Unauthorized Grazing: Actions Needed to Improve Tracking and Deterrence Efforts
Released: 2016-07-07T00:00:00

Letter

Background

The federal government manages about 640 million acres of land in the United States, including lands in national forests, grasslands, parks, refuges, reservoirs, and military bases and installations. Of the total federal lands, BLM and the Forest Service manage about 450 million acres for multiple uses, including grazing, timber harvest, recreation, minerals, water supply and quality, and wildlife habitat. BLM’s 12 state offices manage nearly 250 million acres in 12 western states, and the Forest Service’s 9 regional offices manage more than 190 million acres across the nation (see figs. 1 and 2). The majority of federal lands are located in the western half of the country.

The federal government has managed grazing on federal lands for more than 100 years. Following the passage of the Taylor Grazing Act of 1934, the Department of the Interior created the Division of Grazing, later renamed the Grazing Service, to administer provisions of the act. Subsequently, the Grazing Service was merged with the General Land Office to form BLM. The act was passed to stop degradation of public lands caused by overgrazing and soil deterioration; to provide for the orderly use, improvement, and development of public lands; and other purposes. The act also provided for the issuance of permits and leases for these lands and set requirements for the distribution of funds received from grazing. The Forest Service managed grazing under its general authorities until 1950, when Congress enacted the Granger-Thye Act, specifically authorizing the Secretary of Agriculture to issue grazing permits on national forest lands and other lands under the department’s administration. Additional laws affecting grazing on both BLM and western Forest Service lands were enacted in the 1970s.

BLM’s and the Forest Service’s range grazing programs administer livestock grazing for permittees. Agency law enforcement assists when necessary—primarily to address grazing violations by nonpermittees that cannot be handled administratively. To provide access to grazing, the agencies divide their rangelands into allotments, which can vary in size from a few acres to hundreds of thousands of acres. Because of the land ownership patterns that occurred when the lands were settled, the allotments can be adjacent to private lands or intermingled with private lands. Under its authorities, BLM issues permits for grazing in allotments within its grazing districts and leases for grazing on BLM-administered lands outside grazing districts. To be eligible for a permit or lease on one of BLM’s allotments, ranchers, among other things, are required to own or control land or water, called a base property, to which preference for obtaining a permit or lease is attached. The Forest Service, which does not have grazing districts, uses permits to authorize grazing in its allotments. To be eligible for a permit under Forest Service policy, ranchers, among other things, must own base property and the livestock to be permitted. The agencies’ permits and leases specify the number and type of livestock allowed on the allotments, the time and duration of use for grazing, and special conditions or use restrictions. Agency field office staff conduct compliance inspections to help ensure that permittees are meeting the terms and conditions of their permits or leases. The agencies may modify permits or leases if range conditions are being degraded or suspend or cancel them if permit conditions are violated.

With a few minor exceptions, permittees pay a grazing fee for the use of the federal land. The grazing fee BLM and the Forest Service charge in western states is based on a formula that was originally established by law to prevent economic disruption and harm to the western livestock industry, among other things. The formula expired after 7 years but was extended indefinitely by Executive Order 12,548 and has been incorporated into the agencies’ regulations. The fee derived from the formula is generally lower than the fees charged by other agencies, states, and private ranchers. In grazing year 2016, BLM charged ranchers $2.11 per animal unit month for horses/cattle and $0.42 for sheep and goats; the Forest Service charged the same rates per head month. According to the National Agricultural Statistics Service, based on the average private grazing land lease rate per animal unit month, the commercial value of forage in western states ranged from $9 to $39 in grazing year 2016. As we found in September 2005, the total grazing fees generated by federal agencies amounted to less than one-sixth of the agencies’ expenditures to manage grazing in 2004. We found that BLM and the Forest Service use most of the grazing fee receipts for range protection and improvements and deposit some receipts to the Department of the Treasury’s general fund, with some receipts distributed to states and counties. See appendix II for additional information on grazing, permits, and fees for BLM and the Forest Service.

Unauthorized grazing includes instances in which livestock owners graze on BLM or Forest Service allotments without a permit or lease, as well as instances in which those with permits or leases violate the terms and conditions of those documents, such as by grazing more livestock than allowed by permit, grazing in areas that are closed to livestock, or grazing during unauthorized times of the year. It may be unintentional (non-willful) on the part of the livestock owner, such as when livestock stray through an unlatched gate into an area where they are not permitted to graze, or it may be intentional (willful or repeated willful) such as when a livestock owner purposefully grazes livestock in a manner that is not allowed by a permit or grazes livestock without obtaining a permit once or multiple times.

Under their applicable regulations, BLM and the Forest Service may address unauthorized grazing by charging permittees penalties for unauthorized grazing; revising their permits; impounding livestock; or taking action that could lead to criminal penalties, most commonly for nonpermittees, as follows:

BLM’s grazing regulations establish three levels of unauthorized grazing—non-willful, willful, and repeated willful—with progressively higher penalties for each level. The regulations require that BLM send out a written notice for every potential unauthorized grazing incident. Under certain circumstances, BLM can approve a nonmonetary settlement for non-willful unauthorized grazing. For willful and repeated willful incidents, in addition to the monetary penalties—the value of the forage consumed—the regulations specify that the offender shall be charged for any damages to the land and reasonable agency expenses incurred to resolve the violation, and BLM shall suspend or cancel all or portions of the grazing permit for repeated willful incidents. BLM may impound and dispose of livestock if the owner is unknown or the permittee fails to remove the livestock when ordered. BLM also has the authority to cite permittees and nonpermittees for grazing violations that subject them to criminal penalties.

The Forest Service’s grazing regulations require the agency, except in certain circumstances, to determine a grazing use rate for unauthorized grazing. The regulations define unauthorized grazing as (1) livestock not authorized by permit to graze upon the land, (2) an excess number of livestock grazed by permittees, or (3) permitted livestock grazed outside the permitted grazing season or allotment. Under the regulations, the Forest Service can cancel or suspend a permit if the permittee does not comply with provisions and requirements in the grazing permit or applicable regulations. The agency can impound and dispose of unauthorized livestock or livestock in excess of those authorized by a grazing permit if they are not removed from the area within the periods prescribed by regulation. The Forest Service also has the authority to cite permittees and nonpermittees for grazing violations that subject them to criminal penalties.

