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

I. 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.

II. 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.

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

A. 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 claim sufficient acreage to establish an economically viable ranch on the arid public domain.(53) Therefore, many ranchers homesteaded the riparian lands next to springs and streams.(54) By claiming these well-watered areas, a rancher could then assert control over the much dryer surrounding public domain lands and thereby develop an economically viable ranch.(55)

While ranchers were controlling the public domain for their own purposes, there was essentially no federal regulation of grazing on these lands during the 1800s and early 1900s. As Professor Coggins stated:

Until passage of the [TGA], federal law applicable to grazing on the public

domain was notable mostly by its absence. The two main strains of the

little law

that developed were both directed against monopolization: Congress decreed

that the public lands could not be fenced; and the Supreme Court ruled

that all

persons had a right to enter on and use public lands even if they had to

trespass across private sections to get there.(56)

The result of this unregulated, "first-come, first-served" grazing policy was a disaster for the public domain, and "[t]he judicial and congressional efforts to guarantee general access to the public lands guaranteed a race for the forage that quickly deteriorated into prolonged overgrazing and ecosystem destruction.(157) That is, the "tragedy of the commons" ensued.(58)

But even as the "tragedy of the commons" was unfolding, the federal policy of disposal and unregulated grazing began to recede. Starting with the creation of Yellowstone National Park in 1872,(59) and accelerating with the designation of National Forests(60) beginning in 1891, federal public lands policy increasingly became one of reservation and retention. In 1934, a policy akin to reservation was enacted in the form of the Taylor Grazing Act (TGA).(61) The TGA authorized the Secretary of the Interior to withdraw portions of the public domain and place them into grazing districts.(62) The TGA gave the Secretary authorization for "protection, administration, regulation, and improvement"(63) of the districts, and also included authority to issue grazing permits and leases.(64) Given the contemporaneous occurrences of the Tragedy of the Commons,(65) the Great Drought, and the Great Depression during the 1930s, ranchers did not or could not oppose federal regulation of grazing on the public domain pursuant to the TGA.(66) Thus, "the federal disposition policy was finally interred with barely a whimper,"(67) and regulated grazing came to the public domain.

Between 1934 and 1976, grazing regulation was limited, and the early regulations were actually the creation of ranchers themselves.(68) But after FLPMA was enacted in 1976, BLM substantially amended its grazing regulations during the Carter Administration. Relatively speaking, the Carter era regulations reflected a hard path policy toward range management.(69) The Carter era regulations were amended, however, during the 1980s to reflect the soft path policy of the Reagan and Bush Administrations.(70) In turn the Clinton Administration's newly amended livestock grazing regulations superseded the regulations promulgated during the Republican Administrations of the 1980s.(71)

The initial livestock grazing regulations developed after enactment of the TGA, as well as all subsequent regulations, govern livestock grazing on BLM lands conducted from the modern-day analogs of homestead era ranches. That is, many of the ranches affected by BLM's grazing regulations consist of relatively small, well-watered, privately owned "base property" holdings that are the legacy of a homestead era claim.(72) However, the small base property is "attached" for purposes of livestock forage allocation to a much larger parcel of BLM land pursuant to a BLM grazing permit.(73) A BLM permit must specify 1) the kind and number of livestock to be grazed, 2) a specified area to be grazed called an "allotment," 3) a period of the year during which grazing is allowed, and 4) the amount of forage that can be used.(74)

While BLM's amended regulations are more likely to lead to hard path management decisions than the Reagan and Bush era regulations they superseded, they are not simply a return to the Carter era regulations. By adding the new ecosystem management-based standards and guidelines as benchmarks of rangeland health, against which the acceptability of grazing can be measured, the new regulations blaze a new path of range management. This new path was chosen partially in response to changing societal goals and needs regarding BLM lands.

B. Current Use of BLM Lands by Livestock and Social Forces Prompting

Amendment of BLM'S Grazing Regulations

Commercial livestock grazing takes place over vast areas of BLM lands, but the lands generally produce little livestock forage due to their aridity.(75) Perhaps partially as a consequence of low forage production, grazing is of low economic importance relative to other expanding sectors of the economy in the sixteen western states.(76) These expanding sectors of the western economy often involve less intensive uses of BLM lands.(77) Western social conditions are also changing.(78) Ranchers' concerns are no longer the only concerns BLM need consider because the concerns of environmentalists as well as competing land users have grown in importance. Together, these economic and social forces have created increasing pressure to modify grazing practices on BLM lands, and they are partially responsible for the amendments to BLM's livestock grazing regulations. This subpart will address these social and economic forces.

BLM manages approximately 177 million acres of land in the eleven western states.(79) In 1991 BLM authorized 19,482 livestock grazers to use 13.5 million Animal Unit Months (AUM)(80) of forage on about 167 million acres of BLM land.(81) Based on these data, an average BLM permittee is authorized to use approximately 8500 acres of public land (about 13 square miles) and his livestock can consume approximately 690 AUMs of forage annually, which is enough to support 115 cows for 6 months.(82) Moreover, these data illustrate the low forage producing capacity of the land because, on average, over twelve acres are required to feed one cow for one month.(83) It should be noted, however, that averages can mask reality. For example, only twenty-seven percent of BLM's permittees are authorized to use eighty-seven percent of BLM's "active use" AUMs of forage.(84) So the average of 690 AUMs mentioned above is not distributed pro rata.

The assertion that BLM land typically produces little livestock forage is also supported by the fact that federal grazing permits authorize only a small proportion of the forage consumed by U.S. livestock.(85) Forage consumed by beef cattle on federal lands represents seven percent of all beef cattle forage consumed, and only two percent of the total feed consumed by beef cattle in the contiguous states.(86) Even in the West, federally permitted use comprises only twenty-five percent of the total forage consumed by beef cattle, and only a third of beef cattle actually graze federal ranges.(87) Moreover, BLM lands contribute only about five percent of the total annual feed requirements of sheep producers, and almost eighty percent of the pastures on rangelands grazed by sheep in the West are privately owned.(88)

Additionally, livestock producers with Forest Service or BLM grazing permits constitute a small percentage of all livestock producers, even in the West.(89) Only twenty-two percent of western beef cattle producers have federal grazing permits.(90) Similarly, only nineteen percent of western sheep producers hold federal grazing permits.(91) Thus, even in the West only about one in five livestock producers holds a federal grazing permit.

Other economic indicators also play a role in the debate over the priority livestock grazing should be given on BLM lands. The agricultural sector of the economy in the sixteen western states(92) represented 4.5% of total employment in 1990, down from 5.8% in 1982.(93) Services represented the largest employment sector at almost 33% of total employment in 1990, up from about 27% in 1982.(94) Furthermore, agriculture only produced 2.4% of total income in the 16 western states in 1990, down from 3.3% in 1982.(95) Services were the lowest source of income in 1990 at 22.2%, up from 19.7% in 1982.(96) Thus, the agricultural sector of the economy in the western United States is rather small and has been declining on a relative basis, which bolsters arguments to give less emphasis to livestock grazing on BLM lands.(97)

Similarly, social trends in the West play a role in the controversy over livestock grazing. Like many disputes regarding natural resources, there is an urban-rural dichotomy in the debate over livestock grazing. The bulk of the population in the western United States lives in urban areas,(98) and many residents of urban areas are concerned about the environmental impacts of grazing.(99) Moreover, there are two kinds of rural areas in the West. Some are formerly agricultural areas in very scenic settings that are becoming popular among "ex-urbanites."(100) Those areas are growing economically but face tensions between old ways of life such as ranching and new service-oriented ways of life.(101) Other rural areas are stable in terms of lifestyle but are stagnant economically and in terms of population growth.(102) Additionally, throughout the West recreational use of the land has increased in importance relative to traditional uses of the land such as livestock grazing.(103)

Environmental concerns centered in urbanized areas and growing ex-urbanite centers, coupled with the increasing recreational use of BLM lands and the relatively low economic importance of livestock grazing, have led to demands to modify grazing on BLM lands.(104) Central to those demands is the debate between environmentalists and ranchers about whether livestock grazing is damaging rangeland ecosystems.(105) In promulgating the amended regulations, BLM essentially sided with environmentalists, concluding that regulatory changes were needed to ensure that livestock grazing does not degrade the condition of BLM rangelands.(106)

IV. The Ecological Status of Rangelands: BLM Shifts From Determining

Range Condition to Assessing Rangeland Health

The condition of BLM rangelands, including the effect of livestock grazing upon any specified condition, is hotly disputed.(107) But even as this debate rages, the scientific and philosophical paradigms underlying rangeland condition assessment are changing. First, from a scientific perspective, the traditional method for measuring range condition is being challenged. This method has been used by both environmentalists and ranches as a basis for many arguments in the rangeland condition debate. Second, from a philosophical perspective as well as a scientific perspective, there is growing interest in assessing rangeland condition in a more holistic fashion based upon ecosystem management precepts rather than livestock forage conditions. Rangeland Reform '94 and BLM's amended regulations, particularly the standards and guidelines, reflect some of these developments and they will be discussed below.

A. The Traditional Measure of Rangeland Condition

Traditionally, the status of rangelands was assessed by determining "range condition."(108) This system was developed by E.J. Dyksterhuis in 1949 and was based on the prevailing ecological theory of the time.(109) The Dyksterhuis model of range condition is shown in Figure 1 in the Appendix.

Based on work by the ecologist F.E. Clements, Dyksterhuis proposed that rangeland "sites"(110) support a single "climax"(111) plant community, and that earlier-occurring plant communities ("seral stages")(112) on a site "succeed" in a linear and predictable fashion toward the climax community left undisturbed.(113) "Retrogression" from climax on a site to an earlier seral stage reflects disturbance at the site caused by grazing.(114)

Dyksterhuis proposed that the degree of grazing disturbance on a site could be quantitatively assessed by determining the percentage of the plant community composed of decreaser species,(115) increaser species,(116) and invader species.(117) By comparing the percentages of these species on the site to the percentages of these species found in a climax community, the ecological successional status of a rangeland could be determined and assigned to one of four range condition categories.(118) If the percent similarity of the plant community on a range site relative to the climax plant community for that site is 76%-100%, the range is in excellent condition.(119) Likewise, 51%-75% similarity is good condition, 26%-50% is fair condition, and 0%-25% is poor condition.(120)

Under the Dyksterhuis model, reversal of plant community retrogression can be achieved by removing the disturbance, namely grazing, and allowing the community to succeed back toward climax.(121) Stated differently, if a site is in poor condition because it has a high proportion of increaser and invader species, that poor condition can be improved by relaxing grazing which will allow the proportion of decreaser species to increase and ultimately make the site more similar to its climax plant community, that is, closer to excellent condition.(122)

While the exact methods and terminology differ from agency to agency, by 1950 all major inventory and classification methods used by federal agencies were based upon the Dyksterhuis method.(123) For example, BLM classifies rangelands by their "ecological status," which consists of four classes that express the degree of similarity to the potential natural plant Community.(124) Under BLM's system, 76%-100% percent similarity is termed the "potential natural community"; 51%-75% similarity is termed "late seral"; 26%-50% similarity is termed "midseral"; and 0%-25% similarity is termed "early seral."(125) However, BLM's terminology relative to the traditional Dyksterhuis' terminology is mostly a distinction without a difference.(126) A "late seral stage" community and a range in "good" condition mean much the same thing, for example.(127)

The first large-scale quantitative estimate of rangeland condition on what were to become BLM lands was prepared in 1936, when rangeland condition was probably at a low ebb due to the Dust Bowl conditions and the "tragedy of the commons.(128) Sixteen percent of the rangelands were estimated to be in good or excellent condition, five percent in fair condition, and fifty-eight percent in poor or bad condition.(129) Many observers believe, however, that rangeland condition has improved since the 1930s.(130) In 1991, for example, BLM concluded that five percent of its lands were in excellent condition, thirty-one percent in good condition, thirty-six percent in fair condition, fifteen percent in poor condition, and thirteen percent were unclassified.(131) Using the largely equivalent ecological status terminology, BLM reported in Rangeland Reform '94 that 3.3 million acres of its uplands have their potential natural plant community, 27.8 million acres are in late seral stages, 32.7 million acres are in mid seral stages, 12.3 million acres are in early seral stages, and 5.7 million acres are unknown or unclassified.(132)

Based on these and other data, environmentalists argue most BLM rangelands are in poor, or at best fair condition, because that is literally the predominant condition under the Dyksterhuis method.(133) Using these same data, ranchers and range scientists argue that rangelands are in the best condition of this century(134) and also point out there is nothing inherently "bad" about ranges in fair condition: they just have different plant communities, or seral stages, than ranges in excellent condition.(135) But even as arguments based on Dyksterhuis's traditional model and method are advanced, a new model of rangeland vegetation change is being formulated and a new rationale for evaluating range condition based on ecosystem management precepts is emerging.

B. Rangeland Health: A Roadmap for BLM's New Path of Range Management

Despite having been widely accepted and applied for fifty years, the Dyksterhuis method is currently being challenged. There are two basic criticisms of the method and model. First, there are scientific challenges, which have led to a new "state and transition" model of rangeland vegetation change.(136) Second, there is increasing interest in ecosystem management, which is oriented toward ensuring that all goods and values produced by rangelands receive consideration in grazing management.(137) The Dyksterhuis method, in contrast, only directly assesses vegetative conditions, with a focus on forage conditions. Similarly, there is increasing recognition of the importance of riparian areas and of the need to provide distinct management attention to them relative to surrounding "uplands."(138)

A recent book, Rangeland Health,(139) addressed these concerns, and its influence on the new regulations is obvious if not pervasive. BLM adopted many of the proposals made in Rangeland Health in Rangeland Reform '94 and in the amended regulations,(140) especially in the standards and guidelines.(141) Nevertheless, Rangeland Reform '94 and the new regulations only explicitly adopt the new paradigm that range management should be based on ecosystem management;(142) BLM did not codify the state and transition model of management vegetation change.(143) This Part will consider the state and transition model of vegetation change; the evolving view that livestock management should be based on ecosystem management; how those developments were expressed in Rangeland Health; and BLM's responses to the proposals in Rangeland Health.

1. Rangeland Health

Rangeland Health was prepared by the Committee on Rangeland Classification, which was assembled by the National Research Council's Board on Agriculture.(144) The National Research Council is the principle operating agency of the National Academy of Sciences and provides services to the government, the public, and the scientific community.(145) The Committee on Rangeland Classification was composed of fourteen people representing the fields of range science, law, government, natural resources consulting, and ranching.(146) BLM acknowledged the influence of this book, at least insofar as it influenced the standards and guidelines.(147)

Rangeland Health proposed a model for determining the condition of rangelands based on the two trends mentioned above.(148) The model reflects range scientists' criticisms of the Dyksterhuis model by incorporating the "state and transition" model of vegetation change.(149) It also reflects the desire to ensure all rangeland goods and values receive consideration by incorporating an ecosystem management approach to rangeland management.(150)

2. The State and Transition Model

There are several scientific criticisms of the Dyksterhuis model and method, but only two will be mentioned here.(151) First, using climax ("pristine") vegetation as a benchmark for measuring rangeland status is problematic because the climax vegetation may be unknown or unascertainable.(152) Second, the crucial assumption under the Dyksterhuis model is that all plant community change tends either linearly toward climax in the absence of disturbance by grazing (that is, range condition improves), or linearly away from climax toward a lower seral stage when grazing disturbance occurs (that is, declining range condition).(153) But recent research paints a more complex picture that forms the basis for the state and transition model of rangeland vegetation change.(154)

The state and transition model is illustrated in Figure 2.(155) Vegetative "states" A, B, C, and D are shown by the large circles in Figure 2.(156) Each state is a complex of several related plant communities which are shown by the smaller circles. This model differs from the Dyksterhuis model in that the states are not single, distinct seral stages proceeding linearly toward climax.(157) Moreover, changes among plant communities within a state may occur spontaneously due to a number of factors, such as fire and drought,(158) not just grazing. Similarly, transitions among some states may also occur spontaneously when a rangeland is not severely degraded, as shown by the overlapping circles of states A and B. Rut when a rangeland becomes severely degraded, a "threshold" can be crossed and a vegetative state may become essentially permanent and irreversible, as shown by the transition from state B to C.(159) Since state C may not succeed back toward states A or B by simply removing livestock, external inputs provided by humans may be required to change the plant community, as shown by the transition from state C to D.(160)

While the state and transition model has been accepted by most range scientists,(161) BLM did not embrace it in the new regulations. BLM recognized the existence of the model(162) and seemed to accept its validity to some extent,(163) but never explicitly incorporated it into the amended regulations.(164) BLM did not state why it did not incorporate the state and transition model into the new regulations, and consequently its rationale can only be speculated on, but following is one possibility.

The state and transition model can provide a theoretical justification for the soft path of range management as traditionally practiced. That is, if some degraded rangelands will not improve by simply removing livestock (as predicted by the Dyksterhuis model and advocates of the hard path) because of the "irreversible" nature of the vegetative changes, then soft path management methods have greater justification. Soft path management methods have traditionally focused on activities like developing springs and seeding exotic forage species.(165) The new regulations, however, tend to discourage soft path approaches and explicitly require emphasis on native species and communities over nonnative species.(166) Consequently, since the soft path of range management as traditionally practiced could contravene the standards and guidelines, BLM may have been unwilling to codify the state and transition model.(167)

3. Ecosystem Management

As indicated above, the Dyksterhuis model primarily focuses on livestock forage conditions in determining range condition.(168) However, there is increasing interest in developing ecosystem management-based approaches to range management that consider all rangeland goods and values, as well as ways to sustainably use and protect those resources.(169) BLM's regulatory reform effort was predicated on a policy decision to ground livestock grazing management on ecosystem management precepts, and Rangeland Health was a significant source of ideas and details or that policy.(170)

Ecosystem management is a new and still imperfectly defined approach to natural resource management.(171) Nevertheless, it "has now been defined with sufficient precision to constitute a viable natural resource management policy."(172) The policy is rooted in ecological and biological sciences(173) that treat the land as an integrated entity rather than focusing on individual resources.(174) Ecosystem management deemphasizes jurisdictional boundaries in favor of ecological boundaries,(175) endeavors to maintain and restore natural processes,(176) and attempts to accommodate the inherent instability and evolutionary nature of ecosystems.(177) Ecosystem management is partially rooted in the field of conservation biology which emphasizes the preservation of biological diversity.(178) It also attempts to ensure sustainable development and protection of amenities such as aesthetics and recreation.(179)

Related to ecosystem management is a recognition that upland and riparian areas must be distinguished for livestock management purposes because of the important ecological role of riparian habitats.(180) As mentioned, the vast majority of BLM lands are arid and dominated by shrubs such as sagebrush; these areas are called uplands.(181) A much smaller proportion of BLM lands are wen watered and support distinctly different plant and animal communities; these areas are called riparian and wetland habitats.(182) Livestock tend to congregate in riparian areas, thereby increasing impacts to those ecosystems.(183) Riparian areas, however, are also more responsive to management than uplands due to the availability of water.(184) Surveys indicate that uplands are in better condition now than they were earlier in this century; riparian areas have not improved.(185) Thus, the distinctiveness and critical importance of riparian ecosystems is apparent. Accordingly, the new regulations strongly emphasize riparian habitat management.(186)

Rangeland Health addressed ecosystem management in the context of range management in two ways. First, it proposed rangeland health as the standard to determine whether rangelands are meeting society's goals and needs.(187) Rangeland health was defined as "the degree to which the integrity of the soil and ecological processes of rangeland ecosystems are sustained."(188) As shown in Figure 2 in the Appendix, three categories of rangeland health were proposed in Rangeland Health: healthy, at risk, and unhealthy.

Healthy rangeland ecosystems have a capacity to supply values and goods that are capable of being sustained.(189) At risk rangeland ecosystems are subject to reversible losses of productive capacity and also have an increased vulnerability to irreversible degradation.(190) Unhealthy rangeland ecosystems exhibit a loss of capacity to provide values and commodities that is irreversible without external inputs provided by humans.(191) As will be discussed in more detail below, BLM adopted three rangeland health categories in Rangeland Reform '94 that are analogous to those proposed in Rangeland Health.(192)

The second way Rangeland Health embodies an ecosystem management approach to range management is by proposing a number of ecosystem attributes to define and determine the three rangeland health categories.(193) Many of those attributes are now codified in the new standards and guidelines. That aspect of Rangeland Health's imprint on the new regulations will be discussed in detail when the standards and guidelines are addressed.(194)

Ecosystem management is a BLM agency commitment.(195) Reflecting this, two objectives of the new regulations are to "promote healthy sustainable rangeland ecosystems [and] to accelerate restoration and improvement of public rangelands to properly functioning conditions."(196) Rangeland Reform '94 also specified ecosystem management as a purpose and need for adopting the new regulations.(197) Furthermore, Federal Register commentary in the advance notice of proposed rulemaking (ANPR),(198) the proposed rule (PR),(199) and the final rule (FR)(200) all reflected BLM's desire to ground range management in ecosystem management.

Thus, the ecosystem management aspects of the model proposed in Rangeland Health were probably more closely aligned with BLM's policy goals than the state and transition model. This may explain BLM's willingness to embrace the ecosystem management proposals made in Rangeland Health. However, the rangeland health functioning categories proposed in Rangeland Health essentially represent a new measure of rangeland condition that could replace the Dyksterhuis traditional measure. How BLM plans to use that new measure to administer livestock grazing will be considered next.

C. Rangeland Health Functioning Categories: BLM's New Measure of Range Condition

Reflecting its commitment to ecosystem management, BLM adopted a modified version of the three categories of rangeland health proposed in Rangeland Health. In Rangeland Reform '94, BLM stated rangeland health(201) is shown by "functioning conditions," which are intended to tell BLM "whether overall ecological processes are working properly and meeting ecosystem needs."(202) BLM intends to implement a management system based on whether its rangelands can "sustain natural plant communities and basic ecological function where livestock grazing occurs."(203)

In particular, BLM will determine rangeland health based on three functioning categories:

1) Properly Functioning - When vegetation and ground cover maintain soil conditions that can sustain natural biotic communities.

2) Functioning at Risk - When the vegetation and soil are susceptible to losing their ability to sustain naturally functioning biotic communities. Human activities, past or present, may increase the risks.

3) Nonfunctioning - When vegetation and ground cover are not maintaining soil conditions that can sustain natural biotic communities.(204)

These definitions focus more on ecological processes and less on whether values and commodities are produced than the three categories proposed in Rangeland Health.(205) Moreover, unlike in Rangeland Health, Rangeland Reform '94 did not define the boundaries between functioning categories. In Rangeland Health, these boundaries (the "early warning line" and "threshold of rangeland health") were based on the relative ease of reversing plant community changes.(206) Nevertheless, the similarity to the categories proposed in Rangeland Health is apparent.

The manner in which BLM will utilize these functioning categories is best stated by the following:

All existing or ongoing grazing-related plans and actions [will] be reviewed for compliance with national requirements, standards and guidelines. BLM intends that the review would be accomplished within three years after the effective date of the rule [August 21, 1995] through the use of assessments for functioning condition and biological health of rangelands. Criteria to prioritize the order in which the areas would be assessed would be set by the state directors in consultation with [various groups]. If the assessments showed the rangelands were not healthy, the authorized officer would take appropriate action not later than the start of the next grazing year ....(207)

This statement indicates that promoting rangeland health and accelerating restoration and improving the functioning condition of rangelands(208) pursuant to the standards and guidelines will be a two-step process: assessment, followed by action in areas with poor health.

In actuality, it will be a three-step process: 1) assessing rangeland health to identify areas of poor health, 2) determining whether livestock grazing is a significant factor causing the poor health, and 3) taking action to ensure significant progress is made toward compliance with the standards and guidelines in areas of poor health caused by livestock grazing.(209) Only assessment (step 1) will be considered in the following text.(210)

BLM plans to use assessment methods for determining functioning conditions and rangeland health that should be more rapid and qualitative than those used in the past.(211) Such methods already exist for riparian habitats(212) and are being developed on an interdisciplinary basis for uplands.(213) BLM feels the "[f]unctional status of rangelands on a large scale is not measurable but can be determined on a more localized scale by experienced, knowledgeable interdisciplinary teams applying the guidelines."(214) That is, BLM does not intend that "a systematic monitoring effort be initiated evaluating each allotment to determine conformance with the standards."(215) Consequently, the priority given to an area for assessment will be critical in determining whether it is actually assessed for compliance with the standards and guidelines in the near future.

While priority for making assessments is nominally left to state directors, BLM stated that certain areas will definitely receive priority: "Riparian areas, threatened and endangered species habitat, and areas in degraded condition would certainly fall within those types of areas receiving first inspection."(216) BLM must consider at least eight factors in establishing assessment priorities: 1) severity of resource impacts, 2) anticipated cooperation from the permittee/lessee, 3) financial return on investments on corrective actions, 4) affected area size, 5) legal considerations, 6) ability to prevent further degradation, 7) proportion of federal land affected, and 8) pending administrative actions such as permit renewals.(217) BLM is free to go beyond these eight factors.(218) However, BLM is required to define its priorities for assessment: "[p]riorities for assessments and for corrective actions must be determined by the BLM and will depend upon a number of factors," including those listed above.(219) It is reasonable to anticipate that riparian areas will often receive first priority.(220)

BLM estimated the percentage of its lands in the three functioning categories in Rangeland Reform '94.(221) These data are shown in Table 1 in the Appendix for both current and predicted conditions if the preferred alternative (the new regulations) is implemented.(222) By implementing the standards and guidelines, as well as other administrative changes in the new regulations, BLM hopes to increase the rate at which the functioning status of uplands is improved and improve the functioning status of unacceptably degraded riparian and wetlands areas.(223) BLM anticipates that about five thousand allotments involving 84 million acres will receive intensive management once assessments and the significant factor determinations are made.(224) This means action would be taken "immediately" pursuant to the standards and guidelines to correct nonfunctioning systems and also require action to improve the health of systems that are functioning but susceptible to degradation.(225)

To summarize, BLM's new rangeland functioning category assessments based on rangeland health represent a departure from the Dyksterhuis traditional method for rangeland condition assessment. This new approach, partly based on the ecosystem management precepts set forth in Rangeland Health, certainly has a scientific basis. However, some of the science is incompletely developed or is not universally accepted by scientists, particularly range scientists. Nevertheless, by distinguishing between riparian and upland areas, and by focusing on the rate of rangeland improvement on unhealthy rangelands, BLM was able to respond to environmentalists' objections to the condition of BLM rangelands despite claims by the livestock industry that rangelands are in the best condition of the cent.

V. Political and Legal Forces PRompting Amendment of BLM's

Grazing Regulations

The stated reasons for amending BLM's grazing regulations were to 1) provide consistency between BLM and Forest Service management programs which are to be made "more compatible with ecosystem management,"(226) 2) accelerate the improvement of rangelands to a properly functioning condition(227) 3) obtain a "fair return for grazing livestock on public lands"(228) 4) streamline administration,(229) and 5) consider the needs of local communities with regard to needs for "open space and their dependence on livestock grazing."(230) Unstated, however, were political and legal forces that also probably prompted reform of BLM grazing policy.

