Reforming livestock grazing on the public domain: ecosystem management-based standards and guidelines blaze a new path for range management.

• Author: Pendery, Bruce M.

1. Introduction

   Livestock grazing on federal lands that are administered by the Bureau of Land Management (BLM) is intensely controversial in the western United States.(1) At its worst, the debate pits the slogan "Cattle Galoree by '93"(2) of environmentalists against the slogan "Cattle Galore by '94"(3) of ranchers. As the slogans indicate, many environmentalists want livestock grazing reduced or eliminated on BLM lands,(4) while ranchers want their current grazing privileges guarded, and in some cases elevated to the status of a property right.(5)

   This controversy spawned a major regulatory reform effort at BLM led by Secretary of the Interior Bruce Babbitt. The reform effort spanned most of President Clinton's first term, and culminated when BLM adopted amended livestock grazing regulations on August 21, 1995.(6) The new regulations partly responded to environmentalists' criticisms by establishing ecosystem management-based standards and guidelines for livestock grazing on BLM lands, as well as through many other provisions.(7) In response, congressional Republicans launched unsuccessful efforts to legislatively override BLM's amended regulations.(80 Moreover, the livestock industry challenged BLM's regulations in Public Lands Council v. United States Department of the Interior.(9) Recently, the Public Lands Council court affirmed most of the provisions in the new regulations, including the "Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration," which are the primary subject of this Article.(10)

   This Article addresses BLM's amended grazing regulations, and in particular the innovative ecosystem management-based standards and guidelines within the regulations. Additionally, but to a much lesser degree, the livestock industry's efforts to nullify the new regulations are considered. The overarching conclusion from this analysis is that BLM had a rational scientific basis for adopting the standards and guidelines and that BLM has the legal authority to embrace ecosystem management as the basis for its range management.

2. Overview

   Domestic livestock have grazed rangelands in some parts of the southwestern United States since the 1500s,(11) and much of the rest of the western United States since the 1800s.(12) Livestock grazing on the unreserved public domain was unregulated, however, until 1934 when the Taylor Grazing Act (TGA)(13) was enacted. Pursuant to authority delegated by the TGA, as well as the later-enacted Federal Land Policy and Management Act of 1976 (FLPMA)(14) and Public Rangelands Improvement Act of 1978 (PRIA),(15) the Secretary of the Interior developed regulations to govern livestock grazing on BLM lands.(16)

   Secretary of the Interior Bruce Babbitt recently amended the regulations governing livestock grazing on BLM lands in the eleven western States(17) following Contentious public debate.(18) The amended regulations became effective on August 21, 1995.(19) Concomitant with the rulemaking process, BLM prepared a draft environmental impact statement (DEIS)(20) and a final environmental impact statement (FEIS),(21) collectively referred to as Rangeland Reform '94, which assessed the environmental impacts of the amended regulations.(22) A significant feature of the new regulations and Rangeland Reform '94 are provisions establishing "Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration," which are codified in a new subpart of BLM's grazing regulations.(23)

   The standards and guidelines establish requirements intended to ensure specified ecosystem features will not be degraded by livestock grazing.(24) These new provisions reflect BLM's evolving commitment to ecosystem management.(25) Ecosystem management is an approach to natural resources management focusing on protecting biological diversity, amenities, aesthetics, and recreation while allowing for sustainable development.(26) If the standards and guidelines are fully implemented they will lead to significant changes in livestock grazing on BLM rangelands.

