Grazing in wilderness areas.

• Author: Squillace, Mark
• Position: The Wilderness Act at 50

1. Introduction II. The Environmental Impacts from Livestock Grazing III. Grazing on Public Lands IV. Grazing in Wilderness Areas V. Reforming the Law on Grazing in Wilderness Areas VI. Conclusion I. INTRODUCTION

   Domestic livestock grazing is naturally in tension with wilderness. Wilderness cannot truly meet the congressional mandate of being "untrammeled by man" (1) when managed livestock are allowed to freely graze wilderness lands. Yet the Wilderness Act expressly provides, without exception, that "the grazing of livestock, where established prior to September 3, 1964, shall be permitted to continue subject to such reasonable regulations as are deemed necessary by the Secretary of Agriculture." (2) Aside from conflicts with the very notion of wilderness, livestock grazing can also cause significant environmental harm. (3) And unlike the other major concession in the Wilderness Act--which allowed mineral locations under the General Mining Law (4) to continue, but only through December 31, 1983 (5)--the law makes no provision for ever allowing a federal agency to reduce or remove livestock from public lands because those lands have been designated wilderness. On the contrary, the law actually precludes the curtailment of grazing rights where such a curtailment is intended to protect an area's wilderness character. (6)

   This Article asks whether the congressional compromise that allows grazing in wilderness areas to continue indefinitely was the right result. It concludes, with some reservations, that the benefits of a vastly expanded network of wilderness areas were well worth the potentially substantial environmental costs. The Wilderness Act itself might never have been enacted, and much of the wilderness that we prize today would simply not have been designated absent some such compromise. Nonetheless, some modest changes to the way that the law is currently administered can and should be adopted as suggested below.

   The Article begins with a brief discussion about the beneficial and adverse impacts of livestock grazing on the ecological health of land systems and how those impacts might compromise wilderness values. It then proceeds to a discussion of federal grazing policy generally to provide context for the more specific discussion and analysis of the law relating to range management in wilderness areas. It is hard to deny that the compromise to allow grazing to continue in wilderness areas was necessary to secure passage of the law. (7) And grazing in wilderness areas can often be managed to protect and even enhance ecological conditions on the land. (8)

   Nonetheless, there are times and conditions when the only sound ecological choice is to remove livestock from the land. (9) Moreover, both the Bureau of Land Management (BLM) and the Forest Service, specifically provide for reducing or removing livestock from nonwilderness lands through a relatively straightforward process, even if reductions remain somewhat unusual. (10) Somewhat oddly, however, the legal and political obstacles to removing livestock from wilderness areas actually make such a decision more challenging in these areas than it is for nonwilderness lands. But the law can and should evolve in a way that allows the reduction or removal of livestock from wilderness without unduly compromising grazing rights that pre-dated wilderness designation.

   To that end, the Article concludes with a modest plea to clarify the authority of the BLM and the Forest Service to reduce or remove livestock for reasons other than the fact that the land is designated wilderness. In addition, the agencies should recognize their existing authority to accommodate the voluntary but permanent retirement of grazing in wilderness areas. While some guidance may be needed to help agency officials understand existing law and process retirement applications, government policy should ultimately encourage such retirements, especially where they will promote the ecological health of affected wilderness areas.

2. THE ENVIRONMENTAL IMPACTS FROM LIVESTOCK GRAZING

   While it might seem reasonable to assume that the impacts from livestock grazing on public lands are all negative, many studies have shown that properly managed grazing can actually promote healthy lands. (11) This is especially true for lands that have evolved with browsing by ungulates. (12) Where grazing practices are not carefully managed, or where the landscape is not suited to grazing, serious adverse environmental effects can occur. (13) Public lands grazing is a particular problem on hot desert landscapes managed by the BLM. (14)