Politically, the election of President Clinton in 1992 and his subsequent appointment of Bruce Babbitt as Secretary of the Department of the Interior (DOI) made it feasible to change BLM's grazing regulations toward a more environmentally friendly ecosystem management posture.(231) DOI Secretary Babbitt's environmental leanings are well known. Moreover, [he is] a believer in the `New West' theory, the idea that ranching, mining, and other extractive industries no longer dominate western politics, and that urbanites who recreate on public lands and enjoy their beauty would make it easier to achieve environmental reforms."(232) Part and parcel of this theory are the statistics discussed above in Part III.B showing there are few ranchers using vast areas of BLM lands, while the economy and population of the West is centered in urban areas or newly arising exurbanite centers where environmental concerns are stronger. Moreover, as discussed above, many people consider the condition of BLM rangelands unacceptable and feel this condition has been caused by livestock grazing.(233) The appointment of Bruce Babbitt gave those concerns a voice.

Legally, a 1985 court decision from Nevada was probably persuasive in prompting the Clinton Administration to amend BLM's grazing regulations. In Natural Resources Defense Council v. Hodel(234) the court held that, under the Federal Land Policy Management Act (FLPMA) and the Public Rangelands Improvement Act (PRIA), BLM has almost unfettered discretion in the context of its planning process to determine how past overgrazing will be remedied and how to achieve improved range condition.(235)

The Hodel court agreed with the plaintiff environmental groups that BLM rangelands in the Reno Planning Area had been overgrazed(236) and also indicated that it might privately agree that a more aggressive, or hard path, approach to rangeland improvement was preferable to BLM's modest, or soft path, approach.(237) The court also seemed to agree that BLM has an affirmative duty pursuant to the Taylor Grazing Act (TGA), FLPMA, and PRIA to correct overgrazing and in fact to improve range condition.(238) Nevertheless, the Hodel court was unwilling to intrude on BLM's discretion to pursue the soft path land use plan it had chosen and become the "rangemaster" for a large part of western Nevada.(239) The court emphasized the discretionary nature of BLM's decision by stating:

Plaintiff argue that FLPMA and PRIA provide "standards" against which the court can determine whether [BLM's plan) is "arbitrary, capricious or contrary to law." The declarations of policy and goals in 43 U.S.C. [sub sections] 1701(a), 1732, 1901, 1903 and ancillary provisions contain only broad expressions of concern and desire for improvement. They are general clauses and phrases which `can hardly be considered concrete lipfits upon agency discretion. Rather, it is language which "breathes discretion at every pore."(240)

While the Hodel court may have decided the case correctly under administrative law principles,(241) people concerned about overgrazing were understandably disappointed by the decision. Apparently tougher standards than exist in the current livestock grazing statutes would be necessary to force BLM to consider something akin to the hard path of range management. But as Professor Coggins noted in regard to Hodel, "[t]he unfettered administrative discretion in planning now apparently permissible is a two-edged sword ...."(242)

With Secretary Babbitt's appointment, the other edge of the sword was bared somewhat: the new standards and guidelines limit BLM discretion and should give a reviewing court a great deal of law to apply. Nevertheless, BLM did not use its broad statutory discretion under the TGA, FLPMA, and PRIA to strike out strictly down the hard path when it amended its grazing regulations. Rather, it used existing statutes to blaze a new path of range management based on ecosystem management.

VI. Statutory Authority For The Amended Regulations

There are three statutes that directly govern livestock grazing on BLM lands: The Taylor Grazing Act (TGA),(243) Federal Land Policy Management Act of 1976 (FLPMA),(244) and Public Rangelands Improvement Act of 1976 (PRIA).(245) Generally speaking, they establish few substantive requirements, which, as shown in Hodel, allowed BLM to pursue a soft path approach to range management during the Reagan and Bush Administrations. Under authority of those same statutes the Clinton Administration under Secretary Babbitt has blazed a new regulatory path based on ecosystem management, and the existing statutes provide the discretion to do so.

A. The Taylor Grazing Act

As mentioned, the TGA was enacted in 1934 when destruction and mismanagement of what were to become BLM rangelands were at their height.(246) The TGA authorized the Secretary of the Interior "to establish grazing districts" on portions of the public domain "which in his opinion are chiefly valuable for grazing and raising forage crops ...."(247) Furthermore, the TGA requires the Secretary to

make provision for the protection, administration, regulation, and improvement of such grazing districts ... and he shall make such rules and regulations ... and do any and all things necessary to accomplish the purposes of this chapter and to insure the objects of such grazing districts, their occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly, use, improvement, and development of the range ....(248)

The Secretary is also authorized to issue permits for livestock grazing, and "shall specify from time to time numbers of stock and seasons of use."(249)

The above language shows the TGA has two primary goals: stabilization of the range livestock industry and protection or improvement of range condition.(250) The TGA, however, "contains neither clear-cut policy directives nor specific management guidelines."(251) Therefore,

[s]ome regard [the TGA] as a ranchers' Magna Carta, establishing inalienable private rights to the range resource. Some administrators have claimed that the Act is a grant of discretion equivalent to multiple use legislation, leaving them free to exercise their unfettered judgment. Some believe that the Taylor Act is a conservation law that was never implemented. And some regard it as an anachronism, the usefulness of which ended long ago.(252)

In promulgating the amended regulations, BLM took the view that the TGA gives it the discretion to adopt standards and guidelines for grazing administration.(253) This appears to be a permissible construction of the TGA.

In particular, the language in section 315a requiring the Secretary to "preserve the land and its resources from destruction or unnecessary injury"(254) supports the view that there is Secretarial discretion to adopt standards and guidelines for grazing administration. Nevertheless, the TGA also evinces Congress's desire to stabilize the range livestock industry. Therefore, to the extent the new standards and guidelines destabilize the livestock industry, they could be vulnerable to a legal challenge. But in Public Lands Council, the court summarily upheld the new standards and guidelines, and thus, implicitly, deemed them not violative of the TGA.(255) However, several other provisions in the amended regulations were struck down by the Public Lands Council court because they were found to violate the TGA.(256)

B. The Federal Land Policy and Management Act

While the TGA slowed the abuse and destruction of public domain rangelands occurring earlier this century, the TGA proved unsatisfactory in the long run.(257) Therefore, in 1976 Congress passed FLPMA.(258) In FLPMA, Congress directed BLM to manage its lands under a multiple use and sustained yield philosophy, which would primarily be accomplished through a public planning process culminating in the preparation of Resource Management Plans.(259)

1. Policy and Definitions Under FLPMA

Congress declared it was national policy that "in administering public land statutes and exercising discretionary authority granted by them, the Secretary [of the Interior] be required to establish comprehensive rules and regulations after considering the views of the general public ...."(260) Congress also declared a policy that "goals and objectives be established by law as guidelines for public land use planning, and that management be on the basis of multiple use and sustained yield ...."(261) Furthermore, Congress declared a policy that

the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.(262)

These policies were only to become effective, however, if specific statutory authority elsewhere in FLPMA or in other legislation implemented the policy.(263) Moreover, other policy declarations in FLPMA evidence congressional concern for commodity uses such as livestock grazing.(264)

Accordingly, the declarations of policy in FLPMA paint this picture: To the extent FLPMA's protective polices are implemented elsewhere in FLPMA or in other legislation, and to the extent commodity uses are not precluded, the new standards and guidelines should fall within the broad congressional declarations of multiple use policy for BLM. More generally, these policy declarations, and other provisions in FLPMA, should give BLM the authority to pursue ecosystem management.(265)

Congress's definitions of multiple use and sustained yield in FLPMA also give broad discretionary powers to the Secretary of the Interior. Multiple use means "the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people ..." taking into account several resources, "including, but not limited to recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values ...."(266) Multiple use envisions:

harmonious and coordinated management of the various resources without

permanent impairment of the productivity of the land and the quality of the

environment with consideration being given to the relative values of the

resources and not necessarily to the combination of uses that will give the

greatest economic return or the greatest unit output.(267)

Sustained yield was defined as "the achievement and maintenance in perpetuity of high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use."(268) It is a legal truism that multiple use sustained yield mandates give an administrative agency great discretion,(269) and therefore the new standards and guidelines should fall within the administrative discretion delegated to the Secretary of the Interior.

However, FLPMA also defines "principal or major uses,"(270) as limited to "domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production."(271) As will be seen, BLM has limited discretion to eliminate principal uses over large areas of land.(272) Thus, while adopting standards and guidelines for grazing administration is certainly consistent with BLM's multiple use mandate, BLM may not be able to wholly eliminate grazing over large areas pursuant to the new regulations.

2. Land Use Planning Under FLPMA

BLM land use planning is facilitated by the preparation of Resource Management Plans. These plans are the heart of FLPMA and implement the multiple use sustained yield philosophy underlying the statute.(273) The new standards and guidelines, however, are not confined solely to application in the context of BLM's planning process. But since all facets of BLM's land management are nominally affected by planning, and visaversa, these provisions of FLPMA are relevant. Moreover, grazing standards and guidelines must "conform" to BLM's Resource Management Plans.(274)

In developing and revising land use plans the Secretary of the Interior shall "use and observe the principles of multiple use and sustained yield set forth in this and other applicable law."(275) Furthermore, land use plans shall "provide for compliance with applicable pollution control laws ..."(276) These broad provisions should give BLM sufficient authority to develop and apply standards and guidelines to guide its grazing program, at least in the context of the planning process.

However, FLPMA makes special provisions if a principal or major use is totally excluded pursuant to a land use plan. Most importantly, decisions to eliminate a principal or major use for two or more years on an area of 100,000 acres or more are subject to congressional approval.(277) While the standards and guidelines are not confined to BLM's land use planning process, to the extent the new regulations lead to decisions to eliminate grazing -- which is a principal or major use -- over large areas, such decisions could be illegal as applied.(278) That does not mean, however, the regulations are facially invalid.(279) Moreover, it is unlikely BLM will routinely eliminate grazing over areas large enough to trigger section 202(e)(2),(280) if for no other reason than it would be extremely difficult politically.

3. Administration Under FLPMA

Provisions in FLPMA for administering BLM lands require that the Secretary of the Interior "shall manage the public lands under principles of multiple use and sustained yield, in accordance with land use plans ..."(281) This applies to all day-to-day management, including decisions related to grazing. BLM is given general authority to regulate the use, occupancy, and development of the public lands.(282) Further, the Secretary is required to "take any action necessary to prevent unnecessary or undue degradation of the lands."(283) Arguably, this provision provides specific authority to implement the policy of managing BLM lands in a manner to protect environmental and ecological values stated in section 102(a)(8), as required by section 102(b).(284) If so, it probably provides sufficient authority for BLM to develop ecosystem management-based standards and guidelines for livestock grazing.

Additionally, under section 302(c) of FLPMA, BLM must insert a provision to revoke or suspend any instrument providing for the use, occupancy, or development of the public lands when the terms and conditions of the instrument are violated.(285) Those terms and conditions can include requirements to comply with laws applicable to the public lands(286) and state water quality standards.(287) However, the violation must occur on the public lands and must have been in connection with the privilege granted by the instrument.(288)

Nevertheless, the administrative latitude to set terms and conditions for use of the public lands could be weakened relative to livestock grazing. That is because "where other applicable law contains specific provisions for suspension, revocation, or cancellation of a permit, license, or other authorization to use, occupy, or develop the public lands, the specific provisions of such law shall prevail."(289)

Sections 401 through 403 of FLPMA deal specifically with range management.(290) Section 402 provides that grazing permits and leases shall be

subject to such terms and conditions the Secretary ... deems appropriate and consistent with the governing law, including, but not limited to, the authority ... to cancel, suspend, or modify a grazing permit or lease, in whole or in part, pursuant to the terms and conditions thereof, or to cancel or suspend a grazing permit or lease for any violation of a grazing regulation or of any term or condition of such grazing permit or lease.(291)

This specific provision in section 402 seems to give the Secretary authority equivalent to the more general authority granted in section 302(c). Therefore, the caveat in section 302(c) may have little significance relative to the standards and guidelines. Consequently, it is not apparent that implementing the Clean Water Act(292) and the Endangered Species Act(293) via BLM's grazing regulations -- which the standards and guidelines seek to do -- exceeds BLM's statutory authority under either section 302(c) or section 402 of FLPMA.

FLPMA also orders the Secretary of the Interior to issue regulations "necessary to implement the provisions of [FLPMA] with respect to the management, use, and protection of the public lands ...."(294) And most critically, "[t]he Secretary, with respect to the public lands, shall promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands ...."(295) If the declaration of policy in section 102(a)(8) that public lands should be managed to protect ecological and environmental values(296) can be viewed as a "purpose" of FLPMA, which surely it must be, the Secretary of the Interior should have discretion to adopt regulations establishing ecological standards and guidelines for livestock grazing. Moreover, statutes such as the Clean Water Act and Endangered Species Act are "other laws applicable to the public lands,"(297) so the standards and guidelines, which explicitly incorporate consideration of those statutes into BLM's grazing management, should be within BLM's discretion.

4. Range Management Under FLPMA

Subchapter 4 of FLPMA(298) makes a number of provisions for range management, but only those relevant to the grazing standards and guidelines will be considered here. Congress found that "a substantial amount of the federal range lands is deteriorating in quality ..." and that range improvements could arrest that decline.(299) Range improvements are broadly defined to include "all forms of range land betterment including, but not limited to, seeding and reseeding, fence construction, weed control, water development, and fish and wildlife habitat enhancement ...."(300) Thus, the Secretary of the Interior has significant discretion to decide what methods to use to stop deteriorating range quality, and those methods are not limited to soft path approaches such as rangeland seedings.

FLPMA allows grazing permits and leases to be issued with or without an accompanying Allotment Management Plan (AMP).(301) An AMP is a document that 1) prescribes how livestock operations will be conducted in order to meet multiple use and sustained yield objectives,(302) 2) describes the type, location, ownership, and other specifications of range improvements necessary to meet the land management objectives,(303) and 3) contains any other conditions found by the Secretary to be consistent with FLPMA or other applicable laws.(304) An AMP is site specific because it is tailored to the specific range condition of the area covered by the plan and is subject to periodic review to determine whether it has been effective in improving range condition.(305)

When a grazing permit is issued without an AMP different provisions apply. First, the Secretary is required to specify terms within the permit "as he deems applicable" pursuant to applicable law affecting the management of public lands.(306) Second, the Secretary must also specify use terms within the permits, including the number of animals to be grazed and the seasons of use.(307) Moreover, the Secretary may at anytime reexamine the condition of the range and, if necessary, adjust grazing use or management as he "deems necessary."(308)

Thus, FLPMA gives BLM considerable discretion to specify terms and conditions for grazing, whether based on an AMP or solely on a permit. Therefore, the development of standards and guidelines to provide guidance for appropriate permit terms and conditions is well within BLM's discretion. The court in Public Lands Council implicitly confirmed BLM's broad authority pursuant to FLPMA by summarily affirming BLM's adoption of the standards and guidelines.(309)

C. The Public Rangelands Improvement Act

The TGA set forth only vague mandates and FLPMA required BLM to engage in multiple use sustained yield management via planning. PRIA,(310) however, gave BLM a substantive congressional mandate: improve range condition.(311) Congress found that "vast segments of the public rangelands are producing less than their potential for livestock, wildlife habitat, recreation, forage, and water and soil conservation benefits, and for that reason are in an unsatisfactory condition."(312) Congress also declared that unsatis-factory range conditions contributed to a host of undesirable conditions, including desertification, reduced water quality, threats to fish and wildlife habitat, and increased runoff and flooding.(313) Therefore, Congress "establish[ed] and reaffirm[ed]"(314) a national policy to "manage, maintain and improve the condition of the public rangelands so that they become as productive as feasible for all rangeland values in accordance with management objectives and the land use planning process [established under FLPMA]."(315)

Congress defined "range condition" for the first time in PRIA:

The term `range condition' means the quality of the land reflected in its

ability

in specific vegetative areas to support various levels of productivity in

accordance with range management objectives and the land use planning

process,

and relates to soil quality, forage values (whether seasonal or year round),

wildlife habitat, watershed and plant communities, the present state of

vegetation of a range site in relation to the potential plant community

for that site,

and the relative degree to which kinds, proportions, and amounts of

vegetation

in a plant community resemble that of the desired community for that

site.(316)

This complex definition has two parts. First, range condition means the quality of the land as reflected in its ability to support various levels of productivity in accordance with range management objectives and the land use planning process. Second, range condition relates to a number of factors of which many, but not all, are related to vegetation.

The definition of range condition is intertwined with PRIA's definition of "native vegetation."(317) PRIA defined native vegetation as "those plant species, communities, or vegetative associations which are endemic to a given area and which would normally be identified with a healthy and productive range condition occurring as a result of the natural vegetative process of the area."(318) Thus, Congress essentially established a presumption: native vegetation normally reflects good range condition.(319) And, as Professor Coggins noted,

[t]he definition [of range conditions] offers administrators the

opportunity to

come up with new measurements more in line with multiple use, sustained

yield planning objectives. The standard should be premised on the

productivity

of all uses, partially as a function of climax or native vegetation, and

should be

integrated into all phases of planning and management.(320)

Stated differently, BLM has statutory authority under PRIA to select new paths for assessing and improving range condition. BLM has exercised this authority by adopting the ecosystem management-based standards and guidelines in the amended regulations.

The above policies and definitions became operative in section 4 of PRIA(321) where, for the first time, Congress established the specific goal of improving range condition for BLM's range management.(322) Congress stated:

Except where the land use planning process required pursuant to section 202

of [FLPMA] determines otherwise or the Secretary determines, and sets forth

his reasons for this determination, that grazing uses should be discontinued,

(either temporarily or permanently) on certain lands, the goal of [range]

management shall be to improve the range conditions of the public

rangelands so

that they become as productive as feasible in accordance with the rangeland

management objectives established through the land use planning process, and

consistent with the values and objectives listed in sections 1901(a) and

(b)(2)

of [PRIA].(323)

The exceptional nature of the first part of this sentence could be read to mean that Congress did not view its command to "improve the range conditions" as typically including discontinuance of livestock grazing. Since discontinuance would be a hard path solution, the passage could be read to mean that there is a congressional preference for improving range condition via soft path activities such as water developments.

However, when the command to improve range condition is considered in light of the policies in sections 2(a) and (2)(b)(2), and when the definitions of range condition and native vegetation are considered, a restricted interpretation is not warranted. Additionally, the term "range improvement" is broadly defined in PRIA, and means

any activity or program on or relating to rangelands which is designed to

improve production of forage; change vegetative composition; control

patterns of

use; provide water, stabilize soil and water conditions; and provide

habitat for

livestock and wildlife. The term includes, but is not limited to, structures,

treatment projects, and the use of mechanical means to accomplish the desired

result.(324)

This definition is broad enough that discontinuance of livestock grazing can be viewed as a form of range improvement. And in any event, Congress certainly did not express reservations about reducing livestock numbers as a means to achieve range improvement. Thus, the hard path, the soft path, or a new path for achieving range condition improvement are all permissible under PRIA, so long as range improvement is pursued.

That, of course, was the essential message of Hodel.(325) Therefore, while the amended regulations opt for a new path for improving BLM rangeland condition based on ecosystem management precepts, there is nothing in PRIA that prohibits that approach. This view of PRIA was implicitly accepted by the Public Lands Council court when it summarily affirmed BLM's adoption of the new standards and guidelines.(326)

VII. Prior BLM Livestock Grazing Regulations

In 1934 the TGA authorized the Secretary of the Interior to regulate livestock grazing on what were to become BLM lands.(327) BLM's first grazing regulations were created by ranchers who quickly organized following passage of the TGA.(328) These pre-Administrative Procedure Act(329) regulations, known as the "Federal Range Code,"(330) focused on allocating permits, grazing fees, and the forage "preference" a rancher would receive.(331) Over the years, the Range Code was "amended as the occasion arose."(332) But when FLPMA was enacted in 1976, sweeping revisions of the regulations were made.

Regulations implementing FLPMA were promulgated in 1978 during the Carter administration.(333) In that formulation the regulations took on what can be described as the modern format - an introductory subpart laying out the general purpose, authority, and definitions of the regulations followed by subparts dealing with the specifics of the regulations. That is, they contained a subpart making general provisions, and others governing Allocation of Grazing Use,(334) Grazing Management,(335) Authorizing Grazing Use,(336) Prohibited Acts,(337) Unauthorized Grazing Use,(338) Administrative Remedies,(339) and Penalties.(340) Relatively speaking, the Carterera regulations tended down the hard path of range management. They required that grazing use be reduced in some circumstances,(341) required a designation of the suitability of allotments for grazing,(342) provided for the issuance of grazing permits of less than ten years in duration where resource conditions warranted,(343) and prohibited violation of state and federal pollution laws in connection with permitted grazing.(344)

BLM's grazing regulations were amended several times during the Republican administrations of the 1980s, and there is little doubt that an impetus for the Clinton Administration's 1995 amendments was to reverse or modify some of the Republican policies. In 1984 BLM adopted amendments to the grazing regulations that, especially when coupled with certain uncodified policy decisions, effectively put BLM on the soft path of range management.(345) Among other things, these James Watt-inspired(346) regulations would have established a Cooperative Management Agreement Program that would have turned over most livestock management decisions to certain ranchers,(347) removed prescribed grazing limits in AMPs,(348) decoupled modification of the terms and conditions of grazing permits from compliance with land use plans,(349) removed penalties for violating most environmental laws,(350) allowed for supplemental feeding without prior authorization,(351) and restricted the public's ability to appeal grazing decisions.(352)

With the exception of the appeals provision, environmentalists successfully challenged the above amendments and had them invalidated in Natural Resources Defense Council, Inc. v. Hodel.(353) Nevertheless, some of these provisions were later adopted following additional notice and comment opportunities.(354) Thus, the BLM grazing regulations were finalized in the late 1980s, setting the stage for the 1995 amendments.

VIII. BLM's Amended Livestock Grazing Regulations

BLM's amended grazing regulations substantially revised the prior regulations.(355) Probably the most significant change is the addition of a new subpart, "Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration."(356) Part A below will describe the process BLM followed to reform its grazing regulations and policy. Part B will describe the evolution of the standards and guidelines in the various rulemaking and environmental documents. Part C will analyze the new standards and guidelines. Part D analyzes how the new standards and guidelines will be implemented via other sections of the amended regulations. Finally, Part E describes measures that BLM will take to ensure the standards and guidelines comply with NEPA(357) and BLM Resource Management Plans.

A. Reforming BLM's Grazing Regulations

Reforming BLM's grazing regulations was a contentious process that occupied much of Bruce Babbitt's tenure as Secretary of the Interior during the first Clinton Administration. The Administration's first attempt to reform grazing policy was in early 1993 when President Clinton attached increases in grazing fees to the Administration's budget proposal.(358) That effort was thwarted, particularly by Democratic senators from the West.(359) Therefore, Secretary Babbitt was forced to pursue grazing reform through administrative rulemaking.

The administrative reform effort proceeded down two tracks: notice and comment rulemaking pursuant to the Administrative Procedure Act (APA)(360) and preparation of a related environmental impact statement (EIS) (Rangeland Reform '94)(361) pursuant to NEPA.(362) Notice of intent to prepare an EIS was published in July, 1993.(363) Advance notice of proposed rulemaking (ANPR) was published in August, 1993.(364) Ranchers and western congressional delegates took the ANPR as a declaration of war.(365) Reflecting that fury, approximately 12,600 letters from about 8,000 people were received in response to the ANPR and the notice of intent to prepare an EIS.(366) Moreover, Congress again entered the debate. A bill similar to BLM'S proposed rule passed the House, but Senators from the West again stymied legislative proposals.(367)

Beginning in November of 1993, Secretary Babbitt made an effort to quell the criticism by meeting on twenty occasions with western governors, local officials, and interested parties over a three-month period throughout the West.(368) He also met nine times with a group of Colorado officials, ranchers, and conservationists, known collectively as the Colorado Working Group, who had developed a consensus-based approach to rangeland management.(369)

In March, 1994, BLM published the proposed rule (PR) for BLM rangeland regulatory reform.(370) In May, 1994, a notice of availability of the Rangeland Reform '94 DEIS was published,(371) and approximately 11,000 copies of the DEIS were distributed.(372) In June, 1994, BLM and the Forest Service held forty-eight hearings on the DEIS and PR throughout the West as well as one hearing near Washington, D.C.(373) More than 1,900 people testified at the hearings and over 20,000 letters from over 11,000 people were received in response to the DEIS and PR.(374)

This massive public interest is evidence of how much concern exists regarding livestock grazing on BLM lands.(375) One commentator, Professor Joseph M. Feller, summed up the public perception of the ANPR and PR as "a strong environmental initiative [in the ANPR] followed by a retreat [in the PR due to the political backlash]. [However,] [a] better description of the trend would be a poor beginning followed by modest but significant improvements."(376)

In December, 1994 notice of availability of the Rangeland Reform '94 FEIS was published and over 14,000 copies were distributed.(377) The record of decision stemming from the Rangeland Reform '94 FEIS was issued on February 13, 1995, and it was "represented" in the final rule (FR),(378) which was published on February 22, 1995.(379) The FR became effective on August 21, 1995.(380) The regulations published in the FR were generally similar to the 1994 PR except that the regulations regarding increasing grazing fees had been dropped.(381)

B. Evolution of the Standards and Guidelines: The ANPR and PR

The standards and guidelines in the ANPR were detailed national prescriptions for livestock management that would not have been codified. The PR softened the ANPR proposal by making the standards and guidelines less specific(382) and allowing more local influence in their development.(383) The PR strengthened the ANPR proposal, however, by proposing to codify the standards and guidelines(384) and also by incorporating an action-forcing provision requiring BLM to take action within one year if national requirements or standards and guidelines were not being met.(385) The standards and guidelines proposed in the PR were adopted with relatively minor changes in the FR.(386) This section will describe the evolution of the standards and guidelines from the ANPR to the PR in more detail.

The ANPR did not propose to codify "standards and guidelines" for grazing management in the Code of Federal Regulations.(387) Rather, the standards and guidelines, which were included as an appendix to the ANPR, would have provided "policy-level direction for livestock grazing ..."(388) The ANPR provided that local standards and guidelines could be developed, but a restrictive view was taken: "Regional standards and guidelines would be developed when appropriate to ensure that significant values on the local and regional level, which cannot be treated by national direction, would be addressed."(389)

The ANPR also proposed a considerably different structure for the standards and guidelines than was ultimately adopted in the FR.(390) The ANPR divided the provisions for grazing standards and guidelines into two sections 1) those applicable to all BLM rangeland ecosystems and 2) those applicable to "unhealthy ecosystems."(391) Grazing standards and guidelines for unhealthy ecosystems were further subdivided into 1) those applicable to riparian-wetland areas,(392) and 2) those applicable to upland areas.(393) These two subdivisions were each broken down further with separate standards and guidelines proposed for ecosystems that were "not functioning properly," and for those "functioning but susceptible to degradation.(394) similarity of this terminology to that used in Rangeland Health is manifest, and the riparian-upland distinction was also evident in Rangeland Reform '94.(395)

The thirty-three standards and guidelines in the ANPR were far more specific than those adopted in the FR and read like a range management handbook.(396) For example, on all rangelands, wells would have been required to be "drilled at least one-quarter mile from riparian-wetland areas, or the water from wells will be made available to livestock at least one-quarter mile from riparian wetland areas.(397) And in riparian-wetland areas that are "not functioning properly," "[s]treambank damage by livestock will be limited to less than 25 percent of the linear length of a stream segment."(398) While few if any of the standards and guidelines in the ANPR appendix survived verbatim in the FR, the FR mandates the same considerations as were specified in the ANPR. Therefore, the ANPR standards and guidelines can still provide a concrete and detailed starting point for assessing or developing local standards and guidelines pursuant to the FR.

