has occurred.

But you followed that with another sentence that I think makes

the point. However, once a determination has been made that a

violation has occurred, this guidance is recommended. I understand

that you mean by that that this is guidance your rangers should

follow unless, as you indicate, and I think it is good to hear in this

hearing that you are going to be very open to letting them follow

more flexible approaches that they determine to be better.

But back to the point I was addressing in my first series of questions, sure, there is discretion in the ranger to determine whether

a violation has occurred. But under these guidelines, once the ranger makes a determination that a violation has occurred, whether it

is by accident or on purpose, then the ranger is expected under

these guidelines to implement the penalties. Is that not correct?
22

Mr. LEVERE. I think there are a couple options that they have

available to them. If they look at that, under this direction, they

are to issue a show-cause letter which proposes the 25-percent suspension, and discussions with the permittee that it shows that it

was unintentional or accidental, it is at that time that the ranger

can, in their decision letter, could offer a lesser penalty than those

outlined in the uniform action guide.

Mr. CRAPO. But just to make the point that I was going at earlier

once again, let us assume that there was a circumstance where

some vandalism or some other act caused the fence to be taken

down and there was a violation.

The ranger, however, felt that the fence was down because of

negligence or intentional action by the permittee, so the ranger

issues a violation, and say he picks 50-percent loss of the permit

or whatever he picks.

Then the permittee has to go into the room with the ranger and

convince the ranger that he didn’t do it or something should be

changed, and if he doesn’t agree with the ranger, then the full penalty is imposed and he has to then appeal up the chain. Is that not

the process that you are proposing?

Mr. LEVERE. In the situation that you gave, if it was say, vandalism or a fence was cut and it wasn’t done by the permittee and

the ranger doesn’t know that initially and they issue a show-cause

letter, then the permittee comes in and makes their case, and it

turns out in this situation that it is determined and that the ranger agrees that it wasn’t the permittee’s responsibility or the permittee did not do that, that it was vandalism by someone else, the

uniform action guide recognizes that.

Mr. CRAPO. But it is all subject to the ranger agreeing, and if the

ranger in his wisdom decides no, then it is over at that point, and

the full penalties, what I consider to be very rigid penalties, are

imposed.

Mr. LEVERE. That is correct. The ranger then imposes the penalty as outlined in the uniform action guide or if they think there

are extenuating circumstances, their decision letter could be a lesser penalty, but it is that ranger’s call. That is within their authority, that is what I expect them to do.

Mr. CRAPO. Thank you.

Mrs. CHENOWETH. Thank you, Mr. Crapo. I would like to call on

Mr. Vento.

Mr. VENTO. Did the ranger always have this type of discretion

before and after this action guideline? This is nothing new, is it?

Mr. LEVERE. That is correct. They have always had that discretion.

Mr. VENTO. So there is nothing new. All that is new is that there

is more certainty and predictability.

Do you review these actions? You mentioned 65 out of 195 permittees. I guess more than one went to some folks, but do you review the actions when these are issued, these warnings are issued,

or do you review the results? Is that correct, do you review each

of those?

Mr. LEVERE. The only time that I review those actions is if they

are truly appealed. Under the new uniform action guide though, I

will be monitoring to see if the option one, where they have worked
23

it out at the local level, I want to monitor that to see how successful that is in this upcoming grazing season.

Mr. VENTO. Well, my point was that informally, do you monitor

what happens? Did you informally monitor before what was happening?

Mr. LEVERE. Yes.

Mr. VENTO. So you are concerned about the conduct of a ranger.

If you have somebody out there that is overbearing or you look at

that as part of how they do their job, if they are getting along to

some extent.

Mr. LEVERE. My expectation of my rangers when they are issuing

a show-cause letter is to give me a heads-up on that, so I am aware

of——

Mr. VENTO. I understand. I don’t mean a formal review. You obviously do that, but you are actually in these action guidelines now

saying in these guidelines that you are going to monitor it, that

you are going to pay closer attention to it, is that correct? That is

what you are trying to get across.

Mr. LEVERE. That is correct.

Mr. VENTO. There was discussion about the water litigation that

is going on, and you said you had 1,800 claims in the Sawtooth.

How many claims totally are there that are in the Sawtooth that

are not Forest Service claims? Do you know what the total range

is?

Mr. LEVERE. I don’t know the answer to that.

Mr. VENTO. Would you say it would be thousands more?

Mr. LEVERE. I wouldn’t even want to speculate on that.

Mr. VENTO. Well, maybe for the record, we ought to look, but my

point is, I would suggest to those that there are a lot of claims

being made on the Federal lands, and I am sure many of them are

appropriate. There are certain individuals that have various water

rights there and claims that they made that should be recognized

at the State level, and I am pleased to hear that the Forest Service

has taken a very serious attitude with regard to protecting the

Federal forests and other water rights that are necessary for this

land to function properly in my judgment.

Now, Mr. Unger, you had proposed that you had someone with

you that could respond to whether or not in fact this is a NEPA

action, and the chairwoman had run out of time, so I thought

maybe I could take of my time, if it would be permitted, to hear

from that person that you have here as to whether or not these action guidelines are in fact a NEPA action. There seems to be a lot

of interest in that, and I think that it would be helpful for all of

us if we could clarify it.

Mr. UNGER. Mr. Michael Gippert of the Office of the General

Counsel will respond.

Mr. GIPPERT. Yes. It would be our view that NEPA would not be

triggered by this sort of an instrument that provides guidance, because as Mr. Unger really has pointed out, the primary reason is

that it is a two-part test for NEPA to come into play, and that is

whether it is a major Federal action significantly affecting the

quality of the human environment.

The human environment would not be affected by the uniform

action guide, at least that would certainly be my advice to the For-
24

est Service that there would be no application of NEPA in this instance.

There is also a provision in the Council on Environmental Quality regulations that criminal and civil enforcement actions are exempt from NEPA because, of course, if they weren’t, that would

drag the whole system to a complete halt.

Mr. VENTO. That would be counterproductive, I guess. The reason that that was added, do you believe that that is counterproductive and a way to avoid civil and other types of penalty actions? Is that your point?

Mr. GIPPERT. Right.

Mr. VENTO. Now, Mr. Unger pointed out that 16 forests have

uniform action guides right now. Have you had any of these that

have gone through any type of NEPA procedure or EIS procedure?

Mr. GIPPERT. Not that I am aware of.

Mr. VENTO. And you have had no court test of any of it, is that

correct?

Mr. GIPPERT. No, there has been no court challenges that NEPA

should be applied in this kind of a situation.

Mr. VENTO. I appreciate that. Mr. Nelson, on the Toiyabe and

Humboldt, you have had how many years of experience with uniform action guides?

Mr. NELSON. Personally, I became familiar with them in 1992, so

it would be five years.

Mr. VENTO. You said that they were working all right. Do you

have an excessive number of violations? How many violations or

how many warning letters have you had sent out?

Mr. NELSON. I don’t know the total. I did look at it for last year.

We had 40 warning letters that went out, and we took 13 actions

in terms of—there were two cancellations. One was the result of a

permit being waived back to the forest. The other was a cancellation because the permittee refused to pay his fees.

The rest of them were in the 25-percent suspension range.

Mr. VENTO. He didn’t forget to pay his fees because of vandalism,

did he?

Mr. NELSON. No, I don’t think so.

Mr. VENTO. How many acres do you have on the Toiyabe-Humboldt, do you know?

Mr. NELSON. Well, the Humboldt is permitted for about 245,000

AUMs. The Toiyabe is permitted for about 75,000 AUMs.

Mr. VENTO. So that is how many permits?

Mr. NELSON. In terms of permits, I think there are approximately 170 permittees roughly on the two national forests.

Mr. VENTO. I am just trying to get some perspective. So you have

had a cooperative effort that is going on in terms of if you make

changes like this, it is your responsibility to try to communicate or

educate the permittees.

Mr. NELSON. We work with that all the time in terms of utilization standards. We have offered several courses to anyone who is

interested in how to determine proper utilization.

Mr. VENTO. Of course, riparian areas, as Supervisor Levere

pointed out, are of course one of the most serious areas in terms

of where we really have to work a lot harder.

Mr. NELSON. That is true.
25

Mr. VENTO. We did so much work on that in terms of oversight,

and I think the Forest Service generally came out ahead, but it obviously is an ongoing concern in terms of weather and in terms of

water, so I very much appreciate the work you are doing there,

both of you, and commend you for it.

I hope that this misunderstanding about these policy guideline

issues can be worked out. Thank you. Thank you, Madame Chair.

Mrs. CHENOWETH. Thank you, Mr. Vento. I would like to call on

the gentleman from Nevada, Mr. Gibbons.

Mr. GIBBONS. Thank you, Madame Chairman, and I want to join

you in your comments about all of us wishing to have this forest

or any forest in this country managed in the highest possible manner with the greatest possible outcome, and to you gentlemen, you

obviously know that while we want the forest managed in the proper way, especially for those constituents that we may have in our

districts, that sometimes, there is a disagreement, and our role

here is not necessarily to ask you warm and fuzzy questions that

make you look good, but we are here to answer and ask those questions that are concerning the constituents that have brought up to

us.

With that in mind, Mr. Nelson, and I am glad you are here, because you represent the Humboldt-Toiyabe National Forest, we

have certain constituents sitting behind you that are going to testify afterwards, and would you assure this committee that your

agency is not going to single them out for any particular action

based on what they happen to say in disagreement with your policy

if they testify here before us, because we will watch this action?

Will you assure this committee that you will take no punitive action?

Mr. NELSON. Yes, sir. That would be unprofessional to do that.

Mr. GIBBONS. OK. We talked a little bit about numbers of acres

in the Humboldt and the Toiyabe National Forest that you manage,

and the total number of grazing allotments in there that have

originally started out, with what is occurring today, what is the

general trend? Have they remained the same, has there been a decrease? What has happened?

Mr. NELSON. In terms of the total allotments, as far as I know,

the total numbers remain the same.

Mr. GIBBONS. How many vacancies are there?

Mr. NELSON. I would estimate there is probably about 50 vacancies on the two national forests, in that vicinity.

Mr. GIBBONS. Can you give us a percentage total?

Mr. NELSON. Slightly over 300 allotments, so we are looking at

50 as a percentage of 300.

Mr. GIBBONS. I can give you the numbers. I just wanted to know

if you knew them.

First of all, on the Toiyabe, there are 122 grazing allotments.

There are 43 vacant. That is a 35.2 percent.

On the Humboldt National Forest, 199 allotments; there are 16

vacancies, and that is a little over eight percent.

What is the reason for this? Why are we seeing this high rate

of vacancy?

Mr. NELSON. The problem that I am having is finding the personnel to do the necessary analyses to reallocate the allotment re-
26

sources. Our budget in 1994 was $1,500,000, and at that level, we

can do a lot of things. In 1995, it dropped to roughly $900,000.

Mr. GIBBONS. So under this manpower and funding shortage,

what is your projection as to your expectations of having these reviewed?

Mr. NELSON. Right now, with the $700,000 budget roughly that

we have, we can’t even hardly get the permit administration job

done to date. Unless the budget changes, no, I do not.

Mr. GIBBONS. Mr. Nelson, I have just one final area that I want

to talk to you about. I am sure you knew that I would ask you

about it, since this is an old area, old ground that we have communicated on before.

Within the last couple of years, there has been a county grand

jury investigation of some of the activities of your forest rangers in

Elko County, has there not been?

Mr. NELSON. Yes, sir.

Mr. GIBBONS. And you are aware of that?

Mr. NELSON. Yes, sir.

Mr. GIBBONS. And you, when they subpoenaed your forest rangers, refused to let your forest rangers testify before this grand jury.

Mr. NELSON. It was not me. It was the Regional Forester out of

Ogden that refused to let them testify.

Mr. GIBBONS. And what was the reason for his refusal?

Mr. NELSON. I am going to have to defer to Dave on that.

Mr. UNGER. I would be happy to respond to that. In matters of

Federal land management, it has been traditional over the years

for these matters involving litigation to be handled in Federal district court.

Mr. GIBBONS. This was not a civil matter, was it?

Mr. UNGER. I am going to have to ask Mr. Gippert to comment

on this further.

Mr. GIPPERT. What we did in that case was to move in Federal

district court to quash the subpoena which is kind of standard

practice, although this is a rare occurrence to have a Federal official subpoenaed before a State court proceeding.

The Ninth Circuit affirmed the District Court’s disposition of the

subpoena.

Mr. GIBBONS. What were the issues that they were asking you

to come forward to testify about?

Mr. GIPPERT. I don’t recall that we actually knew the issues nor

would they actually be limited. Grand juries can explore whatever

the grand jury is convened to explore.

I know that the issues included Federal land management,

though, and it is our general course of action to remove such matters to the Federal court system.

Mr. GIBBONS. Mr. Nelson, when the grand jury report was

issued, did you find anything within that grand jury report that

was helpful to you in the formulation of your plans or activities and

the conduct of your management on the Forest Service lands?

Mr. NELSON. Nothing I can recall, sir.

Mr. GIBBONS. You made no policy changes based on that grand

jury report?

Mr. NELSON. No, I have not.

Mr. GIBBONS. Thank you, Madame Chairman. That is all I have.
27

Mrs. CHENOWETH. Without objection, the Chair yields to Mr.

Crapo an additional two minutes.

Mr. CRAPO. Thank you, Madame Chairman. I just wanted to follow up with Mr. Levere on the question of whether the rangers

really do have to follow the UAG that you put into place, because

your answers have intrigued me.

Is it correct that if a ranger in your district chooses to ignore the

UAG and never follows them, that there will be no consequence to

that action?

Mr. LEVERE. As long as my rangers are operating within the law,

rules, and regulations, I don’t have any recourse there. This is a

recommendation for them to bring uniformity across the Sawtooth

National Forest. It is my desire that they do follow it, but they

have discretion.

Mr. CRAPO. And there is no consequences to them in their employment if they choose not to follow these guidelines?

Mr. LEVERE. That is correct.

Mr. CRAPO. Mr. Unger, you indicated that there are 16 forests

that are using UAGs?

Mr. UNGER. Actually more than that. There are 16 in all of the

regions other than Region 2 and all the forests in Region 2 should

be added to that, so a total of 25 that we have counted so far.

Mr. CRAPO. And do the rangers in those forests follow the UAG?

Mr. UNGER. To my knowledge, they have discretion in a manner

similar to that that has been described here this afternoon. I have

not read all of these guidelines. Some may vary from forest to forest because they have been developed——

Mr. CRAPO. What I am trying to get at here is, do the rangers

follow the UAGs or don’t they?

Mr. UNGER. Well, I would have to say that I would expect that

they are using them, because they have used them for some years,

and they are finding them useful, but I do not have any specific

ability to report to you exactly how many cases they followed them

or how many they did not.

Mr. CRAPO. Mr. Levere, did you want to follow up on that?

Mr. LEVERE. Yes, Congressman. Just as an example, in 1996,

there were 24 actions taken against 64 permittees. Only eight of

those 24 actions resulted in show-cause letters.

Some of those show-cause letters were consistent with the uniform action guide; some of them varied. Again, it depended on the

situation, and that was the ranger’s call.

Mr. CRAPO. Then no ranger can tell a permittee that he has to

do this, that he has to follow the UAG?

Mr. LEVERE. It is a recommendation to the ranger.

Mr. CRAPO. When they are supposedly negotiating around that

table?

Mr. LEVERE. That is correct.

Mr. CRAPO. All right. Thank you.

Mrs. CHENOWETH. Mr. Levere, I am interested in having you look

at the display up here, and following Mr. Crapo’s line of questioning, those rangers who on their own have decided to follow the

UAG, if a permittee doesn’t follow the UAG, there has been a dramatic change between the UAG of 1/27/95 and the one of 3/3/97,

dramatic change, and if a permittee does not follow the UAG, he
28

can have his numbers of animal units per month reduced from 25

to 100 percent, is that correct?