In our December 1990 report on unauthorized grazing on BLM lands, we found that BLM had no systematic method for detecting unauthorized grazing, and when offenses were detected, penalties were rarely assessed. We made five recommendations to improve the effectiveness of the BLM’S unauthorized grazing detection and deterrence efforts:

Develop an unauthorized grazing detection strategy that will (1) establish detection as a workload measure and a reportable accomplishment for which managers are held accountable, (2) use visits to randomly selected allotments to provide systematic compliance coverage, and (3) target additional follow-up visits for those livestock operators who have a history of repeated violations.

Either (1) ensure that penalties are assessed for all non-willful unauthorized grazing violations as provided for in BLM regulations or (2) amend BLM regulations to establish a procedure for the informal resolution of non-willful unauthorized grazing violations at the local level.

Require that all unauthorized grazing incidents—including those now handled informally—be documented and made part of the permanent unauthorized grazing file.

Ensure that field staff impose the penalties required under BLM regulations for willful and repeated willful unauthorized grazing.

Develop a management information system to provide timely, reliable, and adequate information on such things as (1) the number of compliance visits conducted, (2) the number and level of violations identified, and (3) how each violation is resolved, including those resolved informally.

BLM agreed with the recommendations and implemented one of the five by developing an unauthorized grazing detection strategy. The agency took steps toward implementing some of the others, but did not fully implement the remaining four recommendations.

The Frequency and Extent of Unauthorized Grazing on Agency Lands Are Largely Unknown, and Its Effects May Include Rangeland Degradation

The frequency and extent of unauthorized grazing on BLM and Forest Service lands are largely unknown because according to agency officials the agencies prefer to handle most incidents informally and do not record them. The agencies’ databases contained information on nearly 1,500 incidents of unauthorized grazing where formal action was taken by the agencies’ range program or law enforcement field staff for grazing years 2010 through 2014. Unauthorized grazing incidents were recorded in the range management databases when a penalty for unauthorized grazing was billed to a permittee by program staff and in the law enforcement databases when a formal report or notice was entered by a law enforcement officer. However, agency field staff told us that most incidents they identify are handled informally—their preferred practice— and are not recorded in their databases or consistently recorded in paper files. Agency field staff told us that unauthorized grazing can severely degrade the range under certain conditions, such as drought, and also told us of other effects, such as creating conflicts between the agencies’ staff, ranchers, and other stakeholders.

Agency Databases Identified Nearly 1,500 Incidents of Unauthorized Grazing Where Formal Action Was Taken from 2010 to 2014

The agencies’ databases identified nearly 1,500 incidents of unauthorized grazing where formal action was taken by range program staff or by agency law enforcement officers for grazing years 2010 through 2014; BLM data identified a total of 859 incidents, and Forest Service data identified 618 incidents (see table 1).

The agencies’ grazing program field staff generally handle unauthorized grazing by permittees through their administrative process, and law enforcement officers primarily handle unauthorized grazing by those without permits through warnings or criminal citations. Each agency has separate range management and law enforcement databases. For example, unauthorized grazing is recorded in BLM’s range management database when a formal action is taken to send a bill to a permittee for penalties—and in some cases charges for damage to the land or to recoup the administrative expenses of the agency—for incidents of unauthorized grazing. In some cases, BLM may include penalties for more than one incident of unauthorized grazing in one bill. The Forest Service’s range management database contains incidents where a formal action was taken to send a bill for penalties for unauthorized grazing incidents. The law enforcement databases of both agencies contain incidents where formal documentation, such as an incident report (record of observation), warning notice, or violation notice was prepared by a law enforcement officer and entered into the database. See appendix III for detailed information on the extent and frequency of unauthorized grazing formally reported in the agencies’ databases.

Agencies Report Handling Most Unauthorized Grazing Incidents Informally and Do Not Record Them in Their Databases

The full extent and frequency of unauthorized grazing is unknown because most unauthorized grazing incidents identified by the agencies’ range program field staff are handled informally and are not recorded in their databases, according to agency officials. We found that these incidents were inconsistently documented in their paper files. The databases do not include incidents that are informally resolved with telephone calls or by visits from the agency program staff to the permittees asking them to remove their livestock from areas where they are not permitted. Staff we interviewed from all 22 BLM and Forest Service field offices told us they prefer such informal resolutions, particularly for incidents that appear to be non-willful and involve a few head of livestock with no resource damage. Agency staff said that these types of incidents account for the majority of unauthorized grazing they encounter. According to these field staff, the informal resolution allows them to resolve the problem quickly and remain focused on higher-priority activities, such as preparing environmental analyses, while maintaining collaborative and cooperative relations with permittees, who field staff said are largely compliant with their permits.

Agency field staff from both agencies told us that they maintain paper files for permittees that may contain notes on informally resolved unauthorized grazing incidents that are not included in the databases, or may record a telephone call to a permittee in their telephone log. However, they said that such information is not consistently recorded in the permittee files, in part because they do not consider recording such information a priority. As a result, the agencies do not have complete information on unauthorized grazing and therefore may not have the documentation needed to deal with any instances of repeat offenders appropriately. Federal internal control standards call for agencies to clearly document all transactions and other significant events in a manner that allows the documentation to be readily available for examination. This provides a means to retain organizational knowledge and mitigate the risk of having that knowledge limited to a few personnel, as well as a means to communicate that knowledge as needed to external parties, such as external auditors. Until the agencies require that all incidents of unauthorized grazing be recorded, including those incidents resolved informally, BLM and the Forest Service will not have a complete record of unauthorized grazing incidents for tracking patterns of any potential repeat offenders.