Unlike the ANPR, the PR proposed 1) codifying less specific standards and guidelines,(399) 2) giving BLM state directors greater latitude to develop local standards and guidelines,"(400) 3) abandoning the basic structure and some of the terminology proposed in the ANPR,(401) and 4) requiring that action be taken by the start of the next grazing year if grazing practices were causing national requirements or local standards and guidelines to be violated.(402)

Specifically, the PR proposed codifying four "National Requirements for Grazing Administration."(403) Pursuant to the national requirements, grazing permits and leases and grazing-related plans such as AMPs would have been required to incorporate, "as applicable," grazing practices that 1) maintained or achieved "healthy, properly functioning ecosystems;"(404) 2) maintained or achieved "properly functioning riparian systems;"(405) 3) ensured attainment of state water quality standards "to the extent practicable;"(406) and 4) ensured protection of rare species' habitat "to the extent practicable.(407)

The PR also proposed allowing BLM state directors to develop local standards and guidelines as a general proposition.(408) However, local standards and guidelines would have been constrained by national guiding principles for standards and guidelines.(409) Additionally, if local standards and guidelines were not developed within eighteen months of the effective date of the FR, national fallback standards and guidelines would have been automatically imposed.(410) Moreover, unlike the ANPR, the PR did not subdivide the standards and guidelines according to whether rangelands were healthy or unhealthy.(411)

Generally, the four national requirements, four guiding principles for local standards, nine guiding principles for local guidelines, and thirteen fallback standards and guidelines published in the PR were less specific than those in the ANPR, but somewhat more specific than those adopted in the FR.(412) Furthermore, the PR had action-forcing provisions requiring the authorized officer to take "appropriate action ... as soon as practicable but not later than the start of the next grazing year where existing management practices fail to meet the requirements" specified in the national requirements or standards and guidelines.(413)

The Rangeland Reform '94 DEIS was released in May, 1994,(414) three months after the PR(415) was released. The DEIS discussed the national requirements and standards and guidelines, and the language in the DEIS tracks that in the PR quite closely.(416) The FEIS also discussed the standards and guidelines,(417) presenting them in an appendix that generally tracked the language in the FR.(418) Based on the above rulemaking and environmental review process, BLM published the FR codifying the standards and guidelines on February 22, 1995,(419) and they became effective on August 21, 1995.(420)

C. BLM's Amended Regulations: Fundamentals of Rangeland Health

and Standards and Guidelines for Grazing Administration

Subpart 4180 is a new addition to BLM's grazing regulations entitled "Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration."(421) It is a significant and possibly revolutionary change in BLM's grazing regulations and policy. Heretofore BLM provided only vague, nonbinding statements in its Resource Management Plans to measure the acceptability of livestock grazing on BLM lands.(422) Those vague descriptions and soft path prescriptions were upheld in Hodel,(423) and they have allowed BLM to avoid promptly responding to ecological damage caused by livestock grazing. In contrast, the new standards and guidelines spell out in detail the ecological conditions that must exist on BLM lands,(424) and then require prompt action to modify grazing practices that are a significant factor in not achieving the standards and guidelines.(425)

In many instances compliance with the standards and guidelines will require the hard path decision of reducing livestock numbers. However, they do not mandate that singular approach; instead, they mandate that rangeland ecosystems remain in, or make significant progress toward being in, proper functioning condition. Thus, as in the past, BLM can consider a number of remedies to correct overgrazing, including soft path approaches. Unlike the past, however, BLM cannot interminably avoid making changes in grazing management when changes are needed to protect the ecological health of BLM rangelands. Moreover, the standards and guidelines provide ecological benchmarks of what constitutes acceptable decisions and results.(426) Therefore, the standards and guidelines establish the amended regulations as a new path of range management based on ecosystem management.

The "Fundamentals of Rangeland Health," the "Standards and Guidelines for Grazing Administration," and the influence of Rangeland Health on these provisions will be addressed in this subpart.

1. Fundamentals of Rangeland Health

The "Fundamentals of Rangeland Health" are four overarching principles that govern livestock management on all BLM lands in the eleven western states. In full, they provide:

The authorized officer shall take appropriate action under subparts 4110, 4120,

4130, and 4160 of this part as soon as practicable but not later than the start of

the next grazing year upon determining that existing grazing management

needs to be modified to ensure that the following conditions exist.

(a) Watersheds are in, or are making significant progress toward, properly

functioning physical condition, including their upland, riparian-wetland, and

aquatic components; soil and plant conditions support infiltration, soil

moisture storage, and the release of water that are in balance with climate and

landform and maintain or improve water quality, water quantity, and timing

and duration of flow.

(b) Ecological processes, including the hydrological cycle, nutrient cycle, and

energy flow, are maintained or there is significant progress toward their

attainment, in order to support healthy biotic populations and communities.

(c) Water quality complies with State water quality standards and achieves, or

is making significant progress toward achieving, established BLM management

objectives such as meeting wildlife needs.

(d) Habitats are, or are making significant progress toward being, restored or

maintained for Federal threatened and endangered species, Federal proposed,

Category 1 and 2 Federal candidate and other special status species.(427)

BLM believes the fundamentals of rangeland health are "critical to ensuring that [the administration of livestock grazing] helps preserve currently healthy rangelands and restore[s] healthy conditions to those areas that currently are not functioning properly, especially riparian areas."(428) Furthermore, "[t]he intent in adopting [the fundamentals of rangeland health] is to facilitate compliance with relevant requirements of Acts such as the [Endangered Species Act] and the Clean Water Act and to ensure functional rangelands in order to improve ecological conditions while providing for sustainable development."(429) Unlike the standards and guidelines discussed below, the fundamentals became operative on August 21, 1995, when the amended regulations became effective.(430)

The "Fundamentals of Rangeland Health" specify who will take action,(43)1 what action must be taken,(432) when the action must be taken, and what the action must achieve. Nevertheless, the fundamentals are a mix of the mandatory and permissive. On the one hand, the authorized officer must modify grazing management by changing, for example, the terms and conditions of a grazing permit to "ensure" that the four fundamentals exist.433 Yet "appropriate action" only becomes mandatory "upon [BLM] determining that existing grazing management needs to be modified."(434) The "appropriate action" and "upon determining" language could give BLM substantial discretion that likely will only be judicially constrained by the arbitrary and capricious standard.(435)

Furthermore, the four fundamentals have inherent differences in terms of whether a successful challenge could be pursued via an administrative appeal or in court. The differences stem from whether a court is likely to be able to conclude BLM failed to make a rational determination of whether a fundamental was being violated by grazing or failed to take appropriate action to ensure a fundamental exists.(436) The watershed protection and ecological processes fundamentals have a sound scientific basis in a general sense,(437) but they are stated in broad and nebulous terms.(438) Therefore, while BLM will have to consider whether grazing management needs modification to ensure these fundamentals exist, it would be difficult, for example, to challenge BLM's determination that "soil moisture storage, and the release of water ... are in balance with climate and landform" in a particular allotment.(439) And even if BLM determines action is needed to ensure these fundamentals exist, the decision will be difficult to challenge. For example, a BLM decision that new fencing, rather than reducing livestock numbers, is the appropriate action in a particular allotment must be shown to be arbitrary and capricious for a challenge to be successful.(440)

In contrast, the water quality and rare species fundamentals may be more enforceable.(441) For example, there is no doubt that the term "State water quality standards" in the water quality fundamental refers to the water quality standards required under section 303 of the Clean Water Act.(442) Water quality standards are composed of numerical and narrative criteria,(443) designated uses,(444) and an antidegradation policy,(445) all of which are enforceable limits.(446) The potential for enforcing the water quality standard fundamental can be illustrated through the following example.

The Price River flows through south central Utah, almost exclusively on BLM lands. One designated use for the river is protection of "nongame fish and other aquatic life, including the necessary aquatic organisms in their food chain."(447) Utah's current "305(b) report"(448) states this designated use is "not supported," the cause of the impairment is "dissolved solids," and the source of the impairment is "agriculture."(449) Livestock grazing is the only agriculture along the segment of the Price River that runs through BLM lands except for some irrigated agriculture near the town of Price. Thus, it is already known that the state water quality standard is not complied with, agriculture of some sort is the source of that impairment, and livestock grazing is virtually the only agriculture in the area.

At a minimum BLM should affirmatively determine if livestock grazing -- not other agriculture -- is the cause of the known impairment by dissolved solids of the nongame fishery designated use. If livestock grazing is causing the lack of compliance with the designated use, there is a clear and mandatory requirement: modify livestock grazing management to ensure water quality complies with the state water quality standard. Moreover, to be "appropriate" the action should focus on nongame fish as impacted by dissolved solids, and not other considerations. If BLM either failed to affirmatively determine whether livestock grazing was causing violation of the water quality standard, or if the action chosen failed to focus on the factors defined by the water quality standards, a court should be able compel BLM action or set aside its actions as arbitrary and capricious. Likewise, the rare species fundamental,(450) which is obviously tied to the Endangered Species Act,(451) should be enforceable by a court, especially where critical habitat has been identified.(452)

2. Standards and Guidelines for Grazing Administration

Unlike the nationally applicable "Fundamentals of Rangeland Health," "Standards and Guidelines for Grazing Administration" can be developed by BLM state directors.(453) But if local standards and guidelines are not developed by February 12, 1997 -- or by no later than August 12, 1997 if a postponement is granted -- national "fallback" standards and guidelines will be imposed.(454) The objective of the standards, whether locally developed or fallback, is to ensure that the Fundamentals of Rangeland Health exist.(455) The guidelines are intended to identify "acceptable or best grazing management practices that will result in, or ensure significant progress toward, fulfillment of the standards."(456) As will be seen, the standards and guidelines reflect the fundamentals, but they are more numerous and add substantial detail to the ecosystem management mandates in the fundamentals.(457)

The amended regulations provide that standards and guidelines will be developed by BLM state directors for a whole state, or in some circumstances for an area encompassing several states.(458) Other smaller areas with "unique" characteristics may require their own grazing standards and guidelines if the geographically broader regulations would be inadequate.(459)

Local standards and guidelines must be developed in consultation with Resource Advisory Councils,(460) and in coordination with Indian tribes,(461) other land management agencies,(462) and the public.(463) Additionally local standards and guidelines must conform with the Fundamentals of Rangeland Health(464) and cannot be implemented until approved by the Secretary of the Interior."(465)

As with the fundamentals, the who, what, when, and how" for implementing the standards and guidelines is specified in the regulations. The authorized officer "shall take appropriate action" no later than the next grazing year "upon determining that existing grazing management practices or levels of grazing use ... are significant factors in failing to achieve the standards and conform with the guidelines ...."(466) Appropriate action means actions taken pursuant to the previously mentioned provisions related to qualifications and preference, grazing management, authorizing grazing use, and implementing decisions.(467) The action must "result in significant progress toward fulfillment of the standards and significant progress toward conformance with the guidelines" to be appropriate action.(468)

As mentioned above, the significant factor determination followed by appropriate action (with the significant progress requirement defining whether the action is appropriate) are the second and third steps in BLM's three-step implementation plan for the standards and guidelines.(469) And as also mentioned, "significant factor"(470) determinations and the "significant progress"(471) requirement have relevance to implementation of the fundamentals of rangeland health.(472)

BLM has elaborated on its view of what constitutes a "significant factor" and "significant progress."(473) Determining whether grazing is a "significant contributing factor" is the responsibility of the authorized officer.(474) However, it "requires consideration of things such as the number of contributing factors, how the effect of grazing use or practices compares to the effects of other contributing factors, comparison to similar sites under different management treatments, and the anticipated effect if grazing were modified."(475) Thus, while authorized officers nominally have discretion to determine whether grazing is a significant factor, BLM has listed certain, albeit nonexclusive, considerations that should be made. Failure to make at least the specified considerations, or to have a rational reason for not making them, could make it more likely a significant factor determination would be deemed arbitrary and capricious.(476)

Furthermore, BLM stated that assessments of rangeland health, and presumably significant factor determinations, will based on whether there is widespread failure to meet the standards and guidelines:

[R]angelands within a given area may be in functional, healthy conditions

even

though individual isolated sites do not meet the standards or guidelines.

However,

the [BLM] believes that general failure to meet the benchmarks across a

broader area, such as a typical BLM grazing pasture or BLM allotment, would

be reliable evidence that the area is not in healthy functional condition.

(477)

BLM elaborated somewhat by stating:

In assessing the health of rangelands to determine whether action of the

authorized

officer is necessary, the BLM will generally consider the extent to

which standards are being met and guidelines being followed across the area

of a grazing allotment or group of allotments. The [BLM] intends that

failing to

comply with a standard in an isolated area would not necessarily result in

corrective

action.(478)

This landscape level perspective should not, however, be used to exclude riparian areas that are in poor health from having grazing deemed as a significant factor just because the rest of the allotment (i.e., upland areas) is healthy. Such a view would be completely contrary to one of the most clearly stated reasons for adopting the amended regulations and the standards and guidelines: increased emphasis on and protection for riparian and wetland areas.(479) This view would also be contrary to the separate consideration of uplands and riparian areas emphasized in the ANPR,(480) DEIS,(481) and FEIS,(482) and to some extent the FR.(483)

Like significant factor determinations, compliance with the significant progress requirement is left to the discretion of the authorized officer with the arbitrary and capricious standard being a judicial restraint. (484) However, BLM again has provided some concrete indications of what constitutes compliance with this requirement. Appropriate action requires "improvement of resource conditions on the ground.(485) A determination of whether significant progress is being made "likely will entail consideration of the physical or biological potential of a site to recover, including the rate of recovery, the recovery time and the longevity of a predicted response, whether significant progress is being made toward the goal, and the risk of further damage.(1486) If these considerations indicate that options for taking action will produce widely disparate recovery times, the action with the shorter recovery time should be selected.(487)

BLM also indicated that significant progress is synonymous with an upward range trend:(488)

[BLM] will use a variety of data including monitoring records, assessments,

and

knowledge of the locale to assist in making the "significant progress"

determination. It is anticipated that in many instances it will take

numerous grazing

seasons to determine direction and magnitude of trend. However, actions will

be taken to establish significant progress toward conformance as soon as

sufficient

data are available to make informed changes in grazing practices.(489)

BLM also stated that

[tlhe suggestion that public rangelands be required to exhibit an upward

trend

in condition is adopted, in part, through the addition of the requirement

that

action be taken to ensure significant progress toward the fulfillment of the

standards and toward conformance with the guidelines .... (490)

However, "trend" as a measure of significant progress probably should not be equated with "trend" in a strictly technical sense. That is because range trend, like range condition, has traditionally been based only on vegetative change.(491) The standards and guidelines, however, have a broader ecosystem management focus. Accordingly, the trend of more than just vegetation should be considered in making significant progress determinations.

Of critical importance is the standard of proof that will apply to assessments of compliance with the standards and guidelines and the significant factor and significant progress determinations. While the preponderance of the evidence standard is not explicitly mentioned in the amended regulations, there are several clues that support its application.

First, Rangeland Health proposed that the basis for deciding that a rangeland should be assigned to a particular health category should be a preponderance of the evidence gleaned from several indicators of rangeland health.(492) Second, the PR proposed a preponderance of the evidence standard relative to when action should be taken to meet a fallback standard:

The authorized officer shall take appropriate action under subparts 4110,

4120,

4130, and 4160 of this part, where a preponderance of the evidence, collected

through field observations, monitoring, site inventory, or other acceptable

study methods, indicates the standards are not being met.(493)

The FR did not carry this language forward.(494) But the FEIS, which was issued contemporaneously with the FR, stated: "Compliance with applicable standards would be based on the preponderance of the evidence derived from on site assessments."(495) Therefore, a preponderance of the evidence standard should guide BLM functioning category assessments and significant factor and significant progress determinations. This standard would allow for relatively fast decision making, especially compared to the rigid requirement for several years of "monitoring" data that existed under the old regulations.(496)

Regardless of the applicable standard of proof, the regulations allowing development of local standards and guidelines are not a blank check. In addition to approval by the Secretary of the Interior and conformance with the Fundamentals of Rangeland Health,(497) local standards and guidelines are also constrained by "guiding principles."(498) "At a minimum" local standards "must address" 1) watershed function, 2) nutrient cycling and energy, flow, 3) water quality, 4) protection for endangered and other rare species' habitats, and 5) habitat quality for native plant and animal populations.(499) The twelve guiding principles for locally developed guidelines are similar to the requirements of the standards, but they are more numerous and specific.(500) In general, the local guidelines must address watershed function, ecological processes, water quality, threatened or endangered species' habitats, and requirements to emphasize native species.(501)

Individually, the twelve guiding principles for local guidelines contain much nebulous language -- "adequate" amounts of vegetation, "appropriate" water permeability rates, "promoting" certain soil organisms -- that could give local BLM offices considerable discretion.(502) Read together, however, they limit discretion. That is because local guidelines "must address" all twelve guiding principles and their numerous subparts, all of which tend to channel decisions toward ensuring environmental protection and ecosystem management. Thus, while the nebulous language of individual guidelines seems to give BLM state offices significant latitude in developing their own standards and guidelines, in the end they will be on a short leash because of the plethora of factors they must address.

As originally promulgated, the amended regulations contained a "hammer" provision to ensure standards and guidelines became operative relatively promptly.(503) The regulations stated:

In the event that State or regional standards and guidelines are not

completed

and in effect by February 12, 1997, and until such time as State or regional

standards and guidelines are developed and in effect, [the national

"fallback"

standards and guidelines listed below] shall apply and will be implemented in

accordance with paragraph (c) of this section.(504)

The hammer effect of this provision was later weakened when BLM attached the following sentence to the sentence above:

However, the Secretary may grant, upon referral by the BLM of a formal

recommendation by a [RAC], a postponement of the February 12, 1997, fallback

standards and guidelines implementation date, not to exceed the 6-month

period ending August 12, 1997.(505)

While BLM justified this revision partly because it would allow RACs time to complete their" collaborative process"(506) it probably also reflects the livestock industry's ongoing efforts to minimize the impact of the standards and guidelines. If utilized, some standards and guidelines will not be put into place until the final rule will have been "effective" for two years.(507)

The "fallback" standards and guidelines(508) are similar to the "guiding principles" for local standards and guidelines except that they are even more detailed.(509) As with local standards and guidelines, BLM must modify grazing if it is a significant factor in failure to achieve the "fallback" standards and guidelines.(510) Moreover, while DOI is unlikely to impose fallback standards and guidelines on many BLM state offices, they may exert a subtle pressure to develop adequate local standards and guidelines. Namely, they implicitly spell out the minimum detail and scope of coverage that local standards and guidelines must embody before they will be approved by the Secretary of the Interior.(511)

The fallback standards require the following ecological conditions to exist:

(i) Upland soils exhibit infiltration and permeability rates that are

appropriate

to soil type, climate, and landform.

(ii) Riparian-wetland areas are in properly functioning condition.

(iii) Stream channel morphology (including but not limited to gradient,

width/

depth ratio, channel roughness and sinuosity) and functions are appropriate

for the climate and landform.

(iv) Healthy, productive and diverse populations of native species exist and

are maintained.(512)

The fifteen fallback guidelines fall into three general categories. Some provide that grazing management must "maintain or promote" various ecological attributes and processes(5l3) -- for example, sufficient residual vegetation to ensure riparian areas are functioning. Others are mandates to protect rare species and to emphasize native species in management decisions.(514) Still others require specific management actions(5l5) -- for example, provision for periods of rest from disturbance or livestock use during critical plant growth periods.

To conclude these sections on the Fundamentals of Rangeland Health and the Standards and Guidelines for Grazing Administration -- and as mentioned above -- BLM must take "appropriate action" upon determining that grazing is preventing the fundamentals or standards and guidelines from being met.(516) With regard to the standards and guidelines, however, BLM did not just reference other sections of the regulations as being the source for appropriate types of actions.(517) The amended regulations also list the grazing activities that are subject to compliance with the standards and guidelines.(518) The regulations provide that

Practices and activities subject to standards and guidelines include the

development

of grazing-related portions of activity plans, [which include and are

akin to AMPs], establishment of terms and conditions of permits, leases and

other grazing authorizations, and range improvement activities such as

vegetation

manipulation, fence construction and development of water.(519)

BLM also commented that the standards and guidelines will be implemented as follows:

[BLM] anticipates that in most cases the standards and guidelines themselves

will not be terms and conditions of various authorizations but that the terms

and conditions will reflect the standards and guidelines. For example, a

standard for maintaining water quality may be implemented via a condition of

a

permit that livestock will not be allowed to occupy specified riparian areas

during a certain time of the year.(520)

Thus, the new regulations envision four tiers of interrelated regulation 1) broad nationally applicable fundamentals of rangeland health,(521) 2) standards (usually locally developed) that ensure adherence to the fundamentals,(522) 3) guidelines (also usually locally developed) that provide "acceptable or best grazing management practices that will result in or ensure significant progress towards fulfillment of the standards,"(523) and 4) terms and conditions in grazing permits, activity plans, and range improvement activities that "reflect" the standards and guidelines.(524)

3. Rangeland Health's Imprint on the Standards and Guidelines

Many of the fundamentals of rangeland health and standards and guidelines in the amended regulations reflect the criteria and indicators of rangeland health proposed in Rangeland Health.(525) Rangeland Health proposed that "[t]he determination of whether a rangeland is healthy, at risk, or unhealthy should be based on the evaluation of three criteria: degree of soil stability and watershed function, integrity of nutrient cycles and energy flow, and presence of functioning recovery mechanisms."(526) BLM's assessments of whether a rangeland is in proper functioning, functioning at risk, or nonfunctioning condition will be based on many of these same criteria.(527) Additionally, significant factor and significant progress determinations will also need to focus on these criteria.

The first criterion, soil stability and watershed function, is evaluated by using indicators of soil movement by wind and water, and indicators of water infiltration or capture of precipitation.(528) More specifically, "[s]oil surface characteristics are currently the best available indicators of soil stability and watershed function."(529) The amended regulations address watershed function and soil stability in the fundamentals of rangeland health,(530) guiding principles for local standards(531) and guidelines,(532) and the fallback standards(533)and guidelines.(534) Nevertheless, the amended regulations do not require consideration of the specific indicators of soil movement proposed in Rangeland Health, such as the presence of rills and gullies.(535)

The second criterion, the integrity of nutrient cycles and energy flow, is incorporated into the amended regulations as a fundamental of rangeland health,(536) guiding principles for standards(537) and guidelines,(538) and as fallback standards(539) and guidelines.(540) Rangeland Health proposed that the temporal and spatial distribution of nutrients and energy were particularly critical,(541) and several indicators of this criterion were proposed.(542) Again, however, the amended regulations do not codify the specific indicators of energy and nutrient distribution proposed in Rangeland Health, such as the rooting depth of plants.(543)

Movement and allocation of nutrients and energy are some of the most basic functions of an ecosystem.(544) There is little experience, however, using this criterion, and the recovery mechanism criterion discussed below,(545) in a range management context.(546) That lack of experience, namely a lack of proven or practical methodologies, served as a basis to criticize the amended regulations.(547)

But the requirement to consider these criteria despite a relative lack of experience with them can be viewed as a technology-forcing mechanism.(548) Technology-forcing provisions were successful, for example, in forcing automobile manufacturers to develop catalytic converters despite no prior experience with this type of equipment.(549) While developing practical methods to evaluate energy flow, nutrient cycling, and the status of recovery mechanisms will present challenges, those problems cannot be deemed insurmountable until a serious effort is first made to develop methods of evaluation.(550) Simply criticizing them as unproven technology is an insufficient legal basis to disregard the standards and guidelines based on those criteria, especially since there is no doubt they are highly relevant to ecosystem function.

The third criterion, "recovery mechanisms,"(551) are attributes and processes such as seed germination that allow an ecosystem to rebound after disturbance. Rangeland Health proposed that changes in "plant demographics"(552) were particularly critical to understanding the status of recovery mechanism, and several indicators were proposed.(553) The new regulations embrace this criterion; however, the embrace is complex.

Unlike the watershed function and energy and nutrient cycling criteria, the presence of recovery mechanisms is not explicitly a fundamental of rangeland health.(554) Similarly, the guiding principles for locally developed standards contain a provision that only generally adopts the recovery mechanism criterion.(555) The guiding principles for locally developed guidelines, however, have more explicit recovery mechanism provisions.(556) The fallback standards also only arguably have a recovery mechanism requirement.(557) But the fallback guidelines not only adopt the recovery mechanism criterion, some virtually adopt the actual indicators recommended in Rangeland Health.(558)

Rangeland Health also discussed how the three criteria of rangeland health and their associated indicators can be used to assess whether a rangeland is healthy, at risk, or unhealthy.(559) BLM's amended regulations, however, do not define when a rangeland falls into one of BLM's analogous functioning categories. That, apparently, is the role of the assessment methods BLM is developing and plans to soon apply.(560) Nevertheless, the Fundamentals of Rangeland Health and the Standards and Guidelines are a roadmap for the considerations BLM must take into account as it develops and implements its rangeland health assessment methods. Additionally, the standards and guidelines help define what actions are appropriate for ensuring that rangeland health is achieved.

D. Actions Available to Ensure Compliance with the Standards and Guidelines

As indicated above, modifying grazing pursuant to several subparts of the amended regulations is specifically mandated by subpart 4180 if grazing is a significant factor causing noncompliance with the standards and guidelines.(561) Moreover, other subparts of the amended regulations -- while not explicitly tied to ensuring compliance with the standards and guidelines -- are relevant as they focus on environmental protection or ecosystem management. Those two kinds of provisions will be addressed in this section. Additionally, the court in Public Lands Council(562) set aside and affirmed several of the provisions that win be discussed below, and those holdings will be briefly addressed as well.

