THE LEGAL LANDSCAPE IS ROUGH COUNTRY FOR SOUTH DAKOTA RANCHERS WHO OPERATE ON FEDERAL LANDS.

Author:Romey, Cole
 
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  1. INTRODUCTION

    As the four-wheeler sputtered to a calm, the rancher stepped off briskly.(1) He had plenty on his mind. While placing mineral supplements into troughs for the nearby cattle munching on the short, green grass, he thought about all the other jobs he needed to be doing--fencing, haying, moving some cattle, or finally working on that broken-down farm equipment. Busied by his thoughts, he almost missed the small quips of the alerted prairie dogs all around him.

    The prairie dogs sounded a warning "bark" to their neighbors of the dangerous intruder. The rancher pondered how long the prairie dog town had been there. It could not have been long; he had just been through this area and would have noticed the critters. The pasture abutted a large tract of national grassland and the rancher guessed that the "homesteading" prairie dogs had likely come from there because there were other prairie dog towns on the federal land. Sighing, he added the town's eradication to the growing list of jobs. "Never let them get started", is what the rancher could hear his older, wiser neighbor tell him. Once they are there, it is impossible to get rid of them. The prairie dogs create holes and hills everywhere. Worse yet, they leave desolate any vegetation for the needy cows. The rancher took his stewardship of the land and cattle seriously, yet his busy summer schedule gave little time to ask any government agency for help to eradicate them. The South Dakota agency required administrative steps proving that the prairie dogs indeed came from federal lands, and it was quicker, easier, and more effective if the rancher supplied the labor and materials for eradication himself. (2) Listening to the barking still going on around him in the middle of the prairie dog "town," the rancher agreed that they were cute little things. Yet, left unchecked, the invasive prairie dogs would eat and burrow until he was out of business. Neither the nearby cattle nor the rancher appreciated the ecological footprint from the prairie dogs. Indeed, the barking dogs were wise to sound the alarm. The rancher had found them.

    While prairie dogs are common in South Dakota and many ranchers deal with their populations, federal land is also common in the western-half of the state. (3) Out of South Dakota's forty-nine million acres, approximately three hundred thousand acres are managed by the Bureau of Land Management (BLM) in South Dakota. (4) In addition, the United States Forest Service (Forest Service) manages nearly two-and-a-half million additional acres in South Dakota including one million acres of national grasslands. (5) Federal land is increasingly becoming an area for outdoor recreation, endangered species habitat, and nature preserves. (6) Over the last forty years, cattle numbers on public lands across the United States have been cut in half. (7) The deeper issues of federal land management surfaced in South Dakota as a result of the Forest Service efforts to increase prairie dog populations. (8)

    In 1994, the Forest Service ceased all control of prairie dogs on federal land in South Dakota so that the Forest Service could establish an adequate population for the endangered Black-Footed Ferret, which naturally preys upon prairie dogs. (9) The Forest Service prairie dog management plan allowed for 6, 180 acres of federal land on the Buffalo National Grasslands and elsewhere in the Conata Basin to be developed into prairie dog populations for the reintroduction of the Black-Footed Ferret. (10)

    South Dakota state law mandates the control of the population of the Black-Tailed Prairie Dog only if the prairie dog is considered a pest. (11) Prairie dogs are considered pests when the state population exceeds 145,000 acres. (12) Between 1995 and 1997, total acres of prairie dogs in South Dakota exceeded the threshold when the population reached 189,258 acres. (13) By 2006, total acres of prairie dogs in South Dakota had grown to 625,410 acres. (14) That same year, the South Dakota Department of Game, Fish, and Parks (SDGFP) treated 42,056 acres for prairie dog encroachments from federal land. (15) According to the latest survey by the SDGFP, the prairie dog population looms at 526,641 acres. (16)

    Federal management does not allow hunting of prairie dogs on the Buffalo Gap National Grasslands because of the protection efforts for the Black-Footed Ferret. (17) In 2010, thirty-six western South Dakota ranchers who bordered federal land filed a complaint in state court against two state agencies because prairie dogs left federal lands, crossed buffers, and settled on private land. (18) When the SDGFP was unable to ensure control of prairie dogs that toddled across the fence from federal land onto private ground, ranchers sued the State agencies charged with controlling the prairie dogs rather than the federal agencies who managed the prairie dog population boom. (19)