Unauthorized Grazing May Degrade Rangelands under Certain Conditions and Can Cause Conflicts between the Agencies, Ranchers, and Stakeholders, among Other Effects

Unauthorized grazing may create various effects, such as severely degrading rangelands under certain conditions. Joint BLM/Forest Service riparian area management guidance states that compliance monitoring of grazing is critical because just a few weeks of unauthorized grazing can set back years of progress in restoring riparian areas—such as the narrow bands of green adjoining rivers, streams, or springs. Agency field staff we interviewed from 17 out of the 22 offices told us that under certain circumstances, unauthorized grazing can be more damaging than permitted grazing, such as when livestock are allowed into closed riparian areas during times of low precipitation or drought or graze in pastures earlier than permitted in the spring when grass is first sprouting. Stakeholders told us that the loss of native grass through unauthorized overgrazing may allow invasive species such as cheatgrass to grow, creating a potential fire hazard, or may result in a loss of habitat for threatened species such as sage grouse. During our field visits, we observed locations where unauthorized grazing had resulted in severely damaged natural springs, overgrazed meadows, and trampled streambeds. Agency field staff provided photographs showing unauthorized grazing in protected habitat areas and the effects of overgrazing from unauthorized use (see figs. 3, 4, and 5).

Agency staff and stakeholders told us that unauthorized grazing can strain relationships and cause conflicts among various groups. Various stakeholders, such as range protection advocates and others, told us that they often observe unauthorized livestock grazing on the agencies’ allotments in the course of their resource monitoring or other activities and notify agency field staff. They are frustrated when it appears that the agencies do not take action. Agency staff we interviewed from 15 out of the 22 field offices told us that they are not always able to confirm and take action on such reporting because it is not timely or lacks specificity, and many staff said that following up to confirm such reports takes them away from higher-priority responsibilities. Agency staff also told us that permittees get frustrated if they do not take prompt action to stop unauthorized grazing by others, such as nonpermittees, which can also lead to conflicts among ranchers, for example, if a nonpermittee’s stray livestock consume the forage on a permittee’s allotment through unauthorized grazing. According to a wild horse advocate we interviewed, the advocate had experienced threats from ranchers engaged in unauthorized grazing on the range while the advocate was working with BLM to protect and manage the horses.

Agency field staff and stakeholders told us there are only a small number of confrontational ranchers who do not recognize the agencies’ authority to manage the range and engage in willful unauthorized grazing, but they are concerned that the problem will grow. Agency field staff we interviewed from 5 out of the 22 field offices told us that high-profile cases of intentional unauthorized grazing and related antigovernment protests can affect agency decision making regarding enforcement, and staff at 4 out of the 22 field offices told us that not taking enforcement action on violators is likely to encourage more unauthorized grazing. For example, staff at one Forest Service office in Oregon told us that they were prepared to suspend a rancher’s permit for repeated unauthorized grazing violations but decided not to because of the standoff by antigovernment activists at Malheur National Wildlife Refuge. Agency staff we interviewed from 6 of the 22 field offices told us that lack of support from higher-level managers for strong enforcement action does not incentivize field staff to act on unauthorized grazing and, in some cases, lowers staff morale. The leaders of two stakeholder groups, Western Watersheds Project and Public Employees for Environmental Responsibility, jointly wrote a letter to the Secretary of the Interior in 2015 to express concern about the lack of effective range management of BLM lands in Nevada because of what they characterized as higher-level pressure on local managers to accept ranchers’ demands when settling unauthorized grazing incidents; agency staff from three of the local offices we spoke with shared this concern. BLM responded to the stakeholders’ letter on behalf of the Secretary, stating that the agency is committed to collaborating with permittees to resolve problems that reflect the interests of affected communities while also ensuring that public lands are managed and conserved for the future.

Agency field staff we interviewed from 14 out of the 22 offices told us they generally do not have safety concerns while performing their duties, or did not mention any such concerns, even with the potential for confrontational tactics by some ranchers. BLM and Forest Service law enforcement officials told us that the overall trend for assaults and threats to agency staff had been down in recent years, but they do not track assaults and threats specifically related to grazing incidents. However, BLM field staff in Southern Nevada were directed by the state office not to visit grazing allotments after an armed standoff with a rancher over the agency’s impoundment of his cattle for unauthorized grazing. At one BLM field office we visited in Northern Nevada, there was a protest site established across the street in response to the office’s efforts to enforce unauthorized grazing regulations (see fig. 6). Field staff told us that as a result of a statewide BLM assessment, the office upgraded its security to include video cameras, card key locks, and entrance barricades.

Finally, unauthorized grazing that is not detected or not formally acted on when identified cannot be billed penalties for unauthorized grazing, resulting in forgone revenues. The agencies track penalties for unauthorized grazing billed and collected but do not track those forgone. Based on information from the agencies’ databases, BLM and the Forest Service collected nearly $450,000 for unauthorized grazing in grazing years 2010 through 2014. BLM collected about $426,000 and has a balance due of about $8,000 for unauthorized grazing during that time frame. The Forest Service collected about $24,000 and reported no balance due for the same time frame.

Agencies’ Efforts to Detect, Deter, and Resolve Unauthorized Grazing Have Shortcomings That Limit Their Effectiveness

BLM and the Forest Service undertake similar efforts to detect and deter unauthorized grazing, such as conducting compliance inspections on grazing allotments and charging penalties for unauthorized grazing, but agency field staff told us that such efforts have limited effectiveness for various reasons. While it is the preferred practice of agency field staff to resolve incidental unauthorized grazing informally, BLM and Forest Service regulations do not provide agency staff with the flexibility to resolve incidents informally with no written notice of violation and no penalty for unauthorized grazing charged.

BLM and the Forest Service Have Similar Detection and Deterrence Efforts, but Effectiveness Is Limited for Various Reasons

BLM and the Forest Service have undertaken a number of similar efforts to detect and deter unauthorized grazing. These include conducting compliance inspections, charging penalties for unauthorized grazing, issuing willful and repeated willful violations, modifying permits, and issuing criminal citations. However, BLM and Forest Service field staff we spoke with said that these efforts can have limited effectiveness in practice for various reasons, such as field staff being unavailable to conduct compliance inspections because of other priorities or the penalty for unauthorized grazing being lower than the current commercial value of forage.