1. Regulations Explicitly Tied to the Standards and Guidelines

Action to ensure compliance with the standards and guidelines must be taken pursuant to subparts 4110, 4120, 4130, and 4160 of the amended regulations.(563) Those subparts address "Qualifications and Preference" (subpart 4110), "Grazing Management" (4120), "Authorizing Grazing Use" (4130), and "Administrative. Remedies" (4160). translated, and for purposes of this Article, they concern changing livestock numbers (4110), conditions attaching to AMPs and range improvement projects (4120), terms and conditions in grazing permits (4130), and implementation of decisions (4160).

a. Subpart 4110 -- Qualifications and Preference

Among other things, this subpart provides for increasing and decreasing the amount of permitted livestock use on an allotment.(564) However, in probably the most significant holding in Public Lands Council, the court set aside and enjoined enforcement of the term "permitted use" because, the court said, this new term eliminated ranchers' TGA-mandated "grazing preference."(565) Resorting to hyperbole, the court concluded that "[w]ith the mere stroke of his pen, the Secretary has boldly and blithely wrested away from Western ranchers the very certainty, the definitiveness of range rights, and the necessary security of preference rights that their livestock operations require" by substituting the new term "permitted use" for the old term "grazing preference."(566)

The full implications of the Public Lands Council holding are unclear, especially since the term "permitted use" is found throughout the amended regulations.(567) Also, much will depend on how the appeal of this case is decided by the Tenth Circuit Court of Appeals. But this much is clear: the Public Lands Council court did not hold that BLM cannot reduce livestock numbers if needed to protect the environment or achieve compliance with the standards and guidelines. BLM has always had that authority.(568) Therefore, BLM is not precluded by the Public Lands Council decision from reducing livestock numbers if needed to achieve compliance with the standards and guidelines -- it just cannot refer to the reduction as a change in permitted use. Thus, for example, BLM could reduce "active use" by placing some grazing use in "suspension" or "temporary nonuse" because the Public Lands Council decision did not eliminate that option.(569)

The general provision in the amended regulations for changing permitted use states that the authorized officer "shall make changes in the permitted use as needed to manage, maintain, or improve rangeland productivity, to assist in restoring ecosystems to properly functioning condition, to conform with land use plans or activity plans, or to comply with the provisions of subpart 4180 of this part."(570) The language mandating compliance with the standards and guidelines and allowing changes in livestock use to restore ecosystems did not midst in the old regulations.(571) Thus, there appear to be more reasons for changing livestock use under the amended regulations with the new reasons centering on ecosystem management considerations. Moreover, the new regulations provide that changes in livestock use "must be supported by monitoring, field observations, ecological-site inventory or other data acceptable to the authorized officer."(572) "Field observations" and "other data acceptable to the authorized officer," which are undefined terms, will give BLM great discretion for making changes in livestock use if necessary to achieve compliance with the standards arid guidelines.(573)

In contrast, under the old regulations, changes in grazing preference had to be "supported by monitoring, as evidenced by rangeland studies conducted over time, unless the change is either specified in an applicable land use plan or necessary to manage, maintain or improve rangeland productivity."(574) While this language gave BLM "plenary authority to make changes in livestock numbers"(575) and therefore nominally granted even broader authority to make changes in livestock numbers than the new regulations,(576) in reality BLM required monitoring studies as a prerequisite to changing grazing preference under the old regulations.(577) Due to the way "monitoring" and "rangeland study" were defined in the old regulations,(578) changing grazing preference essentially required a full-blown scientific study based on narrowly defined kinds of data. But given BLM's budgetary and personnel constraints, those nominally scientific requirements in fact reflected a political decision made during James Watt's tenure as Secretary of the Interior to minimize reductions in livestock numbers.(579) Since the standards and guidelines expand the kinds of considerations applicable to changing livestock use, and the amended regulations do not require monitoring as a data collection procedure, it should be easier to change livestock use under the new regulations.

Compliance with the standards and guidelines is also incorporated into provisions for decreasing permitted use,(580) which is probably the regulatory section of most interest to environmentalists and ranchers. The amended regulations state:

When monitoring or field observations show grazing use or patterns of use are not consistent with the provisions of subpart 4180, or grazing use is

causing an unacceptable level or pattern of utilization, or when use exceeds

the livestock carrying capacity as determined through monitoring, ecological

site inventory or other acceptable methods, the authorized officer shall

reduce

permitted grazing use or otherwise modify management practices.(581)

Parsing this section, there are three reasons for decreasing livestock grazing use 1) inconsistency with the standards and guidelines,(582) 2) other unacceptable levels or patterns of utilization,(583) or 3) livestock grazing use exceeding carrying capacity.(584) Under a strict reading of the language, monitoring or field observations are means for determining that grazing use or patterns of rangeland use are inconsistent with the standards and guidelines or that otherwise unacceptable utilization is occurring. Monitoring, ecological site inventory, or other acceptable methods must be used to make adjustments based on exceedance of carrying capacity. A strict reading, however, is probably incorrect.

BLM's commentary on the amended regulations indicated that monitoring, direct observation, ecological site inventory, and trend data are all acceptable bases for determining that grazing is inconsistent with the standards and guidelines, and hence that grazing use should be decreased.(585) Moreover, this interpretation is consistent with the general provision for changing livestock use, which clearly allows a multiplicity of methods to serve as the basis for changing livestock use when the standards and guidelines are violated.(586) Consequently, BLM has a broad range of data gathering methods available on which to base decisions to decrease livestock use so as to achieve compliance with the standards and guidelines.

Unlike the amended regulations, the old regulations only recognized unacceptable utilization(587) or exceedance of carrying capacity, as determined by monitoring studies,(588) as bases for decreasing active Use.(589) Nevertheless, the old regulations only required a reduction in active use "if necessary to maintain or improve productivity."(590) Thus, the real governing factor for reducing active use under the old regulations was a reduction in productivity, which was an undefined term. But even if productivity was threatened, livestock numbers did not need to be reduced if "the authorized officer determin[ed] a change in management practices would achieve the management objectives."(591) Furthermore, the old regulations required that "[c]hanges in active use in excess of 10 percent shall be implemented over a 5-year period."(592)

As indicated above, while BLM nominally had plenary authority to change livestock numbers under the old regulations, BLM nevertheless insisted on monitoring studies before grazing use was decreased.(593) Professor Feller termed the policy of not reducing livestock numbers under the old regulations the "Numbers Maintenance Policy" because while it was theoretically possible to change grazing preference or active use, in fact it was virtually impossible due to the monitoring requirement.(594) For example, if budgetary constraints prevented the strict monitoring requirements from being implemented -- not an infrequent situation -- reductions in livestock numbers were simply not made.(595) Moreover, monitoring was narrowly focused on vegetation and forage characteristics; characteristics such as wildlife and water quality, for example, were not considered.(596) Thus, this James Watt-era policy "in effect, establishe[d] a presumption in favor of maintaining existing numbers of livestock and severely restrict[ed] the kind of evidence that [could] be used to overcome that presumption."(597)

By expanding the types of data acceptable for making a determination to reduce livestock use, the new regulations repudiate the numbers maintenance po]icy.(598) Nevertheless, BLM does not intend that reducing livestock numbers be the only means for ensuring conformance with the standards and guidelines.(599) Thus, while BLM abandoned the soft path approach embodied in the Watt-era numbers maintenance policy, it did not opt for the hard path of range management to achieve conformance with the standards and guidelines. That is, the amended regulations make reducing livestock use an actual option, but not the sole option, to ensure compliance with the standards and guidelines.

b. Subpart 4120 -- Grazing Management

This subpart of the amended regulations addresses AMPs, range improvements such as water developments and seedings, and distribution of range improvement funds.(600) AMPs, and other activity plans(601) serving as the functional equivalents of AMPs shall [i]nclude terms and conditions under ... subpart 4180."(602) Despite this requirement, "[BLM] does not intend that standards and guidelines win automatically be incorporated into [activity plans) upon the effective date of this rule. Rather, standards and guidelines will be incorporated into individual plans as the need for modification of the plans is identified.(603) Moreover, normally BLM will not attach the actual standards and guidelines as terms or conditions in AMPs, rather terms and conditions "reflecting" the standards and guidelines will be developed.(604)

The amended regulations do not explicitly mention the standards and guidelines in the provisions discussing range improvements.(605) However, there is no doubt that the standards and guidelines apply to range improvements because subpart 4180 itself states that "[p]ractices and activities subject to the standards and guidelines include ... range improvement activities such as vegetation manipulation, fence construction, and development of water."(606) Furthermore, the guiding principles for local guidelines and the fallback guidelines make specific provisions related to range improvements.(607) For example, there are requirements that native species be emphasized, that "facilities" be located away from riparian and wetland areas where they conflict with "achieving or maintaining riparian-wetland function," and that water developments be designed to protect ecological functions.(608) Thus, the standards and guidelines will play a prominent role in BLM range improvement decisions.(609)

The amended regulations authorize a new distribution of range improvement funds.(610) One half of the funds will be expended on range improvement projects in the state and BLM district from which they derived.(611) The other half will be "allocated, on a priority basis, by the Secretary for on-the-ground rehabilitation, protection and improvement of public rangeland ecosystems."(612) "[A]ll forms of improvements that benefit rangeland resources" can be funded, including "riparian area rehabilitation, improvement and protection, fish and wildlife habitat improvement or protection, soil and water resource improvement, wild horse and burro habitat management facilities, vegetation improvement and management, and livestock grazing management."(613) Funds can be used for "planning, design, layout, contracting, modification, maintenance ... and monitoring and evaluating the effectiveness' of projects.(614) These new provisions make it possible to fund, albeit to a limited degree, activities aimed at improving rangeland health and meeting the ecosystem management objectives underlying the standards and guidelines in subpart 4180.

c. Subpart 4130 -- Authorizing Grazing Use

The amended regulations contain a number of provisions for specifying the types of grazing use6l5 and the terms and conditions that must appear in grazing permits.(616) The decision in Public Lands Council, however, has significant ramifications for the validity of some of these provisions.

The amended regulations require that "[p]ermits or leases shall specify the types and levels of use authorized, including livestock grazing, suspended use,(617) and conservation use,"(618) as well as specifying other mandatory and optional terms and conditions.(619) These three use categories included all elements of permitted use except "temporary nonuse."(620) The regulations provide that "[t]emporary nonuse and conservation use may be approved by the authorized officer if such use is determined to be in conformance with the applicable land use plans, AMP or other activity plans and the provisions [in the standards and guidelines]."(621)

The Public Lands Council court held, however, that the term "conservation use" violated the TGA and enjoined its enforcement.(622) But the court upheld a provision limiting a permittee's ability to apply for temporary nonuse for up to three consecutive years.(623) Moreover, as discussed above, the Public Lands Council court also struck down the term "permitted use" in the amended regulations.(624) Thus, the status of the various use categories -- and the requirement to specify them in grazing permits -- is uncertain at best. Again, resolution of this issue must await the Tenth Circuit Court of Appeal's decision in Public Lands Council.(625) At a minimum, however, actual livestock grazing use, suspended use, and temporary nonuse not to exceed three years can be specified on a permit and used to pursue compliance with the standards and guidelines since these categories were not affected by the Public Lands Council decision.

In addition to specifying grazing use categories, terms and conditions must be specified in a permit.(626) The terms and conditions must "ensure conformance with the provisions" in the standards and guidelines.(627) BLM stated that the requirement for terms and conditions to ensure conformance with the standards and guidelines establishes that "terms and conditions of permits are the principal vehicle for implement the standards and guidelines and thereby the precepts of ecosystem management."(628)

There are mandatory and "other" (optional) terms and conditions. As in the old regulations, it is mandatory to specify the kind and number of livestock, periods of use, name of the allotment, and the amount of forage use authorized in AUMs.(629) Thus, the primary difference between the old and new regulations relative to mandatory terms and conditions is that those terms will now be used to ensure compliance with the standards and guidelines; new mandatory provisions were not created. Furthermore, the new regulations still require that the "authorized livestock grazing use shall not exceed the livestock carrying capacity."(630) But unlike the old regulations, the amended regulations do not require exceedance of carrying capacity determinations to be made solely via monitoring studies.(631)

"Other" terms and conditions can also be attached to a permit or lease. As in the old regulations, these include specification of the class and breed of livestock,(632) provisions for placement of salt or other supplements to improve livestock distribution,(633) and provisions to temporarily delay, discontinue, or modify livestock grazing.(634) The amended regulations, however, expand the reasons for temporarily delaying, discontinuing, or modifying livestock grazing. They state that such actions can be made to "allow for the reproduction, establishment, or restoration of vigor of plants, provide for the improvement of riparian areas to achieve properly functioning condition or for the protection of other rangeland resources and values consistent with the objectives of applicable land use plans."(635) This provision could be a useful and potentially powerful tool for improving rangeland health because it does not require the politically difficult hard path choice of permanently reducing livestock numbers. Nevertheless, it can be used to achieve the ecosystem management goals that underlay the standards and guidelines.

Finally, following "consultation, cooperation, and coordination" with various interested parties, the authorized officer may modify the terms and conditions of grazing permits and leases when the "active use or related management practices" are not in conformance with the standards and guidelines.(636) The regulations are unclear, however, about whether permit modification must be based on monitoring.(637) The amended regulations require that "[t]o the extent practical" various interested parties shall be given "an opportunity to review, comment and give input during the preparation of reports that evaluate monitoring and other data that are used as a basis for making decisions to increase or decrease grazing use, or to change the terms and conditions of a permit or lease."(638)

This language could indicate monitoring must be used to modify the terms or conditions in a grazing permit, or to increase or decrease grazing use. But that interpretation is completely contrary to the language in the sections of the new regulations that specifically deal with changing grazing use, and which clearly specify that various methods can be used for determining that grazing use should be changed.(639) Even if this provision is only intended to apply to "active use," active use "may constitute a portion, or all, of permitted use"(640) and thus the provisions in subpart 4110, which address acceptable methods to change "permitted use," cannot be deemed inapplicable. Moreover, it would seem entirely contrary to BLM's goal of taking prompt action when the standards and guidelines are not being met due to grazing to read this provision to require monitoring and other data. This is a case where "and" should be read as "or" because that would be more consistent with the parts of the regulations specifically dealing with changing grazing use (subpart 4110)(641) and BLM's generally stated goal of making prompt changes in grazing practices if necessary to ensure compliance with the standards and guidelines.

d. Subpart 4160 -- Administrative Actions

Like the provisions creating Resource Advisory Councils,(642) this subpart is arguably as important as the standards and guidelines. It governs decision making by the authorized officer, protests of those decisions, and some aspects of appeals of decisions.(643)

The amended regulations will probably make of easier to initiate appeals of BLM grazing decisions because the new regulations make it easier to become adversely affected by grazing-related decisions. The new regulations provide that the term "interested public" means

an individual, group, or organization that has submitted a written request

to the

authorized officer to be provided an opportunity to be involved in the

decisionmaking process for the management of livestock grazing on specific

grazing

allotments or has submitted written comments to the authorized officer

regarding the management of livestock grazing on a specific allotment.(644)

Thus, becoming a member of the interested public is done by self-nomination and BLM has no discretion in conferring that status.(645) The amended regulations provide for the involvement of the interested public in all decisions related to livestock grazing,(646) which will now include decisions implementing the standards and guidelines.(647)

The ease of becoming a member of the interested public should open up the appeals process because members of the interested public win have better claims to being "adversely affected" by a decision, which is a prerequisite to an appeal.(648) BLM cautioned, however, that

"[t]he determination of whether a person has standing to appeal a final

decision

of the authorized officer has not been changed. Any person whose interest is

"adversely affected" by a final decision of the authorized officer may

appeal

the decision. The [Office of Hearings and Appeals] determines if a party is

"adversely affected" and thus has standing to bring an appeal.(649)

Nevertheless, since members of the public can now more readily become involved in grazing decisions by becoming a member of the "interested public," there is a greater likelihood their interests will be adversely affected, giving them standing to appeal decisions.

Accordingly, it should be possible for the interested public to appeal decisions related to all three tiers of BLM's implementation plan for the standards and guidelines. First, assessments of whether the standards and guidelines are or are not met are a decision and are appealable when final.(650) Second, significant factor determinations should be appealable on the same basis that assessments are appealable.(651) And third, actions taken to ensure the standards and guidelines are met will be appealable. For example, if BLM decides that installation of a well, rather than reducing livestock use, will ensure significant progress toward compliance with the standards and guidelines, that decision could be appealed by a member of the interested public whose interests are adversely affected.

But despite the opportunity for the interested public to be involved in grazing-related decisions, and thus to have the opportunity to appeal those decisions, development of local standards and guidelines may not be appealable via subpart 4160. The amended regulations require BLM State Directors to "coordinate" with the public in developing local standards and guidelines.(652) But coordinating with the public through public meetings or NEPA compliance probably will not make a person a member of the "interested public" since such involvement is unlikely to be allotment-specific, as required by the regulations.

Moreover, only a "final decision" is appealable under subpart 4160, and it is not clear that development of local standards and guidelines are a "final decision" for purposes of subpart 4160.(653) Decisions, which is an undefined term, relate to "actions, terms or conditions, or modifications relating to applications, permits and agreements (including range improvement permits or leases) .... "(654) Thus, the critical question is probably whether development of local standards and guidelines constitutes an "action" that requires a decision. The regulations also do not define "action," but it seems to relate to "on-the-ground" grazing-related decisions: how many cows will be grazed, where a seeding will be placed, and so forth. Policy level decisions, which are essentially what the standards and guidelines are, do not appear to be the kinds of "actions" contemplated by subpart 4160.(655)

Fortunately, however, there is probably another appeal avenue available. Persons adversely affected by approval or amendment of a BLM Resource Management Plan can protest such approval or amendment.(656) Development of local standards and guidelines is a land use planning decision.(657) Therefore, those who participate in development of local standards and guidelines should have standing to protest such decisions as long as they raise the issues prior to a protest.(658)

The amended regulations will also speed up implementation of decisions. The old regulations provided that "[d]ecisions that are appealed shall be suspended pending final action,"(659) which meant that implementation of decisions was often delayed. The amended regulations eliminate the automatic stay provision, although a petition for stay can be filed with an appeal.(660) If a petition for stay is denied, however, decisions of the authorized officer will be implemented with 75 days.(661) Thus, the amended regulations will speed up implementation of decisions in general and actions designed to ensure compliance with the standards and guidelines in particular.

2. Miscellaneous Provisions in the Amended Regulations Related to the

Standards and Guidelines

While the standards and guidelines are specifically implicated in the regulatory provisions discussed above, other provisions in the new regulations are relevant to the standards and guidelines because they have a strong environmental protection or ecosystem management component. The following provisions are particularly relevant.

a. Subpart 4100 -- Objectives and Definitions

As mentioned, two new objectives stated in the amended regulations are "to promote healthy sustainable rangeland ecosystems" and "to accelerate restoration and improvement of public rangelands to properly functioning conditions."(662) These new objectives reflect BLM's shift toward an ecosystem management-based path of range management and a willingness to change grazing practices if the standards and guidelines are violated.

b. Subpart 4110 -- Qualifications and Preference

To qualify for a grazing permit on BLM land the old regulations required an applicant to own base property (often the legacy of a homestead era claim) and to be "engaged in the livestock business."(663) The amended regulations eliminated the requirement for an applicant to be engaged in the livestock business, requiring only that she own base property "capable of serving as a base of operation for livestock use of public lands."(664) This provision would allow organizations such as the Nature Conservancy to acquire grazing permits by acquiring base property, and then -- with BLM's permission -- put some or all of the permitted use into conservation use, or otherwise engage in innovative management. The Public Lands Council court, however, set aside this provision, concluding that it violated the TGA.(665) Because of the Public Lands Council decision, BLM is not taking action on applications for grazing permits by people not engaged in the livestock business,(666) and this will continue at least until the appeal in Public Lands Council is decided.(667)

Furthermore, applicants and their "affiliates"(668) for the renewal of a grazing permit or lease, or the issuance of a new permit or lease, must have "a satisfactory record of performance."(669) This requires "substantial compliance" with the terms and conditions of an existing permit, or that an applicant for a new permit has not had another grazing permit canceled within the last thirty-six months due to violation of the permit.(670) Since the standards and guidelines will be reflected in the terms and conditions of a grazing permit, compliance with the standards and guidelines will affect a "satisfactory record of performance" determination, and hence the ability of a rancher to keep or get a BLM grazing permit.

Finally, BLM is given more explicit authority in the amended regulations to adjust allotment boundaries, and the persons to be consulted in such decisions are expanded over the old provision requiring only that only permittees and lessees be consulted.(671) This could be a particularly significant provision for efforts aimed at protecting riparian habitats.

c. Subpart 4120 -- Grazing Management

The amended regulations add a section to BLM's grazing regulations requiring that "[p]roposed range improvement projects shall be reviewed in accordance with the requirements of the National Environmental Policy Act."(672) This does not impose a new legal requirement, but it does make clearer the existing requirement to comply with NEPA. Therefore, it should help foster range improvement projects that are selected and implemented from a more holistic ecosystem management perspective due to NEPA's requirement to consider "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," for example.(673)

The amended regulations also added a provision codifying a BLM policy of acquiring water rights for livestock watering purposes pursuant to state law.(674) Moreover, to the extent permitted by state law, "any such water right shall be acquired, perfected, maintained, and administered in the name of the United States."(675) Acquiring water rights in the name of the United States may help ensure the water is used to further ecosystem management objectives, and not just a rancher's business objectives.(676)

d. Subpart 4130 -- Authorizing Grazing Use

The term of a grazing permit remains ten years unless one of several conditions exist, including a determination by the authorized officer that it "is in the interest of sound land management" to specify a shorter term.(677) Priority for renewal of permits still remains with the permittee holding the expiring permit.(678) However, the amended regulations provide that "[t]he authorized officer will not offer, grant or renew grazing permits or leases when the applicants, including permittees or lessees seeking renewal, refuse to accept the proposed terms and conditions of a permit or lease,"(679) which now will include terms and conditions reflecting the standards and guidelines. And where there are conflicting applications to graze, the amended regulations add two new bases for selecting between applicants. First, "[d]emonstrated stewardship by the applicant to improve or maintain and protect the rangeland ecosystem" can be considered.(680) Second, the history of compliance with the terms and conditions of grazing permits, which now will include terms and conditions reflecting the standards and guidelines, can be considered.(681) Thus, acceptance of, and compliance with, terms and conditions in a permit that are aimed at ensuring compliance with the standards and guidelines will affect a permittee's ability to keep his permit or receive access to new forage.(682)

e. Subpart 4140 -- Prohibited Acts

Both the old and new regulations prohibit various acts(683) and subject violators to civil(684) and criminal penalties.(685) However, in addition to retaining several prohibitions that are relevant to the standards and guidelines, the amended regulations added a paragraph to this subpart prohibiting permittees from violating environmental protection laws.(686) That new paragraph may have significant consequences for some permittees, and it also compliments the ecosystem management goals in the standards and guidelines.

Grazing livestock in violation of permit or lease terms and conditions or at unauthorized times and places was, and is, subject to civil and criminal penalties.(687) Failure to comply with the terms, conditions, and stipulations of range improvement permits was, and is, subject to civil penalty.(688) Refusal to install, maintain, modify, or remove range improvement projects when ordered to do (or installing range improvements without authorization) so was, and is, subject to civil and criminal penalty.(689) Finally, modification of vegetation without authorization was, and is, subject to civil and criminal penalties.(690) These prohibitions have relevance to the standards and guidelines because permit terms and conditions and other grazing authorizations will reflect the standards and guidelines.

However, the most significant provision in the amended regulations relative to prohibited acts and the standards and guidelines is the addition of a new paragraph. The regulations make it a prohibited act subject to civil penalty to violate various pollution and natural resources protection laws.(691) This provision was affirmed in the face of a double jeopardy claim in Public Lands Council.(692)

Specifically, the new regulations provide that violation of federal or state laws pertaining to poisoning or destroying wildlife;(693) applying or storing pesticides, herbicides, or hazardous materials;(694) altering or destroying stream courses;(695) polluting water sources;(696) illegally taking, destroying, or harassing wildlife;(697) and removing or destroying archeological resources are prohibited acts.(698) Additionally, violation of the Bald Eagle Protection Act,(699) Endangered Species Act,(700) or regulatory provisions protecting wild horses and burros(701) are also prohibited acts subject to civil penalty.(702) To come within these prohibitions, however, BLM lands must be involved or affected, the action causing a violation must have been related to livestock grazing authorized pursuant to a BLM permit or lease, and there must have been a final determination that an environmental protection law was violated.(703) The provisions of this new paragraph, which stand independent of the standards and guidelines in subpart 4180, should complement the standards and guidelines and BLM's ecosystem management efforts.

E. NEPA, FLPMA, and the Standards and Guidelines

In addition to pursuing the rulemaking process necessary to amend the regulations, BLM initiated NEPA compliance by preparing Rangeland Reform '94.(704) BLM anticipates that additional NEPA compliance necessary to implement local standards and guidelines "could tier to the analysis of the fundamentals of rangeland health and standards and guidelines presented in the FEIS."(705) Thus, BLM views NEPA compliance as already partially -- and probably largely -- accomplished.(706)

The standards and guidelines must also conform with Resource Management Plans developed pursuant to FLPMA.(707) BLM anticipates that

In some instances, the standards and guidelines may be consistent with existing land use plans and implementation may proceed without further action. In many cases, however, land use plans will require modification to ensure conformance with the land use plan and the standards and guideline.(708)

This language makes it appear that in reality land use plans must conform with the standards and guidelines, not the other way around. In any event, BLM "intends to develop State or regional standards and guidelines, complete [resource management] plan conformance tests, and undertake necessary plan amendments [by February 12, 1997]."(709) Thus, full implementation of the standards and guidelines will begin during the 1997 grazing year, which conveniently fell after the 1996 Presidential election.

IX. Will the New Regulations Survive?

Amending BLM's grazing regulations was a long, politically difficult process.(710) The livestock industry, however, did not abandon its efforts to nullify the amended regulations after they became effective on August 21, 1995. It has continued to attack the regulations on at least two fronts. First, the livestock industry challenged the new regulations in court. That prong of the attack bore some fruit in Public Lands Council.(711) Second, the livestock industry and its political champions in Congress tried to legislatively override the amended regulations. That prong of the attack has been unsuccessful to date, and with President Clinton's re-election it is unlikely to be a productive avenue in the near future. This two-pronged attack will be briefly considered in this section.

A. The Legal Challenge: Public Lands Council v. United States

Department of the Interior

Public Lands Council was a facial challenge to the amended regulations by the livestock industry that sought declarative and injunctive relief. Petitioners in Public Lands Council claimed that in adopting the regulations Secretary of the Interior Babbitt 1) exceeded statutory authority,(712) 2) failed to provide a reasoned explanation for reversals of long-standing policy,(713) 3) violated the United States Constitution,(714) 4) adopted the regulations in an arbitrary and capricious manner,(715) and 5) violated NEPA.(716) The majority of the claims in Public Lands Council were not directly related to the standards and guidelines, focusing instead on what might be called the economic and traditional lifestyle aspects of the regulations. That is, as noted above, the Public Lands Council challenged provisions requiring affiliates to have a satisfactory record of performance;(717) giving title to new range improvements to the United States;(718) limiting the time temporary nonuse could be applied for;(719) reducing mandatory qualifications;(720) prohibiting sole use of water diversions;(721) requiring compliance with environmental laws;(722) establishing surcharges for pasturing agreements;(723) and defining permitted use, grazing preference, and conservation use.(724) However, only the claims in Public Lands Council directly related to the Fundamentals of Rangeland Health and Standards and Guidelines will be considered here.

The Petitioners in Public Lands Council claimed the fundamentals of rangeland health(725) were arbitrarily adopted because there is scientific controversy surrounding them and, they asserted, because the fundamental will inevitably require reductions in livestock numbers.(726) If brevity is a virtue, the Public Lands Council court's response to those arguments was a masterpiece. The court swept the Petitioners' claims aside without citing any legal authority,(727) holding simply:

The [FEIS] contains ten pages acknowledging and responding to criticism of

the Fundamentals and the Standards and Guidelines. The Bureau of Land

Management defended its methodology and explained why it made various choices.