    The South Dakota Supreme Court held that the State had sovereign immunity from the ranchers' suit because the State's duty to control prairie dogs was "clearly discretionary" and that there were no "hard and fast rules" appropriated by State legislators for controlling prairie dogs. (20) Former South Dakota Governor Mike Rounds commented about management on the federal lands and the problems faced by the State to help ranchers control prairie dogs:

    Let's face it, the federal government hasn't been a good neighbor in regards to the management of prairie dogs on their lands. Not only are the farmers and ranchers who graze cattle and sheep on these lands getting short changed, but when the prairie dogs are spilling onto private land, we really have a serious problem to fix. (21) In other circumstances, tensions have sparked antics such as standoffs between landowners and federal agencies over management of the western federal lands. (22) This comment will explore the legal landscape surrounding federal land management practices and will suggest that the primary path to greater accountability for public lands in South Dakota may rest in the transfer of federal land management to states. In Part II, the comment will give the historical development of federal land management in western states, and the changes in policy regarding grazing. (23) Next, the comment will explore how disputes against federal land management are resolved through the administrative process and some of the difficulties of settling disputes within the judiciary. (24) The comment will then glance at how some states have attempted to circumvent the process of challenging federal management and examine how South Dakota ranchers reacted to federal land management practices. (25) Finally, in Part III, a brief analysis will discuss the challenges facing most appeals to federal land management practices. (26) Ultimately, the comment will suggest a political solution and a more likely solution which is simply to encourage better relations between South Dakota agricultural producers and their respective federal land management agency. (27)

  2. BACKGROUND

    1. FEDERAL LAND MANAGEMENT HISTORY

      The total area of the United States is 2.4 billion acres. (28) From the wet grasslands of Florida to the desert chaparrals of California, the United States has 770 million acres of rangeland. (29) The BLM (under the Department of Interior) administers 245.7 million acres of public rangeland and 800 million acres of federal subsurface minerals. (30) The Forest Service, (under the Department of Agriculture), manages another 191 million acres of which about half is rangelands. (31) Of the 1.8 billion acres the federal government acquired from 1781 to 1867, approximately 1.3 billion acres have been transferred out of the federal government's ownership and into individual ownership. (32)

      By the early 1800s, free-grazing on unclaimed federal land created beef and sheep empires. (33) About one hundred years later, rangelands had become overstocked and overcrowded, and Congress took action to establish the Forest Service as the grazing control agency. (34) During this time, the goal of Congress was to "[get] the lands into the hands of the...individual farmer seeking a new life on the frontier." (35)

      1. Homesteading and the Dust Bowl

        The Homestead Act, signed by President Lincoln in 1862, was a successful and revolutionary method for distributing the vast public land to private landowners who homesteaded 160 acres at a time. (36) The Act allowed any United States citizen to file an application and own the land after five years (later reduced to three years) if the person farmed the land and built a twelve by fourteen dwelling in feet or inches. (37) Approximately 270 million acres were settled in this way in the west until the act was repealed in 1976. (38) Although the Homestead Act of 1862 originally offered 160 acres to homesteaders, in 1909 the Enlarged Homestead Act offered 620 acres in order to better support homesteaders who settled in the semi-arid west. (39) By 1890, over six million settlers arrived on western grasslands and replaced the grass with crops. (40) Unfortunately, droughts and harsh winters proved that the land was not meant for plows. (41) During the Dust Bowl and Great Depression of the 1930s, Congress passed the National Industrial Recovery Act of 1933 and the Emergency Appropriations Act of 1935, which allowed the federal government to purchase and restore damaged lands from settlers, which would later become part of the national grasslands. (42)

        Furthermore, the Taylor Grazing Act of 1934 established grazing districts when western ranchers requested regulation of public rangelands due to overgrazing. (43) When the BLM was created, the "dominant use" approach was used which preferred grazing over other "non-economic" uses. (44) In the 1960s and 1970s, public policy towards grasslands changed as protection of natural resources such as sensitive plants, endangered species, historical objects, and riparian areas became...

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