Compliance Inspections

Field staff from both agencies told us that conducting compliance inspections is one of their more effective efforts for detecting and deterring unauthorized grazing. Specifically, staff we interviewed from 16 of the 22 agency offices said that compliance inspections are always or usually effective in detecting unauthorized grazing, and staff from 13 of the 22 said that such inspections are always or usually an effective deterrent. However, field office staff we spoke with told us that they have a limited number of knowledgeable staff—in part because of significant staff turnover, including transfers and retirements—administering vast acres of rangeland, and growing workloads that require multitasking and spending significant time in the office. In addition, grazing allotments are often in remote locations that can take hours to access by vehicle, horseback, or hiking. As a result, they said that compliance inspections are not a top priority and some allotments are seldom visited, which may diminish inspections’ deterrent effect. The number of field range staff available to conduct compliance inspections declined for both agencies from 2010 to 2014—from 1,829 to 1,795 for BLM and from 443 to 399 for the Forest Service. On average, each BLM range staff member is responsible for approximately 85,000 acres, and each Forest Service range staff member is responsible for approximately 255,000 acres. At one BLM field office in Utah, field staff told us that 2 range staff are responsible for 2 million acres and that competing work priorities often keep these staff in the office rather than out in the field. Many field staff said they focus inspections on areas with a history of compliance issues but that some unauthorized grazing likely goes undetected.

Penalties for Unauthorized Grazing

Agency field staff—primarily those from the Forest Service—told us that penalties for unauthorized grazing are too low under current agency policy to act as an effective deterrent. Field staff we interviewed from 6 out of the 9 Forest Service offices and 4 out of the 13 BLM offices said that penalties for unauthorized grazing are rarely or never an effective deterrent. As a result, some told us that there are permittees who view the penalties for unauthorized grazing as a cost of doing business because paying the penalties is cheaper than seeking forage elsewhere. For example, Forest Service staff at one field location told us that they are reluctant to send a bill for penalties for unauthorized grazing because it shows how low the penalty is and may encourage additional unauthorized grazing.

We found that for grazing years 2008 through 2014, the Forest Service penalty for unauthorized grazing was $2.51 or less per head month, which was substantially less than BLM’s penalty for unauthorized grazing. The Forest Service calculates this penalty using the same formula that it and BLM use each year to calculate the permitted grazing fee. The formula for the permitted fee has a preset base value of $1.23 and other input values, such as the prices of private forage and beef cattle, which can vary annually. To calculate its penalty for unauthorized grazing using this formula, the Forest Service applies a higher preset base value of $3.80 rather than $1.23. (For more detailed information on the formula and calculation, see app. II.) For grazing years 2009 through 2012, the Forest Service’s unauthorized grazing penalty formula calculation would have resulted in a negative number or a number lower than the permitted grazing fee. To address this situation, a Forest Service official told us that the agency decided to hold the penalty for unauthorized grazing at $2.24 per head month until the formula calculation resulted in a higher penalty. In contrast, as shown in table 2, the BLM penalty for non-willful unauthorized grazing—based on commercial forage rates in each state— ranged from $8 to $33.50 per animal unit month for grazing years 2008 through 2014, and BLM doubled the penalty for willful incidents and tripled it for repeated willful incidents. In addition, with higher-level offensives (willful and repeated willful), BLM regulations require unauthorized grazing bills to also include “all reasonable expenses incurred by the United States in detecting, investigating, resolving violations, and livestock impoundment costs.”

Compared to BLM’s penalties, the Forest Service penalty for unauthorized grazing is less likely to be a deterrent for unauthorized grazing, and the differing penalty structures result in inconsistency between the two federal agencies. As we noted in March 2003, penalties generally should be designed in such a way as to serve as a deterrent for unauthorized activities. Forest Service regulations incorporate Office of Management and Budget guidance, which directs that a fair market value be obtained for all services and resources provided to the public through establishment of a system of reasonable fee charges. By adopting a penalty structure for unauthorized grazing use that is, similar to BLM’s, based on the current commercial value of forage (a fair market value), the Forest Service’s penalty for unauthorized grazing can better serve as a deterrent to such grazing and be consistent with BLM’s penalty.

The Forest Service recognized that its formula for calculating its penalty for unauthorized grazing was problematic in grazing year 2009 when the formula produced a negative value. A Forest Service official told us that the agency is considering options for revising the penalty as part of its ongoing update of grazing guidance, but the update has not been completed because of higher priorities. The Forest Service does not have a time frame for when the penalty for unauthorized grazing will be revised, according to agency officials. Until the Forest Service revises its penalty for unauthorized grazing to reflect current forage rates, similar to BLM’s, the penalty has limited value as a deterrent to unauthorized grazing.

Willful and Repeated Willful Violations

BLM field staff generally told us that willful and repeated willful unauthorized grazing incidents are rare; most unauthorized grazing is incidental and non-willful. However, staff we interviewed from 3 of the 13 BLM field offices who had encountered willful and repeated willful unauthorized grazing incidents said that such violations are difficult to support because staff must prove that the unauthorized grazing was the fault of the livestock owner and show that a record of prior willful violations existed for repeat offenses, per agency regulations and policy. As mentioned previously, because BLM staff generally prefer informal resolution for most incidents of unauthorized grazing, there may not be a paper trail documenting repeated incidents. In some offices this was exacerbated by staff turnover. Specifically, field staff we interviewed from 7 of the 22 offices told us that institutional knowledge is lost when staff depart who are familiar with the extent and circumstances of unauthorized grazing that was resolved informally. As a result, BLM staff told us that they generally only pursue willful or repeated willful violations for the most egregious, long-term cases of unauthorized grazing.

Agency regulations also direct BLM staff to collect reasonable agency expenses for resolving willful and repeated willful incidents, but field staff told us that they have discretion in determining what is reasonable and therefore may not charge violators for agency expenses. For example, field staff said that they may agree to waive the expenses if they were insignificant or to make it less likely that the permittee will appeal the decision. Our review of willful and repeated willful unauthorized grazing incidents in BLM’s grazing program database from grazing years 2010 through 2014 found that the administrative expenses were billed to violators in 98 out of 164, or 60 percent, of such incidents. We reviewed the paper file documentation for BLM’s 24 willful and 3 repeated willful unauthorized grazing cases in grazing year 2014, and found that in most cases field staff had documented how they determined the appropriate penalties and expenses to bill.

Permit Modifications

Agency staff and cattlemen’s association representatives told us that the agencies’ policies for modifying permits, such as reducing the number of permitted livestock for an allotment or suspending or canceling the permits, are likely to be the greatest deterrent to unauthorized grazing, in part because they directly affect the permittees’ livelihoods. Field staff we interviewed from 18 of the 22 offices said that permit modifications are always or usually an effective deterrent. In practice, field staff from 19 of the 22 said that they generally view this as a last resort penalty and seldom modify, suspend, or cancel permits for unauthorized grazing in part because the warning is usually sufficient to obtain compliance. In one example, Forest Service staff at an office in Nevada said they had canceled only one permit, for a permittee with a particularly long record of persistent unauthorized grazing. Staff said that a warning about the potential for permit action is generally enough to achieve immediate compliance in almost all detected unauthorized grazing cases involving permittees.