The Court thus cannot say that the Bureau of land Management failed to

respond to critical comments. The adoption of the Fundamentals simply was not

arbitrary and capricious.(728)

But while the Public Lands Council court can be faulted for its conclusory analysis, it nevertheless reached the correct result. In particular, the Public Lands Council's scientific arguments had little legal merit.

The Public Lands Council's claims regarding the Fundamentals of Rangeland Health essentially boiled down to a preference for some range scientists' view that the fundamentals are scientifically invalid over BLM's determination that they are valid and meet its legal mandates.(729) But as was eloquently stated in Hodel in a somewhat different context:

[I]n the final analysis, .... these complaints do not give rise to causes of action

sufficient to allow this court to intervene in BLM's grazing programs in the

manner sought by plaintiffs. To do otherwise would ultimately require this

court to adopt the opinion of one expert over that of another, or to adopt one

theory of range management over another. While I may not personally approve

of some of the actions taken by BLM, (in the sense that if I were "rangemaster"

I might as well have produced a different plan) I am powerless to substitute my

judgment for that of BLM in these matters. Such would be the inescapable

result of the position urged by plaintiff.(730)

The United States essentially made this point in its brief in Public Lands Council, stating:

[T]he Public Lands Council] may disagree with BLM's conclusions [as to the

scientific validity of the fundamentals], but the record clearly demonstrates

that BLM properly acknowledged and responded to criticisms of the

fundamentals. The Secretary clearly has the authority under TGA, FLPMA, and PRIA

to adopt fundamentals of rangeland health to help achieve healthy rangelands,

establish appropriate grazing practices and ensure productive rangelands.(731)

The Public Lands Council court agreed with the United States' arguments. And while the court's analysis was less eloquent than that evidenced in Hodel, it nevertheless reached the correct legal result of affirming the fundamentals because the disagreement of some scientists hardly makes them irrational.

The Public Lands Council also claimed that Rangeland Reform '94 violated NEPA.(732) While the Public Lands Council alleged several NEPA violations, much of its challenge focused on an alleged failure by BLM to consider "significant scientific controversies" related to range condition,(733) biological diversity,(734) the impacts of grazing on rare species,(735) and the potential for increasing the rate of improvement of range conditions.(736) It also made what amounted to a related claim, namely an alleged failure by BLM to give the comments of scientists sufficient consideration.(737)

Once again, however, the Public Lands Council's arguments boiled down to not liking BLM's new ecosystem management-based path of range management relative to some experts' views on range management. And again the Public Lands Council court swept aside the Petitioners' claims, stating with regard to the fundamentals:

The Bureau of Land Management adequately responded to [scientific

controversy] in the FEIS by acknowledging and responding to criticism of the

Fundamentals as well as the Standards and Guidelines. The Bureau of Land

Management defended its methodology and explained why it made various

choices. The Bureau of Land Management did not violate NEPA(738)

Similarly, with regard to the Public Lands Council's assertion that the comments of certain scientists should have been distinguished from the comments of the general public, the Public Lands Council court stated, "[t]he Court finds that the Bureau of Land Management was not required to make such a distinction.(739) Moreover, the court found that BLM's "grouping of the comments [in the FEIS] makes it clear that range scientists were the source of the comments."(740)

In sum, while the Public Lands Council's claims regarding the fundamentals may have had some scientific support, they had little legal merit. Consequently, the standards and guidelines survived this prong of the livestock industry's challenge to the new regulations.

B. Political Challenges to the New Regulations

There were two facets to the livestock industry's unsuccessful political challenge to the amended regulations. First, some members of the 104th Congress, particularly Senator Domenici (R-NM), tried but failed to have the regulations legislatively overridden.(741) Second, had Republicans regained the White House after the 1996 election it is a virtual certainty that a Republican Secretary of the Interior would have initiated rulemaking and amended the new regulations. Both of these facets of the challenge are currently dormant, so they will be considered only briefly.

In response to the impending effectiveness of the amended regulations, the Senate Energy and Natural Resources Committee approved a bill (S. 852, the Livestock Grazing Act)(742) on July 19, 1995 that would have largely codified BLM's old grazing regulations.(743) However, a similar (744) in the House (H.R. 1713) failed to get out of committee prior to the amended regulations becoming effective due to parliamentary maneuvers by Democrats.(745) These bills would have required the Secretary of the Interior to promulgate state or regional -- but not national -- standards and guidelines in consultation with state departments of agriculture and state land grant universities.(746)

Undaunted, H.R. 1713 was approved by the House Resources subcommittee on National Parks, Forests, and Lands on September 12, 1995, after the amended regulations had become effective.(747) However, opposition to the livestock Grazing Act was growing in the Senate, partly because it would have established grazing as the dominant use of BLM lands(748) and because it limited public input into public land management.(749) Therefore, a new Senate bill (S. 1459, the Public Rangelands Management Act)(750) was substituted for S. 852 during the fall 1995.(751)

While less objectionable than S. 852, the Public Rangelands Management Act (PRMA), would still have legislatively overridden the amended grazing regulations, and it also did not provide for national fundamentals of rangeland health.(752) PRMA was passed by the full Senate on March 21, 1996.(753) Nevertheless, action in the House was still bogged down, the prisoner of a coalition of environmental and deficit conscious Representatives, although the House Resources Committee did approve S. 1459 on April 25, 1996.(754)

But given the insurmountable opposition in the House to a "stand alone" vote on S. 1459 -- not to mention a certain presidential veto -- House sponsors attempted to attach grazing reform to conference committee reconciliation of a popular parks bill that had passed both houses of Congress.(755) That effort failed (the grazing bill "just went away"(756) but the parks bill was passed.(757) Whether new bills will surface in the 105th Congress remains to be seen, but it is likely President Clinton will veto any bill that severely undermines the new regulations.

The second consideration relative to the livestock industry's attempts to nullify the amended regulations was the 1996 Presidential election. Had Bob Dole been elected President, it is likely the amended regulations would have been as short-lived as a new round of rulemaking would have allowed. Moreover, PRMA (or something like it), which in many respects would have codified the soft path of range management, would have had a greater chance of being enacted. While dormant for now, these possibilities could resurface in 2000. Consequently, it is far from certain the standards and guidelines will have a life long enough to be fully implemented on the ground and thus fulfill their promise to improve ecosystem health on BLM lands.

X. CONCLUSION

BLM's amended livestock grazing regulations, particularly the new standards and guidelines, blaze a new path of range management based on ecosystem management precepts. There is no doubt BLM has legal authority under existing statutes to strike out down this path. Moreover, even if imperfect, the standards and guidelines are a reasonable response to scientific advances in our understanding of rangeland ecosystems. Depending on how rigorously -- and for how long -- the standards and guidelines are implemented, they could lead to dramatic changes in livestock grazing over a vast portion of the West. Consequently, they probably win not quell the controversy that has surrounded public lands grazing because ranchers' perceived immediate interests are likely to suffer. They should, however, improve the ecological health of BLM rangelands. Therefore, they will meet some of the concerns of environmentalists as well as those of society in general, and probably will be of benefit to many ranchers in the long term.

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(1) Brian L. Frank, Cows in Hot Water: Regulation of Livestock Grazing Through the Federal Clean Water Act, 35 Santa Clara L. Rev. 1269, 1270 (1995).

(2) Charles F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West 82 (1992) (referring to this popular rallying cry).

(3) Anthan George, Des Moines Register, June 27, 1993, at Business 3 (referring to this popular rallying cry).

(4) See Wilkinson, supra note 2, at 81-82.

(5) See Frank J. Falen & Karen Budd-Falen, The Right to Graze Livestock on the Federal Lands: The Historical Development of Western Grazing Rights, 30 Idaho L. Rev. 505, 506 (1993-94) (arguing BLM "grazing preference" is a property right protected by the Fifth Amendment to the United States Constitution).

(6) Grazing Administration -- Exclusive of Alaska, 60 Fed. Reg. 9894 (Feb. 22, 1995) (to be codified at 43 C.F.R. [sub-section] 4.77, 1784.0-1 to 1784.6-2, 4100.0-1 to 4180.2 (1996)) [hereinafter Grazing Administration 1995].

(7) 43 C.F.R. pt. 4100 (1996) (codifying "Grazing Administration -- Exclusive of Alaska").

(8) See infra Part IX.B (discussing these efforts in more detail).

(9) 929 F. Supp. 1436 (E.D. Wyo. 1996), appeal docketed, No. 96-8083 (10th Cir. Aug. 9, 1996); see also infra Part IX.A (discussing this case in more detail).

(10) 929 F. Supp. at 1447-48.

(11) See generally Walter Debuys, Enchantment and Exploitation, The Life and Hard Times of a New Mexico Mountain Range 40-41 (1985) (discussing livestock raising by early Spanish settlers in the Southwest).

(12) See generally Walter Prescott Webb, The Great Plains 207-44 (1931) (discussing the origin and development of the "cattle kingdom" on the Great Plains); James A. Young & B. Abbot Sparks, Cattle in the Cold desert 39-57 (1985) (discussing the origin of the livestock industry in the Great Basin); Thadis W. Box, Rangelands, in Natural Resources for the 21sr Century 101, 102-05 (R. Neil Sampson & Dwight Hair eds., 1990) (discussing the history of range use in America).

(13) 43 U.S.C. [Section] 315-315(o)(1) (1994).

(14) 43 U.S.C. [Section] 1701-1794 (1994).

(15) 43 U.S.C. [Section] 1901-1908 (1994).

(16) See infra Part VII (discussing development of regulations).

(17) Grazing Administration 1995, supra note 6. The eleven western states covered are Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Wyoming, Utah, Colorado, and New Mexico.

(18) See Tom Melling, Bruce Babbitt's Use of Governmental Dispute Resolution: A Mid-Term Report Card, 30 Land & Water L. Rev. 57, 76-82 (1995) (describing Secretary of the Interior Babbitt's controversial efforts at grazing reform through the 1994 Republican landslide); see also Joseph M. Feller, `Til the Cows Come Home. The Fatal Flaw in the Clinton Administration's Public Lands Grazing Policy, 25 Envtl. L. 703, 709-12 (1995) (describing phases in BLM's grazing reform process) [hereinafter Feller III ].

(19) Grazing Administration 1995, supra note 6.

(20) Bureau of Land Management, U.S. Dep't of of Interior, Range Reform '94 Draft Environmental Impact Statement (1994) [hereinafter DEIS].

(21_ Bureau of Land Management, U.S. Dep't of the Interior, Rangeland Reform '94 Final Environmental Impact Statement (1994) [hereinafter FEIS].

(22) The Rangeland Reform '94 environmental impact statement was required pursuant to NEPA. National Environmental Policy Act of 1969, 42 U.S.C. [Section] 4321-4370(d) (1994). See generally Natural Resources Defense Council, Inc. v. Hodel, 618 F. Supp. 848, 871-73 (E.D. Cal. 1985) (requiring preparation of an environmental impact statement where implementation of BLM grazing regulations constitutes a major federal action d= may significantly affect the human environment).

(23) 43 C.F.R. pt. 4180 (1996). Hereinafter, both the Fundamentals of Rangeland Health and the Standards and Guidelines for Grazing Administration will be referred to in the text as the "standards and guidelines" unless there is a need to distinguish the provisions.

(24) Id. [Section] 4180.1 to 4180.2.

(25) See infra notes 168-179, 195-200 and accompanying text (discussing ecosystem management precepts and BLM's adoption thereof).

(26) See infra notes 171-179 and accompanying text (discussing precepts of ecosystem management).

(27) 43 C.F.R. [Section] 4180.1 (1996).

(28) Id. [Section] 4180.2.

(29) Id. [Section] 4180.2(c).

(30) Id.

(31) Id. [Section] 4180.2(a), (b).

(32) Id. [Section] 4180.2(d), (e).

(33) State directors can receive up to a six month postponement of the deadline, but in no case will the new date be after August 12, 1997 -- six months after the original deadline. 61 Fed Reg. 59,835 (Nov. 25, 1996). The regulations as originally promulgated did not allow for the possible six month postponement from the February 12, 1997 deadline. See 43 C.F.R. [Section] 4180.2(f) (1996) (stating fallback standards and guidelines become operative if local standards and guidelines are not in effect by February 12, 1997).

(34) See George Cameron Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 Envtl. L 1, 123 (1983) (discussing the hard and soft paths of range management) [hereinafter Coggins IV]. 35 Id.

(36) Id. at 123-25. The hard path/soft path metaphor can have exactly the opposite meaning of that discussed by Professor Coggins and this article. In the field of energy policy, for example, the hard path conjures visions of technology-intensive energy production, while the soft path includes options like conservation. Nevertheless, the soft path of range management usually involves technology-intensive measures while the hard path does not. See Coggins IV, supra note 34, at 123. In terms of livestock grazing policy, a path is hard or soft primarily because of its political difficulty, not its technological intensiveness.

(37) See generally Natural Resources Defense Counsel v. Hodel, 624 F. Supp. 1045 (D. Nev. 1985) (discussing arguments made by environmentalists in favor of hard path range management versus that of rangeland experts in favor of soft path range management relative to a BLM land management plan).

(38) See infra notes 345-354 and accompanying text (discussing the old regulations).

(39) See infra Part VIII (discussing the new regulatory framework).

(40) Richard Conniff, Once the Secret Domain of Miners and Ranchers: The BLM Is Going Public, Smithsonian", Sept. 1990, at 30, 33.

(41) Id.; see also infra Part III.B (discussing current social forces affecting BLM land management).

(42) See Report of the Blue Ribbon Panel to the National Public Land Advisory Council on Rangeland Programs, Initiatives, and Strategies, Bureau of Land Management 5-10 (Mar. 1992).

(43) Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. Colo. L. Rev. 293, 298, 302 (1994) (discussing general acceptance by scientific community of the need to focus natural resources management on an ecosystem level rather than on a resource- or jurisdiction-specific level); see also infra Part IV.B.3 (discussing ecosystem management in more detail).

(44) Id.

(45) See infra Part VIII.D.

(46) See infra Part VIII.C.

(47) The new regulations also affect numerous other aspects of BLM grazing administration, but those changes will only be addressed as they relate to the standards and guidelines.

(48) The history of BLM lands has been addressed by many authors and this brief recollection is drawn from some of those sources. See, e.g., George Cameron Coggins et al., Federal Public Land and Resources Law 44-141, 688-711 (3d ed. 1993); Wilkinson, supra note 2, at 75-113; Dyan Zaslowsky & the Wilderness Soc'y, These American Lands 113-54 (1986); George Cameron Coggins & Margaret Lindeberg-Johnson, 7he Law of Public Rangeland Management II: The Commons and the Taylor Act, 13 E. L. 1 (1982) [hereinafter Coggins III]. BLM was created in 1946 when the Grazing Service and the General Land Office were merged. Coggins H, supra, at 61.

(49) James L Huffman, Managing the Northern Forests: Lessons from the West, 19 VT. L. Rev. 477 (1995). BLM lands still occupy 23.5% of the eleven western states, and a much greater percentage of states like Nevada and Utah. See DEIS, supra note 20, at 3-4.

(50) ZASLOWSKY & THE WILDERNESS SOCY, supra note 48, at 108-09, 117 (describing how the passage of the General Revisions Act repealed various homesteading and resource extraction laws, as well as providing for establishment of national forests).

(51) George Cameron Coggins et al., The Law of Public Rangeland Management Vt.- The Extent and Distribution of Federal Power, 12 Envtl. VT 542 (1982) [hereinafter Coggins 1].

(52) See, e.g., Homestead Act of 1862, 43 U.S.C. [Section] 161-302 (1982), repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2787; Desert Lands Act of 1877, 43 U.S.C. [Section] 321-323 (1994).

(53) See generally Coggins II, Supra note 48, at 16-22 (discussing the various homestead laws).

(54) See id. at 24-25.

(55) Ranchers were known to use legal, extralegal, and even illegal means in order to exert control over the public lands adjoining their homestead acreage. Id. at 22-27.

(56) Id. at 2 (citations omitted).

(5)7 Id. at 32.

(58) See Garrett Hardin, Me Tragedy of the Commons, 162 SCIENCE 1243 (1968). Hardin's thesis analogizes public land to a common pasture open to all users, where each user is encouraged to exploit the finite resources on the land until the resources are exhausted. See also Coggins 11, supra note 48, at 31 n.199 (discussing Hardin's theory).

(59) See Act of Mar. 1, 1872, ch. 24, [Section] 1, 17 Stat. 32 (current version at 16 U.S.C. [Section] 21 (1994)) (reserving land in Montana and Wyoming for creation of "a public park or pleasuring ground for the benefit and enjoyment of the public").

(60) See Act of Mar. 3, 1891, ch. 56 1, [Section] 24, 26 Stat. 1 103, repealed by Pub. L. No. 94-579, Title VII, [Section] 704(a), 90 Stat. 2792 (1976) (allowing President to reserve public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not,' as national forests).

(61) 43 U.S.C. [Section] 315-315(o)(1) (1994).

(62) Id. [Section] 315.

(63) Id. [Section] 315a. (64) Id. [subsection] 315b, 315m.

(65) See supra note 58 and accompanying text.

(66) Coggins II, supra note 48, at 40.

(67) Id.

(68) See, e.g., id. at 55-60 (pointing out that the agency charged with implementing the TGA relied for information almost exclusively on district and state advisory boards composed mainly of ranchers); see infra notes 327-332 and accompanying text (discussing BLM's early grazing regulations).

(69) See, eg., Grazing Administration-Exclusive of Alaska, 43 Fed. Reg. 29,058 (Feb. 21, 1978) [hereinafter Grazing Administration 1978] (codified at 43 C.F.R. [subsection] 4100.0-1 to 4170.2-2 (1996)) (establishing that a grazing permit shall be canceled "in whole or part ... when the authorized grazing use exceeds the amount of forage available for livestock grazing ...."); see infra notes 333-344 and accompanying text (discussing the Carter era regulations).

(70) See, e.g., Grazing Administration-Exclusive of Alaska, 49 Fed. Reg. 6440 (Feb. 21, 1984) [hereinafter Grazing Administration 1984] (codified at 43 C.F.R. [subsection] 4100.0-1 to 4170.2-2 (1996)) (deleting the clause that required cancellation of grazing permits when livestock use exceeded the amount of forage available and allocated for livestock grazing); see infra notes 345-352 and accompanying text (discussing amendments to BLM's grazing regulations during the 1980s).

(71) See infra notes 358-381 and accompanying text.

(72) See Coggins II, supra note 48, at 22-27. This statement is true regarding the size of the ranches. The rancher, however, may or may not be "small". On average, ranchers with federal grazing permits have larger ranching operations than nonpermittees (221 cows versus 93 cows; 112 sheep versus 13 sheep). DEIS, supra note 20, at 3-68.

(73) 43 C.F.R. [section] 4110.2-2(b) (1996) ("The grazing preference specified shall attach to the base property supporting the grazing permit or lease.").

(74) Id. [section] 4130.3-1 (specifying mandatory permit terms and conditions).

(75) See Feller III, supra note 18, at 703-04.

(76) See DEIS, supra note 20, at 3-56 to 3-63.

(77) For example, recreation is often a less intensive use of the land. Id. at 3-74 to 3-75.

(78) Id. at 29.

(79) Bureau of Land Management, U.S. Dep't of the Interior, Public Land Statictics 1991, at 6 (Sept. 1992) [hereinafter Public Land Statistics].

(80) An AUM is "the amount of forage necessary for the sustenance of one cow or its equivalent for a period of 1 month." 43 C.F.R. [section] 4100.0-5 (1996). As an example, 10 AUMS of forage use could be reached by grazing ten cows for one month, five cows for two months, or one cow for ten months. A cow consumes, crudely, 850 pounds of forage per month. Five sheep or goats are considered the equivalent of one cow on a forage consumption basis, and thus five sheep grazing for one month is one AUM. DEIS, supra note 20, at GL-2.

(81) Public Land Statistics, supra note 79, at 23.

(82) It is typical for a permittee to graze his livestock on BLM lands for only a portion of the year and rely on other forage sources, such as hay grown on the rancher's base property, the remainder of the year. This is particularly true outside the warmer areas of the Southwest. DEIS, supra note 20, at 3-68.

(83) While twelve acres per cow per month are allocated, the question of whether twelve acres can support one cow per month is an entirely different matter. Moreover, allocating a certain amount of land for use by livestock does not mean the land will be used uniformly. Cattle on BLM lands often congregate in riparian areas, which has the effect of intensifying use on some BLM lands, while other "allocated" lands are only lightly used, if at all. Richard H. Braun, Emerging Limits on Federal Land Management Discretion: Livestock, Riparian Ecosystems, and Clean Water Law, 17 Envtl. L. 43, 50 (1986).

(84) Letter from Tim Salt, Bureau of Land Management, to the author (approximately Dec. 1, 1996) (on file with author); see infra note 564 and accompanying text (discussing the meaning of "active use"); see also supra note 72 and accompanying text (pointing out that while most federal permittees have relatively small private property holdings they own more livestock than nonpermittees).

(85) DEIS, supra note 20, at 3-68 (citation omitted).

(86) Id.

(87) Id.

(88) Id.

(89) Id. at 3-65.

(90) Id.

(91) Id.

(92) Washington, Oregon, California, Arizona, New Mexico, Colorado, Wyoming, Montana, Idaho, Nevada, Utah, North Dakota, South Dakota, Nebraska, Kansas, and Oklahoma Id. at 3-56.

(93) Id. at 3-58.

(94) Id.

(95) Id. at 3-62.

(96) Id.

(97) It should be noted, however, that ranching is of greater economic significance in particular rural areas and communities. See id. at 3-65. This fact probably underlies much rural opposition to grazing reform on BLM lands.

(98) Id. at 3-74; see also Bureau of the Census, U.S. Dep't Commerce, Statistical Abstract of the United States 1996, at 39 (116th ed., Oct. 1996) (72.2% of the population in the Rocky Mountain states live in urban areas).

(99) One recent national survey found that 60% of the respondents believed that federal rangelands are overgrazed. Mark W. Brunson & Brent S. Steel, National Public Attitudes Toward Federal Rangeland Management, 16 Rangelands 77, 79 (1994). While this was a national survey, residents of western urban areas probably tend to share these opinions. DEIS, supra note 20, at 3-81.

(100) Typical examples include many ski areas, some college towns, and popular recreation and retirement communities such as: Jackson, Wyoming; Bozeman, Montana; Moab, Utah; and Durango, Colorado.

(101) DEIS, supra note 20, at 3-74 to 3-75. See generally Sarah F. Bates et al., Searching Out the Headwaters: Change and Rediscovery in Western Water Policy 73-80 (1993) (discussing the changes resulting from increased conflicts between traditional land users and relocated urbanites).

(102) DEIS, supra note 20, at 3-74 to 3-75.

(103) Id.

(104) See Bates, supra note 101, at 73-80.

(105) See infra note 107 and accompanying text.

(106) Grazing Administration 1995, supra note 6, at 9906-07 (concluding that rangeland condition studies as well as congressional mandates indicate a need for changes in grazing administration to ensure rangelands are not degraded, especially riparian areas).

(107) Many authors generally feel that BLM rangelands have been degraded. See, e.g., Joseph M. Feller, The Western Wing of Kafka's Castle, High Country News, Mar. 12, 1990, at 9 (describing negative impacts of grazing in scenic Utah canyons); Steve Johnson, `Disaster, Disaster on the Range,' Reports Say, High Country News, Apr. 20, 1992, at 10 (summarizing General Accounting Office reports documenting rangeland degradation); Ed Marston, The West's Real Cattle Heritage: Damaged Land and Political Paralysis, High Country News, Mar. 12, 1990, at 4 (concluding grazing reform is needed to prevent further degradation of western rangelands); Dyan Zaslowsky, A Public Beef, Are Grazing Cattle Turning the American West into a New Desert?, Harrowsmith, Jan./Feb., 1989, at 39 (describing rangeland degradation due to livestock grazing). However, some scientists argue that rangelands are not degraded. See, e.g., J.C. Mosley et al., Seven Popular Myths About Livestock Grazing on Public Lands 12-13 (2d ed. 1990) (arguing livestock grazing is not necessarily harmful); Box, supra note 12, at 111, 113 (concluding American rangelands are in the best condition of this century); Melinda Merriami, Firm Says: Range Better, GAO Reports Worse, High Country News, Apr. 20, 1992, at 11 (discussing criticisms of General Accounting Office studies indicating rangelands are in bad condition).

(108) Committee on Rangeland Classification, National Research Council, Rangeland Health, New Methods to Classify, Inventory, and Monitor Rangelands 61, 64 (1994) [hereinafter Rangeland Health]. See generally id. at 51-82 (reviewing current methods of rangeland assessment and their development). As will become apparent, Rangeland Health played a significant, perhaps central, role in the development of BLM'S new standards and guidelines.

(109) Id. at 60-61 (discussing how Dyksterhuis developed his range condition assessment method).

(110) Id. at 60. A site is an area with a similar soil and climate, and thus relatively distinct plant communities. Id. at 64-75.

(111) Id. at 60. The climax is the natural plant community that would be found in the absence of "abnormal" disturbances. Id. at 65.

(112) See id. at 64, 80 (rating ecological status of classes as follows: early seral, midseral, late seral, or potential natural community); infra notes 123-127 and accompanying text.

(113) Id. at 60-61.

(114) Id.

(115) Id. at 61. Decreasers are palatable species that dominate the climax plant community, but which decline under excessive grazing in earlier-occurring seral stages. Id.

(116) Id. Increasers are unpalatable species that increase under grazing, and dominate some earlier-occurring seral stages. Id.

(117) Id. Invaders are species that were either not originally present in the community, or were found only in very low percentages. Id. Invader species will replace even decreaser species in very early seral stages. Id.

(118) Id.

(119) Id. at 64, 77; see infra Appendix Fig. 1.

(120) Rangeland Health, supra note 108, at 64, 77. A site in poor condition will have a high proportion of increaser and invader species. Id. at 61

(121) Id. at 60-61.

(122) See infra Appendix Fig. 1.

(123) Rangeland Health, supra note 108, at 61; see also id. at 62-63 ("The fundamental concepts underlying the rangeland classification and inventory methods of all of the federal agencies are based on those proposed by Sampson, Clements, and Dyksterhuis in the first half of the twentieth century.").

(124) Id. at 64, 80-81.

(125) Id. at 64, 80.

(126) See id. at 61-65, 75-81 (discussing methods used by the Soil Conservation Service (now the Natural Resources Conservation Service), the Forest Service, and BLM and making clear all current assessment methods are similar to Dyksterhuis's method). BLM's terminology does allow for "naturalized" nonnative species in the potential natural plant community and also recognizes, as explained below, that current environmental conditions may not allow the climax plant community to redevelop, while Dyksterhuis's system made no allowance for these factors. Id. at 65. A surprising number of plant species on BLM lands are not native species and are not particularly "weedy" either, that is, they are naturalized. These species are so much a part of current "natural" conditions there is little choice but to recognize them in range condition assessment. Additionally, in some cases a range site has been so altered it is unlikely it will succeed toward pristine vegetation conditions on any meaningful time scale; that is, the current potential natural community differs from the original climax community.

