Uneasy Riders: A Citizen, a Cow, and NEPA

• Date: 01 July 2009

39 ELR 10632 EnviRonmEntaL Law REpoRtER 7-2009

Uneasy Riders: A Citizen,

a Cow, and NEPA

by Mary O’Brien

Mary O’Brien, Ph.D., is Southern Utah Forests Project Manager at the Grand Canyon Trust.

This Article looks at one recurring activity that falls

within the purview of the National Environmental

Policy Act (NEPA)1: livestock grazing on arid and

semi-arid U.S. Forest Service lands west of the Rockies.2

e relationship of this activity to environmental assess-

ments (EAs), categorical exclusions (CEs), environmental

impact statements (EISs), and ulti mately §101 of NEPA are

briey described.

is Article proposes that the general inability of the For-

est Service to meet its obligations under NEPA for livestock

grazing is not due to a problem with NEPA, but rather that

NEPA has succeeded at revealing fundamental problems

with current management of livestock grazing on Forest Ser-

vice lands. A proposal for a programmatic EIS is oered.

I. EAs of Livestock Grazing: No Signif‌icant

Impact?

EAs inhabit a blurred world within NEPA because their pro-

cesses and sideboards are unclear.

Technically, they are to be an exploration of whether sig-

nicant environmental impacts attend a proposal. If, upon

analysis, the agency determines signicant impacts may

attend the proposed activity, an EIS is to be prepared before

approval of the activity. If the E A projects no signi cant

impacts upon implementation of the action, a nding of no

signicant impact (FONSI) is prepared.

In between, the process is vague: Will there be a draft EA?

at isn’t required, but sometimes a draft EA is prepared.

e agency must involve the public “to the ex tent practi-

cable” in preparing EA s,3 but what is practicable in t he eyes

of an understaed agency?

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. e reference to “west of the Rockies” is due to an understanding that grass-

land and shrubland assemblages east of the Rockies evolved in the presence

of large herds of bison, and are thus more resistant to many livestock grazing

impacts than grasslands and shrublands west of the Rockies, which experi-

enced the activities of relatively few bison. See Richard N. Mack & John N.

ompson, Evolution in Steppe With Few Large, Hooved Mammals, 119 A.

N 757-73 (1982).

3. CEQ NEPA Regulations, 40 C.F.R. §1501.4(b).

e agency must “provide sucient evidence and anal-

ysis for determining whether to prepare an environmental

impact statement or a nding of no signicant impact,”4 but

does that evidence need to be available for review and correc-

tion or comment by the public before a FONSI and decision

are issued?

An EA should include a brief discussion of “alternative

courses of action for any proposal which involves unresolved

conicts concerning alternative uses of available resources,”5

but must an agency discuss a reasonable a lternative submit-

ted by a nongovernmental organization?

All the above, but also one additional question, looms

large in the case of livestock grazing in the arid and semi-

arid public lands west of the Rockies: Can the current Forest

Service management of livestock gra zing ever be considered

nonsignicant in light of its multiple impacts?

Any person who has walked numerous public lands live-

stock allotments in the arid and semi-arid West can attest to

the common, profound, and myriad impacts of cattle and

sheep gra zing; and particularly of cattle impacts on creeks

and riparian areas. To name a few impacts: Cattle prefer to

spend time in the riparian areas surrounding creeks, springs,

and ponds, with the result that deep-rooted willows and cot-

tonwood are often diminished or eliminated; exotic, shal-

low-rooted Kentucky bluegrass spreads; the weakened banks

of shallow-rooted vegetation are broken under the weight

of the cattle; sediment dumps into the streams; the creeks

and streams widen due to the busted banks and incise as

oods rush o slopes lacking t he tall, deep-rooted perennial

grasses t he livestock have selectively grazed. e creeks and

streams become entrained within ever-deepening cha nnels;

water becomes warmer as shade from cottonwood, willows,

other woody vegetation and overhanging grasses and sedges

is reduced by grazing and browsing; algae proliferate due to

the defecation of hundreds of cattle; and sh eggs are smoth-

ered in sediment or trampled.

Wet meadows are often trampled, hummocked, and com-

pacted by sheep or cattle, reducing the percolation of water

underground to recharge aquifers, and transforming the

4. Id. §1508.9(a)(1).

5. Id. §1508.9(b).