   Currently, both the BLM and the Forest Service allow domestic livestock to graze on the vast majority of the lands that they manage. (15) Perhaps the most important issue with livestock grazing is maintaining conditions that will allow native perennial grasses and other vegetation to thrive. Where conditions are suitable for grazing, and where grazing is properly managed, grazing may help to promote such conditions. (16) But overgrazing, (17) or grazing in fragile areas that have not historically been frequented by ungulates, often favors normative annual species such as cheat grass. (18) Normative plants are generally unsuitable as forage for livestock and they often are less reliable for stabilizing fragile desert soils. (19) A related problem is simply the loss or reduction in the amount of ground cover that can result from grazing. This adversely affects the ability of the soil to hold water, accelerates erosion, and can adversely impact stream hydrology. (20)

   Livestock grazing can also cause soil compaction and destroy cryptogamic soil crusts that are critical to stabilizing desert soils and promoting favorable conditions for plant growth. (21) Cattle and sheep manure and urine provide organic material that can improve soil condition, but if not carefully managed, they can also contribute to water pollution. (22)

   Overgrazing livestock on lands that did not evolve with ungulate browsing also increases levels of dust particulate in the atmosphere. The lack of vegetation and soil disturbance has created a five to sevenfold increase in dust loading on the Colorado plateau and the Great Basin. (23) The increase in dust concentration accelerates snowmelt rates and adversely impacts the water supply of the American west (24) by delivering the water supply to streams, rivers, and reservoirs earlier than desirable, resulting in late-season water shortages. (25)

   Grazing can also adversely impact wildlife. In addition to adversely affecting the composition of plant species that wildlife rely on, livestock may outcompete other species for water and forage. (26) Moreover, the mere presence of livestock can discourage other species from accessing water sources and breeding and forage areas. (27) Perhaps most importantly for wildlife, livestock grazing often harms riparian areas. (28) As with other animal species, livestock are often drawn to water sources, but their numbers and size makes it difficult to protect stream sides and stream beds from trampling, erosion, and pollution. (29)

   Livestock also impact archaeological sites. Grazing livestock can knock down walls and trample artifacts. (30) They can also contaminate sensitive archaeological sites with urine and manure. (31)

   Finally, grazing can adversely impact recreational and aesthetic resources. This could be a particularly important factor in restricting or removing livestock from some public lands. The recreational value of public lands often far outweighs the value of the land for grazing. (32) Yet grazing can reduce the recreational and aesthetic value of land by changing the native vegetation, damaging the aesthetic and functional value of riparian zones, and introducing manure and the inevitable flies that accompany that manure. (33) Following a simple application of the "chiefly valuable" standard from the Taylor Grazing Act (Taylor Act) (34) and the Federal Land Policy and Management Act of 1976 (FLPMA), (35) the BLM and Forest Service could, and perhaps must, use their authority to remove or restrict livestock from certain tracts of public land to accommodate higher value public uses such as recreation. (36)

3. GRAZING ON THE PUBLIC LANDS

   Much of the debate over public lands in the early years of Western settlement was about whether the lands should remain in public ownership. Indeed, this was "the crucial conservation issue" in the minds of the general public. (37) Support for public ownership was a defining tenet of progressive era leaders like Theodore Roosevelt and Gifford Pinchot, and this debate played out largely between advocates for leasing grazing land and supporters of homesteading and making more land available for irrigation. (38) Among other things, these early leaders believed that public ownership was the only way to ensure the long term health of the range. (39) Still, in the early part of the twentieth century, while the government debated the establishment of a leasing policy, (40) grazing went largely unregulated. Ranchers enjoyed "an implied license" to graze their livestock on public lands, (41) but it was not necessarily a permanent right, (42) and it was likewise not a right that could be exercised in a manner that excluded others. (43)

   Many of the early conflicts on the Western rangelands involved fences and efforts by some of the large cattle barons to fence in vast tracts of public lands. In 1885, Congress responded to those efforts by some to dominate public land grazing by passing the Unlawful Enclosures of Public Lands Act, which made it unlawful for "any person, party, association, or corporation" to enclose federal public lands. (44) Two Colorado ranchers, Daniel Camfield and William Drury, tried to circumvent the law by buying up the private lands associated with a checkerboard railroad land grant (45) and building a fence that only touched private lands. (46) The Camfield's fence...