(127) It Should be noted that BLM's seral status terminology was adopted in about 1990 when criticism of BLM's grazing program was growing. Bureau of Land Management, U.S. Dep't of the Interior, State of the Public Rangelands 1990, The Range of Our Vision 4 (1990) [hereinafter The Range of Our Vision] (stating that "in the future" BLM will report range conditions using seral status terminology). But since the theoretical underpinning of BLM's terminology remained largely unchanged, a question is raised: Was BLM's adoption of the seral stage terminology as much a way to deflect criticism as an adjustment based on scientific developments? "Poor" range condition is a term that the public readily understands in a general sense. "Early seral" status range, meaning much the same thing as "poor" condition range, probably means nothing to the general public, thus deflecting its attention from the condition of public rangelands.

(128) See Rangeland Health, supra note 108, at 54, 137-38 (discussing the first general survey, which was published in The Western Range, S. Doc. No. 74-199 (1936)).

(129) Box, supra note 12, at 114 (citing The Western Range, S. Doc. No. 74-199 (1936)). While Dyksterhuis's method did not explicitly form the basis for these (the Senate document predated Dyksterhuis's 1949 paper by thirteen years) something akin to his approach probably guided the 1936 estimates because various researchers developed similar theories or methods, or were in the process of doing so, at the time the Senate document was prepared. See Rangeland Health, supra note 108, at 51-63. But see Box, supra note 12, at 108-10 (stating that 1936 estimates were based on forage depletion classes, not Dyksterhuis's condition classes). Nevertheless, Professor Box adapted those depletion classes to Dyksterhuis's condition classes, which indicates the similarity of the methods. See Box, supra note 12, at 110 (presenting 1936 data as forage depletion classes); cf. id. at 114 (determining that moderate forage depletion equals good condition, material depletion equals fair condition, and severe and extreme depletion equals poor or bad condition); see also The Range of Our Vision, supra note 127, at 7 (presenting 1936 Senate document forage depletion class data but entitling them with both Dyksterhuis's condition categories and BLM's new seral status terminology).

(130) See Rangeland Health, supra note 108, at 24; E. Lamar Smith et al., New Concepts for Assessment of Rangeland Condition, 48 J. Range Mgmt. 271, 272 (1995); see also DEIS, supra note 20, at 5 ("The Secretaries of the Interior and Agriculture recognize that management changes since the 1930's have brought about improvements [in range condition]."). However, this relative unanimity applies only to nonriparian, upland portions of BLM rangelands. Id. at 3-27. Riparian areas are generally in poor condition, although some dispute that claim. FEIS, supra note 21, at 93-94.

(131) Public Land Statistics, supra note 79, at 28; see also General Accounting Office, Rangeland Management, More Emphasis Needed on Declining and Overstocked Grasing Allotments 22 (June 1988) (presenting comparable data).

(132) DEIS, supra note 20, at 3-27. While BLM reported these data in "millions of acres," they would appear to be better expressed as percentages since they total to only 81.8 million acres of the 177 million acres BLM manages in the eleven western states. FEIS, supra note 21, at 25. The DEIS also reported the trend on BLM rangelands: 28.4 millions acres show an upward trend; 91.8 million acres a static trend; 16.6 million acres a downward trend; and 22.1 mil]ion acres have an undetermined trend DEIS, supra note 20, at 3-27. "Trend" indicates whether a plant community is succeeding toward the climax (or potential natural) plant community or not. In other words, trend indicates whether the condition of the range is improving, declining, or stable. It is usually measured by measuring range condition at different points in time, but there are also one-time ("apparent trend") methods for determining trend. See Rangeland Health, supra note 108, at 65, 81-82.

(133) Environmentalists can also point to many environmental impact statements that report rangeland degradation continues relative to a number of resources, as well as to other reports . See Rangeland Health, supra note 108, at 24-25.

(134) Box, supra note 12, at 111, 113; FEIS, supra note 21, at 72-73.

(135) Box, supra note 12, at 113. Ranchers and range scientists also use comparisons of old and new photographs and personal experience or professional judgment to support their arguments. See Box, supra note 12, at 111, 113; Smith et al., supra note 130, at 272.

(136) Rangeland Health, supra note 108, at 89-92.

(137) Id. at 92-93.

(138) Riparian areas are the well-watered areas next to streams. On BLM lands they stand out from miles away: they are green ribbons in the sea of gray sagebrush and other shrubs typically dominating BLM's arid lands. Uplands are, essentially, everything else. FEIS, supra note 21, at 25.

(139) See supra note 108.

(140) DEIS, supra note 20, at 14; FEIS, supra note 21, at 72.

(141) Id.

(142) See FEIS, supra note 21, at 4.

(143) Id.

(144) Rangeland Health, supra note 108, at iii-v.

(145) Id. at xii.

(146) Id. at 171-73.

(147) Grazing Administration -- Exclusive of Alaska, 59 Fed. Reg. 14,314, 14,326 (proposed Mar. 25, 1994) [hereinafter Grazing Administration 1994] (proposed for codification at 43 C.F.R. pt. 4180) ("The Standards are generally based on the findings [in Rangeland Health and a BLM riparian area manual] ...."'); see DEIS, supra note 20, at 1-17 (making similar statements); FEIS, supra note 21, at 6, 12-13 (making similar statements); cf. id. at 71-72, 76 (acknowledging and responding to generally negative comments, apparently from range scientists, on the merits of Rangeland Health).

(148) See infra Appendix Fig. 2.

(149) See Rangeland Health, supra note 108, at 46-47, 84-92 and accompanying text.

(150) See Rangeland Health, supra note 108, at 34-38, 92-93.

(151) See Rangeland Health, supra note 108, at 134-56 (reviewing development of rangeland surveys and limitations thereof); see also Linda A. Joyce, The Life Cycle of the Range Condition Concept, 46 J. Range Mgmt. 132 (1993) (discussing evolution and limitations of the Dyksterhuis model).

(152) See Rangeland Health, supra note 108, at 83-84 (noting that since plant communities are constantly changing in composition and growth due to environmental factors, some scientists question whether the concept of a single climax plant community can be applied to all rangelands).

(153) Id. at 89-90.

(154) See id. at 3742, 46-47, 89-92 (stating that interactions between factors often accelerates any changes occurring in a rangeland).

(155) See infra Appendix.

(156) Id.

(157) See Rangeland Health, supra note 108, at 46-47; see supra notes 108-122 and accompanying text.

(158) See Rangeland Health, supra note 108, at 46 (explaining how plant communities may suffer a reduction in biomass and loss of values and commodities due to events such as short-lived droughts).

(159) See id. at 46-47 (explaining how transitions from at risk to unhealthy states can indicate irreversible changes in rangeland production).

(160) See id. (explaining how external inputs may include soil reclamation and reseeding of vegetation). To make this model more concrete, state A might consist of several plant communities characterized by a mixture of sagebrush, grass, and wildflowers (called forbs by range scientists). State B might consist of plant communities dominated by sagebrush but with very little grass and forbs. State C might consist primarily of cheatgrass, an introduced weedy grass that few people view as desirable. Cheatgrass communities can be quite permanent and may not succeed back to a sagebrush community. Therefore, if vegetative change is desired, it might be necessary to seed the area. This is often done with another introduced, but less weedy, grass called crested wheatgrass. Especially in the past, crested wheatgrass was primarily bred for its forage value for livestock. The crested wheatgrass seeding may be a more desirable vegetative state than cheatgrass, but, as Figure 2 indicates, it nevertheless differs significantly from the "natural" sagebrush community and its primary value may be as livestock forage. See generally Neil E. West, Strategies for Maintenance and Repair of Biotic Community Diversity on Rangelands, in Biodiversity in Managed Landscapes, Theory and Practice 335 (Robert C. Szaro & David W. Johnson eds., 1996) (summarizing vegetative states and successional pathways in the sagebrush steppe in a more complex -- and probably realistic -- way than the example used above).

(161) See Rangeland Health, supra note 108, at 46-47, 89-92 (explaining how the concept of changes across ecological thresholds has long been recognized); see also Smith et al., supra note 130, at 272.

(162) FEIS, supra note 21, at 70 ("Ecological succession (Clementsian concept) is being modified by a multiple steady state and transition model theory that states that plant communities do not progress back towards a stable climax plant community, but rather they can become locked into a state that does not change until a major disturbance occurs.").

(163) Id. at 63 ("Managing for a specified ecological condition class does not give managers the flexibility to meet land use plan objectives. Because multiple plant communities may exist within a given ecological condition class, specificity is needed to identify and describe which plant community, the desired plant community, would best meet management objectives.").

(164) However, ecosystem management precepts were adopted by BLM. See infra Part IV.B.3 (discussing ecosystem management).

(165) See Coggins IV, supra note 34, at 123 (explaining how the soft path to better range conditions is through physical changes to the land).

(166) For example, the new regulations require native species to be favored and may restrict certain water developments. See 43 C.F.R. [sections] 4180.2(d)(5) (1996) (requiring local standards to address "[h]abitat quality for native plant and animal populations and communities"); id. [sections] 4180.2(e)(11)-(12) (requiring local guidelines to address emphasizing native species to support ecological function and allowing use of nonnative plant species "only [when] native species are not available in sufficient quantities or are incapable of maintaining or achieving properly functioning conditions and biological health"); id. [sections] 4180.2(f)(1)(iv) (establishing fallback standard requiring native species to be maintained); id. [sections] 4180.2(f)(2)(xiii)-(xiv) (establishing fallback guidelines requiring "facilities" to be located away from riparian and wetland areas in some circumstances, and requiring spring and seep developments to be designed to protect ecological functions).

(167) The following apparent inconsistency should also be noted. Range scientists generally accept the state and transition model and also claim rangelands are in the best condition of this century. See supra note 130 (citing sources for claim that rangeland condition has improved); Smith et al., supra note 130, at 272 ("Most professional rangeland managers and scientists agree with the widely quoted statement of Thad Box [a prominent range scientist] that `rangelands are in the best condition they have been in this century.'"); supra note 161 (citing sources indicating range scientists have adopted the state and transition model). The Dyksterhuis model appears to be the underlying formal scientific model for claim that range condition has improved. See supra notes 123, 129-134 and accompanying text (explaining how all rangeland assessment methods are based on the Dyksterhuis model and presenting typical BLM range condition data showing rangeland improvement since the 1930s that is explicitly or implicitly based on the Dyksterhuis model). But range condition improvement under Dyksterhuis's model by definition means that vegetation has become more like the native climax vegetation. See supra notes 108-127 and accompanying text. Consequently, implicit in arguments that range condition has improved since passage of the TGA is an acknowledgment that native, or at least naturalized, vegetation is succeeding back toward climax, or potential natural, conditions on most rangelands as grazing management has improved. But this is basically what the Dyksterhuis model predicts should happen. Therefore claims that there has been general range condition improvement would appear to be inconsistent with claims based on the state and transition model that much rangeland vegetation change is essentially irreversible. This inconsistency should be addressed before the state and transition model is fully accepted and the Dyksterhuis method is totally rejected, particularly if the state and transition model is used to justify soft path approaches to range management based on seeding nonnative species chiefly valuable as livestock forage. See supra notes 165-166 and accompanying text (discussing how the state and transition model may provide a justification for soft path approaches). This is especially true since some proponents of the state and transition model almost show antipathy toward native plant species and communities: "The presumed pristine or climax vegetation is not necessarily `best' for any land use or ecological attribute and therefore is not a necessary, or even particularly useful, standard for setting range management goals or assessing rangeland condition." Smith et al., supra note 130, at 274 (emphasis added). Yet the amended regulations require range management to emphasize native species and communities. See 43 C.F.R. [sections] 4180.2(d)(5) (1996); see supra note 166 (citing regulatory provisions establishing this requirement). In fairness, it should be pointed out that range scientists evaluating overall range conditions have qualified their conclusions by stating that various often disparate sources of data exist, all data sources have inaccuracies or uncertainties, and that their view that range condition has improved is primarily based on professional opinion that cannot be well documented. See, e.g., Box, supra note 12, at 108-09, 113-15. However, they also state that Dyksterhuis's method forms the basis of most surveys they have reviewed and also present data and discuss them in terms of Dyksterhuis's condition classes. See id.; see also Rangeland Health, supra note 108, at 134-56 (discussing past and current rangeland surveys, which are all generally based on Dyksterhuis's method, and the limitations thereof). Thus, Dyksterhuis's model is explicitly or implicitly at the core of arguments Wa range conditions have improved. Additionally, it can be argued that Dyksterhuis's model is still valid on the Great Plains where it was developed, but not in other ecosystems such as the Great Basin. See, e.g., Smith et al., supra note 130, at 273 ("The Clementsian model of predictable and reversible succession seems to apply fairly well in grasslands."). However, claims that BLM rangelands are in the best condition of this century have never been limited solely to the Great Plains, and in any event there is little BLM land on the Great Plains. See DEIS, supra note 20, at Map Supplement (showing location of BLM lands, little of which occurs on the Great Plains). At a minimum, BLM range managers need to rationally determine whether a particular vegetative state under consideration for a management action is one that cannot improve without significant external intervention like a seeding and has in fact not improved over time (e.g., vegetative state C in Appendix Fig. 2). Or, alternatively, is it a vegetative state that can change without structural or mechanical inputs (e.g., states A and B in Appendix Fig. 2), in which case reliance on native species and natural processes will be both scientifically and legally more justified.

(168) See supra notes 115-120 and accompanying text (discussing how the Dyksterhuis method is based on the different responses of plants to grazing). Soils and climate are considered in delineation of "range sites," which are the basic units of land on which range condition is determined. Rangeland Health, supra note 108, at 67, 74.

(169) See generally Keiter, supra note 43, at 309-12 (stating that the BLM is required to consider the needs of future generations by prohibiting permanent damage to the land).

(170) See infra notes 195-200, Parts IV.C, VIII.C.3.

(171) Keiter, supra note 43, at 300.

(172) Id. at 295.

(173) Id.

(174) Id.

(175) Id.

(176) Id.

(177) Id.

(178) Id. at 301-03.

(179) Id. at 302.

(180) See DEIS, supra note 20, at 342 to 347 (stating that excessive livestock grazing in riparian habitats negatively affects fish, water quality, water storage and stream flow, recreation, wildlife habitat, and vegetation composition); FEIS, supra note 21, at 25 (stating: healthy riparian areas prevent streambank erosion, filter sediments, improve water quality, reduce flooding, recharge groundwater, maintain streamflow; are often the most biologically productive and diverse habitats; provide food, water, cover, nesting areas, and wildlife corridors; and are depended on by most species of wildlife). See generally U.S Envtl. Protection Agency, Managing Change, Livestock Grazing on Western Riparian Areas (July 1993); General Accounting Office, Public Rangelands: Some Riparian Areas Restored but Widespread Improvement Will Be Slow (1988) [hereinafter Public Rangelands] (stating that riparian areas "have ecological importance far beyond their relatively small acreage because they have a greater quantity and diversity of plant species than adjoining land"); J. Boone Kaufman & W.C. Krueger, Livestock Impacts on Riparian Ecosystem and Streamside Management Implications ... A Review, 37 J. Range Mgmt. 430 (1984).

(181) See supra note 138; Appendix Tbl. 1.

(182) Uplands account for about 176 million acres of BLM land. FEIS, supra note 21, at 25. Riparian habitats cover only about 1 million acres of BLM land. Id.; see also Appendix Tbl. 1.

(183) See Braun, supra note 83, at 50.

(184) FEIS, supra note 21, at 25.

(185) See supra notes 128-132 and accompanying text (citing several surveys generally based on the Dyksterhuis method that indicate rangeland condition has improved this century); DEIS, supra note 20, at 3-27, 3-32; Public Rangelands, supra note 180, at 3 (stating that "[the] pace of restoring the large number of degraded riparian areas that remain is likely to be very slow"); see also infra note 223 (stating that 80% of remaining riparian areas on BLM lands are in unsatisfactory condition).

(186) See infra notes 210-223 and accompanying text; Part VIII.C.

(187) Rangeland Health, supra note 108, at 35.

(188) Id. at 34. However, "[d]etermining whether the capacity of a rangeland to satisfy values and produce commodities is being sustained will not resolve the debate over the proper use and management of that rangeland." Id. at 35 (emphasis added). Those determinations will entail additional processes, such as BLM's planning process. See infra notes 273-276 and accompanying text.

(189) Rangeland Health, supra note 108, at 6, 36.

(190) Id.

(191) Id.

(192) See infra notes 201-206 and accompanying text. Rangeland Health also proposed boundaries to delineate the three rangeland health categories, as shown in Appendix, Figure 2. Rangeland Health, supra note 108, at 36, 42-43. The boundary between healthy and at risk rangeland ecosystems was called the "early warning line." It is apparent when there is a "reduction in capacity to provide values and commodities that is likely to be reversed through changes in use and management or as natural conditions improve." Id. at 36, 43. The boundary between at risk and unhealthy rangelands was termed the "threshold of rangeland health." Id. at 42-43. It is recognized when there is a "reduction in capacity to satisfy values and produce commodities that is difficult to reverse without substantial external inputs." Id.; see also id. at 42 (defining the "threshold of rangeland health" as a "boundary between ecological states of a rangeland ecosystem that, once crossed, is not easily reversible and results in the loss of capacity to produce commodities and satisfy values"). Obviously these definitions are related to the "state and transition model" of rangeland vegetation change discussed above. See supra notes 155-160 and accompanying text. But as mentioned, BLM declined to explicitly adopt the state and transition model of rangeland vegetation change. See supra notes 161-167 and accompanying text. Mirroring that decision, nowhere in the new regulations or Rangeland Reform '94 did BLM explicitly state how it would delineate the boundaries between its analogous functioning categories.

(193) Rangeland Health, supra note 108, at 97-133 (discussing the criteria and indicators of rangeland health proposed in Rangeland Health).

(194) See infra Part VIII.C.3 (discussing how the amended grazing regulations incorporated many of the "criteria and indicators" proposed in Rangeland Health).

(195) Bureau of Land Management Department of the Interior, Ecosystem Management in the Blm: From Concept to Commitment (Jan. 1994) [hereinafter Ecosystem Management]. BLM stated that its principles of ecosystem management include: 1) the need to sustain the productivity and diversity of ecological systems; 2) use of the best available science to guide management, 3) broad involvement of the public and other agencies; 4) consideration of historic, economic, ecological, and social information to set goals; 5) the need to "minimize and repair impacts to the land;" 6) the need for an land management; 7) adoption of long-term perspectives and goals; 8) the need to "reconnect isolated parts of the landscape;" and 9) the use of "adaptive management." Id. at 5-8.

(196) 43 C.F.R. [sections] 4100.0-2 (1996).

(197) DEIS, supra note 20, at 5-6; FEIS, supra note 21, at 4; see also FEIS, supra note 21, at 19 (stating BLM "would implement policies to manage rangeland resources using an ecosystem approach," and "BLM would implement this approach in two ways: 1) through national requirements, guiding principles, and state or regional standards and guidelines; and 2) through regulation changes that would reform the administration of the rangeland program"); see also FEIS, supra note 21, at 25 ("In the past, BLM . . . [has] applied field measurement techniques that describe vegetation communities but do not tell whether overall ecological processes are working properly and meeting ecosystem needs. To reflect this broader view, [BLM] [is] adopting new methods of evaluating and/or reporting rangeland conditions."); id. at 62 (summarizing the public's comments on the standards and guidelines relative to ecosystem management and BLM's responses to them); id. at 78. BLM also defined ecosystem management in Rangeland Reform '94 as

(A) The skillful use of ecological, economic, social, and managerial

principles in

managing ecosystems to produce, restore, or sustain ecosystem integrity and

desired

conditions, uses, products, values, and services over the long term. (B) A

process of land

and resource management that emphasizes the care and stewardship of an area

to

ensure that human activities will be carried out to protect natural

processes, natural

biodiversity, and ecological integrity.

DEIS, supra note 20, at GL-7.

(198) See Grazing Administration-Exclusive of Alaska, 58 Fed. Reg. 43,208 (proposed Aug. 13, 1993) [hereinafter Grazing Administration 1993] ("The intent of the proposed [regulatory] changes is to make the BLM's rangeland management program more compatible with ecosystem management. . . ."); id. at 43,209 ("If a fundamental shift toward ensuring that ecological processes function properly is to occur, the BLM's rangeland management program . . . must undergo major change. This is the focus of this proposal."); id. at 43,212 ("The standards and guidelines would reflect properly functioning conditions . . . that must be met to ensure sustainability and healthy, productive ecosystems.").

(199) Grazing Administration 1994, supra note 147, at 14,325 ("The national requirements, guiding principles for the development of State or regional standards and guidelines, and the fallback standards and guidelines proposed in this rule all focus on attaining and maintaining healthy rangeland ecosystems, including riparian areas.").

(200) See Grazing Administration 1995, supra note 6, at 9898 (stating BLM "believes that [the Grazing Administration 1995 rules] are critical to ensuring that BLM's administration of grazing helps preserve currently healthy rangelands and restore [sic] healthy conditions to those areas that currently are not functioning properly, especially riparian areas"); id. at 9906 (stating the fundamentals address the necessary attributes of "healthy biotic communities"); id. at 9920 ("The first objective, to promote healthy sustainable rangelands, is the key component of the [BLM's] program."); id. at 9956 ("[BLM] believes that by implementing grazing-related actions that are consistent with the [standards and guidelines], the longterm health of public rangelands can be ensured.").

(201) Rangeland health was defined as "[t]he degree to which the integrity of the soil and the ecological processes of rangeland ecosystems are sustained. Rangeland health exists when ecological processes are functioning properly to maintain the structure, organization, and activity of the system over time." FEIS, supra note 21, at 45. The first sentence of this definition is a verbatim restatement from that in Rangeland Health. Rangeland Health, supra note 108, at 4.

(202) FEIS, supra note 21, at 25.

(203) Id. at 26.

(204) Id. The DEIS had similar definitions, but it distinguished between upland and riparian functioning conditions. DEIS, supra note 20, at 2-9 to 2-10. The DEIS defined properly functioning uplands, nonfunctioning uplands, uplands functioning but susceptible to degradation, properly functioning riparian-wetland areas, nonfunctioning riparian-wetland areas, and wetland-riparian areas that are functioning but susceptible to degradation. Id. The DEIS upland functioning condition definitions are similar to the definitions in the FEIS, but the riparian functioning condition definitions supplied more detail about what constitutes health in those ecosystems.

(205) Rangeland Health, supra note 108, at 6, 36-37. The three rangeland health categories proposed in Rangeland Health are healthy, at risk, and unhealthy. See supra notes 188-192 and accompanying text (defining the three analogous rangeland health categories presented in Rangeland Health); see Appendix Fig. 2 (graphically displaying the three rangeland health categories).

(206) See Rangeland Health, supra note 108, at 6, 36-37, 42-43 (defining and discussing the boundaries between the three rangeland health categories); see Appendix Fig. 2.

(207) FEIS, supra note 21, at 13. However, BLM was less specific about the timeline for making assessments of rangeland health in its final rule commentary:

[BLM] recognizes that it is not possible to complete all assessments of

rangeland

health and to take appropriate corrective action . . . immediately upon

completion of

the State or regional standards and guidelines or upon the fallbacks taking,

effect.

[BLM] intends that assessments and corrective actions will be undertaken in

priority

order as determined by BLM.

Grazing Administration 1995, supra note 6, at 9956. Moreover, BLM has developed interim policy and procedure guidance for implementing the standards and guidelines that also indicates not all assessments will be made within three years. Instruction Memorandum No. 96-172 from Tom Walker, Acting Assistant Director, Bureau of Land Management, to All Field Officers (AFOs), Bureau of Land Management 15 (August 28, 1996) (on file with author) (containing instructions for "Implementing Standards of Rangeland Health and Guidelines for Grazing Management") (forthcoming in Bureau of Land Mgmt., U.S. Dep't of the Interior, Hb [Handbook] 4180 (no date specified)) [hereinafter Instruction Memorandum]. For example, "[i]t will not be possible to complete all assessments of rangeland health . . . immediately upon completion of the [standards and guidelines]." Id. Thus, "assessments . . . [will be] undertaken in priority order." Id.

(208) These are two objectives of the amended regulations. Grazing Administration 1995, supra note 6, at 9920.

(209) See 43 C.F.R. [sections] 4180.2(c) (1996) (stating corrective action must be taken only if livestock grazing is a "significant factor" in the failure to meet the standards and guidelines); Instruction Memorandum, supra note 207, at 19 ("What action is required [when it is] determine(d] that the standard is not met or guidelines not conformed with? The authorized officer must then determine if livestock grazing management practices or levels of grazing use are significant factors in failing to meet the standard or conform to the guideline.").

(210) The "significant factor" and "significant progress" aspects of the new regulations (steps 2 and 3) will be considered, infra, in Part VII.C.2.

(211) FEIS, supra note 21, at 58, 61-62, 68-69; Grazing Administration 1995, supra note 6, at 9931. BLM analogized this process to a medical examination:

The use of qualitative assessment procedures can be compared to a

preliminary

medical examination to see if a patient needs further attention. This

examination gives a

quick diagnosis of the patient's health. If the illness is pressing, the

patient may need

immediate medical attention, or further tests may be required to determine

what the

illness is.

FEIS, supra note 21, at 68. However, it appears that BLM primarily intends to expand the kinds of data that are suitable for assessing rangeland health, as opposed to simply making such assessments rapid. This is especially true relative to the strict monitoring requirements that existed under the old regulations. Instruction Memorandum, supra note 207, at 15 (discussing acceptable methods, including qualitative methods, for determining conformance with the standards). See infra Part VII.D.1.a (discussing means for changing livestock numbers under the old and new regulations). Thus, BLM does not plan to sacrifice scientific validity for speed. See Grazing Administration 1995, supra note 6, at 9930 ("[BLM) agrees that professionally accepted and scientific information is needed to justify changes in permitted use.").

(212) FEIS, supra note 21, at 58.

(213) Id. at 61-62; see also id. at 72 (explaining further the qualitative approach).

(214) Id. at 63.

(215) Instruction Memorandum, supra note 207, at 8.

(216) FEIS, supra note 21, at 68.

(217) Instruction Memorandum, supra note 207, at 10. These factors also apply to setting priorities for taking corrective actions under the new regulations. Id. Additionally, BLM emphasized that "the authorized officer must consider the expected return to the public in setting priorities and deciding what constitutes an appropriate action." Id.

(218) Id.

(219) Id. (emphasis added). See also id. ("[I]t is critical that such decisions [relating to setting priorities] have a sound, rational basis and be well documented.").

(220) See Grazing Administration 1994, supra note 147, at 14,327 ("Priority would be based largely on the review of riparian area conditions.").

(221) See DEIS, supra note 20, at 3-28 to 3-29, 3-32, 4-43, 4-46; FEIS, supra note 21, at 26, 31.

(222) BLM stated, however, that these data are strictly estimates because "the concept of proper functioning condition of uplands is relatively new, and little quantitative data exist." DEIS, supra note 20, at 3-28.