   The "Fundamentals of Rangeland Health" are four national requirements that apply to livestock grazing on all BLM lands in the eleven western States. The fundamentals require BLM to modify grazing by no later than the start of the next grazing year upon determining that existing grazing management needs to be modified to "ensure" that watersheds are functioning properly, ecological processes are protected, water quality standards are met, and rare species' habitats are protected.(27) The "Standards and Guidelines for Grazing Administration' are numerous specific ecological considerations intended to compliment the fundamentals.(28) BLM must also modify livestock grazing or grazing management by no later than the next grazing year if grazing is a "significant factor" in failure to meet the standards arid guidelines.(29) The action taken must be "appropriate," which means it must achieve "significant progress" towards "fulfillment of the standards" and "conformance with the guidelines."(30)

   Unlike the national fundamentals, BLM state directors can develop local standards and guidelines.(31) The regulations limit local flexibility, however, by specifying guiding principles that local standards and guidelines "must address."(132) Moreover, if BLM state directors do not develop acceptable local standards and guidelines by February 12, 1997, national "fallback" standards and guidelines, which are also codified in the regulations, will be imposed.(33)

   Range management has been characterized as tending down one of two paths: the "hard path" or the "soft path."(34) The hard path relies on reducing livestock numbers or eliminating livestock grazing to improve range condition.(35) On the other hand, the soft path emphasizes mechanical means for improving range conditions, such as fencing, seedings, and water development.(36) Many environmentalists favor the hard path while ranchers and range scientists generally favor the soft path.(37)

   BLM's old grazing regulations opted for the soft path of range management, at least in terms of actual implementation.(38) The amended regulations will demand a shift toward the hard path in many instances, and therefore respond to environmentalists' concerns.(39) It Would be incorrect, however, to characterize the amended regulations as simply repudiating the soft path, or embracing the hard path. When the standards and guidelines are considered, it is more accurate to characterize the amended regulations as blazing a "new path" of range management oriented toward sustainable ecosystem management.

   This trailblazing shift in BLM range management policy not only responds to the controversy between ranchers and environmentalists. It also reflects society's changing views of BLM lands and new scientific paradigms. BLM lands were once unknown, and "the lands no one wanted" were left almost entirely to private ranchers by default.(40) Now these public lands are used and deeply valued by many Americans who are not involved in livestock grazing.(41) Where once BLM could manage its rangelands for particular commodities, such as livestock, to serve its rather small clientele of ranchers, now it must consider ecosystems as a whole if it is to effectively serve its new, diverse public.(42) Similarly, many scientists now recognize an "ecosystem management" based approach to the management of natural resources.(43) This approach recognizes the need to manage public lands for all of their ecological values and products, rather than select resources such as livestock.(44) BLM's amended grazing regulations reflect these social changes by elevating the concerns and values of nonranchers to at least an equal level with ranchers' concerns.(45) They also graft the emerging science of ecosystem management onto BLM's traditional livestock-focused range management.(46)

   This Article examines how BLM's amended grazing regulations, particularly the innovative standards and guidelines, represent a major shift in federal range policy.(47) To understand this shift, however, a foundation must be laid. Part III of this Article addresses the history and current use of BLM rangelands. Part IV addresses the condition of BLM rangelands. Part V examines some of the legal and political forces prompting amendment of the regulations. Part VI addresses the statutory authority for BLM grazing regulations, while Part VII discusses the prior permutations of BLM's livestock grazing regulations. With this background in place, the Article goes on to address the new regulations in Part VIII, with particular attention paid to the standards and guidelines. Finally, the question of whether the new regulations will survive the livestock industry's political and legal attacks is considered in Part IX. The principle conclusion from this analysis is that BLM had a rational, which is not to say uncontroversial, scientific basis for making its regulatory changes, and that BLM has the legal authority to embrace ecosystem management as a new basis for range management.

3. History, Current Uses, and Social Forces Affecting BLM Lands

   1. History of BLM Lands

      BLM lands, often called the "public domain," are a legacy of this country's westward expansion.(48) The public domain was acquired by conquest, purchase, or treaty; and at one time it included most of the western United States.(49) Until about 1891, the dominant federal policy was to dispose of land within the public domain in an effort to encourage settlement and promote economic development.(50) While implementing this policy the United States gave or sold millions of acres of the public domain to homesteaders, railroads, and new states, among others.(51) For purposes of this Article, disposal of the public domain pursuant to the homestead laws(52) is most relevant.

      The homestead laws, which only allowed a settler to patent a few hundred acres of public land at most, did not allow a settler to...