Mr. LEVERE. The uniform action guides are not intended for the

permittees.

Mrs. CHENOWETH. Pardon me?

Mr. LEVERE. They are direction to the rangers and how they are

recommended to enforce terms and conditions of the permit. What

the permittee is held accountable for is the terms and conditions

of their permit.

Mrs. CHENOWETH. Do you admit that it is quite a change from

the previous guide? On 1/27, their first offense was a warning letter and asking them to remove their livestock within three days.

Under 3/3, the first offense is a show-cause letter suspending 25 to

100 percent of the numbers or season for three years or cancel the

permit.

Mr. LEVERE. My reasoning for eliminating the warning letters

from the Sawtooth uniform action guide is that I felt that warning

letters were essentially ineffective and a waste of time for the Forest Service on the Sawtooth National Forest.

What I saw was the situation where permittees that continued

to violate on their allotment, they ignored warning letters, and

they didn’t have any effect on the behavior. Those situations where

warning letters did have an effect, I felt the warning letter wasn’t

necessary. I verbally told my rangers instead of taking the time

and wasting the taxpayers’ money writing warning letters, if it is

that minor of a situation, just call the permittee up and tell them

verbally the situation.

Again, that was my attempt at streamlining and being more efficient and effective.

Mrs. CHENOWETH. Well, Mr. Levere, we are under a great burden

back here in the Congress, and that is to balance the budget, and

what if we had the attitude that you are wasting our time and that

maybe we ought to reduce your salary by 25 to 100 percent because

I am personally offended at the way you are handling these uniform action guides? How would you feel about that?

Mr. LEVERE. I would feel that that would be a personal attack

on me and something that I would think is not appropriate.

Mrs. CHENOWETH. Now, sir, you understand why there is so

much tension at the Sawtooth National Forest. Number one, the

fact that these guidelines are imposed inequitably depending on

the permittee or the ranger, and the fact that this kind of directive

has never gone through the public hearing process.

It is absolutely punitive, arbitrary, and in my opinion, capricious.

I am sorry about that. You mentioned also that you have been

working with the Idaho Fish and Game. How long has it been since

you have worked with the Fish and Game, and did they have input

into the recommendations that you put forth or the policy or the

new law, whatever it is, in the uniform action guide?

Mr. LEVERE. My reference to Idaho Fish and Game is that they

had purchased the base property of one of the permittees, and it

was on that particular allotment—I believe it is the Big Cottonwood allotment.

At that time, and this was a number of years ago, three or four,

I believe, that the decision was to rest that allotment and then
29

when we had the resources to evaluate that allotment, we would

take a look at that and then decide on reissuance of a permit.

It was in that—that was the reference to the Idaho Fish and

Game. I did not consult with Idaho Fish and Game on the development of these uniform action guides.

Mrs. CHENOWETH. Mr. Levere, how many timber sales have you

put up in the Sawtooth?

Mr. LEVERE. I don’t know the specific number, but——

Mrs. CHENOWETH. Within the last year.

Mr. LEVERE. [continuing]—within the last fiscal year, the Sawtooth National Forest sold 18,000,000 board feet. That was in excess of our target on the Sawtooth National Forest.

In fact, in Region 4 in terms of percent accomplishment on timber sales, given our target, the Sawtooth National Forest produced

the highest percentage in timber accomplishment.

Mrs. CHENOWETH. You indicated that there was not enough

money in the budget for grazing and yet we increased your budget,

the budget for grazing to the Forest Service by $11,000,000 last

year. That was not a reduction, and the amount allocated for resource planning which would include ecosystem management was

$130,000,000?

Mr. LEVERE. Uh-huh.

Mrs. CHENOWETH. Was there money taken from grazing management and placed by your decision into ecosystem management?

Mr. LEVERE. No, there was not.

Mrs. CHENOWETH. There was no money that was allocated from

grazing into ecosystem management?

Mr. LEVERE. That decision was not made at my level.

Mrs. CHENOWETH. Was the decision made at your level, Mr.

Unger?

Mr. UNGER. I would have to look at the records to see how the

allocations were made. The budget was increased. Those funds

were allocated to the regions and the regions then allocate the

funds to the individual national forests, so we would have to see

how those funds were allocated by the region and why in one forest

or another they didn’t receive what they would like to have.

Mrs. CHENOWETH. Mr. Unger, I wonder if we might have a full

report for the committee’s purpose with regard to what was allocated by Washington——

Mr. UNGER. Certainly.

Mrs. CHENOWETH. [continuing]—for grazing and for ecosystem

management.

Let me ask you, Mr. Levere, how many violations or what percentage of all the violations were resource damage related last year

and were there violations, resource-damage violations, on Mr.

Bedke’s allotment?

Mr. LEVERE. Last year, there was no penalty imposed on the

Goose Creek allotment which is the allotment that Mr. Bedke runs

on. Mr. Bedke is under a current 25-percent, I believe—well, a suspension. I am not quite sure of the exact percentage, but it was 14

days in the spring and 14 days in the fall.

That suspension was done in the previous grazing season, 1995,

and it is a two-year suspension.

Mrs. CHENOWETH. And that suspension was for what?
30

Mr. LEVERE. That was for improper maintenance of improvements and cattle in the wrong unit on the allotment.

Mrs. CHENOWETH. Do you realize how much five percent means

to a person whose income is dependent on that?

Mr. LEVERE. Yes, I do.

Mrs. CHENOWETH. I appreciate your being here, gentlemen, very

much, and I know this is a difficult hearing. I very much appreciate your being here.

I would like to ask you to remain in the hearing room, and we

would like to call you back later.

Mr. Vento.

Mr. VENTO. I have one additional question to the two supervisors, by virtue of somebody appearing before the committee, they

wouldn’t receive favorable treatment either, would they, by virtue

of your work in terms of management of these permittees? They

wouldn’t receive favorable treatment by virtue of that. Coming here

doesn’t immunize them from something, does it?

Mr. LEVERE. That is correct.

Mr. VENTO. Thank you. Mr. Nelson, do you feel the same way?

Mr. NELSON. Yes.

Mrs. CHENOWETH. Before I dismiss the panel, I also want to ask

Mr. Levere, because individuals have called the problems to our attention, I want an assurance from you personally that there will

be no retribution to the individuals that have sought a political solution or have had their name mentioned in the press.

Mr. LEVERE. You do have my assurance. Like Mr. Nelson stated,

anything otherwise would be unprofessional.

Mrs. CHENOWETH. Thank you.

Mr. CRAPO. Madame Chairman.

Mrs. CHENOWETH. Yes.

Mr. CRAPO. Madame Chairman, could I just follow up? I wasn’t

quite sure what the answer was to the question about whether

there was a resource damage on the Goose Creek allotment.

Is the action being taken with regard to the Goose Creek allotment based upon resource damage?

Mr. LEVERE. It is based on not following the terms and conditions of the permit is what it is based on.

Mr. CRAPO. But does that involve resource—not following the

permit can result in resource damage or it can be something else.

Mr. LEVERE. In some situations, it does result in resource damage. In other situations, it does not, and the analogy that I like to

use, it is like enforcing speed limits on the highway. You don’t wait

for the wreck to happen to write the ticket.

Similarly, when it comes to enforcing the terms and conditions

of a grazing permit, you don’t wait necessarily in all cases for resource damage to happen before you issue essentially the ticket following the highway analogy.

Mr. CRAPO. Well, I understand that, and I am not trying to say

that you have to wait for resource damage. I just wanted to understand whether there was resource damage in this case.

Mr. LEVERE. In that situation, I am not sure whether there was

or was not. What the determination was there, was there a violation of the terms and conditions of the permit, and the answer to
31

that was the finding was yes, there was, and it was on that basis

that the suspension was imposed.

Mr. CRAPO. But you are not aware of whether there was actual

resource damage.

Mr. LEVERE. No, I am not.

Mr. CRAPO. Thank you.

Mrs. CHENOWETH. Mr. Unger, I would like to present a letter to

you. It is a letter asking for more information, and it is signed by

Chairman Young and myself, and so I would like to have it delivered to you.

I appreciate your being here. Thank you very much for your testimony.

Mr. UNGER. Thank you.

Mrs. CHENOWETH. I would like to now introduce the second

panel, Mr. Scott Bedke from Oakley, Idaho; Mr. Mark Pollot, an attorney from Boise, Idaho; Mr. Jim Connelley from Mountain City,

Nevada; and Karen Budd-Falen, attorney, from Cheyenne, Wyoming. I want to welcome you to the panel and before we get started, I would like to ask you to all stand and raise your right hand,

and I will administer the oath.

Will you swear or affirm under the penalty of perjury that you

will tell the truth, the whole truth, and nothing but the truth so

help you God?

Let me remind the witnesses that under our committee rules

they unfortunately must limit their oral statements to five minutes, but that their entire statements will appear in the record,

and this record will be printed.

We will also allow the entire panel to testify before questioning

the witnesses, and before I recognize our first witness, I will recognize Mr. Gibbons to introduce his constituent, Mr. Jim Connelley.

Mr. GIBBONS. Thank you, Madame Chairman, and indeed, it is

a great pleasure for me to have an opportunity to recognize someone who has traveled a great distance, because you can’t get to

Mountain City with an easy commute to Washington, D.C.

This individual has come a long way to be here to present his

concerns to this committee. Mr. Connelley has been a long-time Nevada resident, a ranch manager since 1970, and especially on the

public lands and he has been a great innovator of cow-calf ranching

in Elko County, Nevada.

Beginning in 1979, he had the general management authority

over two additional ranches in northern California for a total capacity of around 1,000 head of cattle.

Mr. Connelley was responsible for developing cross-breeding programs, purchasing cattle and equipment, developing grazing systems and allotment management plans for ranches, including the

Toiyabe and Humboldt ranges.

Mr. Connelley has more than 12 years of experience working in

the legislative and regulatory arenas on issues pertinent to livestock operators. He has been most active in areas of water rights

and public land issues.

Mr. Connelley has also served three years as president of Nevada’s Cattlemen’s Association, and was chairman of the Public

Lands Committee and regional vice president for the National

Cattlemen’s Beef Association.
32

He has been elected three times to the board of trustees to Elko

County School District, and was appointed by then-governor, now

U.S. Senator, Richard Bryan, to represent the livestock industry on

the Nevada State Board of Agriculture.

Madame Chairwoman, Mr. Connelley is indeed a man who has

invested many years in understanding land use policies, and I personally feel he will be of great benefit to this Subcommittee in understanding the issues that come before us today, and again, I welcome Mr. Connelley.

Madame Chairwoman, thank you very much for allowing me this

gracious opportunity.

Mrs. CHENOWETH. I thank the gentleman from Nevada, and

thank you for all of your effort, Mr. Connelley, in getting to Washington, D.C., and I thank the entire panel for being here.

I would like to begin the testimony with Scott Bedke.

STATEMENT OF SCOTT BEDKE, OAKLEY, IDAHO

Mr. BEDKE. Thank you, Madame Chairman and members of the

committee.

The Bedke family has ranched in the Goose Creek area near

Oakley, Idaho, since 1878. I am the fourth generation of Bedkes to

ranch in this area and carry on a tradition that was begun when

Rutherford Hayes was the president of the United States.

This tradition predates Idaho statehood and also that of the organization of the Forest Service. We have held adjudicated grazing

preference rights on BLM and Forest Service-managed grounds

since the very first ones were issued.

An underpinning philosophy indicative of our longevity in the

cattle business has always been to take care of the grass, and the

grass will take care of you. This philosophy and practice has guided

the permittees on our allotment to always take the initiative and

the lead in improving things on the public range that we call home.

On the Goose Creek allotment in particular, we have developed

water, planted hundreds of acres of new grass, and installed more

than 25 miles of fences to further our goal of control and distribution of the livestock and also rotate the grazing use on the grass

to ensure its perpetual health and vitality.

Each of the numerous improvements on our allotment has come

about because the permittees conceptualized the idea and then provided the labor and the funding necessary to install and construct

these improvements. In fact, in 1983, the Goose Creek allotment

was given an across-the-board 13-percent increase in cattle numbers and it should be noted that these types of increases are only

given to permittees whose allotments are in excellent shape and

where improvements result in additional forage. Increases do not

come to permittees who are poor land stewards.

I might add at this point that until 1986, the Forest Service had

been willing partners in the developments and the improving of

this allotment. The improvement of the resource was the ultimate

goal of both the agency people and the permittees.

In fact, well, we were all proud of this allotment. It was a showplace allotment for all. The Forest Service and the BLM sponsored

numerous tours of this allotment emphasizing what could be done
33

when all concerned parties worked together with cooperation, consultation, and coordination.

In 1986, the atmosphere changed quite abruptly when new management personnel came to the district. I will go into that later. It

would be interesting to compare the Goose Creek allotment file

prior to 1986 and the one that has been compiled since. It would

show a sad commentary on the abuse of power afforded a district

manager with a certain personal and policy bias against public

land grazing.

This abuse of power has resulted in the formation of a new uniform action guide recently introduced in the Sawtooth National

Forest. Regardless of the motivation behind the uniform action

guide, it will prove to be a very effective means to achieve reduction and/or elimination of livestock grazing on the forest, especially

when the UAG is backed up by the continuing biased interpretation of the standards and guidelines.

Accidental, nonwillful events can result, under the new UAG, in

suspension of 25 to 100 percent of the livestock numbers for three

years. A second accidental, nonwillful occurrence can result in permanent permit cancellation, regardless of whether any kind of resource damage was the result.

The forest management contends that of course, this type of arbitrary cancellation of permit will never occur, and that common

sense will rule the day, that all we need to do is trust them. But

regardless, the action guide says what it says. There does not have

to be any latitude given, and at some point, some manager will

take the uniform action guide literally and follow it to the letter

and cancel our permits.

It is not morally right that a mid-level bureaucrat can with a biased stroke of his pen eliminate my means of providing for my family and meeting my financial obligations for an occurrence that he

deems to be an infraction, and one that everyone agrees does not

result in resource damage.

This is what worries me, my wife, and my mother the most, that

based on the forest supervisor’s memo dated 3/3/97 given to all the

district rangers and the area managers is that ranchers who exercise appeal rights, those that support State management of public

lands, or criticize the Forest Service, or try to obtain congressional

intervention in the Forest Service actions will be classified as bad

apples. I am glad to hear Mr. Tugaw is not considered a bad apple.

I wish I could say the same.

Therefore, does it not follow with my very presence at this hearing that I can expect administrative reprisal being as the forest supervisor describes as an aggressive permittee?

This memo negatively singles out permittees who avail themselves to the appeals process and other processes designed to check

and balance the system.

The Eighth Amendment of the Constitution comes to mind.

Granted, they were talking about criminal penalties, but the

phrase ‘‘nor excessive fines imposed’’ comes to my mind. Should

this not apply to situations like this?

The guiding principle should be that the punishment must fit the

crime. Is it not excessive to lose one’s grazing right for three years

because of a leaky water trough? Could this not be compared to
34

your losing your automobile or having it impounded for a simple

traffic violation? The Forest Service’s administrative process should

not be used to circumvent constitutional protections.

Based on the same memo, grazing permit holders are being singled out because of perceived lack of governmental funding to the

Forest Service. Ranchers are being threatened that if funding is

not increased in the future, further reductions will have to be

made. To severely penalize one multiple use over other multiple

uses because of a lack of funding is clearly another indication of

bias in the administration of the Sawtooth National Forest. Livestock grazing has clearly been relegated to a secondary status.

What we are seeing here is an attempt by the Forest Service to

coerce the rancher into putting pressure on his congressional representatives to increase funding for the Forest Service.

The Forest Service has also said that if our grazing permits are

canceled, they will be offered to other ranching interests. Our permits have been historically used as collateral for loans and taxed

by the IRS. They have been bought, they have been sold, they have

been traded as personal property since the first issuance of the

grazing permits.