(223) DEIS, supra note 20, at 4-41 to 4-48; see also 43 C.F.R. [sections] 4100.0-2 (1996) (stating an objective of the new regulations is to "accelerate restoration and improvement of public rangelands to properly functioning conditions"); FEIS, supra note 21, at 73. As Table 1 indicates, one of the most significant aspects of Rangeland Reform '94 was its division of rangeland ecosystems into uplands and riparian areas. BLM made this distinction even though it recognized that range condition has improved since the dark days of the tragedy of the commons because it believes that improvement in rangeland condition has largely been confined to uplands. DEIS, supra note 21, at 3-27, 3-32. In Rangeland Reform '94, BLM determined that 70% to 90% of riparian systems that formerly existed on BLM lands have been destroyed by human activities, and up to 80% of those that remain are in unsatisfactory condition. Id. at 3-29 (citation omitted).

(224) DEIS, supra note 20, at 4-63.

(225) Id. The "immediately" language should be read to mean immediately upon determining grazing is a significant factor in failing to meet the Standards and Guidelines. See supra notes 210-211 and accompanying text (explaining taking action under the standards and guidelines requires the "significant factor" determination).

(226) FEIS, supra note 21, at 4.

(227) Id.

(228) Id.

(229) Id.

(230) Id.; see also 43 C.F.R. [sections] 4100.0-2 (1996) (restating these general objectives, excepting the goal of receiving fair return from grazing, but instead seeking to "promote the orderly use, improvement and development of the public lands").

(231) See, e.g., Melling, supra note 18, at 58 (discussing DOI Secretary Babbitt's politics and early activities at the Department of the Interior).

(232) Id. at 79.

(233) See supra notes 104-107 and accompanying text discussing this point).

(234) 624 F. Supp. 1045 (D. Nev. 1985), affd, 819 F.2d 927 (9th Cir. 1987).

(235) Id. at 1056-58.

(236) Id. at 1057. While agreeing the area was overgrazed, the court felt that, with a few exceptions, there was no conclusive evidence overgrazing was solely caused by livestock grazing. Id.

(237) Id. at 1058.

(238) Id. at 1057-58; see also infra Part VI (discussing legislative mandates under the TGA, FLPMA, and PRIA).

(239) 624 F. Supp. at 1057-58, 1062.

(240) Id. at 1058; see infra Parts VI.B and VI.C (discussing the cited provisions from FLPMA and PRIA).

(241) But cf. George Cameron Coggins & Doris K Nagel, "Nothing Beside Remains": The Legal Legacy of James G. Watt's Tenure as Secretary of the Interior on Federal Land Law and Policy, 17 B.C. Envtl. Aff. L. Rev. 473, 541-43 (1990) (discussing the Hodel decision and stating "the courts abdicated their review responsibilities").

(242) Id. at 543.

(243) 43 U.S.C. [sub-sections] 315-315o-1 (1994).

(244) 43 U.S.C. [sub-sections] 1701-1782 (1994).

(245) 43 U.S.C. [sub-sections] 1901-1908 (1994). Other authors have thoroughly reviewed the statutes governing BLM livestock grazing management, so they will only be reviewed here as they relate to the standards and guidelines. See Coggins IV, supra note 34; Coggins II, supra note 48; Joseph M. Feller, What Is Wrong with the BLM's Management of Livestock Grazing on the Public Lands?, 30 Idaho L. Rev. 555 (1993-94) [hereinafter Feller II].

(246) See supra notes 59-67 and accompanying text (pointing out that the TGA reflected a shift in federal land management policy from one of unregulated exploitation and disposal to one of regulated use and retention).

(247) 43 U.S.C. [sections] 315 (1994).

(248) Id. [section] 315a. BLM cited this section as authority for amending its regulations. `Grazing Administration 1995, supra note 6, at 9907.

(249) 43 U.S.C. [section] 315b. Grazing leases are also authorized in isolated or disconnected tracts of BLM lands. Id. [section] 315m. For purposes of this Article there is no practical difference between permits and leases, and the regulations considered in this Article apply to both.

(250) See Coggins II, supra note 48, at 50-51 (discussing the dual purposes of the TGA and concluding that "[t]he one explicit theme recurring throughout the statute [including its uncodified preamble] is the need for improvement of range conditions").

(251) Id. at 41.

(252) Id. at 47.

(253) In regard to the standards and guidelines, BLM stated, "[t]hese requirements are intended to reflect the fundamental legal mandates for the management of public land under the Taylor Grazing Act, FLPMA, Endangered Species Act, Clean Water Act ... and other relevant authorities." Grazing Administration 1994, supra note 147, at 14,325.

(254) 43 U.S.C. [section] 315a (1994).

(255) Public Lands Council v. United States Dep't of the Interior, 929 F. Supp. 1436, 1447-48 (D. Wyo. 1996), appeal docketed, No. 96-8083 (10th Cir. Aug. 9, 1996); see also infra Part IX.A (discussing the Public Lands Council court's analysis of the standards and guidelines in more detail).

(256) 929 F. Supp. at 1440-41 (setting aside the term "permitted use" because it weakened ranchers' "grazing preference" created under the TGA); id. at 1442-43 (setting aside provision giving the U.S. title to certain range improvements because it contradicted the TGA); id. at 1443-44 (setting aside the term "conservation use" because the TGA only allows for grazing use, not lack of use); id. at 1444-45 (setting aside provision allowing nonranchers to hold a grazing permit as violative of the TGA); see also infra notes 565-569, 600, 622-625, 665-668, 725, 727-729 and accompanying text (discussing these holdings in more detail).

(257) The TGA proved unsatisfactory because 1) BLM was not given organic authority to manage all resources on its lands, and 2) BLM lands were still viewed as being temporarily held pending disposal. See Coggins IV, supra note 34, at 2-6. Additionally, in 1974 the decision in Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829 (D.D.C.), aff'd per curiam, 527 F.2d 1386 (D.C. Cir. 1974), forced BLM to prepare 144 environmental impact statements to assess grazing impacts at a local level. That lawsuit also brought home the need for new statutory guidance from Congress. See George Cameron Coggins, The Law of Public Rangeland Management III: A Survey of Creeping Regulation at the Periphery, 1934-1982, 13 Envtl. L. 295, 357-63 (1983).

(258) Federal Land Policy Management Act of 1976, 43 U.S.C. [subsections] 1701-1782 (1994).

(259) FLPMA did not, however, repeal the TGA. Rather, it imposed a new layer of requirements on BLM. Therefore, the TGA and FLPMA must be read in harmony to the extent possible. The decision in Public Lands Council can be criticized on many grounds. One of the most glaring errors, however, was the court's analysis of the TGA in isolation from FLPMA and PRIA, especially regarding "grazing preference." See Public Lands Council, 929 F. Supp. at 1440-41 (setting aside the term "permitted use," without consideration of FLPMA and PRIA, because it infringed on ranchers' TGA-based grazing preferences). Fortunately, detailed consideration of holdings indirectly related to the standards and guidelines is beyond the scope of this paper.

(260) 43 U.S.C. [sections] 1701(a)(5) (1994).

(261) Id. [sections] 1701(a)(7).

(262) Id. [section] 1701(a)(8). This is one of the provisions deemed merely a "broad expression[] of concern and desire for improvement" in Hodel. Natural Resources Defense Council, Inc. v. Hodel, 624 F. Supp. 1045, 1058 (D. Nev. 1985); see also supra notes 234-242 and accompanying text (describing Hodel in greater detail).

(263) 43 U.S.C. [sections] 1701(b) (1994) ("The policies of this Act shall become effective only as specific statutory authority for their implementation is enacted by this Act or by subsequent legislation and shall be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law."). However, "[t]he courts faced with questions involving section 1701(a) ... have uniformly assumed that the policies are binding and effective in the absence of contrary provisions. Whatever their precise legal status, the congressional policies ought to serve as fundamental range management guidelines." Coggins IV, supra note 34, at 10.

(264) See, e.g., 43 U.S.C. [sections] 1701(a)(12) (1994) (It is national policy that "the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber ....").

(265) See Keiter, supra note 43, at 311-12 ("[FLPMA] gives an organic mandate that can be construed to impose ecosystem management responsibilities.").

(266) 43 U.S.C. [sections] 1702(c) (1994).

(267) Id. [sections] 1702(c). BLM's commitment to ecosystem management is partly based on this provision. See Ecosystem Management, supra note 195, at 5.

(268) 43 U.S.C. [sections] 1702(h) (1994).

(269) See, e.g., George C. Coggins et al., Federal Public Land and Resources Law 624-27 (3d ed. 1993) (discussing court deference to the Forest Service under the Forest Service's multiple use mandate).

(270) 43 U.S.C. [section] 1702(1) (1994).

(271) Id.

(272) See infra notes 277-280 and accompanying text (discussing FLPMA's limitation on elimination on of principle or major uses and the likely relevance of the provision to the regulations).

(273) See 43 U.S.C. [section] 1712(c)(1) (1994).

(274) See id.; see also infra Part VIII.E (discussing how BLM will determine conformance between the standards and guidelines and land use plans).

(275) 43 U.S.C. [section] 1712(c)(1) (1994).

(276) Id. [section] 1712(c)(8).

(277) Id. [section] 1712(e)(2) (Such actions "shall be reported by the Secretary [of the Interior] to the House of Representatives and the Senate. If within ninety days from the giving of such notice ... Congress adopts a concurrent resolution of nonapproval of the management decision or action, then the management decision or action shall be promptly terminated by the Secretary.").

(278) The court in Public Lands Council partly relied on this statutory provision to strike down the provision for "conservation use" in the new regulations, assuming, before the regulations have even been implemented, that conservation use will lead to large scale elimination of livestock grazing. Public Lands Council v. United States Dep't of the Interior, 929 F. Supp. 1436, 1443-44 (D. Wyo. 1996), appeal docketed, No. 96-8083 (10th Cir. Aug. 9, 1996); see infra notes 622-625 and accompanying text (discussing this aspect of the Public Lands Council decision in more detail).

(279) It should also be noted that the provision in Section 1712(e)(2) may be a legislative veto and therefore itself be unconstitutional. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (deciding that legislative veto provisions in immigration statute violated Bicameralism and Presentment Clauses of U.S. Constitution, art. I, [section] 7).

(280) See generally Grazing Administration 1995, supra note 6, at 9898-99, 9931-32 (explaining that a variety of actions will be used to ensure standards and guidelines are met; eliminating grazing is only an option).

(281) 43 U.S.C. [section] 1732(a) (1994).

(282) Id.

(283) Id. [section] 1732(b). This is one of the provisions the Hodel court referred to as merely a "broad expression[] of concern and desire for improvement." Natural Resources Defense Council, 624 F. Supp. at 1058; see also supra notes 234-242 and accompanying text (discussing Hodel in more detail).

(284) See supra notes 262-264 and accompanying text (describing how the Secretary of the Interior should have discretion to create grazing standards to implement policy set out in section 102(a)(8)).

(285) 43 U.S.C. [section] 1732(c) (1994).

(286) Id.

(287) Id.

(288) Id.

(289) Id.

(290) See id. [subsections] 1751-1753.

(291) Id. [section] 1752(a); see also infra Part VI.B.4 (discussing additional FLPMA provisions for grazing permits and allotment management plans). It should be noted that BLM cited this provision as giving it authority to develop the standards and guidelines. Grazing Administration 1995, supra note 6, at 9907-08 (discussing potential conflicts between grazing amendments and other laws).

(292) 33 U.S.C. [subsections] 1251-1387 (1994).

(293) 16 U.S.C. [subsections] 1531-1544 (1994). It should also be noted that violating these and other environmental laws are prohibited acts under the amended regulations. 43 C.F.R. [section] 4140.1(c) (1996); see also infra Part VIII.D.2.e\ (discussing these prohibitions in more detail). Thus, the Clean Water Act and Endangered Species Act are implemented in two subparts of the amended regulations.

(294) 43 U.S.C. [section] 1733(a) (1994).

(295) Id. [section] 1740 (emphasis added).

(296) Id. [section] 1701(a)(8); see supra note 262 and accompanying text (giving the full text of the section).

(297) See generally Clean Water Act, 16 U.S.C. [section] 1323; Endangered Species Act, 16 U.S.C. [section] 1536 (a) (requiring federal agencies to comply with those acts).

(298) 43 U.S.C. [subsections] 1751-1753 (1994).

(299) Id. [section] 1751(b)(1).

(300) Id. (emphasis added).

(301) Id. [section] 1752(d)-(e).

(302) Id. [section] 1702(k)(1).

(303) Id. [section] 1702(k)(2).

(304) Id. [sections] 1702(k)(3).

(305) Id. [section] 1752(d). The term "range condition" is not defined in FLPMA but it is defined in PRIA. As will be discussed, the term has considerable import relative to the new standards and guidelines because it is so broadly defined it should allow for ecosystem management. See infra notes 316-320 and accompanying text (defining and elaborating upon the term "range condition").

(306) 43 U.S.C. [section] 1752(e) (1994).

(307) Id.

(308) Id.

(309) Public Lands Council v. United States Dep't of the Interior, 929 F. Supp. 1436, 1447-48 (D. Wyo. 1996); see also infra Part IX.A (discussing this holding in more detail).

(310) 43 U.S.C. [subsections] 1901-1908 (1994).

(311) See Coggins IV, supra note 34, at 109 ("PRIA declares that range condition improvement shall be the management goal [of BLM], and the Act buttresses that goal by related references in many operative sections." (emphasis in original)).

(312) 43 U.S.C. [sections] 1901(a)(1) (1994). This is another statutory provision the Hodel court found to be merely hortatory. Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045, 1058 (D. Nev. 1985), aff'd, 819 F.2d 927 (9th Cir. 1987); see also supra notes 234-242 and accompanying text (discussing Hodel more in detail). Nevertheless, BLM partly relied on it as providing statutory authority for the amended regulations. Grazing Administration 1995, supra note 6, at 9907-08.

(313) See 43 U.S.C. [section] 1901(a)(3) (1994).

(314) Id. [section] 1901(b). The use of this word indicates that the policy had already been stated, presumably in FLPMA or the TGA.

(315) Id. [section] 1901(b)(2). Just as in FLPMA, however, Congress hedged its bets by stating "[t]he policies of this chapter shall become effective only as specific statutory authority for their implementation is enacted ...." Id. [section] 1901(c). Nevertheless, the policy of improving range condition stated in section 2(b)(2) was very specifically implemented in section 4(b) of PRIA. See infra note 323 and accompanying text (giving the full text of 43 U.S.C. [section] 1903(b) (1994)). It should also be noted that BLM stated it considered section 2(b)(2) of PRIA to provide statutory authority for the amended regulations. Grazing Administration 1995, supra note 6, at 9907-908.

(316) 43 U.S.C. [section] 1902(d) (1994).

(317) Coggins IV, supra note 34, at 119.

(318) 43 U.S.C. [section] 1902(e) (1994) (emphasis added).

(319) This presumption has major significance in the debate over range condition: those who argue that nonnative species such as crested wheatgrass should be used to improve range condition should bear the burden of showing native species will not suffice. The new regulations make this presumption even more explicit 43 C.F.R. [section] 4180.2(d)(5), (e)(10)-(12), (f)(1)(iv), (f)(2)(ix)-(x) (1996) (requiring grazing management to maintain and promote conditions for native populations and communities and to emphasize native species to support ecological function). See also supra notes 166-167, infra note 550 and accompanying text (discussing related aspects of the use of native species to improve range conditions).

(320) Coggins IV, supra note 34, at 120.

(321) 43 U.S.C. [section] 1903 (1994).

(322) See Coggins IV, supra note 34, at 115-17 (arguing that [section] 1903(b) unambiguously establishes improvement of range condition as BLM's single management priority); see also supra notes 310-315 and accompanying text (discussing Congress's finding that range condition needed improvement).

(323) 43 U.S.C. [section] 1903(b) (1994) (emphasis added). This is another statutory provision the Hodel court characterized as merely a "broad expression of concern and desire for improvement." Natural Resources Defense Council v. Hodel, 624 F. Supp. 1045,1058 (D. Nev. 1985), aff'd, 819 F.2d 927 (9th Cir. 1987); see also supra note 235-242 and accompanying text (discussing the Hodel holding that BLM has broad discretion in range management).

(324) 43 U.S.C. [section] 1902(f) (1994) (emphasis added).

(325) 624 F. Supp. at 1058; see also supra notes 235-242 and accompanying text (discussing Hodel).

(326) 929 F. Supp. at 1447-48; see also infra Part IX.A (discussing this holding in more detail).

(327) See supra notes 246-256 and accompanying text (describing the Taylor Grazing Act).

(328) See Coggins II, supra note 48, at 53 n.351, 54-60 (discussing initial implementation of the TGA).

(329) Administrative Procedures Act of 1946, 5 U.S.C. [subsection] 551-559 (1994) (originally enacted in 1946).

(330) 43 C.F.R. [subsection] 501.2-501.27 (Supp. 1938).

(331) See Coggins II, supra note 48, at 58-59, 80-87 (citations omitted). Professor Coggins's discussion is particularly helpful for understanding the critically important, and often excessive, determinations of forage preference that occurred after enactment of the TGA. As will be discussed, "preference" under BLM's old regulations did not mean the priority a rancher had for forage allocation pursuant to a permit. Rather, "preference" referred to the amount of forage attaching to a grazing permit. 43 C.F.R. [section] 4100.0-5 (1994) (defining "grazing preference" under the old regulations). The new regulations amended this definition so that grazing preference means the priority for receiving a permit or lease, with the amount of forage attaching to a permit being encompassed in a new term, "permitted use 43 C.F.R. [section] 4100.0-5 (1996); see also infra note 564 (discussing grazing preference and permitted use in more detail). The replacement of the old definition of grazing preference with the term permitted use was struck down in Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436, 1440-41 (D. Wyo. 1996), appeal docketed, No. 96-8083 (10th Cir. Aug. 9, 1996); see infra notes 564-569 and accompanying text (discussing this aspect of the Public Lands Council holding).

(332) Coggins II, supra note 48, at 69.

(333) 43 C.F.R. [subsection] 4100.0-1 to 4170.2-2 (1978).

(334) Id. [section] 4110.

(335) Id. [section] 4120.

(336) Id. [section] 4130.

(337) Id. [section] 4140.

(328) Id. [section] 4150.

(329) Id. [section] 4160.

(340) Id. [section] 4170.

(341) Id. [section] 4110.3-2(b) ("When authorized grazing use exceeds the amount of forage available ... or where reduced grazing is necessary to facilitate achieving the objectives of land use plans, grazing permits or grazing leases and grazing preferences shall be canceled in whole or in part.").

(342) Id. [section] 4120.1 ("As land use plans are prepared, the authorized officer shall designate allotments where the public lands ... are suitable and available for livestock grazing.").

(343) Id. [section] 4130.2(d)(2) (allowing issuance of grazing permits of less than 10 years in duration if, among other things, resource conditions, use conflicts, or environmental impacts warranted).

(344) Id. [section] 4140.1(b)(8) (providing that civil and criminal penalties may be imposed for "[v]iolating any Federal or State laws or regulations concerning conservation or protection of natural and cultural resources or the environment"). This provision, which was removed during the Republican Administrations of the 1980s, was recodified, in modified form, in the amended regulations. 43 C.F.R. [section] 4140.1(c) (1996); infra Part VIII.D.2.e. The Carter-era regulations were modified several times to "fine tune" them based on experience, to comply with PRIA, and to comply with the decision in Natural Resources Defense Council v. Morton, 388 F. Supp. 829 (D.D.C. 1974), aff'd, 527 F.2d 1386 (D.C. Cir. 1976); see Grazing Administration and Trespass on Public Lands; Amendments to the Grazing Regulations, 46 Fed. Reg. 5784 (Jan. 19, 1981). The Morton decision caused BLM to prepare 144 grazing environmental impact statements. Id.

(345) Grazing Administration -- exclusive of Alaska, 49 Fed. Reg. 6440 Feb. 21, 1984). The soft path approach in these regulations was probably more a result of how they were implemented than their actual wording. In particular, BLM adopted a moratorium on grazing reductions, unless a need for reduction was indicated by very narrowly defined kinds of data collected over a number of years. See Feller II, supra note 245, at 576-78. (Professor Feller referred to this policy as the "numbers maintenance policy."); Coggins and Nagel, supra note 241, at 540-41 (discussing BLM's moratorium on grazing reductions and a related "triage" system of range management that was adopted during James Watt's tenure as Secretary of the Interior); see infra Part VIII.D.1.a (further discussing Professor Feller's view of the policy).

(346) Jarnes G. Watt served Republican president Ronald Reagan as Secretary of the Interior from 1981 to 1984. His tenure was marked by attempts to privatize national resources and remove regulatory constraints. See Coggins and Nagel, supra note 241, at 540.

(347) 43 C.F.R. [section] 4120.1(a) (1984).

(348) Id. [section] 4120.2(a).

(349) Id. [section] 4130.6-3.

(350) Id. [section] 4140.1(b)(7).

(351) Id. [section] 4140.1(a)(3). Providing food supplements, such as salt, to livestock can improve animal nutrition but can also alter the distribution of livestock. This may cause either desirable or undesirable foraging patterns depending on circumstances. Grazing Administration -- Exclusive of Alaska. Amendments to the Grazing Regulations, 53 Fed. Reg. 20,224 (March 29, 1988) [hereinafter Grazing Administration 1988].

(352) 43 C.F.R. [section] 4100.0-5 (1984); see also Natural Resources Defense Council, Inc. v. Hodel, 618 F. Supp. 848 (E.D. Cal. 1985) (discussing the Watt-era amendments in detail).

(353) 618 F. Supp. at 848 (discussing and ruling on the validity of the Watt-era regulations). The question of whether BLM impermissibly restricted appeal opportunities was deemed not ripe by the court. Id. at 881. This case had the same parties and was decided in the same year as the previously discussed case of Natural Resources Defense Council, Inc. v. Hodel, 624 F. Supp. 1045 (D. Nev. 1985), but the issues and courts differed. See supra notes 234-242 and accompanying text. See also Coggins and Nagel, supra note 241, at 540-45 (discussing the 1984 regulations and their invalidation, as well as both Hodel cases).

(354) See Grazing Administration 1988, supra note 351, at 10,224 (adopting regulations intended to be in accordance with Hodel, 618 F. Supp. at 848).

(355) 43 C.F.R. pt. 4180 (1996).

(356) Id.

(357) 42 U.S.C. [subsection] 4321-4370(d) (1994).

(358) Melling, supra note 18, at 76. Mr. Melling's article contains a wealth of citations to articles in the popular press regarding the controversial grazing reform efforts by Secretary Babbitt. See also Feller III, supra note 18, at 709-12 (arguing that BLM's rangeland reform effort had a fatal flaw: the amended regulations fail to address the threshold question of whether an area is even suited to grazing).

(359) Melling, supra note 18, at 76-77.

(360) 5 U.S.C. [subsection] 551-559 (1994).

(361) See supra notes 20-21 and accompanying text (presenting DEIS and FEIS).

(362) 42 U.S.C. [section] 4332(c) (1994).

(363) Grazing Administration 1993, supra note 198, at 37,745. The Forest Service was a cooperating agency in the preparation of Rangeland Reform '94. Forest Service grazing regulations are codified at 36 C.F.R. pt. 222 (1996).

(364) Grazing Administration 1993, supra note 198, at 43,208. While the Department of Interior published this and other notices regarding rangeland regulatory reform, the rules will usually be referred to as "BLM's new rule" because they apply directly to BLM and BLM lands.

(365) Feller III, supra note 18, at 710.

(366) Grazing Administration 1995, supra note 6, at 9894.

(367) See Melling, supra note 18, at 78 (discussing Interior Secretary Bruce Babbitt's attempts to bring consensus on grazing fee reforms).

(368) Grazing Administration 1995, supra note 6, at 9894 (mentioning Babbitt's role in "extensive discussions" about regulatory reform); see also Melling supra note 18, at 79-81.

(369) See Grazing Administration 1995, supra note 6, at 9894.

(370) Grazing Administration 1994, supra note 147, at 14,314 (stating how the proposed rules "are necessary to ensure proper administration of livestock grazing on public rangelands and to bring about reform in the management of rangelands for the improvement, protection, and proper function of rangeland ecosystems").

(371) Draft Environmental Impact Statement for Rangeland Reform '94 and Request for Public Comment, 59 Fed. Reg. 25,118 (May 13, 1994) [hereinafter Draft Environmental Impact Statement].

(372) Grazing Administration 1995, supra note 6, at 9894.

(373) Id. See also Draft Environmental Impact Statement, supra note 371, at 25,385 (publishing notice of location and procedures for hearings).

(374) Grazing Administration 1995, supra note 6, at 9894.

(375) This is especially true relative to previous rule making efforts. See Grazing Administration 1978, supra note 69, at 29,058. (Carter-era rules received 225 letters and no public meetings are noted as occurring.); Grazing Administration 1984, supra note 70, at 6440 (Watt-era rules received 156 comments and apparently no public meetings occurred.).

(376) Feller III, supra note 18, at 711-12. Professor Feller reaches this conclusion because the PR allowed for broad-based public participation in management decisions while the ANPR did not, and the PR was more liberal in regard to BLM's authority to reduce livestock numbers. The PR also contained an action-forcing mechanism relative to enforcement of the standards and guidelines that was absent from the ANPR. Id. at 709-12.

(377) Grazing Administration 1995, supra note 6, at 9895.

(378) Id. at 9957.

(379) Id. at 9894.

(380) Id.; see also Grazing Administration Hearings, 60 Fed. Reg. 23,476 (May 8, 1995) (reiterating the effective date of the FR).

(381) Feller III, supra note 18, at 712. Analysis of the grazing fee issue, which is even more incendiary than the debate over range condition, is beyond the scope of this paper. See generally Grazing Administration 1995, supra note 6, at 9945 (discussing why BLM dropped the grazing fee initiative).

(382) Grazing Administration 1994, supra note 147, at 14,325.

(383) Id. at 14,317-19.

(384) Id. at 14,326-27.

(385) Id. at 14,326.

(386) See id. at 14,353-54 (presenting proposed standards and guidelines); cf. 60 Fed. Reg. at 9969-71 (final standards and guidelines).

(387) See Grazing Administration 1993, supra note 198, at 43,230.

(388) Id. at 43,212.

(389) Id. (emphasis added). As will become apparent, the FR reversed this view: locally developed standards and guidelines should be the norm under the FR, but provision is made for "fallback" national standards and guidelines if BLM State Directors are unable to develop acceptable local provisions. See infra notes 454457, 505-515 and accompanying text.

(390) See Grazing Administration 1993, supra note 198, at 43,230 (proposed standards and guidelines); cf. Grazing Administration 1995, supra note 6, at 9969-71 (final standards and guidelines).

(391) Grazing Administration 1993, supra note 198, at 43,230.

(392) Id.

(393) Id.