Citations

According to agency field staff, misdemeanor criminal citations are primarily issued to nonpermittees for unauthorized grazing and can be an effective deterrent. However, law enforcement officers and program staff we interviewed from 5 out of the 22 offices told us that federal attorneys may choose not to prosecute citations or the courts may lower the penalties, which may diminish the effectiveness of this deterrent. For example, a Forest Service law enforcement officer in Utah said that circuit courts typically lower penalties to a couple hundred dollars or less, which is below the cost of buying forage elsewhere. Furthermore, law enforcement officers and program staff we interviewed from 7 out of the 22 offices told us that when on patrol the officers are generally focused on higher priorities, such as public safety. In addition, staff from 7 of the 22 offices we interviewed said that the officers usually do not have knowledge of permit conditions and therefore do not know when livestock should or should not be in a certain location.

BLM and Forest Service Regulations Do Not Provide Flexibility for the Agencies’ Preferred Practice of Informal Resolution for Unauthorized Grazing

BLM and Forest Service regulations do not provide field staff of both agencies with the flexibility to follow their preferred practice of informally resolving unauthorized grazing incidents with no written notice of violation and no penalty for unauthorized grazing. We recommended in 1990 that BLM either ensure that all penalties are assessed for non-willful unauthorized grazing, as provided for in its regulations, or amend its regulations to establish a procedure for informal resolution. The agency amended its regulations to add the option for the nonmonetary resolution of certain non-willful incidents, but the amendment did not remove the requirement for a written notice of violation. Forest Service regulations do not specifically require a written notice of violation but require that a penalty be determined; nonmonetary resolution is not an option. As a result, informal resolution with no written notice and no penalty—the preferred practice for field staff in dealing with unauthorized grazing—is not allowed for under either agency’s regulations.

While not provided for under the regulations, most agency field staff told us that informal resolution is the most effective way to achieve the objective of quickly resolving non-willful unauthorized grazing with minimal conflict, and is the most efficient use of their time given multiple higher-priority responsibilities. As discussed in federal internal control standards, program operations are effective and efficient in achieving agency objectives when they produce the intended results and minimize the waste of resources. Management is responsible for designing the policies and procedures to fit an entity’s circumstances and building them in as an integral part of the entity’s operations. BLM and Forest Service officials stated that handling incidental unauthorized grazing informally is necessary and effective because they have limited staff and permittees tend to be largely compliant. However, the agencies have not established in regulations procedures for such informal resolution or alternatively taken steps to ensure that staff comply with existing regulations as written. By amending the regulations to establish procedures for the informal resolution of violations of the grazing regulations at the local level, agency management could achieve the objective of quickly resolving incidental unauthorized grazing with minimal conflict, in a manner consistent with its regulations and with the most efficient use of the agency’s resources. Alternatively, rather than amending their existing regulations to match their practices, the agencies could change their practices to comply with their existing regulations. BLM officials told us that the agency has faced challenges in revising its grazing regulations, including the incorporation of our 1990 recommendations; the most recent revision was enjoined by the court from implementation in 2006 after it was challenged by interest groups. The Code of Federal Regulations currently contains the enjoined regulations; agency officials plan to replace these regulations with the regulations that were in effect prior to the court’s action but have not set a date for completing the process.

Furthermore, BLM has not updated its Unauthorized Grazing Use Handbook since 1987—in part because of the enjoined regulations— and it contains guidance that differs in some cases from the existing regulations. For example, the handbook does not reference the option of nonmonetary settlement for certain non-willful unauthorized grazing incidents that is contained in the regulations. In addition, the handbook description of penalties differs from that in the regulations for willful violations—the regulations state that the rate is twice the value of forage consumed, while the handbook states that the rate is three times the value of forage consumed. Furthermore, the regulations state that the value of damages to public lands shall be included in settlement for willful and repeated willful violations, and the handbook states generally that the value of damages “must be charged,” without specifying which violations must incur the charge. As a result, staff using the handbook may not be consistently following the regulations. Federal internal control standards call for agency management to periodically review policies, procedures, and related control activities for continued relevance and effectiveness in achieving the entity’s objectives or addressing related risks. Without revising the agency’s grazing guidance to make it consistent with the grazing regulations, BLM does not have reasonable assurance that its staff consistently apply the grazing regulations.

Conclusions

BLM and the Forest Service face the daunting task of effectively managing grazing on millions of acres of remote rangeland with a limited number of field staff who have multiple responsibilities and competing priorities. Given the large number of acres and permits managed under the agencies’ programs, the number of unauthorized grazing incidents that are formally reported is relatively small, and the reportedly larger number of incidents that are resolved informally and not recorded in any database or consistently recorded in paper case files are most often considered by agency field staff to be incidental and quickly remedied with minimal impact on range resources. By amending the regulations to establish procedures for the informal resolution of non-willful violations of the grazing regulations at the local level, agency management could achieve the objective of quickly resolving incidental unauthorized grazing with minimal conflict, in a manner consistent with its regulations and with the most efficient use of the agency’s resources. Alternatively, rather than amending their existing regulations to match their practices, the agencies could change their practices to comply with their existing regulations. While it may be reasonable for the agencies to handle incidental unauthorized grazing informally, given their limited staff and a largely compliant pool of permittees, it is important that each agency’s practices accurately reflect its grazing regulations to ensure clarity and consistency in application for staff and permittees.

Furthermore, without recording the incidents of unauthorized grazing that are informally resolved, neither agency has complete information on the extent and frequency of unauthorized grazing for tracking patterns of any potential repeat offenders. In addition, until BLM revises its grazing guidance to make it consistent with the grazing regulations, the agency does not have reasonable assurance that its staff consistently apply the regulations. Finally, until the Forest Service revises its unauthorized grazing penalty structure to reflect the current value of forage, similar to BLM, the deterrent effect of the penalty will be limited, and some ranchers will continue to view the penalty as a cost of doing business.