To take these permits without compensation and give those permits to another who has no financial stake in the permit may very

well lead to speculative transitory-type ranchers, those who come

in with no intention of investing in or remaining on the allotments

for an extended period of time. This type of ranching—transitorytype, speculative-type ranching interests—are not in the best interest of the land.

In summary, one point remains. Those of us that hold permits

on the Sawtooth National Forest are family ranchers. Our livelihoods depend on our ability to exercise our rights to graze our livestock on these public lands.

Our intimate knowledge of and our vested economic personal interest in the land makes us a valuable asset in the long-term management of the public’s lands. Ranchers want to be and must be

part of the solution. Thank you.

[Statement of Scott Bedke may be found at end of hearing.]

Mrs. CHENOWETH. Thank you, Mr. Bedke, for your testimony.

Mr. Pollot.

STATEMENT OF MARK POLLOT, ESQUIRE, BOISE, IDAHO

Mr. POLLOT. Thank you, Madame Chairman and members of the

committee. I appreciate being given the opportunity to appear before you today to talk about what I think is a critical issue.

As you may be aware, if you have had a chance to look at my

testimony, it is ten and some-odd pages of testimony, and it is difficult to summarize that in five minutes, so I am going to focus on

some of my most grave concerns, but I need to lay some groundwork first.

There has been a prevailing attitude among some segments of

the population of the rancher in the west as being the ‘‘welfare

cowboy.’’ I think it is important to understand that the reason that

ranchers and timber harvesters and miners and other people are

here in the west is because Congress invited them to come to the

west, not out of the goodness of their hearts, not to give away
35

something, but because the economic development of the west was

in the best interests of the United States.

People came to the west, gave up their lives in the east, and they

did that, and they established themselves here and their families,

and for generations, have taken care of the land.

It is Congress’ job, not that of the agencies, to set the policy for

the United States, and that policy has always favored grazing on

what have come to be called public lands in the west.

There are those who oppose grazing, and they have gone to Congress any number of times to attempt to get Congress to alter that

policy. Congress has never done so. Its actions have always been

the Taylor Grazing Act, the Act of 1866, July 26. The Federal Land

Policy Management Act has always been to support and protect

grazing as one of the valuable and important uses of western lands

out here.

What happened as a result of that steadfastness by Congress has

been a move to the agency level and a move to regulation by litigation, an example of which we heard here today in the opening testimony, that the Toiyabe National Forest put together its action

guidelines not because it was the appropriate thing to do in its

judgment, but because somebody sued them, and in the process of

suing them and in the process of settling that lawsuit, circumvented the Administrative Procedure Act process and all the

other processes that go into making this kind of decision on public

lands.

But one of the most important things that has happened is that

the lobbying effort has shifted from Congress to the agencies themselves, and the agencies themselves have become a place of employment for those people who had their own environmental and landuse agenda prior to coming in the agency and in fact, join the agency as employees specifically to use those positions to implement

their view of what sound policy on public lands should be.

I was not at all surprised when the uniform action guide and Mr.

Levere’s accompanying memo were brought to my attention approximately two weeks ago. I was not surprised, and at the same

time, I was unhappy and very concerned.

I think it is important in looking at this issue today before this

committee and elsewhere not to look at the uniform action guide

including the modified version of that of four days ago in isolation,

but to look at them in conjunction with Mr. Levere’s March 3,

1997, memo which was to the district and area rangers with a clear

instruction that this was to be shared with permittees. When you

read it in its entirety and you look at it, you understand why Mr.

Levere wanted to do this.

It is clear to me after examining this document in particular and

the uniform action guide that the purpose for the memo and the

guide are as follows: A, to shift the responsibility from the agency

for its management failures to Congress for having failed to give

them the money that they believe that they need; B, to let those

permittees who have been referred to as aggressive beware of following their legal and administrative remedies under penalty of

being treated more harshly if they do so; C, to let the remaining

permittees who are not aggressive be there to pressure the aggressive permittees under pain of a threat of an additional or different
36

sanction, that is, removing all permittees from the national forest.

It is never stated that we will do this, but it is suggested that if

the UAGs do not meet with everyone’s fancy, that these other more

strenuous penalties may be applied, and certainly, this is going to

cause other grazers to want to look at those who avail themselves

of administrative and legal and political remedies askance. It becomes part of a strategy of divide and conquer, something which

in my practice, I have seen far, far too much of.

I am not, for example, comforted by the fact that prior panel assured us that the administrative remedies were available because

part of this document is to discourage the use of those remedies,

and nowhere in this document is there any hint that the forest or

its managers ever considered whether they may have in part, in

any part, been responsible for the breakdown of communication.

The blame seems to be laid squarely at the feet of those permittees out there who are dissatisfied, and yet history has shown that

for generations, these same ranchers and their families have tried

to work with the forest. There is no explanation in here as to why

they would suddenly decide that this avenue was no longer fruitful

and useful.

It is my experience that mature adults, when they find themselves getting into a situation over and over again, do ask themselves whether in fact they have done anything that might have

contributed to the situation.

Finally, and there is probably more that I will be discussing on

this topic during questions, I am sure, but that is, I am not comforted by Mr. Levere’s statement. For example, not to worry, there

is discretion in the hands of the rangers out there, because he has

said first of all, he is both informally monitoring and will in the

event of an appeal be the one looking at whether or not that ranger

properly exercised his discretion to apply or not apply the UAGs.

In other words, the person responsible for putting the UAGs together and strongly through his letter recommending that they be

followed is the same one who is going to review the decision to follow or not follow those UAGs. This gives me little comfort, and certainly, one of the areas that this committee and Congress should

be looking at is the administrative appeal process which is in fact

severely flawed in my view. Thank you.

[Statement of Mark Pollot may be found at end of hearing.]

Mrs. CHENOWETH. Mr. Pollot, I thank you for your testimony. I

would like to call now on Mr. Jim Connelley. Mr. Connelley.

Mr. CONNELLEY. Madame Chairman and members of the Subcommittee, thank you for the opportunity and I am sorry that he

has left, but I thank Congressman Gibbons for the introduction.

Mrs. CHENOWETH. The Chair wants to assure you that my colleague will be back very shortly.

Mr. CONNELLEY. Thank you.

STATEMENT OF JIM CONNELLEY, MOUNTAIN CITY, NEVADA

Mr. CONNELLEY. I have always had good working relations with

the Forest Service. I was appointed to the Forest Service’s livestock-big game review team in 1990 and was one of the original

founders of the seeking common ground initiative that Mr. Unger

mentioned here earlier.
37

I have been recognized by the Forest Service for commitment and

cooperation and progressive management of my Federal grazing allotment.

I am here today testifying solely on my own behalf and have

been actively involved in public land grazing for a number of years,

participating in hundreds of hours of meetings with Forest Service

and many, many range tours with Forest Service personnel.

I have had broad exposure to all aspects of livestock grazing and

policies on the Humboldt-Toiyabe National Forest.

Based on these experiences, it is my opinion that the Forest

Service, the range division in general and the Humboldt-Toiyabe

National Forest in particular, is an agency lacking practical scientific vision and direction. It is currently out of control in terms

of defining an ecologically sound and viable grazing management

program that seeks to cooperatively resolve livestock grazing problems on the ground with the involvement of interested parties.

Some officers of the Humboldt-Toiyabe are making livestock

management decisions based upon political agendas and then finding the science to support these decisions. I believe that grazing allotments on the Humboldt-Toiyabe have been and continue to be

targeted for elimination of grazing, and that this goal is being

achieved through the implementation of unrealistic, unscientific

standards and guidelines imposed in a punitive manner.

As a result, the range division on the Humboldt-Toiyabe have

lost the respect of all but those whose agendas they support. Based

on this agenda, the Humboldt-Toiyabe have all but assumed a

siege mentality, blaming the commodity users for all of their problems and shortcomings on the lack of budget.

Witness the State and national news coverage on the Carson

City pipe bombings where Forest Service personnel were continually quoted as speculating that disgruntled ranchers or miners

could be responsible. A suspect has yet to be identified or charged

in these regrettable incidents.

Virtually no effort is being made today by the Humboldt-Toiyabe

to work cooperatively with the grazing permittee to resolve grazing

issues or problems on the ground once they have been identified.

Furthermore, the current punitive approach to permit administration employed by the Humboldt-Toiyabe more closely resembles

a police action as opposed to the cooperative regulatory approach

to rangeland management.

This big stick approach has only resulted in increased polarization, costly appeals, litigation, and more recently, the grand jury

investigation which resulted in a finding of potential charges

against Forest Service employees.

Let me explain the basis for these opinions. Other testimony that

this Subcommittee will hear documents the dramatic grazing decline on the Humboldt-Toiyabe since the implementation of the respective forest plans and UAGs.

Most of this downward grazing trend can be attributed directly

to the following factors. Strict and punitive enforcement by the Forest Service of unrealistic restrictive riparian grazing standards and

guidelines adopted in the forest plan which lack scientific support

and biological justification. In the intermountain west, riparian

areas comprise only about one to two percent of the total land area.
38

Difficulty in maintaining economically viable levels of grazing

use on most allotments prior to exceeding the strictly enforced riparian standards, and three, refusal by the Forest Service to work

cooperatively with affected permittees to address existing livestock

distribution and riparian grazing issues through the application of

tried and proven grazing management practices.

The predominant attitude demonstrated on the HumboldtToiyabe today has been total permittee compliance with the imposed grazing standards, regardless of the site-specific conditions

or climactic variations or they will suffer the Forest Service’s enforcement of substantial penalties in the form of suspensions or

cancellations. No opportunity is afforded in this process for grazing

permittee and Forest Service to come together and cooperatively

evaluate management options to resolve an identified grazing

issue.

The simplistic reduction of livestock numbers through penalty

permit actions will not, in itself, lead to a proposed reduction in

animal impacts, nor will it solve the basic problem. It is important

to remember that animal impacts for 50 head of grazing livestock

within a given area for two weeks will be relatively the same as

100 head in an area for one week.

So the question is, what did you gain by imposing a penalty permit action that simply reduces the number of animals? Can you

reasonably expect improved riparian resource conditions or have

you simply penalized the rancher financially?

In most cases, the latter situation is the result and being that

these are predominantly family-owned operations with little capital

behind them, they are brought one step closer to elimination. These

are the same family farmers and ranchers that this administration

as well as others before it have promised to save.

Since the grazing permittee is the person who actually controls

and manages the animals grazing, livestock control within a grazing allotment and its associated riparian areas can only be addressed and achieved through cooperative planning that involves

the permittee.

Without the opportunity to explore viable management options to

address livestock control and riparian issues, unjustified and unnecessary administrative permit reductions continue today on both

forests.

In closing, I would like to offer the following solutions to resolve

the previously described issues. This would include: one, initiate a

congressional investigation to determine why the HumboldtToiyabe have not attained grazing output levels specified in the respective forest plans as required by the forest plans themselves and

the National Forest Management Act; and two, the National Forest

Management Act should be amended for purposes of de-emphasizing a dependency on standards and guidelines, at least as they

relate to the livestock grazing program and in its place require the

Forest Service to offer collaborative planning processes to evaluate

alternative grazing practices prior to initiating penalty permit actions.

Broad blanket application of grazing standards and requirements

developed at the forest level do not adapt well, nor are they often
39

applicable to addressing varying and site-specific environmental

conditions at the allotment level.

With that, I see my time is about up. I will be happy to answer

any questions.

[Statement of Jim Connelley may be found at end of hearing.]

Mrs. CHENOWETH. Mr. Connelley, I thank you very much, and

the Chair now recognizes Karen Budd-Falen, attorney. Ms. Falen.

STATEMENT OF KAREN BUDD-FALEN, ESQUIRE, CHEYENNE,

WYOMING

Ms. BUDD-FALEN. Thank you very much. My name is Karen

Budd-Falen. I am an attorney from Cheyenne, Wyoming. I am also

a fifth generation rancher on a family-owned ranch in Big Piney,

Wyoming.

The information I have to present to the Subcommittee today

deals with further Forest Service inflexibility and failure to collect

site-specific data which has led to forest-wide grazing reductions

and livestock grazing on four national forests.

The first case I want to discuss concerns the Humboldt and

Toiyabe National Forests in Nevada. The original land use plans

for the Humboldt and Toiyabe National Forests were promulgated

by the Forest Service in 1986. Those plans contained numerous

standards and guidelines such as strict utilization standards, stubble height requirements, and other ‘‘resource protection measures.’’

At that time, the livestock industry in Nevada bitterly complained that one, they could not continue grazing on the Federal

lands if these standards were enforced; two, that these standards

were only and unreasonably applied to livestock grazing and not to

wildlife or recreation use; and three, that the standards would not

enhance or protect the range resource.

Over the objections of the livestock industry, the standards were

included in the land use plans. In opposition to the standards in

1986, the Nevada Land Action Association representing the livestock industry, sued the Forest Service. Their substantive complaints about the land use plans were never heard by the court, because the court dismissed the case saying that until the cattlemen

could prove that they were harmed, they had no standing to sue.

It is ten years later; the cattlemen’s predictions have all come

true. Under the standards and the guidelines in the Humboldt

plan, 38,994 AUMs have been lost on the Humboldt National Forest. In terms of individual permittees, in ten years, the number of

permits on the Humboldt National Forest have been reduced from

160 to 135.

The same is true on the Toiyabe. In the past ten years since the

implementation of the land use plan on the Toiyabe National Forest, the number of AUMs has been reduced by 35,654 AUMs. In

terms of permittees, in the last ten years, the number of permittees

on the Toiyabe has been reduced from 75 to only 44 remaining.

There is a second case that I would like to bring to your attention that illustrates this exact same point. The situation occurs on

the Apache-Sitgreaves National Forest in Arizona. The ApacheSitgreaves, also known as the A-S, land use plan was promulgated

around 1988. That plan also contains standards and guidelines to

allegedly protect forest health.
40

In 1995, the term grazing permits for 13 permits on the A-S were

set for renewal. Because of a change in Forest Service policy, each

renewal of the term permit was subjected to the NEPA analysis.

At the end of the process, every single one of those 13 term permits received a reduction in grazing of between 40 percent and 85

percent.

I think that these two cases illustrate some very common problems with Forest Service policy.

Number one, rigid, restrictive utilization standards and guidelines result in the reduction or elimination of livestock grazing.

This is especially true when the standards and guidelines are only

applied to livestock and not to recreation, wildlife, or other multiple

uses on the national forest.

Number two, restrictive utilization standards are replacing individual allotment monitoring programs, such as monitoring for

trend or condition. This means that the Forest Service, rather than

being concerned with whether the individual allotment is in good

ecological condition or whether it is increasing or decreasing in

trend, is focusing simply on a utilization standard and whether

that standard has been met. Since most of the time, utilization

standards are not indicative of the health of the allotment, this

method unnecessarily and needlessly eliminates livestock grazing

without achieving a corresponding increase in the ecological health

of the land.

Number three, the Forest Service administrative appeals system

does not provide due process. Forest Service administrative appeals

are heard by the next higher line officer. There is no opportunity

to ever cross-examine the Forest Service decisionmaker, to ever

present your own experts, and to ever talk to an independent hearing officer.

The Department of Agriculture does have an administrative appeals board, but Forest Service permittees, whether it is grazing

permittees or timber producers or whoever, do not have access to

this independent hearing board.

I also have solutions to these problems that I would like to propose.

Number one, the Forest Service should eliminate the forest-wide

standards and guidelines and the decisions based upon those

standards and guidelines. Decisions must be made on an allotmentby-allotment basis or stream reach-by-stream reach basis. A decision designed in Washington, D.C., cannot apply in Big Piney, Wyoming, or Mountain City, Nevada, or anywhere else.

Number two, mandate that trending condition monitoring be

completed before any reductions in grazing are made. Trend and

condition on BLM land is normally measured for at least three to

five years before grazing permits can be reduced for resource damage. The same should be true for the Forest Service.

Number three, mandate that grazing permittees have access to

the Forest Service national appeals board or that they have a right

to some sort of an administrative appeal before an independent

hearing officer, not before the next higher line officer who probably

recommended that the adverse decision be made in the first place.

I thank you for the opportunity to present this information to

you, and I would be happy to answer your questions.
41

[Statement of Karen Budd-Falen may be found at end of hearing.]

Mrs. CHENOWETH. Thank you, Mrs. Falen. The chair now recognizes Mr. Crapo for questioning.

Mr. CRAPO. Thank you, Madame Chairman. I would like to address my first questions to Mr. Bedke. Welcome again, Mr. Bedke,

and we appreciate your making the effort to be here to testify.

You indicated that there was no resource damage on your allotment, is that correct?

Mr. BEDKE. That is correct.

Mr. CRAPO. Can you tell us just briefly what kind of a history

there has been in terms of the new treatment that you feel that

this allotment has received in the last period of years as compared

to how it was treated in earlier years?

Mr. BEDKE. Like I tried to describe in my oral presentation, our

allotment was viewed as a ‘‘showplace’’ allotment that we could—

it is a good allotment resource-wise, and it was used to show other

ranchers and other agency personnel what could be done when everybody worked together.

Like I said, there has never been any resource damage, there

have never been any penalties based on resource damage on this

allotment.

We are under suspension as was brought up earlier. This occurred—briefly, it is hard to describe what exactly took place, but

suffice it to say that many small allotments were lumped into one

big allotment here for the betterment or for the more efficient use

of this mountain. So there were spring units set up and there were

fall units set up, and there was never any differentiation between

BLM and Forest Service ground within this allotment.

In the fall of 1994, we were requested to have all the cattle on

the BLM side of the line within the fall unit. Now, this is just a

line on a map. There was no fence, there is nothing out there. I

mean, Congressman, you wouldn’t know when you crossed the line,

and neither did my cows.

We moved all the cattle. They requested to have all the cattle on

the other side of the line for the last two weeks of the season, and

we complied with that. We moved all the cattle on the 29th of October.

On the second of November, 185 head had crossed the line, and

that constituted a permit violation that they took action on. Another leg of the penalty was that in the same unit, there is a pipeline system that fills four water troughs. It was a dry year. There

was only enough water to put water in one trough of this system,

and the others were left dry so we could congregate what water we

had in the one trough, and that was considered nonmaintenance of

our improvements.

Now, the supervisor at that time suspended the implementation

of these penalties, because he found for the ranger yet suspended

the penalties, walking the tightrope that only he understood he

was faced with. We didn’t quarrel, and so the first two years of the

penalties go by.

We get new management, we get other infractions of similar nature, and the suspension of the penalty has activated and that is

the suspension that we are currently under.
42

Mr. CRAPO. Thank you. You would agree, wouldn’t you, that all

permittees must comply with the requirements of their permit?

Mr. BEDKE. That is our goal.

Mr. CRAPO. And do you feel that the current uniform action

guidelines that are under proposal, the new proposed UAGs, will

put a permittee such as yourself at a disadvantage in terms of trying to work out a proper resolution with the ranger when a problem does arise? If so, why? Just explain it briefly if you would.

Mr. BEDKE. Well, after having read the memo, I would just ask

yourself, if you had been recently involved in an appeal process, if

you had ever criticized the Forest Service, if you had participated

on the governor of Idaho’s Federal lands task force, or if you were

here in Washington testifying on the very thing, you would have

to consider—those were the things that he described as an aggressive permittee, so I guess I think I am warranted in my fears.

Mr. CRAPO. Thank you. Mr. Pollot, I welcome you again. You

were here when we had a hearing on wolf recovery a year or two

ago.

Mr. POLLOT. Yes, sir. Thank you.

Mr. CRAPO. I appreciate your coming back. I guess this question

is both for you and Karen Budd-Falen, or Jim Connelley, I guess.

Any of you may have information on this.

Has the amount of cattle allowed to be grazed gone down under

uniform action guidelines on other forests that you are aware of?

Mr. POLLOT. They most certainly have, Congressman. Certainly

in the Toiyabe National Forest, the figures that have been cited to

you by members of the committee as well as Karen certainly show

that the numbers have gone down, and they have gone down fairly

consistently.

The curve on the Toiyabe National Forest is pretty steep.

Mr. CRAPO. I see my yellow light is already on, so my question

is, do you believe that the reason for this reduction is the stiffness

or the rigidity or the extremity in the penalties imposed under the

uniform action guidelines which have been imposed?

Mr. POLLOT. I most certainly do.

Mr. CRAPO. And Ms. Budd-Falen, do you agree?

Ms. BUDD-FALEN. Yes, sir, Congressman, I do agree. In fact, on

the Toiyabe National Forest, I have been participating in studies

contacting every single grazing permittee whose permit has been

reduced or eliminated over the last ten years to determine if the

reduction was based on market condition or was the result was implementation of the standards and guidelines and enforced by the

uniform action guide.

The permittees told me that in every single case, they would

‘‘voluntarily’’ remove their cattle, because they knew that the Forest Service penalty that could be imposed by the uniform action

guide would eliminate those livestock anyway, and they didn’t

want a mark (or an adverse decision against them) on their Forest

Service record, because once a permittee gets those kind of marks

noting an infractions on a Forest Service record, the chances of the

permittee ever getting another permit or going to another district

and getting another permit are slim to none.

Mr. CRAPO. Thank you very much.
43

Mrs. CHENOWETH. Thank you, Mr. Crapo. The Chair recognizes

Mr. Vento.

Mr. VENTO. Thanks. I note that there is a discussion here going

on about whether or not the lack of use in the Toiyabe and Humboldt of allotments has to do with the reduction in force or in fact

has to do with the fact that these uniform action guidelines are in

place, so it has been in place, I guess, for some time there.

The action guidelines are designed apparently to provide more

certainty and predictability. That is at least the quest and that was

a positive response when I asked that of the supervisors and of Mr.

Unger.

Either there are more violations now than there were before. I

could ask one of the witnesses, Ms. Budd-Falen.

Are there more violations now than there were before? Are there

more warnings? Do you know that since you have checked out a

ten-year record?

If you don’t know, it is all right. You can always answer for the

record if you don’t.

Ms. BUDD-FALEN. In terms of warnings before the ten-year period and after the ten-year period, I cannot answer that.

Mr. VENTO. Well, maybe you could do some more homework on

it and help us along those lines.

Mr. Connelley, I note that you pointed out and I think rightfully

so, the fact that the original plans in terms of how the range is

managed in the area that you are referring to, I believe it was the

Humboldt-Toiyabe, was it not, Mr. Connelley, that they hadn’t been

updated for some time.

You point out that you believe that it would be desirable to do

that, to update those plans to provide a better plan. Many requirements have been put in place as we gain new information or new

knowledge in terms of the landscape, maybe endangered species

and other provisions, and you think that that would be a great help

if those plans were updated and approved, is that correct?

Mr. CONNELLEY. I agree that those plans need to be updated.

The forest plan was dated 1985. It is mandated to be reviewed

every ten years or at such time that its projected outputs fail to

meet 90 percent of their projections.

By the figures that Ms. Falen has given here today, the grazing

output is far, far short of 90 percent of its projections, and the 1985

forest plan was mandated to be reviewed by 1995 regardless of outputs, and we are now in 1997 and have asked specifically for a review of these plans and for reconsideration of standards and guides

and all the other things that have come to pass, and that has not

been forthcoming.

Mr. VENTO. You also point out in your testimony that it is your

belief that they don’t have the necessary personnel to do that. You

testified to that, that the Forest Service didn’t have the personnel

to do it.

Mr. CONNELLEY. That is what they are telling us, that they don’t

have the personnel or the funding to do it, and I think a reallocation, as I have mentioned, would help, because what we are seeing

is rangers on these districts saying, I am sorry, guys, we can’t open

that allotment again because we don’t have any money.
44

Mr. VENTO. I certainly think in the Toiyabe and Humboldt—I

don’t know what the budgets are for each one. That question will

probably come back up, but I think it is pretty clear that a lot of

the resource management plans and other requirement plans for

land use have been delayed because of funding. It doesn’t take as

high a priority.

But they do an EIS in terms of reissuing some of the permits,

don’t they?

Mr. CONNELLEY. Congressman, you know what I do when I don’t

have the funds or the time to take care of calving during the winter

or whatever? I work longer and I work weekends and I work

nights.

Mr. VENTO. Right. I think most of the Forest Service personnel

I know work pretty hard. I was sort of amazed that somebody

would question the integrity of the individuals, because they work

under contract just like you and just like Mr. Bedke.

You had a contract. How many head of cattle do you run, Mr.

Bedke, on these permits? You are on the Sawtooth, I guess, aren’t

you? What do you run on the Sawtooth?

Mr. BEDKE. We run 487 head.

Mr. VENTO. It is my impression that most of the permitted lands

aren’t fenced, are they? Are all the permits fenced around so you

know just exactly where the lines are?

Mr. BEDKE. No. I know where the lines are but——

Mr. VENTO. Very, very few are, aren’t they? You know where the

lines are, but I wouldn’t know where they are, would I?

Mr. BEDKE. No.

Mr. VENTO. And so this difference between BLM and Forest

Service lands that you pointed out would be the same difference in

terms of where a permit ends and begins. But the whole predicate

is that you generally know, so obviously, in terms of number of cattle you run, when you run them there, how you run them there and

treat them?

Mr. BEDKE. That is my very point, Congressman, is that there

needs to be flexibility in these plans. We are trying to do the best

that we can. That is our goal to do the best that we can.

No one is hurt worse by mismanagement out there than me, and

so that is why we are here pleading for flexibility, and this does

not represent flexibility.

Mr. VENTO. If you want me to do micromanagement, I could do

that. We could do it, but obviously, we would rather see some people that are professionals that are working on the land and are

nonpartisan enforcing things.

I notice one of the statements in your testimony sort of amazed

me. You said that for a long time, that you could sell and lease and

re-lease and trade allotments?

Mr. BEDKE. I never said lease.

Mr. VENTO. Well, you said sell. I could give you the exact quote

in terms of your statement, but I was amazed by that, because I

was under the impression that these were permits that are provided.

Did I misunderstand something about what you are stating here

in your remarks?

Mr. BEDKE. No, you didn’t.
45

Mr. VENTO. I can read it. They have been bought, they have been

sold, they have been traded as personal property since the first

issuance of grazing permits.

Mr. BEDKE. That is still correct in that you, Mr. Vento, could not

bring your cattle up and graze them on my allotment because I

hold the permit.

So there is value there, and there is added value to my ranch,

my base property, my personal property at home because along

with that property goes the right to graze cattle on the adjacent

public lands.

That right has been recognized by the IRS. We have been taxed,

paid estate taxes. On one side, the government recognizes it as a

property right, and the other side wants to take that property right

away from us.

Mr. VENTO. I don’t know. I mean, it is all right, you are entitled

to your view, but I think that with regards to law——

Mr. BEDKE. I think the facts bear me out, and Congressman, we

have no problem with——

Mr. VENTO. One of the provisions is that you can’t sell and you

can’t—that you are supposed to personally be using it, and so that

is why I was surprised by this particular statement in here.

You are entitled to your own opinion, but there is the law and

there is the contract that you signed in terms of the permit.

Mr. BEDKE. No quarrel with that.

Mr. VENTO. Yes, sir.

Mrs. CHENOWETH. Thank you, Mr. Vento. The Chair recognizes

the gentleman from Nevada, Mr. Gibbons.

Mr. GIBBON. Thank you, Madame Chairwoman. Mr. Bedke, are

you allowed to have a permit on an allotment basis without an underlying base property ownership?

Mr. BEDKE. No.

Mr. GIBBONS. So the permit is attached the property ownership,

is it not?

Mr. BEDKE. Yes.

Mr. GIBBONS. So there is a difference between what would be a

normal permit under the consideration of normal course and scope

of the law and a permit for a grazing allotment that is attached

to your property?

Mr. BEDKE. Yes.

Mr. GIBBONS. That is what I thought. Have you ever been—has

your allotment ever been penalized for a resource damage assessment?

Mr. BEDKE. No, it has not.

Mr. GIBBONS. Mr. Connelley, thank you very much for coming

here today from Mountain City. You mentioned the word attitude

in your testimony.

Can you elaborate and give us some examples of Forest Service

attitudes that you have been dealing with and the grazing uses in

the Humboldt and the Toiyabe grazing areas?

Mr. CONNELLEY. Yes, I could give you probably the rest of the

day’s worth in my experience with permittees on the Humboldt and

the Toiyabe, but probably two specific incidents come to mind, and

you alluded earlier to the grand jury investigation in Elko County.
46

I don’t think a grand jury investigation is something that is

taken lightly, should not be taken lightly. The Forest Service declined to honor the subpoenas and testify before that grand jury

and provide whatever information the grand jury asked for.

The regional forester stated that, and this was relayed publicly

on radio, TV, and the print media, that it was not in the best interests of the Forest Service to testify before the grand jury. This

probably did more to obliterate any credibility that the Forest Service had than anything that I have ever seen them do. It immediately led to all sorts of speculation about, well, if it is not in the

best interest to answer their questions and the subject of the grand

jury is how they are managing the land, then there must be a negative connotation attached to that, and it has been the source of

much controversy. It has become labelled as the arrogance of the

Forest Service and the attitude of the Forest Service, and I think

it is very unfortunate, and I am sorry to see that happen. I believe

in the collaborative process, and I think that there was a failure

here of monumental proportions.

The other incident that is burned very deeply into my mind was

when I was president of the Nevada Cattlemen’s Association in

1990, I was invited by the forest supervisor to a ride, a two-day affair where we rode horseback through a section of the Toiyabe,

camped overnight, and discussed land management issues. He had

a number of examples to show us.

There was a number of us on that ride, a number of cattlemen,

a number of Forest Service employees and Dr. Burkhardt, who will

testify later today, and in the evening at the camp-out that we had

up at a station on the forest, a very heated discussion ensued by

a former president of the Cattlemen’s Association and the supervisor. This went on for a couple of hours.

Toward the end of that discussion as it became clear that there

were tempers flaring and there was really no amicable end to be

reached, and perhaps you can attribute the situation here or the

comments here to the heat of the discussion, but the supervisor

and the other party in this heated discussion got up from the table.

The supervisor turned to me and stated, ‘‘Mr. Cattlemen’s President, I will tell you something, that I am going to get the cows off

the creek, and my philosophy is that you find the biggest fish in

the pond, and you take him down, and when you get that accomplished, all the other fish will fall in line.’’ I said thank you for that

philosophy. I will remember it to my dying day.

Mr. GIBBONS. What did you take his meaning to be?

Mr. CONNELLEY. Well, that he had an agenda, and he was going

to accomplish that agenda, and it was, Katie, bar the door.

Mr. GIBBONS. Did he have someone in mind that he was referring to as the biggest fish in the sea?

Mr. CONNELLEY. Well, it was a very short time later that the

much-publicized Wayne Hage case came to all of the national media

when the Forest Service took a police action and confiscated his

cattle.

Mr. GIBBONS. What was the end of the court result that was

filed?

Mr. CONNELLEY. It has not been ended yet. The result so far is

that the Hage family has lost their ranch.
47

Mr. GIBBONS. Right. Mr. Connelley, what suggestions would you

make to this committee to improve the situation on the HumboldtToiyabe National Forest that could also be used in all national forests where livestock grazing occurs?

Mr. CONNELLEY. I listed about three things in my testimony, but

I will make it very short and simple. Let us get the politics out of

land management and get the science back into it and get personal

agendas and reactions, just set them aside.

Mr. GIBBONS. Thank you. Madame Chairman, I will yield back

the balance of my time. Thank you very much.

Mrs. CHENOWETH. Thank you, Mr. Gibbons. The Chair yields an

additional four minutes to Mr. Crapo.