Recommendations for Executive Action

To improve the effectiveness of BLM’s efforts to track and deter unauthorized grazing, we recommend that the Secretary of the Interior direct the Director of BLM to take the following three actions: amend the regulations on unauthorized grazing use—43 C.F.R.

Subpart 4150 (2005)—to establish a procedure for the informal resolution of violations at the local level, or follow the existing regulations by sending a notice of unauthorized use for each potential violation as provided by 43 C.F.R. § 4150.2(a) (2005); record all incidents of unauthorized grazing, including those resolved informally; and revise the agency’s Unauthorized Grazing Use Handbook to make it consistent with 43 C.F.R. pt. 4100 (2005).

To improve the effectiveness of the Forest Service’s efforts to track and deter unauthorized grazing, we recommend that the Secretary of Agriculture direct the Chief of the Forest Service to take the following three actions: amend the regulations on range management—36 C.F.R. pt. 222—to provide for nonmonetary settlement when the unauthorized or excess grazing is non-willful and incidental, or follow the existing regulations by determining and charging a grazing use penalty for all unauthorized and excess use when it is identified as provided by 36 C.F.R. § 222.50(a) and (h); record all incidents of unauthorized grazing, including those resolved informally; and adopt an unauthorized grazing penalty structure that is based, similar to BLM’s, on the current commercial value of forage.

Agency Comments

We provided the Departments of Agriculture and the Interior with a draft of this report for their review and comment. In its written comments, reproduced in appendix IV, the Forest Service generally concurred with our findings and recommendations. In its comments, the Forest Service stated that it has taken preliminary steps toward updating its guidance to field units, including guidance for unauthorized grazing penalties similar to BLM’s. In its written comments reproduced in appendix V, the Department of the Interior generally concurred with our findings and recommendations. In its comments, the Department of the Interior stated that it will revise its guidance to better describe procedures for following existing regulations, to provide procedures for documenting and recording all unauthorized grazing incidents, and will ensure that its guidance is consistent with its regulations. The Department of the Interior also provided technical comments that were incorporated, as appropriate.

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If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or fennella@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix VI.

Appendix I: Objectives, Scope, and Methodology

Our objectives were to (1) describe what is known about the frequency and extent of unauthorized grazing, and its effects, and (2) examine the Bureau of Land Management’s (BLM) and the U.S. Forest Service’s efforts to detect, deter, and resolve unauthorized grazing.

To describe the frequency and extent of unauthorized grazing, we analyzed the agencies’ unauthorized grazing data, and to describe the effects of such grazing, we reviewed documentation, interviewed agency officials and stakeholder group representatives, and conducted site visits at agency field office locations. We collected data from BLM’s and the Forest Service’s range management, financial, and law enforcement databases on the frequency and extent of unauthorized grazing for grazing years 2010 through 2014, the most recent and complete data available at the time of our review. We also collected information on grazing acres, usage, and permits, which came from different years depending on what was the most recently available at the time of our request. For BLM, we obtained range management data from its Rangeland Administration System; financial data on unauthorized grazing bills from its Collection and Billing System; and law enforcement data from its Incident Management, Analysis, and Reporting System. For the Forest Service, we obtained range management and billing data from its INFRA system and law enforcement data from its Law Enforcement and Investigations Management Attainment Reporting System. We assessed the data provided by the agencies based on our review of database system documentation and discussions with agency database stewards and found the data to be sufficiently reliable for our purposes.

We conducted in-person and telephone interviews with staff in 22 of the 218 agency field office locations in eight western states where most such grazing had occurred. We selected the 22 offices from among the agency field offices that had the highest numbers of unauthorized grazing incidents or that had been recommended by stakeholders. From the 22 selected offices, we conducted site visits to 6 offices located in Nevada and Wyoming to interview agency range management and law enforcement staff about the extent of unauthorized grazing and the agencies’ policies and practices for addressing it, as well as to review paper case files and observe the effects of unauthorized grazing on federal lands. We also conducted telephone interviews with staff in 16 of the 22 BLM and Forest Service field locations in California, Colorado, Idaho, Nevada, New Mexico, Oregon, and Utah. Our interview results are not generalizable to all agency field office locations and grazing lands and instead are illustrative cases of the office locations reporting the highest numbers of unauthorized grazing incidents. Tables 3 and 4 provide more information about the agency field office locations where we conducted interviews.

To obtain the views of interested stakeholders, we conducted interviews with representatives of 11 stakeholder groups, including telephone interviews with cattlemen’s association representatives in California, Colorado, Nevada, New Mexico, and Oregon. We also conducted telephone interviews with representatives of other stakeholders, including Public Employees for Environmental Responsibility, Forest Service Employees for Environmental Ethics, Western Watersheds Project, Wildlands Defense, and others, such as a wild horse advocate. We selected these groups based on information provided by agency officials or other stakeholder groups involved in grazing issues; in one case, we spoke with a stakeholder who contacted us after learning of our review. We qualitatively analyzed agency and stakeholder interviews for common themes and patterns to describe how the agencies address unauthorized grazing and the effectiveness of these policies and practices. We coded interviews using qualitative data analysis software that allows organization and analysis of information from a variety of sources. Our coding process involved one independent coder putting information into initial categories and a second independent coder verifying that initial work. The coders discussed and resolved any discrepancies in coding.

To examine the agencies’ efforts to detect, deter, and resolve unauthorized grazing, we analyzed federal laws to identify agency requirements for addressing such grazing as well as the agencies’ regulations, policies, and practices. We qualitatively analyzed information obtained in agency and stakeholder interviews for common themes and patterns to describe how the agencies address unauthorized grazing and the effectiveness of their efforts. We compared the agencies’ policies to their practices in the field, compared the policies’ objectives with their outcomes, and assessed the internal controls for the policies and practices. We also compared the agencies’ policies and practices to our recommendations in our December 1990 report to evaluate whether those recommendations have made or could make improvements in the detection and deterrence of unauthorized grazing.