Mr. CRAPO. Madame Chairman, I would hold off at this point.

Mrs. CHENOWETH. Thank you, Mr. Crapo. Mr. Vento, do you

have additional questions?

Mr. VENTO. I notice that these disclosure statements do not include the grazing permits as a contract with the Department of Agriculture. Is there some counsel ruling on this that I am not aware

of or what?

Mrs. CHENOWETH. The Chair yields to counsel.

Mr. SIMMONS. That has been worked out with the minority, Mr.

Vento, but the rule is that permits and those types of things were

not to be included.

Mr. VENTO. I am not a fan of this particular process in any case,

but I think it tends to be a transparent attempt to intimidate individuals that come before the committee, and I just think if we are

going to have the rule, we are going to have to follow it.

I am not aware of any agreement with the minority. There was

certainly no consultation that I had with anyone on it, and so I just

think it is something that you either ought to uniformly apply it

if you have it than not.

Madame Chairman, I point that out. I have no further questions

at this time.

Mrs. CHENOWETH. Thank you, Mr. Vento. We will provide you

with the rule. I would be happy to——

Mr. VENTO. I know the rule. It is how it is applied.

Mrs. CHENOWETH. All right. Mr. Pollot, you represented Wayne

Hage, didn’t you?

Mr. POLLOT. Yes, I did.

Mrs. CHENOWETH. Did you have any comments to add to Mr.

Connelley’s statements?

Mr. POLLOT. Certainly, the status of the case right now is that

the Court of Federal Claims issued a decision and a summary judgment motion in which it said a variety of things, but not the least

of which was that grazing on public lands is not necessarily and

inevitably in all cases a ‘‘mere privilege,’’ that the government may

withdraw at any time that it wishes to do so for any reason or no

reason at all.

In this case, the government did make a motion for interim appeal on the decision and summary judgment motion. The court denied leave to appeal that and so the case will be going forward. The

trial will be divided into two parts, but certainly the observation

that Mr. Hage has certainly been run out of business as a result
48

of this is true, and this issue goes to a certain extent to what Congressman Vento was referring to here.

The issue is that a permit may or may not be, depending on the

circumstances here, a property right which may be transferred and

so forth and so on. It would be an overbroad statement to say that

because it is a permit, there are no property rights or even if it

were a contract, because it is universally recognized that a contract

is a property right and may in fact be taken by government regulation.

It is not quite black-and-white.

Mrs. CHENOWETH. And a contract can also be breached, right?

Mr. POLLOT. And the difference between the two as far as the

Claims Court is concerned is whether the government’s action in

doing what it did was authorized.

If it was an authorized action, then perhaps what you end up

with is a taking of the contract which must be compensated under

the Fifth Amendment. If it was an unauthorized action, doing so,

then it may be a breach of the contract for which the government

may have to pay damages and may be subject to injunction to enforce the terms of the contract.

Mrs. CHENOWETH. Without objection, the Chair recognizes Mr.

Gibbons for further questions.

Mr. GIBBONS. Thank you, Madame Chairwoman, and I apologize

for asking you for your indulgence. I had one question I failed to

ask Karen Budd-Falen, and I wanted to address the issues of

known livestock production, reductions, or whatever that are coming off of the Humboldt-Toiyabe National Forest.

Are you aware of these or any reductions in the livestock production numbers?

Ms. BUDD-FALEN. Yes, Congressman. As I outlined in my testimony and since I am so terrible with numbers, I have to look at

the numbers themselves, because I can’t ever remember them.

On the Humboldt National Forest, in ten years, 38,994 AUMs

have been eliminated. In terms of people, out of the original 160

permittees on the Humboldt, 135 remain.

On the Toiyabe National Forest, 35,654 AUMs have been eliminated in the last ten years. There were 75 original permittees; that

has been reduced to 44.

Mr. GIBBONS. Let me ask a follow-up question to that. Are the

livestock reductions that you have just alluded to in the Humboldt

and the Toiyabe National Forests the result of poor livestock market or other market conditions rather than noncompliance with the

forest plan standards and guidelines?

Ms. BUDD-FALEN. In working with the consulting organization

that put together this information, we contacted each of the permittees on the Toiyabe National Forest whose permit had been reduced or eliminated. Their answers to that same question was uniform. Because of the way the uniform action guidelines enforces the

land use plan, standards and guidelines we are talking about here

today, the permittees cannot comply with their permits no matter

what they did. Thus, the permittees would voluntarily remove their

livestock, because if you get a permit violation noted on your grazing permit, you can’t move to another forest and get another permit
49

and you can’t move to another area and get another BLM permit

even.

So permittees, when faced with the uniform action guide and the

fact that their permits were going to be reduced or eliminated,

most of the time will just voluntarily take their cows off the forest

rather than having a black mark on their record which will follow

them forever.

Mr. GIBBONS. Madame Chairwoman, thank you very much for

your indulgence.

Mrs. CHENOWETH. Thank you, Mr. Gibbons. I would like to follow

the line of questioning that Mr. Vento had initiated and ask Ms.

Budd-Falen, Mrs. Budd-Falen, to follow up.

Is there a property interest in the national forest permitting system in your opinion?

Ms. BUDD-FALEN. I think what you have to do is separate the

permit, the ten-year contract itself, from the thing that gives you

the right to get a permit, which is the preference.

If you look at the court decisions, the court decisions say that a

permit itself, that is your piece of paper that the Forest Service

signs, is not a property right. The courts, however, have never

looked at the underlying preference itself, the thing that got you

the permit in the first place.

I think you have to think about what a preference is and what

it means. If I want to place my cattle on the national forest, I can’t

go to the Forest Service and say give me a permit. I have to go and

buy either the base property or livestock from another rancher and

then buy his right to use his allotment. What you are purchasing

from the rancher is his ‘‘preference’’. I then take that preference to

the Forest Service and say I bought this base property or I bought

this livestock. I have a preference to use this allotment, now give

me a permit to recognize my preference.

The Internal Revenue Service in a case called Sufflebarger v. Tax

Commissioner stated that the preference was a property right and

taxable. For example, in the State of Wyoming, a grazing preference is taxed at one-third the value of fee simple.

So for example, my grandparents just passed away. We went

through all of the estate taxes, and the IRS came in, figured out

the value of our base property private land, multiplied that by onethird to recognize our grazing preference on both BLM and Forest

Service, and we paid that additional tax as well.

The banks recognize a preference as collateral and will lend you

money based on a preference as collateral.

The Forest Service Use Book which is the first book that ever

recognized your right to go out and get a permit on the Federal

land adjudicated those preferences like a water right. The Forest

Service under the 1906 use book would go into an area and they

would look at all the ranchers who wanted a permit. At that time,

there was always a lot more ranchers wanting a lot more forage

than was available on the ground. So the Forest Service would

come in and say, all right, if you have historically grazed your cattle in this area, if you have been contributing to the community,

if you have base property or water right to sustain the livestock

when they are not on the Federal land so that you can prove you
50

are an ongoing ranching operation, then you get an adjudicated

preference.

It is almost like a water right, meaning that a portion of that

Federal land would be adjudicated to you. That is how those original preferences were created, and for any rancher, you can go back

to the very first adjudication to see how the rancher got his preference. In fact, the Forest Service has these little tiny yellow cards

in the archives that talk about a rancher’s original adjudicated

right; that is the term that is actually used on those original Forest

Service cards in the archives.

Mr. Pollot already talked about the Hage case and how the court

has ruled that a permit may or may not be property, depending

upon the facts of the individual case.

I think it is also interesting to note that the courts have determined that a lot of things are a property right. For example, a welfare entitlement is property. If you qualify for welfare; the government cannot come in and take that welfare payment without affording you due process.

With regard to the Taylor Grazing Act, Judge Brimmer in his

Wyoming court case ruled that the Taylor Grazing Act is a grazing

statute and that it affords some sort of protection to a grazing

right. One of the things that Judge Bremer looked at was section

9 of the Taylor Grazing Act which actually affords you due process,

the right to a hearing under the Taylor Grazing Act when the BLM

comes in and takes or reduces your grazing permit.

I think if you start adding up all of these facts, at least in my

opinion, the preference is some sort of a property right that should,

at the minimum, be entitled to due process if the Forest Service

comes and takes or reduces your grazing permit.

Mrs. CHENOWETH. Let me ask you, so I can have it very clear in

my mind, the property right concept or the use/ownership right

would adhere to the preference right. The permit which can be

issued, say every ten years, sets the terms and conditions?

Ms. BUDD-FALEN. For using the preference, that is correct.

Mrs. CHENOWETH. And has that historically been based on—have

the terms and conditions in a permit been historically based on

what criteria?

Ms. BUDD-FALEN. They are based on two criteria primarily. The

first is the ten-year land use plan, the big, thick documents that

the Forest Service creates which governs the management of that

Forest Service unit for the ten-year period, such as the HumboldtToiyabe land use plans or the Apache-Sitgreaves land use plan that

set all the utilization standards that permittees have to live with.

Your term permit then recognizes those conditions and in fact by

law has to be uniform with the conditions set forth in those land

use plans.

That is why permittees are so concerned and so involved in the

land use planning process, because that giant document governs

their use of their allotment. Additionally, note that a land use plan

is not a decision document, but the adoption of the land use plan

has to comply with the National Environmental Policy Act. That

sets the terms and conditions that will be forced into your term

grazing permit, so if you don’t comply with the term grazing per-
51

mit, you are not complying with the land use plan and the uniform

action guide will take action against you.

Mr. POLLOT. Madame Chairman, may I expand a little bit on this

issue?

The Hage court, for example, recognized basically that there may

be a right to graze your cattle on Federal land which may be independent of the permit, for example, if that is in fact an appurtenance to your water right, and that, of course, is also going to depend on facts and circumstances.

There are also other facts and circumstances. For example, in

any State that was created out of the New Mexico territory, there

will be people who have a right to graze on ‘‘Federal land’’ because

of a territorial statute which, as you know, because it was ratified

by Congress, is effectively an act of Congress, gave a possessory

right in the surface which has been held by courts to be a property

right in the surface to those people who stocked the range with cattle consistent with the amount of live water available to them, so

there are other bases beside grazing preferences which would give

a right which is independent of the grazing permit.

Certainly, the government can create something beyond that

right in a grazing permit, for example, to decide well, maybe you

have the right to X-amount of AUMs, but we will allow you to

graze Y-amount of AUMs provided that you adhere to the terms of

our agreement.

But the mere fact that a permit is involved or a preference is involved is not sufficient to decide whether there may not be other

property rights including rights to graze on Federal land.

Mrs. CHENOWETH. Thank you, Mr. Pollot. I notice, counsel, Mr.

Vento is speaking.

Did you have a follow-up question as long as we are on this line

of questioning, Mr. Vento?

Mr. VENTO. I am hearing a lot of ifs and maybes and so forth.

We have to be guided by what the decisions are in terms of the

court with regard to the permitting process. So certainly, it is interesting to listen to individuals expound on what they think may be

a right, a property right, versus what is a permit, but as far as I

know, there is a ten-year document out in terms of permits, and

they are permitted to use the land.

I understand the base issue in terms of water or the mixed ownership land pattern that exists, but I think that obviously, these

are issues that have been set in law for a long time. There is a lot

of disagreement about it, and it is interesting to hear viewpoints

expressed, but they aren’t particularly—I don’t know that they lead

us to some plan to legislate in this particular area.

That is fine. I certainly don’t—I appreciate the opportunity.

Mrs. CHENOWETH. Thank you. I would like to continue in that

line of questioning to Karen Budd-Falen.

If there is a possessory right and it has an equity value in the

allotment, and there is a ten-year permit granted that sets terms

and conditions based on the criteria of range conditions and so

forth, does the permit, in your opinion, become a contract?

We heard Mr. Vento mention the word contract. Mr. Pollot mentioned contract. Is the permit a contract to manage the allotment

in a certain way?
52

Ms. BUDD-FALEN. I believe that the permit is a contract. Unfortunately, not all the courts agree with that assessment, and there

are court cases that say that the permit is not a contract because

the bargain only goes one way.

Mrs. CHENOWETH. The bargain only goes one way?

Ms. BUDD-FALEN. If the Forest Service doesn’t have the money

to fulfill its programs, the Forest Service can violate the contract.

However, once the rancher signs on the dotted line, he must

abide by every single term and condition in the contract, Forest

Service regulations, the manuals, the handbooks, and the land use

plan.

I would also add that there was some question about the terms

and conditions and whether those were negotiable in the term permit. The reality is that they are not.

The Forest Service comes in, or the BLM for that matter, offers

you a term permit. You take the terms and conditions written in

the permit or you don’t get a permit, and if you don’t have a permit, you can’t turn your cattle out.

The idea that there is some sort of a negotiated basis for the

grazing permit, while it may look like a negotiated contract, the reality is that they are not negotiated. You take what you can get.

Mrs. CHENOWETH. Maybe it is an adhesive contract, but is the

preference right like a car and the permit is like a driver’s license?

Ms. BUDD-FALEN. I don’t know if I would use that analogy. I

think that it is really more like an adjudicated water right. You go

to the State engineer, you prove beneficial use, you jump through

all your hoops, you show that you have a right to use X-amount

of water.

Here, when the original rancher was out on that Federal land,

he had to jump through a bunch of hoops, prove a bunch of things;

he got a right to then go to the agency and say I want a permit

for X-amount of AUM based on his water or based on his base land

or based on the terms of the Guadalupe-Hidalgo Treaty or whatever.

They set it up different in different ways, but it was like an adjudicated water right.

Mrs. CHENOWETH. It is an area that still is creating confusion,

isn’t it?

Ms. BUDD-FALEN. Yes, it is.

Mrs. CHENOWETH. I hope we can do something about that one

way or another.

Mr. Pollot, let me ask you, there was a statement in the memorandum that was issued by Mr. Levere that said instead of discussing and attempting to resolve identified problems with the Forest Service, he sees a more adversarial role.

Instead of attempting to work things out between the range permittees and the Forest Service, a more immediate response by

some of the more aggressive range permittees is to seek remedies

either through what I perceive to be a negative press targeted at

individuals and/or the agency or through local political contact and

hopefully, political influence over agency decisions, through formal

administrative appeals and/or through potential litigation.

Although all these remedies are within the legal rights of the affected range permittees, they frequently are not the most produc-
53

tive ones for the range permittees or for the Forest Service, from

my perspective.

As a constitutional expert, would this statement raise any serious constitutional questions in your mind?

Mr. POLLOT. Short answer, oh, yes. The First Amendment and

Fifth Amendment and other provisions of the Bill of Rights were

designed to protect the right of citizens, and in fact the duty of citizens to come forward and challenge the government when they

think that the government is doing something that is inappropriate

or improper or unconstitutional or is even simply bad policy.

I think you are aware, Madame Chairman, that several years

ago, I had a book that came out called ‘‘Grand Theft and Petty Larceny: Property Rights in America’’ and the first chapter in that

book discussed the four, I guess you would call them horror stories,

four people who were affected by government actions in pretty horrendous ways.

I deliberately chose to include four people who do not deal with

the government on a regular basis, and there were two reasons for

that, one of which is I wanted to show that real people, not big,

bad corporations, are people who are seriously affected by government actions. The second one was although I had many stories that

I investigated and verified regarding people, who like the ranchers

here and other people, have to deal with agencies on a regular

basis. They did not want to have their stories told. They did not

want to have their stories told even in disguised fashion, because

they were concerned that the agencies, the next time they had to

go before them, would retaliate.

Certainly, one of the purposes, for example, of the Fifth Amendment’s due process and takings clause protections is to ensure that

government does not on some superficially plausible reason go out

and regulate property in such a way that there is no protection, because to do so means that not only are your property rights affected but your First Amendment rights.

As I testified in my direct testimony here, as I read Mr. Levere’s

letter, I saw in here a severe criticism of those people who did not

simply accept the agency’s word that there was a violation or how

the violation came about, and in fact, to go back to Mr. Vento’s earlier question about how many violations where he then used the

word how many warnings, as though warnings and violations are

synonymous.

The fact is, a warning is the view of the government agent that

a violation has occurred. The permittee should be free to either

agree and therefore, sit down to try to work out a solution, or to

disagree and decide that he is going to make use of the agency’s

processes, the judicial process, or the political process or the public

comment through the media process to bring forth his concerns, get

them on the record, and vindicate his rights.

When you have a document like this which culminates in a statement like that which you read, which says this really isn’t a productive use of our time; when you do this, I think you are being

a bad rancher—and by the way, I can verify that Mr. Levere’s letter is not the only expression of this sentiment in the Forest Service.
54

In the context of Mr. Hage’s case, in discovery, in Forest Service

documents, I found a letter from a Forest Service employee to his

supervisor in which two Nevada cattlemen, including I believe Mr.

Connelley was one of those cattlemen who in an attempt to intervene, to mediate in a sense in the dispute between Mr. Hage and

the Forest Service, asked whether if Mr. Hage were to withdraw

his administrative appeal, whether that would help to cool things

down and move them in some other direction.

The response of the Forest Service employee, according to his

own letter, was I told them yes, because that would show that Mr.

Hage is being cooperative. The definition of cooperative apparently

being if you don’t take advantage of our own internal processes to

air your grievance and get a decision, then that is cooperative, but

if you pursue your appeal rights, you are being uncooperative.

There are due process issues here, and I have received in my

own practice a response to an appeal I filed in the Hell’s Canyon

matter, I believe it was, in which the Forest Service informed us

in writing that you have no due process rights before the agency.

You only have due process rights once you get to court.

This is not an isolated incident. In my view, this is a pattern and

practice of discouraging people from using their due process rights,

their Fifth Amendment rights, their First Amendment rights to

pursue their grievances whether in the end they are determined to

be just or unjust grievances against the government.

Mrs. CHENOWETH. Thank you, Mr. Pollot. One final question that

I have for Karen Budd-Falen.

In your opinion, with the issue of the uniform action guide, has

the Forest Service followed the requirements of NEPA and the requirements under the Administrative Procedures Act?

Ms. BUDD-FALEN. Because the uniform action guide is not a

‘‘rulemaking’’ and is not a change in policy, I am not sure that the

APA is implicated.

I have strong questions, though, as to whether the National Environmental Policy Act is implicated by the uniform action guide.

The example I gave earlier is that land use plans must comply

with the National Environmental Policy Act. Those aren’t decision

documents either, yet they affect ranchers on the ground and the

courts have ruled that the Forest Service must comply with NEPA

when they develop land use plans.

There is also another Forest Service handbook section called the

Civil Rights Handbook, which is a Forest Service internal policy

manual. That manual states that if the Forest Service creates policy which affects ten or more permittees, the Forest Service must

consider the civil rights implications of that action, and Mr.

Levere’s uniform action guide did not go through that process either.

So I think that there have been violations of internal rulemaking

and internal policy processes in creating the uniform action guide.

Mrs. CHENOWETH. I want to thank the witnesses very much for

your testimony, for coming so far and offering very valuable testimony.

At this time, I would like to call the third panel, and again,

thank you very much.
55

I would like to call the third panel and thank you all for waiting

so long. It has been a long afternoon. I would like to welcome Karl

Hess, Senior Associate of The Thoreau Institute of Las Cruces,

New Mexico; my constituent, Neil Oldridge from the American

Sportfishing Association, Sagle, Idaho; Leslie Glustrom, Prescott

National Forest Friends, Boulder, Colorado; Linn Kincannon, Idaho

Conservation League, from Ketchum, Idaho; Wayne Burkhardt,

Professor Emeritus, University of Nevada-Reno, and University of

Idaho-Moscow, who resides in Indian Valley, Idaho. Before we get started, if you will all please stand and raise your

right hands, I will administer the oath. Do you solemnly swear under the penalty of perjury to tell the

truth, the whole truth, and nothing but the truth, so help you God? Thank you. Let me remind the witnesses that under our committee rules, they must limit their oral statements to five minutes,

but that their entire statement will appear in the record. We will

also allow the entire panel to testify before questioning the witnesses.

The Chairman now recognizes Mr. Karl Hess.

STATEMENT OF KARL HESS, SENIOR ASSOCIATE, THE

THOREAU INSTITUTE, LAS CRUCES, NEW MEXICO

Mr. HESS. Thank you, Madame Chairman. My name is Karl

Hess, and I am a senior associate with the Thoreau Institute, and

I believe my colleague, Randall O’Toole, has been before this committee in the past. For the past almost 100 years, the public lands or national forests have been a laboratory of sorts for prescriptive management,

and it seems to me that the issue on the Sawtooth and the Toiyabe

and Humboldt National Forests, what Mr. Crapo has referred to as

the abuse of power, and what the Forest Service, I think, states is

an appropriate action is not, in my opinion, a break in tradition of

past management, merely a logical extension of prescriptive management. I think one has to only look at past congressional records to see

a prodigious number of hearings of this nature that have dealt with

conflicts such as this on various sides of the issue.

In my written testimony, I refer to a different public land situation than the current one to highlight what I believe is the failure

of prescriptive management, and what I refer to as the Diamond

Bar Ranch in the Gila National Forest which is very close to my

home.

There, I suggested, actually that the existing public land grazing

policy is broken, and it can’t be simply fine-tuned either to help out

ranchers or to help out other parties in the situation, environmentalists, for example. What the Diamond Bar highlights, in my opinion, and what the

issue I think in the Sawtooth and Toiyabe highlights is one that

there has been an enormous amount of public resources that have

been misdirected and squandered in what is the micromanagement,

the prescriptive management, of grazing activities. The grazing

policies have failed precisely because their focus has been on what

and how ranchers do things rather than on final outcomes. Secondly, public policy has failed ultimately because it, not the

ranchers, not the Forest Service, not environmentalists or other
56

parties, have generally been the source of tremendous amount of

contention and conflict on public lands, and again because public

policy reduces management options and recourse to political or judicial interventions alone.

What I suggest in my testimony and now that I talk about, is

that there is another option to public land management based on

prescription. As a matter of fact, it is an option that on one hand,

was put forward in very forceful terms in the President’s recent

February, 1997, economic report, and at the same time has been

supported by such conservative think tanks as the Competitive Enterprise Institute.

It is an option that takes the cue, I think, from what Congress

did in the last term, initiating agricultural policy to move away

from a system of prescriptive management to one that is based on

individual farmer responsibility and accountability, and one that

depends more on market rather than government prescriptions for

achieving allocation of resources.

Specifically, in regard to public land grazing, what I am talking

about is a system that is based on fully marketable forage use

rights or privileges, depending from what direction you are coming

from, with very long tenure; removal of government constraints to

forage use rights, privileges; and removal of constraints to the marketability of those privileges to other people, specifically elimination of current nonuse limitations; removal of any kind of limitations; restrictions that say permits can be acquired only by those

within the livestock business; elimination of base property requirements; elimination of prohibitions on subleasing; in a word, anything that interferes with the marketability of these and the restriction to any small limited group in society.

Specifically, what this market approach would do, its broad implications, one, it would emphasize outcomes. We would no longer

be interested in how ranchers go about achieving their ends. We

would not be interested, for instance, where salt is placed. We

would be interested in outcomes.

There is no clear relationship between following specific rules

and having particular kinds of good management. We have learned

that when it comes to all other environmental areas and not just

in this country but elsewhere.

Secondly, it provides nonpolitical and nonjudicial channels for

public participation in land use allocation and conflict resolution.

More specifically, applied to the Diamond Bar, which is the example in my testimony, or I would argue to the Toiyabe, Sawtooth or

any other national forest, what it would mean in specific terms is

drastic deregulation; de-emphasis on telling people what to do; a

realization that numbers of cows or the season of use, all of these

issues are unimportant to the ultimate outcomes we all seek on

public lands.

In fact, in the 1970 Public Land Law Commission, that commission recommended that we change management on our public lands

away from emphasis on numbers and other aspects, indicators of

management to final outcomes.

Secondly, in regard to the Diamond Bar, these market ideas

would provide new and more productive channels for resolving the

land use conflicts and land use resolutions, specifically in the case
57

of the Diamond Bar, where essentially we have a lose-lose situation, where every party is losing. The taxpayer is losing; roughly

$2,000,000 to deal with a ranch that is only worth about $750,000.

The rancher is losing everything, and environmentalists are ending

up with a decision that will still leave livestock on a piece of land

which is the Leopold Wilderness which many of them would see

better off without any livestock.

With a market approach, it would allow environmentalists to

have entered into a negotiation with the rancher prior to polarization, which now occurs; for them to acquire those AUMs; and to

voluntarily put them into nonuse, which the Forest Service this

time under their policy will not allow permanent destocking of the

allotment, and it would, of course, have saved enormous amounts

of money.

The point to this, the point in talking about a market-oriented

approach to reform of public lands is this, that market economies

don’t wage war globally. What they wage is competition.

Market forces when applied to public lands will get us away from

political conflict and judicial contention and move us toward a more

fruitful and productive solution.

I will be happy to answer any questions later, and thank you for

the opportunity to talk.

[Statement of Karl Hess may be found at end of hearing.]

Mrs. CHENOWETH. Thank you, Mr. Hess, for your very, very interesting testimony.

The Chair now recognizes Neil Oldridge.

STATEMENT OF NEIL OLDRIDGE, AMERICAN SPORTFISHING

ASSOCIATION, SAGLE, IDAHO

Mr. OLDRIDGE. Thank you, Madame Chairman and members of

the Subcommittee. I thank you for the opportunity to appear before

you today to summarize my written testimony, presenting the

views of the American Sport Fishing Association regarding livestock grazing on national forests.

I reside as a contiguous neighbor to the Kaniksu National Forest

in the great State of Idaho, and I own cattle grazing property totally surrounded by the Custer National Forest in southeastern

Montana. My interests and my roots also run deep in hunting and

fishing, and I have recently retired from a 30-year directing businesses in both of these industries.

As is made clear in the written testimony, the American Sport

Fishing Association does not oppose responsible grazing on our

public lands and considers properly managed grazing to be a very

legitimate use of our national forests.

We do, however, for very sound reasons, oppose overgrazing particularly when it damages riparian zones and degrades the quality

of the water in our streams.

Sport fishing is not a casual activity. It can’t endure water quality degradation without a significant and negative impact to the

American economy. Fifty million Americans spend $70 billion a

year fishing. This fishing activity creates 1 million full-time American jobs and generates $3.4 billion in taxes.

In 1994, on U.S. Forest Service lands alone, American anglers

spent 37 million days of fishing producing a total economic output
58

of $5.3 billion; 65,000 American jobs; $1.3 billion in wages; and

$260 million in tax revenues, and that is just on national forest

land.

There are no mysteries to proper range and riparian zone management. Our professionals know what to do and what not to do.

We have the knowledge and we have the tools to produce both

quality beef and quality sport fishing opportunities.

Most of our western ranchers with national forest grazing allotments are good operators, and I am sure that includes those who

have testified here today, and they are good stewards of our public

lands. Poorly managed grazing in riparian zones, however, can, has

and will cause severe damage to our watersheds, our water quality,

and the overall health of our fisheries. Overgrazing riparian zones

is unquestionably a significant factor in the poor health of some of

our western waters.

All of us with a vested interest in public forests must recognize

that if livestock grazing is not well managed, aquatic populations,

including recreational fisheries, will be seriously impacted.

In full recognition of the fact that different local problems often

require different management techniques, the American

Sportfishing Association recommends a host of management prescriptions which include the following: number one, establishing riparian zones along rivers and streams as separate riparian pastures; number two, excluding livestock from riparian pastures at

certain times of the year when stream banks are most vulnerable;

number three, resting riparian pastures for appropriate periods between grazings; four reducing riparian pasture AUMs, if that is

what is necessary; and five, permanently excluding livestock from

sensitive or badly damaged riparian zones if deemed appropriate by

local management plans.

How do we do this? A direct quote from the National Riparian

Service Team’s mission statement says, ‘‘Restoration will not happen by regulation, changes in the law, more money, or any of the

normal bureaucratic approaches. It will occur only through the integration of ecological, economical, and social factors and the participation of the affected interests.’’

Therein lies the solution to this issue. A new approach called cooperative riparian management programs brings ranchers and riparian management experts together to develop practical, local approaches to improving stream-side conditions through good local

grazing practices.

The Forest Service, the National Resource Conservation Service,

and BLM are providing leadership for this very promising means

of successful fisheries restoration and grazing management. The

National Riparian Service Team whose mission statement was just

quoted above in part are a product of this collaborative effort.

The American Sportfishing Association urges Members of Congress to support the cooperative riparian management programs,

interdisciplinary training, technical support, and field review components.

In summary, we know what to do and we have the tools in place

with which to do it. We can have it both ways. We can have good

beef and good fishing.
59

We must keep our efforts cooperative, on the ground, local, and

driving by good management practice, good communication, and a

whole lot of good common sense. Confrontation politics, pitting one

user group or one industry against another, creating winners and

losers, has not worked in the past, and I assure you that it will not

work in the future.

We stand now at a crossroads. The time is right to collectively

focus our energies, ranchers, fishermen, agency professionals, conservationists, and all other affected groups. Be assured that the

American sport fishing industry stands ready, willing, and able to

work in a cooperative effort to restore our public waterways while

continuing the maximum possible use of our national forests by the

grazing industry.

Thank you, Madame Chairman, for allowing me the opportunity

to provide the ASA’s views on this important public management

issue. Thank you.

[Statement of Neil Oldridge may be found at end of hearing.]

Mrs. CHENOWETH. Mr. Oldridge, I thank you so much for being

here. It is a real personal privilege for me to have you here. I have

always appreciated your opinions and listened to you.

Mr. OLDRIDGE. Thank you.

Mrs. CHENOWETH. You may have noticed a bit of confusion up

here. I apologize for that, but we just got word, and you can hear

the bells going off, that the Floor is requiring that we go vote, and

Mr. Crapo and I have been trying to work out a strategy here to

keep this committee hearing moving, so Mr. Crapo, in a short period of time, will be excusing himself from the committee, and he

will vote, and then come back, and run the committee while I vote.

That is the confusion, and I do want to thank you very much for

being here.

Now, I would like to call on my constituent—actually, you are

from Ketchum, but you do a lot of business and are very active and

a very good spokesman for the Idaho Conservation League in my

district, too. Linn Kincannon.

STATEMENT OF LINN KINCANNON, IDAHO CONSERVATION

LEAGUE, KETCHUM, IDAHO

Ms. KINCANNON. Thank you, Madame Chairman, and I am

happy to be here today. I am Linn Kincannon. I am from Ketchum,

as you said, and I appreciate the opportunity to meet you and Mr.

Crapo here today.

I work for the Idaho Conservation League. It is Idaho’s oldest

and largest statewide grass roots conservation group, and I am also

a member of the Upper Snake Resource Advisory Council which

consists of various folks from different user groups who have gotten

together to advise the BLM on various resource issues, and we

were amazingly successful in writing grazing standards and guidelines during the last year for grazing on public lands with ranchers

on the committee.

I am also lucky to be the mother of two great kids, and because

of that, I have a very personal interest in the future of our public

lands because they are an important and priceless part of our national heritage, and I think that those kids deserve a chance to fish

and swim in clean water, and to picnic and play along shady
60

streams, and also to view and hunt wildlife and other animals on

the public lands.

But those rights have been lost or at least they are at risk in

many places. Ranchers often say, and Scott Bedke said it today,

why would I harm the land when I depend on it for my livelihood.

I think that shows that ranchers know a lot about managing cattle and about their business and about the forage that is important

for their cows, but they often don’t know about the species, native

species, that have been lost through overgrazing, and they often

don’t know whether a stream is functioning in a healthy condition

and why it is important for it to do so.