We conducted this performance audit from May 2015 to July 2016 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Grazing Information for the Bureau of Land Management and U.S. Forest Service

This appendix provides detailed information on grazing permits, leases, fees, and penalties on lands managed by the Bureau of Land Management (BLM), within the Department of the Interior, and the U.S. Forest Service, within the Department of Agriculture. Specifically, the information includes acres available for grazing on lands the agencies manage, the animal unit months (AUM) approved for grazing, and the AUMs billed for BLM and the Forest Service; BLM and Forest Service permits and leases by size; and information on BLM and Forest Service grazing fees for permitted grazing and penalties for unauthorized grazing. The agencies are in two different departments and their grazing programs are covered by different laws and regulations. Therefore, the agencies maintain their own databases and, in some cases, track different data elements. As a result, consistent information was not always available from the two agencies, and in some cases the information provided was from different years depending on what was the most recently available at the time of our request.

Acres and AUMs of Grazing

This section provides an overview of the most recent information available at the time of our review on grazing that occurred on BLM and Forest Service lands. The acres of BLM and Forest Service land available for grazing each year can change, depending on the results of environmental assessments conducted on grazing allotments, and the amount of grazing that is allowed each year can change, depending on annual assessments of forage and range conditions. Both agencies measure the number of acres of their lands available for grazing by allotment each year, but the two agencies use different terms to measure the amount of grazing. BLM calls this amount active or authorized, and the Forest Service calls this amount permitted. Similarly, BLM refers to the amount of grazing that it bills for annually—which can vary from the amount it authorizes because of range or climate conditions—as billed, and the Forest Service refers to this amount of grazing as authorized.

We use “AUMs approved” to refer to the amounts of grazing authorized by BLM and permitted by the Forest Service and “AUMs billed” to refer to the amount of grazing for which BLM billed ranchers and the amount of grazing authorized each year on Forest Service lands. Table 5 shows the acres and AUMs approved as of January 2016 and AUMs grazed for BLM’s field offices in fiscal year 2014, the most recent year available.

Table 6 shows the acres of grazing available, approved AUMs, and billed AUMs in grazing year 2015 for Forest Service administrative offices and grasslands. The data on acres include acres in active and vacant allotments but not in allotments that have been closed that are not available for grazing. The data on AUMs include data that the Forest Service calls head months. Unlike BLM, the Forest Service uses two methods to tally the amount of grazing that occurs—AUMs and head months. The agency uses AUM to refer to the amount of forage consumed by different types of livestock, while it uses the term head months to refer to the number of livestock (head) that are grazed and that are subject to billing. We used the Forest Service head month data because they are equivalent to the BLM’s data on billed AUMs, but we used AUM to simplify the comparison with BLM’s grazing data.

Permits and Leases by Size

Because the number of AUMs per permit or lease can vary greatly, the number of AUMs controlled by permittees or lessees also varies greatly. Tables 7 through 9 show the number of BLM and Forest Service permits and leases, and AUMs, by permit size. Multiple permits or leases may be contained on a single allotment, just as one permit or lease may span multiple allotments. In addition, several ranchers may share one permit or lease, just as one rancher may possess multiple permits or leases; therefore, the number of permits and leases does not necessarily correlate to the total number of ranchers. Table 7 shows the size of BLM permits and leases, using approved AUMs as of December 2015. The data do not include permits and leases with less than two AUMs.

Table 8 shows Forest Service permits for cattle for regions with lands in western states (regions 1 through 6). The data do not include horses or other livestock and do not include permits with fewer than two AUMs of grazing for cattle.

Forest Service sheep permits are shown in table 9. For the purposes of conversion, five sheep equal one AUM. In addition to the sheep, an insignificant number of horses are included in the data because, in some cases, permittees may keep a horse for herding the sheep.

Calculation of Grazing Fees and Unauthorized Grazing Penalties for BLM’s and the Forest Service’s Western States

Historically, BLM and Forest Service permitted grazing fees were established to achieve different objectives—to recover administrative expenses or to reflect livestock prices, respectively—but the agencies began using the same approach to setting fees in 1969. Over the years, the agencies, as well as outside entities, have conducted numerous studies attempting to establish a permitted grazing fee that meets the objectives of multiple parties. As of March 2016, the permitted grazing fee for BLM and the Forest Service in 16 western states is based on a formula which incorporates factors that take into account ranchers’ ability to pay and was established in 1978 based on studies conducted in the 1960s and 1970s.

In 2016, the permitted grazing fee for lands managed by BLM and the Forest Service in 16 western states was $2.11 per AUM—or the amount of forage needed to sustain a cow and her calf for 30 days. This permitted grazing fee is set annually according to a formula established in the Public Rangelands Improvement Act of 1978 and extended indefinitely by Executive Order 12,548 that has been incorporated into the agencies’ regulations. The formula is as follows: Fee = $1.23 x (FVI +BCPI – PPI)/100 where $1.23 = the base value, or the difference between the costs of conducting ranching business on private lands, including any grazing fees charged, and public lands, not including grazing fees. The costs were computed in a 1966 study that included 10,000 ranching businesses in the western states.

FVI = Forage Value Index, or the weighted average estimate of the annual rental charge per head per month for pasturing cattle on private rangelands in 11 western states (Arizona, California, Colorado, Idaho, Montana, New Mexico, Nevada, Oregon, Utah, Washington, and Wyoming) divided by $3.65 per head month (the private grazing land lease rate for the base period of 1964-68) and multiplied by 100.

BCPI = Beef Cattle Price Index, or the weighted average annual selling price for beef cattle (excluding calves) in the 11 western states divided by $22.04 per hundredweight (the beef cattle price per hundred pounds for the base period of 1964-68) and multiplied by 100.

PPI = Prices Paid Index, for selected components from the Department of Agriculture’s National Agricultural Statistics Service’s Index of Prices Paid by Farmers for Goods and Services, adjusted by different weights (in parentheses) to reflect livestock production costs in the western states [fuels and energy (14.5), farm and motor supplies (12.0), autos and trucks (4.5), tractors and self-propelled machinery (4.5), other machinery (12.0), building and fencing materials (14.5), interest (6.0), farm wage rates (14.0), and farm services (cash rent) (18.0)].