The fact is, those are multiple use lands, and they need to be

managed to support all the uses, not just grazing, and I am not

criticizing their ability to manage those lands for grazing. Clearly,

they are able to do that.

But I have included in my testimony a number of photos, and

they are just representative of hundreds of photos that tell the

same sad story. The first one is Trout Creek on the Sawtooth National Forest. The first picture shows an exclosure, which means

that livestock have been fenced out for five years, and you can see

the components of a healthy, functioning stream there. The banks

are covered with deep-rooted plants that hold them in place and

prevent erosion. Tall grasses catch sediment during floods, keeping

the water clean. The stream is narrow and deep, which provides

good habitat for fish, keeps the water cool, and there are also willows growing along the stream that provides habitat for ground

nesting game birds and also for migratory songbirds whose populations are in trouble, incidentally.

Photo number two is upstream from the Trout Creek exclosure.

It shows the obvious effects of overgrazing. I am not saying that

the entire stream looks like that, but it certainly doesn’t look like

the land in the exclosure.

I will skip ahead. There are other photos, but I would like to skip

ahead to photo five, which is a section of Shoshone Creek when

there was season-long cattle grazing along that creek. Photo six

shows that, with a change in grazing management (cattle haven’t

been excluded there, as I understand it) but you can see some improvement in that stream. There are actually some grasses growing

on the bank and stabilizing it.

Photo seven is an aerial view of the upper East Fork of the Salmon River in the Sawtooth National Recreation Area. The steep terrain forces cows to stay in the narrow valley bottoms until all the

forage is gone, and that damages the streams. As you know, Congressman Crapo, this is typical of central Idaho terrain. It has high

recreation values and a lot of recreation use there.

Photo eight is a closeup of Bowery Creek which is in that drainage that you can see in the photo, and again, the effects of overgrazing are evident there.

With all the controversy and the concern over livestock grazing

over the last few years, there have really been very few changes

on the ground, and why is that?

One thing is that enforcement of terms and conditions of grazing

permits by both the Forest Service and the BLM has been pretty

poor. Leaving cows behind when it is time to move them or allow-
61

ing them to drift back are a couple of examples that can cause

overuse and some of the problems that I have shown in those

photos.

I think we need to ask the question, how can we improve enforcement of those terms and conditions to help ensure that the kind

of damage we see in those photos becomes a thing of the past.

I think a shortage of funds is a problem also. Conditions on the

land need to be monitored so we can tell the effects of grazing management, and cows must be moved before they overgraze the vegetation or trample stream banks, and they need to be kept where

they are supposed to be.

Assuming agencies won’t have enough funding to do those things,

how can permittees be helped to assume these responsibilities so

the conditions will improve? I believe, based on my experience with

the RAC, that improved enforcement will benefit ranchers who are

doing a good job.

When cows trespass from another allotment or overgrazing upstream cause problems downstream, those ranchers suffer. But

they have said to me, I am not going to tell my neighbor, cause a

fight, embarrass my neighbor; it is simply not something I am

going to do, but I want the agencies to enforce those terms and conditions and fence maintenance, et cetera, so that I am not put in

that position and my allotment is not damaged.

I have to say, though, that enforcement and accountability I don’t

think are the whole answer. The problems on the public land aren’t

all caused by bad operators. In some places, the standards probably

aren’t sufficient to protect fish habitat and wildlife habitat and

recreation opportunities.

Management changes are needed which incorporate the scientific

knowledge that has been gained over the years, and that acknowledge the multiple-use aspect of the land, the increasing importance

of recreation.

Fortunately, there is plenty of information available on how to

graze with fewer adverse effects. Wayne Elmore of the BLM and

professors at Oregon State University have experimented with

grazing systems that have improved stream conditions without

eliminating grazing, and I know Wayne Burkhardt has worked on

some of that as well.

I think that Supervisors Levere and Nelson are trying to do

something to address the problems here by enforcing terms and

conditions, and if the committee finds that that is not a good thing

to do, well, I wish you would say what is, because something needs

to happen to address these problems. They are of great concern.

I don’t believe that it is a favor to ranchers to say we are going

to maintain grazing management as we have always done, because

more and more recreationists are coming to the public lands, and

they are going to say, we demand a change. Help ranchers get their

ecological house in order so they can point with pride to streams

and wildlife populations instead of the kind of problems that we

see in so many places.

Thank you, and I am sorry I went over my time.

[Statement of Linn Kincannon may be found at end of hearing.]
62

Mr. CRAPO. [Presiding] Thank you very much, Linn, and we appreciate your testimony and your patience in waiting today. Mr.

Burkhardt.

STATEMENT OF WAYNE BURKHARDT, PROFESSOR EMERITUS,

UNIVERSITY OF NEVADA-RENO AND UNIVERSITY OF IDAHOMOSCOW, INDIAN VALLEY, IDAHO

Mr. BURKHARDT. Thank you, Congressman, it is a pleasure to be

before the committee again, and again, it is on grazing matters,

and in fact, I find it rather ironic that something that humans have

been involved in for thousands of years, probably the second or

third oldest human endeavor, is grazing. Something of that tenure

still generates or now generates such immense controversy, and I

think there are reasons why that happens.

Certainly, part of that lies within the change in our own society.

We have become almost entirely an urban society, and grazing certainly is a rural activity. Urban people want those lands protected

as God and motherhood stuff and so do I. They are important to

all of us.

But I am also struck here today that there is something vastly

wrong in the way we are going about doing that. The disconnect

that was so damned apparent here in these hearings today between

the standards and the policing action and resource issues, a major

disconnect. I have been sitting here listening to this, and I have the

feeling the Forest Service is a policing agency, not a land management agency.

I have taught range management and proper ways to graze and

Lord knows we have grazing problems, and we ought to be dealing

with them, but I have been involved in this business for 30-some

years and taught grazing management practices for many of those

and still do.

When I look at the standards and guides and I look at the uniform guides which are the subject of this hearing, I don’t see anything in there that relates to what I have taught for years as appropriate approaches to grazing management.

First of all, standards and guides utilization——

Mr. CRAPO. Mr. Burkhardt, could I interrupt you? I have four

and a half minutes to vote. The Chairman is not back, so I am

going to ask if we could recess for a minute and have you continue

your testimony when she arrives back.

She should be coming in the door any minute.

Mr. BURKHARDT. That would be fine.

Mr. CRAPO. I apologize for this. It always happens, so the committee will be in recess for a few minutes.[Recess]

Mr. CRAPO. Ladies and gentlemen, I apologize for that delay.

When we got over there, we found out that instead of it being two

15-minute votes, it was one 15 and one five, so our plans didn’t

work anyway.

Representative Chenoweth may or may not be able to make it

back because she is involved in a meeting over in the Speaker’s office that starts in just a few minutes as well.

We will see where we go from here, and Mr. Burkhardt, again,

I apologize for interrupting you mid-sentence, and welcome you to

start again.
63

Mr. BURKHARDT. Thank you, Congressman Crapo. I mentioned

that I was struck here by the disconnect between what we have

been discussing largely this afternoon and real grazing management.

I see the standards and guides often being used and set up in

a way to guarantee that grazing management cannot succeed,

being used as a vehicle to reduce grazing on public lands to some

token activity that is no longer a political headache.

I see that as a very concerted agenda and having little to do with

setting up a scenario where ranchers can be successful in grazing

management.

Over the years in teaching grazing management, one of the

things—first of all, let me back up a minute. Large animal grazing

on the landscape is a natural biologic process. It has been present

on this landscape, the far west, for millions of years. The absence

of large grazing animals is unnatural, and yet in this business, we

so often exclude the animals in the form of an exclosure, see what

happens, and say, oh, that should be our goal. The fossil record indicates that large grazing animals should be part of the system.

Now, if we look at those natural grazing systems, I think they

provide a model for us on how we should manage livestock grazing,

a very sustainable model. It is important to me, it is important to

a lot of folks, Linn here and many others, that grazing be practiced

in a way that the resource is sustained as well as the use of the

resource.

If we look at natural grazing systems, I cannot find one example

where utilization standards, double-height standards, are a functional component of making those natural herbivories sustainable.

These standards, utilization standards or otherwise, are conventions of man, not part of natural grazing systems. They were designed to control, designed to be the only management tool available to us when we were practicing season-long, every-year grazing.

We have long known that season-long grazing is an inappropriate grazing strategy. The western rangelands did not evolve

under that kind of a herbivore influence, and we have major resource problems when we practice that.

Utilization standards was our tool for dealing with that, and an

ineffective and inappropriate one at the time. We have learned a

great deal more about how to appropriately manage large animal

grazing. Timing of grazing, rest, rotation of that use, those are the

features of natural grazing systems, the African Serengeti, the

bison on the plains, the Pleistocene megafauna, it does not matter.

You look at any natural herbivory. It functions on the basis of timing, rotation, rest, grazing. Not one of them function on the basis

of utilization levels.

In terms of livestock grazing, when we practice rotation grazing

that is designed to fit the resources of that allotment, we do not

have the creek bottom problems that we are all agonizing over. We

have healthy riparian areas. It is important to the fisheries; it is

important to the wildlife.

When we impose artificial standards like the utilization standards and the guides that we are talking about here, what do you

see on that chart as the remedy for a problem? A cut, a 25-percent

cut or more, whatever.
64

Let us think about that for a minute. Grazing problems on the

Sawtooth, grazing problems on the Humboldt or elsewhere in the

west at this point in our history are largely what I call selective

grazing problems. In other words, there are those special portions

of the landscape that the grazing animal wants to concentrate in,

the creek bottoms and the spring areas, those favorite areas.

So we got a grazing problem, and we don’t reach a utilization

standard in those creek bottoms, those riparian areas, and we implement a cut. What is the impact of implementing that cut? Does

it solve that grazing problem in the riparian area?

The next year with 25 percent less or 50 percent less livestock

out there, the utilization level on the riparian areas, those preferred areas, is as high as it ever was, because the cattle just simply stay there until it is all gone.

What we have accomplished by that, though, is we have increased the portion of the allotment that gets no use. This is an

absurd approach to managing grazing, and we have known for

many years that it didn’t work, and yet it is a knee-jerk reaction,

and that is why—it is a reaction I encounter on virtually every allotment I am called into to work on to help solve the grazing problem.

The agency proposal always is, we got use problems out here, let

us cut. So we make a cut and the use problems on those areas remain the same. We haven’t solved the problem.

We need to build in rest, rotation of that use, and it needs to be

done on a cooperative level. I am appalled to think we are sitting

here talking about 25 percent, 50 percent, or more cuts in response

to violation of things like water troughs or fences or cows not being

in the right unit when the units aren’t even fenced. What in the

hell is going on?

This is not grazing management. That is policing action. By the

implementation of conservative use limits or stubble-height limits,

what we have done is put the livestock rancher in an absolutely

impossible position. He cannot, if he wanted to, accomplish that

and stay in business. We have not solved the resource problem, and

we have given folks with an agenda against grazing ample opportunity to beat up the rancher and the agency for not solving the

resource problem.

I think Mr. Hess’ comments about we ought to tailor grazing

management, livestock grazing management, to the end product,

the health of the resource, not did you abide by some term and condition in your permit.

What is the endpoint? Is the trend of the resource in a positive

direction or in a negative direction, and if not, then look at why.

I would urge the committee in its deliberations to think strongly

about the problem, as Mr. Hess said, of prescriptive management.

It has to be cooperative.

If it is prescriptive, the permittee and the agency wind up headto-head, fighting. When we are in a confrontation mode, our attention turns from managing the grazing to how to get the best of the

other person. Our energies are siphoned off to the side into a fight.

We need to refocus that. Public land grazing may be analogous

to a marriage, and far too often, it is an unholy marriage between
65

the permittee and the agency people, and when that happens, we

all know it is not a very successful marriage.

We need collaborative management. The Forest Service or the

BLM and the grazing permittee should be working together, not

knocking heads, and I recognize the fact that we have uncooperative, poor ranchers and in that case, rather than across the board

edicts that stifle incentive and cooperativeness for all permittees,

focus your attention on the problems.

With that, I see my time is up, Mr. Chairman, and I appreciate

the chance to visit with you.

[Statement of Wayne Burkhardt may be found at end of hearing.]

[‘‘Herbivory in the Intermountain West’’ may be found at end of

hearing.]

Mr. CRAPO. Thank you. I gave you a little extra time since we

interrupted you in the middle of your first comments.

Leslie, why don’t you go ahead? Thank you.

STATEMENT OF LESLIE GLUSTROM, PRESCOTT NATIONAL

FOREST FRIENDS, BOULDER, COLORADO

Ms. GLUSTROM. Thank you, Mr. Crapo, and I appreciate your patience. You have had a long day, and I will also summarize my testimony. I would also like to thank you for your commitment to

managing the resource, ensuring that terms and conditions of grazing permits are complied with, but doing it in a way that is fair

to all sides. I think it is just that kind of perspective that is needed

if we are going to move forward.

I have been on the other side of the agency many times, and I

know what it feels like to be blindsided. I know what it feels like

to be treated cavalierly, and it is as Chairwoman Chenoweth said,

you get really upset, and I understand some of that.

I also want to second, though, Linn Kincannon’s comments that

if the agency is not proceeding in a way that is fair, that is somehow being too rash, or not giving enough time or not allowing

enough time for cooperation, help them learn how to do that in a

way that doesn’t hamstring the agency, because as you said, we

need rangers on the ground doing their job.

I have lived right next to a national forest for 13 years that is

in terrible shape where it is not necessarily the ranger’s fault. They

are good people, but they have been incapable of doing the job they

needed to do because of the political and cultural constraints. I

really appreciate your support for rangers on the ground doing

what they need, and if they are not doing it well, help them learn

how, but don’t hamstring them.

In a nutshell, I see that as really a key thing for representatives

from all western States to be helping the agency learn how to do

it, because believe me, I know they don’t always do it in the best

way possible, but don’t try and turn them off either, because that

has been happening for a century, and the result, you can see from

the pictures in my testimony.

My pictures are from the Prescott National Forest in west central Arizona. When they did their land management plan, the Forest’s own data found that 99 percent of the riparian (or stream-side

areas) on the forest were in poor or very poor condition.
66

I often say it is a little bit like having 99 percent of a heart attack. It is not a good situation. The top picture on the cover of my

testimony gives you some feel for what I spent 13 years hiking

through. I spent hours and hours and hours and hours hiking

through what should be riparian areas but instead are barren

wastes. It is a riparian area, whether it is in Arizona or not, and

you can have grasses and trees and well-defined stream channels.

There were 31 native species of fish in Arizona. We have almost

lost all of them because as you can see, we are not going to have

any fish living in places like this.

I have a whole basement full of pictures. This is not an unusual

situation. It is unusual in that through a little bit of encouragement from me, the Forest Service did agree to fence it—more than

a little bit, but I helped build the fence just so that they could see

that this isn’t just the way it is in Arizona.

The bottom picture shows the same area. The tree, the main juniper is almost occluded, but you can start to see the area recovering, but this recovery is very much the exception.

I have a whole series of reports that I have prepared on allotment visits that I did last year. Every picture in here is a violation

of forest plan standards and guidelines. Not only did I not get a

response to any of these when I sent them to the Forest Service,

nothing has been done about any of those.

I could go out tomorrow and find an equal or many times more

that number of forest plan violations. I know we can’t do it, but I

can easily take you out and for every hour we spend on the forest,

I can show you a dozen forest plan violations.

We need the rangers out there, we need them doing their job.

They may need some help learning how to do it in a way that is

fair and a reasonable process, but please, don’t hamstring them.

I guess maybe we could just take a minute and look at the pictures on page four. It has been a long day, so I will try not to go

on too long.

Mr. CRAPO. Looking at pictures is easier anyway.