The Public Rangelands Improvement Act of 1978 limited the annual increase or decrease in the resulting fee to 25 percent. It also established the fee formula for a 7-year trial period and required that the effects of the fee be evaluated at the end of that period. Although the permitted grazing fee formula under the act expired in 1986, the use of the fee formula was extended indefinitely by Executive Order 12,548 and incorporated into the agencies’ regulations. The executive order requires the Secretaries of the Interior and Agriculture to establish permitted grazing fees according to the act’s formula, including the 25 percent limit on increases or decreases in the fee. In addition, the order established that the permitted grazing fee should not be lower than $1.35 per AUM.

To calculate its penalty for unauthorized grazing, the Forest Service uses the same formula as for the permitted fee but replaces the base value of $1.23 with a higher base value of $3.80. In addition, the Forest Service does not apply the 25 percent limit on the annual increase or decrease in the penalty and does not set a lower limit on the penalty as with the permitted fee formula (see table 10). In contrast, BLM bases its penalties for unauthorized on the state by state commercial value of forage. According to the National Agricultural Statistics Service, based on the average private grazing land lease rate per AUM, the state-by-state commercial value of forage in western states ranged from $9 to $39 in grazing year 2016.

Appendix III: Detailed Information on the Extent and Frequency of Unauthorized Grazing

This appendix provides detailed information on the extent and frequency of unauthorized grazing incidents and charges recorded in the Bureau of Land Management’s (BLM) and the U.S. Forest Service’s range management and law enforcement databases, for grazing years 2010 through 2014. BLM, within the Department of the Interior, and the U.S. Forest Service, within the Department of Agriculture, are in two different departments and their grazing programs are covered by different laws and regulations. Therefore, the agencies maintain their own databases and, in some cases, track different data elements. As a result, consistent information was not always available from the two agencies.

BLM Range Program Data

BLM’s range management database contained records of 433 unauthorized grazing incidents that occurred in grazing years 2010 through 2014 and were settled and billed by December 28, 2015 (the date the data were queried) (see table 11). Incidents not billed by December 28, 2015, are not included, nor are incidents that were resolved nonmonetarily. The number of incidents ranged from 76 in Idaho to 5 in Arizona.

The bills identified for the 433 incidents in BLM’s range management database included 466 charges for different types of unauthorized grazing; non-willful (unintentional), willful (intentional), and repeated willful, each of which is charged at a different rate (see table 12). The total charges (466) exceeds the total number of incidents settled and billed (433) because each bill can include charges for more than one type of unauthorized grazing and for more than 1 grazing year. Non-willful unauthorized grazing was the most common type in grazing years 2010 through 2014, accounting for 299—or 64 percent—of the charges recorded; willful unauthorized grazing was 31 percent of the total, and repeated willful was 5 percent.

BLM’s unauthorized grazing bills included charges for unauthorized grazing penalties; administrative charges for costs of the agency’s response; and other charges, fees, and interest. As of March 1, 2015, BLM had billed about $441,000 for unauthorized grazing charges in grazing years 2010 through 2014 (see table 13). BLM had collected about $426,000 of the amount; after adjustments, about $8,000 of the charges remained due.

BLM’s range management database contained records of nearly 53,000 grazing compliance inspections performed by agency field staff during grazing years 2010 through 2014 (see table 14). Of the nearly 53,000 inspections, about 1,500—or 3 percent—identified possible noncompliance. Possible noncompliance means noncompliance was suspected but not yet confirmed by the individual completing the compliance inspection and was identified for further investigation. Therefore some inspections recorded as a finding of possible noncompliance, upon further investigation, may not have resulted in a finding of a violation.

BLM Law Enforcement Data

BLM’s law enforcement database contained records of 426 incidents where formal documentation, such as an incident report (record of observation), warning notice, or violation notice, was prepared by a law enforcement officer and entered into the database in grazing years 2010 through 2014 (see table 15). The number of incidents ranges from 71 in Wyoming to 17 in Arizona and Utah. From grazing years 2010 through 2014, the year with the most incidents recorded in the law enforcement database was 2013; 123 incidents were recorded, or nearly 30 percent of the 426 total incidents. According to agency officials, some of the data may include incidents that were miscoded as grazing related when entered into the law enforcement database, and a small proportion of the incidents include violations of grazing permits other than unauthorized grazing, such as supplementing the existing forage with additional livestock feed.

Forest Service Range Program Data

The Forest Service’s range management database contained records of 190 unauthorized grazing incidents in grazing years 2010 through 2014 (see table 16). The number of incidents is based on the number of bills issued and also includes some unauthorized grazing incidents confirmed by Forest Service field offices as having occurred where no bill was issued. Additional incidents may have occurred that were not billed and were not entered in the Forest Service database. The number of incidents ranged from 65 in the Southwestern Region to 2 in the Southern Region.

The 190 incidents identified primarily by bills in the Forest Service’s range management database included charges for different types of unauthorized grazing incidents, excess use (by a permittee), and unauthorized use (by a nonpermittee) (see table 17). Excess use by permittees was the most common incident type in grazing years 2010 through 2014, accounting for 173—or 91 percent—of the incidents recorded; unauthorized use was 9 percent of the total.

The Forest Service’s unauthorized grazing bills included charges for excess use and unauthorized use. The Forest Service collected a total of about $24,000 from these charges in grazing years 2010 through 2014; nearly $18,000 from excess use by permittees, and about $6,000 from unauthorized use by nonpermittees (see table 18). The amount collected includes credits used by livestock owners to pay excess or unauthorized use charges.

Forest Service Law Enforcement Data

The Forest Service’s law enforcement database contained records of 428 incidents where formal documentation, such as an incident report (record of observation), warning notice, or violation notice, was prepared by a law enforcement officer and entered into the database in grazing years 2010 through 2014 (see table 19). The number of incidents ranges from 102 in the Intermountain Region to 24 in the Pacific Northwest and Eastern Regions.

From grazing years 2010 through 2014, the year with the most unauthorized grazing incidents recorded in the Forest Service’s law enforcement database was 2013; 100 incidents were recorded, or about 23 percent of the 428 total incidents (see table 20).

Appendix IV: Comments from the Department of Agriculture

Appendix V: Comments from the Department of the Interior

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Jeffery D. Malcolm (Assistant Director), Brad C. Dobbins, Karen (Jack) Granberg, and Katherine M. Killebrew made key contributions to this report. Important contributions were also made by Kevin S. Bray, Martin (Greg) Campbell, Elizabeth Martinez, Alana R. Miller, and Cynthia M. Saunders.