Ms. GLUSTROM. If we look at the top picture on page four, it

shows the grazing allotments on the Bradshaw District of the Prescott National Forest. You can see how steep these areas are and

their questionable suitability for livestock grazing. Then, the middle picture shows kind of a similar but a little closer-up perspective. If you are a cow, cows need about 25 pounds, sometimes 30

pounds of forage a day, and you are a cow, and it is July in Arizona, where are you going to find that 25 pounds of forage if you

are looking at that middle picture?

The little green tufts you see are snakeweed. They can’t eat that,

because it will cause abortions, so there is nothing to eat in the

foreground, there is nothing to eat in the middle ground, and if you

walk, which I have done and did for 13 years, just walked and

walked and walked, there is nothing to eat in the background, either. That goes on and on—it is about a 1,000,000-acre forest.

The forest’s own data shows 99 percent of riparian areas are in

poor and very poor condition. They almost never do range analyses

on their allotments. I finally got them to do one, and they found

out that 98.6 percent of the allotment in the middle picture there,

98.6 percent of that allotment is in poor or very poor condition.
67

The permittee on that allotment, as on most of the allotments on

the Prescott National Forest is not an old-time rancher. He is not

like Scott or the folks you have heard from. He is a multi-millionaire. He has been written up in Forbes magazine. I have attached

the Forbes article; it is the second page from the back. His name

is Rex Maughan, and he markets in a pyramid scheme. He markets

aloe vera products, has major aloe vera plantations all over the

world. Forbes estimates—I have no idea how rich this man is, but

Forbes estimates on the bottom of the back side of the page is that

his personal take must have been in the tens of millions of dollars

every year.

When you think about people who have permits to graze on the

public lands you have to think about the Rex Maughans too. You

see, I have ten years of experience. Mr. Maughan happens to be the

richest of the permittees that I have tried to deal with, although

I have never met him, because he has never come to the table.

When you think about these permittees, I think you have to include thinking about the Rex Maughans. In over ten years of work,

I have only worked with one permittee who really depends on their

public lands permit for their income.

I realize I am running out of time. I would just ask you to remember those things, and my testimony includes ideas for how we

can move forward, have a vision for the future that includes the

responsible permittees, keeping them on the land, keeping them in

business, keeping the true ranchers out there working and using

the public lands, and starting to make some decisions about whether we should still continue to manage all of these areas for livestock grazing.

Thank you.

[Statements of Ms. Glustron and Jeff DuBonis may be found at

end of hearing.]

Mr. CRAPO. Thank you, Leslie, and let me say to the Forest Service personnel who are here, I know that the Chairman had asked

you to stay. I understand that you have some other events or need

to be other places at 6:00.

I am not going to take very much longer, so you are welcome to

stick around and hear what I say at the end here, or you are welcome to take off. I appreciate your staying here throughout the

hearing.

I wanted to get back for this panel to make sure that I got a

chance to ask some questions. The testimony from this panel has

caused me to decide I want to make a little statement first and

then ask you to respond to that, if you would.

It seems to me that we have a problem not just in grazing but

in our environmental management policy in this country, and it

has been addressed in one way or another by every one of the

speakers on this panel and actually by all of the panelists today,

but particularly on this panel.

My way of saying it, and I guess I am just going to say this and

then ask you to each take just a short couple of minutes to respond.

I don’t want to go through a whole big long round of statements

again, but it seems to me that there are at least two areas of our

national approach to environmental law that are wrong, and they
68

are wrong, I believe, for the environment and for the economy, and

in that sense for people.

By the way, I don’t mean to presume that I have identified everything or that I am even right here. It is just that it seems that

these two jump out at me.

The first is that it seems to me that our system of enforcement,

if you will—no, that is the wrong word. The fact that I used that

word shows the problem. The system of solution-finding is adversarial, and even to the point that when we say that we are going

to create a system that involves public input, that system is one

which essentially boils down to a series of what we call hearings

or opportunities for public comment on a decision that has been

made already and put out there to be evaluated in some context

on some issue that has already ripened into a dispute.

The hearing is not an event at which people come together to collaborate and decide how to solve a problem. It is an event at which

they come together to do battle. Each side uses, or most often, each

side uses that hearing as an opportunity to make their case for the

media, to make their case for potential litigation, to make their

case for the decisionmaker, or whatever it is, but it is not where

they sit down at a table and talk to the other side about what their

point of view is and how they might be able to find common

ground.

It is my belief that there is common ground or that there are better solutions in most cases. This thought is not original with me,

but if you think of an X-Y axis, with X being the axis for good for

the economy, and Y being the axis for good for the environment,

many of the solutions are down where the axis crosses. They are

low for the environment and low for the economy, many of the solutions that we get driven toward, but that there are solutions that

are further out.

I am not describing this very well for you, but where you go further out the graph that are higher for the economy and higher for

the environment, and I think those exist in most cases, and I think

there is a creative ability among Americans, if they can work together in a system to find solutions where they collaborate, that

they can find answers that are further out on that chart, if you

will.

Anyway, my first point is, our system is adversarial and it is

statutorily and regulatorily designed to create conflict. Now, maybe

that is an overstatement, but it seems to me that that is a big part

of the problem.

Secondly, and perhaps I should have started with this, many of

the decisions are driven by distant decisionmakers, and by that, I

mean we often—it is a common thing to criticize the bureaucrats

in Washington, the Congressmen in Washington, whoever it is, and

it is not always the Congressmen in Washington or the bureaucrats

in Washington or whoever who are making these decisions, but so

often, the policy decisions as to how we will manage our public

lands are made by decisionmakers who do not live where the problem is and have not had the opportunity to sit down around the

table with the stakeholders who live there.

It seems to me that if you get people who know the allotment or

who know the steam or who know the circumstances and sit them
69

down at a table, someone who has walked the area, to sit them

down at a table that they can find better solutions for that particular piece of the world than someone who lives somewhere else

and who is working from a more generic understanding of the

issues.

Again, that is my perspective. Now, I don’t know where that

leads us in terms of the solutions we are trying to achieve in this

hearing.

It is pretty obvious, I think, from my questions earlier, that I believe that the UAG has been proposed moves us further down that

adversarial model, and it heightens the potential for adversarial relationships.

It is pretty obvious that the Forest Service does not believe that

and does not intend for that to be the case, and different people

fall in different places along that perspective, but I would like to

ask if you would each take maybe a minute or so, and if you don’t

want to respond to what I have said, just say whatever might still

be on your mind that you haven’t said and give me your perspective here on how we can solve this problem or the approach to the

environment in general, and I guess we will just start at the end

here again with Mr. Hess.

Mr. HESS. Thank you. Well, I would, I think, in general agree

with you. I guess the analogy——

Mr. CRAPO. By the way, I will try to be a timekeeper here, because I know nobody is great at keeping time to two minutes.

Mr. HESS. One of the analogies that one of my colleagues used

is a grocery store, and using your examples, it is as though we

have people living thousands of miles away from the grocery store

deciding on the goods that will be stocked in that grocery store and

then asking for public input as to whether that stocking is correct

or not.

Of course, that is conducive to a tremendous amount of conflict,

and in terms of how we manage our public lands, in terms of the

outcomes that we are seeking, it is not dissimilar to that, and the

reason that I have suggested market approaches, approaches that

would open up the system of public land ranching voluntarily to

market negotiations, it would allow people essentially, using the

metaphor of the grocery store, to decide through their sort of vote

in the marketplace of what goods will be stocked.

The fact is, in riparian-area management, there probably is no

final, ultimate correct solution. Even with good management from

the perspective of a credible range of scientists that may not

produce outcomes that are desirable by other groups.

But as it stands now, those other groups don’t have other alternatives, don’t have other options. Environmental groups cannot acquire leases—in general, leases to allotments and totally destock.

In New Mexico, just to summarize, there is a wonderful example

of how this cooperation works. The Southwest Environmental Center has established a program on State grazing lands where they

said, we would like to sublease from any rancher voluntarily their

riparian areas for a period of five years, and we will build the

fences, put in the grazing management—not the management, but

restore the riparian area. At the end of five years, the fences, everything is yours to do as you want. All we want is an opportunity

to participate and enter into a voluntary subleasing agreement.
70

It is a market solution, it is win-win, and it is one that is very

conducive to ending conflict.

Mr. CRAPO. Thank you, and that is one idea about how to maybe

get there. Mr. Oldridge.

Mr. OLDRIDGE. I think you are very perceptive, Congressman

Crapo; you put it very well.

A couple of summary comments that I would add. This problem

can’t be solved here. It cannot be solved in Washington.

You can’t impose your will on ranchers and the multiple users

of the forest lands, and I think that is best issued in terms of a

resolution by saying whose land is it. Once again, it is not a real

thought, but the land does not belong to the grazer. That land also,

by God, does not belong to the Forest Service.

It is our land, and the Forest Service’s charge is to manage that

land to the very best of their abilities, to make the widest range

of benefits available to the public that they are serving, and that

means grazing, and that means fishing, and that means bird

watching, and that means all of the things that we like to do on

our public lands.

Get it out of Washington, put it at local levels, insist that these

things happen, insist that resolutions are in fact effected, because

we know how to do it and that will go a long way toward resolving

this issue.

Mr. CRAPO. Thank you. Linn.

Ms. KINCANNON. I think I have said in my testimony that I had

had a positive experience on the Resource Advisory Council working with ranchers and other folks to try to work on some issues.

We will see what happens when we go out on the ground and try

to implement them, but so far, so good.

My experience in the general arena when I first went to a ranching meeting several years ago was I never said anything during the

meeting except who I was and that these were public lands. That

was it, and what the ranchers said to me was you don’t know anything about cattle management, you have no right to be here, you

have nothing to say to us that we are interested in, goodbye.

Mr. CRAPO. Well, everybody has to be at the table.

Ms. KINCANNON. But I think beyond that—what has made the

RAC successful is the BLM has said if you don’t figure out what

to do, we will.

I hate to say you’ve got to have a hammer to make people negotiate, but they have to have something to lose if they don’t negotiate. If they can maintain the status quo by doing nothing, why

wouldn’t they? That is a smart business move.

Mr. CRAPO. That is always a good point. If either side, and I

don’t mean there is just two sides, but if any group at the table

has the ability to win by doing nothing, then they have no incentive to move forward, and that is a part of the whole solution that

needs to be concerned. Thank you.

Ms. KINCANNON. Thank you.

Mr. BURKHARDT. It would seem to me, Congressman, that the

Forest Service’s job would be to make this work in terms of sustainable use of natural resources on the forest lands, to make it

work, and as you perceived there, we have a very adversarial situa-
71

tion and always seem to have a top-down prescriptive type of management. Those guarantee that it isn’t going to work.

I think life would be much more pleasant, plus resource conditions would be better if indeed we were going at this in a way that

works.

Resource use for human needs and services is absolutely appropriate. Every population of organisms on this planet extract their

livelihood from the natural resources around them, humans included, and we should do that. Our goal should not be to put natural resources off limits, look but don’t touch. That is absurd, and

the only way we get around these adversarial situations in my

mind is to get it on not a prescriptive edict-type of management,

but cooperative, local-level planning.

I think you are focused on something not only in this matter but

our other environmental efforts, the Endangered Species Act, and

otherwise, you are focused on two points that are dear to my heart.

Mr. CRAPO. Thank you very much. Leslie.

Ms. GLUSTROM. I think they learned in timber that you don’t

really get anywhere by standing at either end of Main Street and

shooting at each other, and we are going to learn that on this issue,

too, and I have been involved in the issue for a while.

I am actually heartened by today because I hear a number of

people saying we are not going to get there by shooting at each

other. How are we going to move forward?

I think your ideas, Mr. Crapo, are really valuable. I would like

to add that in order for them to really work, to really, truly move

away from an adversarial kind of position, there are three fundamental principles that everyone has to have when they come to the

table, and I believe you have those, but I will be honest, many permittees don’t.

I have spent many, many hours, not as many hours as hiking,

but many, many hours in meetings that should have been cooperative but that have been essentially useless. We have generated

mountains of paper and gotten nothing done on the ground.

What has been missing out of those, and I think this is a role

that D.C. and the congressional delegations can really help with,

are three fundamental points. The first point is that this is public

land, and while ranchers may—and I don’t want to speak too

broadly, but the permittees I have dealt with have had an attitude

that says, ‘‘Well, yeah, it is public land, but the public doesn’t have

any role in the management of it.’’

The first point is that it is public land and the public has a role

in the management of it. I think that is what the RACs have done.

Secondly, rules and regulations need to be complied with. Again,

I am not trying to speak too broadly, but my experience is that essentially, every permittee I have dealt with is like a spoiled child.

I am a mother, I know what a spoiled child acts like. I know if

you tell a spoiled child that they can’t write on the wall any more,

and if they are spoiled, they are going to kick and scream on the

floor, and if you don’t want to deal with that temper tantrum, and

you say, OK, go ahead and write on the wall, they are going to

keep writing on the wall forever, and then if you beat up on the

principal when the principal tells them not to write on the wall in
72

school—and frankly, that is a mindset that I have run into for ten

years, and it is extremely frustrating.

Their attitude seems to be, ‘‘This is our land. We do with it as

we please, and anybody who tries to do something about it will be

intimidated.’’—they have tried to intimidate Bill and Linn and me

and many other people in very serious ways. You don’t necessarily

want to hear that story, but believe me, it is no fun dealing with

these spoiled children. They are not all spoiled, but a whole bunch

of them are.

This is the second thing they need to hear from their congressional delegation is that this is public land, there are rules and regulations. You can have a role in being involved with them, but you

don’t get to do whatever you want on the public land.

The third point is that we need to protect the resources. They are

public resources, and we need to protect them for future generations and so that we are managing the public lands as the Multiple

Use Act says, ‘‘in the combination that best meets the needs of the

American people.’’ I think with that kind of direction, your ideas

can actually be hugely helpful, but without that direction, we will

keep spending a lot of time, generating a lot of paper, and not getting anything changed. That is my experience.

Mr. CRAPO. Thank you very much. Those were all very helpful

comments, and I just want to tell you, I can only speak for myself,

but I think that my sentiments are shared by both sides of the

aisle here in Congress by most of us, and we obviously have some

very broad differences in perspective and philosophy and point of

view here on the committee.

I believe that at a general principle level, virtually all of us can

agree that we want to protect and preserve the rich heritage that

we have in our public lands. I can tell you one of the reasons that

I live in Idaho is for the clean air and the clean water and the tremendous environmental opportunities we have. It disheartens me

when I see our environment in Idaho degraded.

On the other hand, I am a strong believer that, within that context, we can have public land usage, grazing, timber harvest, mining, and other usage—irrigation, whatever it may be. It just means

that we are going to have to work together.

It is interesting to me that very often when you hear those who

are on the multiple-use side of the issue begin speaking to a group,

they say I am an environmentalist and I believe in the environment. I just did that, by the way. Then they get on to their point,

OK? And when you hear somebody on the other side of it, they say

I am not trying to run everybody out of a job. Some of you just did

that in your testimony, and I am not trying to destroy the economy,

but we got to protect the environment.

I believe that most people fall in that category. Most people, and

I don’t know whether it is 99 percent or 89 percent or whatever,

but the vast majority of Americans, wherever they live, want to

protect the environment and they don’t want to do so in a way that

unreasonably destroys the economy, the natural resource-based opportunities that we have.

Within those parameters, we have to find a way, and I think it

is a collaborative way. I think something in the concepts that we

have talked about here today, somewhere in there, there is a ker-
73

nel of the approach that is going to be a much better solution than

our current system. We have to find a way to move forward so that

we can reach those solutions that are better for everybody.

Anyway, thank you all for your patience and coming today. I assure you that although the Members here have dwindled, your testimony is well received, and this hearing will be adjourned.

[Whereupon, at 6:20 p.m., the Subcommittee was adjourned; and

the following was submitted for the record:]

[Additional material submitted for the record follows.]
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