(394) Id. at 43,230-31. The ANPR also listed specific steps to meet the requirements of the Clean Water Act. Id. at 43,231. Those steps were based on implementation of Best Management Practices (BMPs) to meet state water quality standards followed by iterative modification of BMPs as needed. Id. Correcting nonpoint source pollution via the use of BMPs has been criticized because it leads to rote application of BMPs, with agencies then claiming they have complied with water quality standards. See generally Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir. 1993), reh'g denied, (1994) (holding that statement that BMPs would be used to meet water quality standards is sufficient at planning level); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1424 (9th Cir. 1989) (holding use of BMPs is sufficient to comply with water quality standards where contrary data lacking); Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir. 1986), rev'd on other grounds, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (holding BMPs do not per se ensure compliance with water quality standards where agency's data are contrary); Braun, supra note 83, at 72 n.94 (describing EPA guidance on iterative application of BMPs). The FR dropped the ANPR provision and simply requires compliance with state water quality standards; nothing is said about BMPs. See infra notes 427, 441-M and accompanying text.

(395) Grazing Administration 1994, supra note 147, at 14,354. See supra notes 187-192, 222-226 and accompanying text.

(396) Grazing Administration 1993, supra note 198, at 43,230-31; see also infra note 608.

(397) Grazing Administration 1993, supra note 198, at 43,230-31.

(398) Id.

(399) Grazing Administration 1994, supra note 147, at 14,353.

(400) Id.

(401) Compare Grazing Administration 1993, supra note 198, at 43,230-31 with Grazing Administration 1994, supra note 147, at 14,353-54.

(402) Grazing Administration 1994, supra note 147, at 14,353-54.

(403) Id. at 14,353 (proposed for codification at 43 C.F.R. [Sections] 4180.1). The National Requirements in the PR became the "Fundamentals of Rangeland Health" in the FR. See Grazing Administration 1995, supra note 6, at 9970-71.

(404) Grazing Administration 1994, supra note 147, at 14,353 (proposed for codification at 43 C.F.R. [sections] 4180.1(a)(1)).

(405) Id. (proposed for codification at 43 C.F.R. [sections] 4180.1(a)(2)).

(406) Id. (proposed for codification at 43 C.F.R. [sections] 4180.1(a)(3)).

(407) Id. (proposed for codification at 43 C.F.R. [sections] 4180.1(a)(4)).

(408) Id. at 14,326, 14,353.

(409) See id. at 14,353 (proposed for codification at 43 C.F.R. [sections] 4180.2(d)-(e)).

(410) Id. at 14,354 (proposed for codification at 43 C.F.R. [sections] 4180.2(f)-(g)).

(411) Compare Grazing Administration 1993, supra note 198, at 43,230-231 (listing different standards and guidelines applicable to healthy versus unhealthy rangelands) with Grazing Administration 1994, supra note 147, at 14,353-54 (all standards and guidelines applicable to all rangelands).

(412) Compare Grazing Administration 1993, supra note 198, at 43,230-31 with Grazing Administration 1994, supra note 147, at 14,353-54 and Grazing Administration 1995, supra note 6, at 9970-71.

(413) Grazing Administration 1994, supra note 147, at 14,353-54.

(414) DEIS, supra note 20.

(415) Grazing Administration 1994, supra note 147, at 14,314.

(416) Compare DEIS, supra note 20, at 2-8 to 2-13 with Grazing Administration 1994, supra note 148, at 14,353-54.

(417) See FEIS, supra note 21, at 12-13 (stating standards and guidelines in the PR and DEIS are "modified and superseded" by those in the FEIS and FR, and that those in the FEIS and FR are based "more fully [on] a watershed management approach and current science").

(418) Compare FEIS, supra note 21, at Appendix T with Grazing Administration 1995, supra note 6, at 9970-71. Nevertheless, the standards and guidelines published in the FEIS are not a verbatim restatement of the language in the FR. Appendix T in the FEIS is the U.S. Fish and Wildlife Service's Biological Opinion and Conference Report, prepared pursuant to Endangered Species Act consultation, so it is not strictly a BLM publication, which may explain the wording differences between the FEIS and the FR. See FEIS, supra note 21, at Appendix T.

(419) 60 Fed. Reg. at 9970-71.

(420) Id. at 9894.

(421) Grazing Administration -- Exclusive of Alaska, 43 C.F.R. subpt. 4180 (1996).

(422) See, e.g., Nothing Beside Remains, supra note 24 1, at 540-43 (discussing vagueness of BLM Resource Management Plans).

(423) See supra notes 234-242 and accompanying text.

(424) 43 C.F.R. pt. 4180 (1996).

(425) Id. [sections] 4180.1, 4180.2(c)

(426) See supra Part VII.C.1 to C.3.

(427) 43 C.F.R. [sections] 4180.1 (1996).

(428) Grazing Administration 1995, supra note 6, at 9898. Stated differently, the fundamentals establish the policy of managing for healthy rangelands." Instruction Memorandum, supra note 207, at 2.

(429) Grazing Administration 1995, supra note 6, at 9954.

(430) See infra notes 503-507 and accompanying text (discussing period ending February 12, 1997 -- or as late as August 12, 1997 if a postponement is granted -- before fallback standards and guidelines became operative in the absence of acceptable locally developed standards and guidelines).

(431) An authorized officer is "any person authorized by the Secretary to administer regulations in this part [of the Code of Federal Regulations]." 43 C.F.R. [sections] 4100.0-5 (1996). Authorized officers typically include BLM Area Managers, District Managers, or State Directors.

(432) Parts 4110, 4120, 4130, and 4160 deal with "Qualifications and Preference," "Grazing Management," "Authorizing Grazing Use," and "Administrative Remedies," respectively. See 43 C.F.R. pts. 4110, 4120, 4130, 4160 (1996). More to the point, they contain provisions for reducing livestock numbers, developing AMPs and installing range improvements, specifying terms and conditions in grazing permits, and implementing administrative decisions. These provisions will be discussed in detail below. See discussion infra Part VIII.D.

(433) 43 C.F.R. [sections] 4180.1 (1996).

(434) Id.

(435) See Administrative Procedure Act, 5 U.S.C. [sections] 706(2)(A) (1994). As discussed above in Part IV.C, BLM is requiring state directors to set priorities for assessments of functioning condition, so the "upon determining" language may prove to be less flexible than it seems, at least in priority areas. Furthermore, the "upon determining" language is probably related to the "significant factor" language, discussed below. See infra text accompanying notes 469-482. The "appropriate action" language is tied to the "significant progress" requirement, also discussed below. See infra text accompanying notes 484-491.

(436) See discussion infra Part VIII.D.1.d, VIII.E, IX.A (discussing legal avenues available to challenge standards and guidelines).

(437) See generally U.S. Dep't OF Agric., General Technical Report RM-120, Riparian Ecosystems and their Management. Reconciling Conflicting Uses (1985); William S. Platts et al., U.S. Dep't of Agric., General Technical Report INT-221, Methods for Evaluating Riparian Habitats with Applications To Management (1987); Eugene P. Odum, Fundamentals of Ecology (3d ed. 1971).

(438) See 43 C.F.R. [sections] 4180.1(a), (b) (1996). (quoted at text accompanying supra note 427).

(439) 43 C.F.R. [sections] 4180.1(a) (1996).

(440) It should be noted, however, that in many instances BLM may not have the personnel resources or money to pursue soft path approaches like building fences. Yet action is mandatory. See 43 C.F.R. [sections] 4180.1 (1996) (stating "the authorized officer shall take appropriate action"). Consequently, preliminary actions may be needed because "[m]erely identifying the problem and establishing priority for [future] action does not comply with the regulation." Instruction Memorandum, supra note 207, at 20. Thus, hard path decisions like reducing livestock numbers may sometimes be the only available action.

(441) See 43 C.F.R. [sections] 4180.1(c), (d) (1996) (quoted at text accompanying supra note 427).

(442) See 33 U.S.C. [sections] 1313(a) (1994); 43 C.F.R. [sections] 4180.1(c) (1996).

(443) 33 U.S.C. [sections] 1313(c)(2)(a) (1994).

(434) Id.

(445) Id. [sections] 1313(d)(4)(a), (B).

(446) See PUD No. 1 v. Washington Dep't of Ecology, 511 U.S. 700 (1994) (confirming that state water quality standards adopted pursuant to section 303 of the Clean Water Act have three components and all are enforceable).

(447) Utah Admin. Code R317-2-6.3 (1995). In addition to designated uses, numerical and narrative criteria and Utah's antidegradation policy can also be found in these regulations. See id. at R317-2. Other western states have similar regulations. E.g. Or. Admin. R. 690-516-005 to 690-516-040, 690-518-010 to 690-518-060 (1991) (protecting water quality standards and uses of the Umpqua and mid-coast basins through streamflow requirements).

(448) Section 305(b) of the Clean Water Act requires a biennial report on water quality from each state. See 33 U.S.C. [sections] 1315(b) (1994).

(449) Division of Water Quality, Deparment of Envtl. Quality, Utah Water Quality Assessment Report To Congress 77 (1994).

(450) 43 C.F.R. [sections] 4180.1(d) (1996) (quoted at text accompanying supra note 427).

(451) 16 U.S.C. [subsections] 1531-1544 (1994).

(452) Actually, the regulations do not mention critical habitat; they refer to "habitats." See 43 C.F.R. [sections] 4180.1(d) (1996) (referring only to "habitats"); but see 16 U.S.C. [subsections] 1532(5), 1533(a)(3), 1533(b)(2) (1994) (defining and providing for consideration of "critical habitat" under the Endangered Species Act); cf. 43 C.F.R. [sections] 4180.1(d) (1996) (referring only to "habitats"). But certainly at a minimum species with critical habitat proposed or designated should receive special attention by BLM in determining whether livestock grazing is causing habitats to be degraded.

(453) 43 C.F.R. [sections] 4180.2(a), (b) (1996).

(454) 61 Fed. Reg. 59,835 (Nov. 25, 1996) (amending 43 C.F.R. [sections] 4180.1(f) (1996)); see also 43 C.F.R. [sections] 4180.2(f)(1), (2) (1996) (listing the fallback standards and guidelines).

(455) See 43 C.F.R. [sections] 4180.2(b) (1996) (stating that standards must be in conformance with the fundamentals).

(456) Grazing Administration 1995, supra note 6, at 9899.

(457) See infra pp. 553-61.

(458) 43 C.F.R. [sections] 4180.2(a) (1996).

(459) Id.

(460) Id.

(461) Id.

(462) Id.

(463) Id. The amended regulations provide three models for Resource Advisory Councils (RACs) that "shall be established by the BLM State Director(s) in consultation with the Governors of the affected States and other interested parties." Id. [sections] 1784.6-2(a). Arguably, the creation of RACs was as significant as the establishment of standards and guidelines for grazing administration, but they are beyond the scope of this paper. in general, the RACs are composed of equal numbers of representatives of three interest groups: consumptive users of resources, such as ranchers; nonconsumptive users, such as enviromentalists; and State, local, and indian interests. Id. [subsections] 1784.6-1 to 1784.6-2. Essentially, the regulations impose forced consensus decision making on the RACs: a majority of each of the three interest groups must vote to make formal recommendations to BLM. See id. The important role in the development of local standards and guidelines and many other aspects of BLM land management, although their recommendations are strictly advisory. See Grazing Administration 1995, supra note 6, at 9912-19, 9955. There are 24 RACs in the eleven western states. An important question, and one I will only raise here, is the actual membership and group dynamics of the RACs. The possibilities are numerous. They may function as intended and make real changes in grazing where needed via consensus based on broad-based societal interests. Or they may be coopted by livestock interests and become the new equivalent of the old district advisory councils and grazing advisory boards. See 43 C.F.R. [sub-sections] 1784.6-4 to 1794.6-5 (1994) (providing for these committees, which were abolished and replaced by the RACs in the amended regulations).

(464) 43 C.F.R. [sections] 4180.2(b) (1996). Some may believe that the fundamentals will be inoperative once local standards and guidelines are developed. That view has no legal merit. The fundamentals are enforceable independent of the standards and guidelines. BLM confirmed this view:

Do the fundamentals of rangeland health have any application beyond

providing guidance

for preparing State and regional standards and guidelines? Yes, where it is

determined that existing grazing management needs to be modified to ensure

that the conditions of healthy rangelands set forth in the fundamentals of

rangeland health[]

are met[,] or significant progress is being made to meet the fundamentals,

the authorized

officer must take appropriate action as soon as practical, but not later

than the

start of the next grazing season. Instruction Memorandum, supra note 207, at 13.

(465) 43 C.F.R. [sections] 4180.2(b) (1996). "Secretary" is defined in the regulations to mean "the Secretary of the Interior or his authorized officer." Id. [sections] 4100.0-5. "Authorized officer" is also defined in the regulations, and can include field officers at the local level. Id.; see supra note 431. It would seem very unlikely and inappropriate, however, for any authorized officer outside the Secretary's office to approve local standards and guidelines. That is because the intent of requiring Secretarial approval of local standards and guidelines is to ensure that the national fundamentals are not ignored or "watered down" locally. See generally Grazing Administration 1995, supra note 6, at 9898-99, 9953-55 (indicating the intent of having national fundamentals is to guide efforts toward ensuring rangeland health supported by local standards and guidelines).

BLM has developed a list of factors that will guide BLM recommendations for Secretarial approval of local standards and guidelines. See Instructional Memorandum, supra note 207, at 6. The local standards and guidelines must be a collaborative product of the RAC, be based on adequate public involvement, address the regulatory requirements in the fundamentals of rangeland health and standards and guidelines, have an appropriate geographic scope, provide a basis for assessment, be a clear statement of the conditions needed for rangeland health, and conform to resource management plans and NEPA requirements. Id. Whether the Secretary will use these criteria or accept BLM'S recommendations remains to be seen.

(466) 43 C.F.R. [sections] 4180.2(c) (1996).

(467) See id.; see also supra note 432 (listing these actions); infra Part VIII.D (discussing these actions).

(468) 43 C.F.R. [sections] 4180.2(c) (1996).

(469) See supra notes 209-210 and accompanying text. The first step is assessment of rangelands for conformance with the standards and guidelines. See id.

(470) Instruction Memorandum, supra note 207, at 19.

(471) Id.

(472) See supra note 435 and accompanying text.

(473) Instruction Memorandum, supra note 207, at 19.

(474) Id.

(475) Id.

(476) See id. (stating that significant factor determinations "must have a sound, rational basis").

(477) Grazing Administration 1995, supra note 6, at 9906.

(478) Id. at 9956; see also Instruction Memorandum, supra note 207, at 14 (restating that allotments or groups of allotments are generally the proper scale for conducting assessments for compliance with the standards and guidelines).

(479) See supra notes 199-200, 215-220, 428 and accompanying text. This interpretation was also confirmed by BLM: "Generally standards and guidelines are applied on a landscape level; however, if failure to meet standards on a small portion of an area or allotment will ultimately lead to failing to meet it across the allotment, action should be taken as quickly as possible to correct the problem." Instruction Memorandum, supra note 207, at 14. Since many of the standards and guidelines are watershed or riparian habitat oriented, failure to meet them in riparian areas will often mean there is an allotment-wide failure to meet them.

(480) See supra notes 390-395 and accompanying text.

(481) See supra note 221-225 and accompanying text.

(482) Id.

(483) See supra notes 427-429 and accompanying text.

(484) See Instruction Memorandum, supra note 207, at 19 ("Significant progress is a determination to be made by the authorized officer," however, it must have "a sound, rational basis in consideration of the available information about the site.").

(485) Id.

(486) Id. BLM emphasized the need to measure significant progress against a goal. The decision implementing corrective action should define expectations for recovery over time and monitoring and evaluation data necessary to measure against these expectations. A determination that additional action is required is based upon continued monitoring and the best available information." Id. at 20.

(487) See id. at 19.

(488) See Rangeland Health, supra note 108, at 81-82 (discussing methodology of trend); see also text accompanying note 132, supra.

(489) Grazing Administration 1995, supra note 6, at 9956; see Instruction Memorandum, supra note 207, at 21 (restating this view).

(490) Grazing Administration 1995, supra note 6, at 9956.

(491) Rangeland Health, supra note 108, at 81-82.

(492) Id. at 126 ("The decision to classify a rangeland as healthy, at risk, or unhealthy should be a judgment based on the preponderance of evidence from an evaluation of multiple and measurable indicators."); see infra Part VIII.C.3 (discussing the criteria and indicators proposed in Rangeland Health for determining rangeland health categories).

(493) Grazing Administration 1994, supra 147, at 14,354; see DEIS, supra note 20, at 2-10 to 2-11 (stating the preponderance of evidence standard applies to fallback standards).

(494) See 43 C.F.R. [sections] 4180.2(c) (1996).

(495) FEIS, supra note 21, at 63.

(496) See infra Part VIII.D.1.a (discussing the "numbers maintenance policy" that existed under the old regulations, how the requirement for "monitoring" studies was part and parcel of that policy, and how the amended regulations abandon that policy). It should also be noted that there is nothing "unscientific" about using the preponderance of the evidence standard as opposed to, say, the "ninety-five percent confidence level" that is pervasive in range science studies. The standard of proof should be based on the relative importance of making a mistake by answering a question incorrectly in the affirmative versus making a mistake by answering the question incorrectly in the negative -- in scientific language, the relative importance of making Type I (false positive) versus Type II (false negative) errors. This balancing involves policy decisions. The scientific requirement is only that the standard be stated before the fact and that decisions among alternative refutable hypotheses then be made on that basis. Arguably the amended regulations have established a policy in which, for example, it is no more important to be certain that a mistake is not made by reducing livestock numbers to protect water quality when the reduction will not in fact improve water quality, than to be certain that a mistake is not made by failing to cut livestock numbers when in fact such a cut would ensure drinking water supplies are not contaminated. The preponderance of the evidence standard balances these competing policy considerations in an appropriate way.

(497) 40 C.F.R. [sections] 4180.2(b) (1996).

(498) See 43 C.F.R. [sections] 4180.2(d) (1996) (identifying the minimum requirements for state and regional standards).

(499) Id. [sections] 4180.2(d)(1)-(5).

(500) See id. [sections] 4180.2(e) (requiring that "[a]t a minimum" local guidelines "must address" twelve specified guiding principles). Examples include requirements for state or regional guidelines to address "[m]aintaining or promoting or promoting stream channel morphology (e.g., gradient, width/depth ratio, channel roughness and sinuosity) and functions appropriate for climate and landform," and "[m]aintaining or promoting the physical and biological conditions to sustain native populations and communities." Id. [sections] 4180.2(e)(4), (e)(10).

(501) Id. [sections] 4180.2(e)(1)-(12); see also infra Part VIII.C.3 (discussing many of the guiding principles for standards and guidelines in more detail).

(502) 43 C.F.R. [sections] 4180.2(e)(1), (2), (5) (1996).

(503) Id. [sections] 4180.2(f).

(504) Id. Paragraph (c) contains the "significant factor" and "significant progress" standards for taking action. Id. [sections] 4180.2(c); see supra notes 469-491 (discussing this language).

(505) 61 Fed. Reg. 59,834-835 (Nov. 25, 1996) (to be codified at 43 C.F.R. [sections] 4180.2(f)). The amended regulation also states that approval of postponement requires consideration of, among other factors, long-term rangeland health and administrative efficiencies." Id.

(506) Id. at 59,834.

(507) See supra note 380 and accompanying text.

(508) 43 C.F.R. [sections] 4180.2(f)(1)-(2) (1996).

(509) See infra Part VIII.C.3 (discussing individual standards and guidelines in greater detail in the context of the recommendations made in Rangeland Health).

(510) 43 C.F.R. [sections] 4180.2(f) (1996).

(511) Id. [sections] 4180.2(f)(1), (2).

(512) Id. [sections] 4180.2(f)(1)(i)-(iv).

(513) Id. [sections] 4180.2(f)(2)(i)-(vi).

(514) Id. [sections] 4180.1(f)(2)(vi), (viii)-(x).

(515) Id. [sections] 4180.2(f)(2)(vii), (xi)-(xv). See also Part VII.C.3 (discussing many of the fallback standards and guidelines in more detail).

(516) Id. [sub-sections] 4180.1, 4180.2(c). See also supra notes 433-435, 484-492 and accompanying text.

(517) See supra notes 435, 467 and accompanying text (listing appropriate actions); see also infra Part VIII.D.1 (discussing appropriate actions).

(518) 43 C.F.R. [sections] 4180.2(c) (1996).

(519) Id.

(520) Grazing Administration 1995, supra note 6, at 9956 (emphasis added); see also Instruction Memorandum, supra note 207, at 8-11 (explaining in detail how the standards and guidelines will be applied, especially relative to permit terms and conditions and AMPs); infra note 628 and accompanying text (explaining how terms and conditions in grazing permits will be the principle means of implementing the standards and guidelines and ecosystem management precepts).

(521) 43 C.F.R. [sections] 4180.1 (1996).

(522) Id. [sections] 4180.2(d), (f)(1).

(523) Grazing Administration 1995, supra note 6, at 9899; 43 C.F.R. [sections] 4180.2(e), (f)(2)(1996).

(524) See supra note 520 and accompanying text.

(525) As discussed above, Rangeland Reform '94 also generally adopted the categories of rangeland health proposed in Rangeland Health. See supra notes 201-206 and accompanying text. (526) Rangeland Health, supra note 108, at 97-98 (emphasis omitted); see also id. at 8. The PR made it especially clear that BLM was influenced by the indicators proposed in Rangeland Health, at least relative to the fallback standards: The fallback standards are largely based on indicators of soil stability and watershed function, distribution of nutrients and energy, and the ability of plant communities to recover. The three categories of indicators, when considered in combination, have been found to be key in assessing rangeland health. The standards are generally based on the findings [in Rangeland Health].... Grazing Administration 1994, supra note 147, at 14,326; see also id. at 14,340 (making similar statements).

(527) It should be noted, however, that BLM essentially added two additional criteria in the new regulations: protecting or emphasizing rare and native species, and compliance with state water quality standards. See 43 C.F.R. [sub-sections] 4180.1(c)-(d), 4180.2(d)(3)-(5), 4180.2(e)(7)-(12), 4180.2(f)(1)(iv), 4180.2(f)(2)(viii)-(x) (1996). As discussed above, these provisions are probably the most enforceable aspects of the amended regulations, because they are based on the Clean Water Act and Endangered Species Act. See supra notes 436-452 and accompanying text. Only the standards and guidelines related to the indicators discussed in Rangeland Health will be considered here.

(528) Rangeland Health, supra note 108, at 9, 103.

(529) Id. at 9; see also id. at 104 (noting that "evaluation of soil movement should be based on multiple indicators of the condition of the soil surface"). The indicators of the soil stability and watershed function criterion proposed in Rangeland Health were A-horizon present, rills and gullies, pedestalling, scour or sheet erosion, and sedimentation or dunes. Id. at 105-08. The A-horizon is the uppermost and usually most fertile layer of soil. Id. at 105. Pedestalling is a phenomenon where soil erodes around the base of a plant, leaving the plant standing on a pillar of retained soil. Id. at 108. Scour and sheet erosion is widespread stripping of soil by wind or water that is not accompanied by rills and gullies. Id. at 105, 108. Sedimentation and dune formation (often at relatively small scales) is evidence of soil instability and movement. Id. at 105-08.

(530) 43 C.F.R. [sections] 4180.1(a) (1996) ("Watersheds are in ... properly functioning physical condition . . . soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform . . . .").

(531) Id. [sections] 4180.2(d)(1) (requiring that local standards address "watershed function").

(532) Id. [sections] 4180.2(e)(1)-(4) (requiring that vegetative ground cover, surface soil conditions, riparian-wetland area condition, and stream channel morphology must be addressed relative to protecting watersheds and soils).

(533) Id. [sections] 4180.2(f)(1)(i)-(iii) (requiring water infiltration and soil permeability, riparian-wetland area condition, and stream morphology to be appropriate for climate and landform).

(534) Id. [sections] 4180.2(f)(2)(i)-(v) (requiring water infiltration, moisture storage, soil permeability, stream channel morphology and riparian wetland-functions to be maintained or improved by management); id [sections] 4180.2(f)(2)(xiii) (requiring "facilities" to be located away from riparian-wetland areas where they conflict with ecological function); id. [sections] 4180.2(f)(2)(xiv) (requiring water developments to protect ecological functions and processes).

(535) Rangeland Health, supra note 108, at 108 tbl. 4-2; see also supra note 529 (listing the indicators proposed in Rangeland Health). The PR, however, proposed to codify the specific indicators of soil movement discussed in Rangeland Health as a fallback standard, requiring that "[t]he soil A-horizon is present and unfragmented, and the soil is developed or accumulating on site. Rills and gullies are absent, or if present, they have blunted and muted features. There is no visible scouring, sheet erosion, and/or soil sediment deposition." Grazing Administration 1994, supra note 147, at 14,354. The FR did not carry the PR language forward and BLM stated that it "agrees that the A-horizon requirement would not serve as a useful standard on some BLM administered lands since some naturally-occurring soil structures do not conform to this requirement." Grazing Administration 1995, supra note 6, at 9956. Nothing was said about the other indicators, which also were not carried forward.

(536) 43 C.F.R. [sections] 4180.1(b) (1996) ("Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow are maintained....").

(537) Id. [sections] 4180.2(d)(2) (requiring local standards to address "[n]utrient cycling and energy flow").

(538) Id. [sections] 4180.2(e)(4), (5) (requiring local guidelines to address stream channel morphology and ability of soil organisms to "support the hydrologic cycle, nutrient cycle, and energy flow").

(539) Id. [sections] 4180.2(f)(1)(ii)-(iv) (requiring riparian-wetland areas to be functioning properly; stream morphology to be appropriate for climate and landform; and healthy, productive, and diverse populations of native species to exist).

(540) Id. [sections] 4180.2(f)(2)(iii)-(v) (requiring that management protect "riparian wetland functions of energy dissipation," appropriate stream channel morphology, and "the hydrologic cycle, nutrient cycle, and energy flow").

(541) Rangeland Health, supra note 108, at 117.

(542) Id. at 108 tbl. 4-2, 118-20. The indicators were 1) the distribution of plants, 2) litter distribution and incorporation into soil, 3) rooting depth, and 4) photosynthetic period. Id. at 108 tbl. 4-2. latter is relatively large dead plant debris on the soil surface or in the upper layer of soil. In a word, these indicators are intended to measure the degree of "fragmentation" of plants, litter, roots, and photosynthetic periods because fragmentation may be indicative of poorly functioning nutrient cycles and energy flows. Id. at 10.

(543) See id. at 113 (describing how rooting depth can indicate the level of utilization of available water and nutrients throughout the soil profile). The PR, however, explicitly proposed the Rangeland Health indicators. For example, a fallback standard in the PR required that "[p]lants are well distributed across the site, and photosynthetic activity occurs throughout the growing season. A uniform distribution of litter is evident. The plant community structure results in rooting throughout the available soil profile." Grazing Administration 1994, supra note 147, at 14,354. The FR did not address why this wording was not carried forward.

(544) See generally Odum, Supra note 437, at 86-87 (discussing the basic elements and inorganic compounds that make up the nutrient cycle and how these nutrients are in constant flux in an ecosystem). An example of a nutrient is nitrogen. An example of energy is solar radiation trapped by plants which is then utilized and moved within an ecosystem via food chains.

(545) See infra notes 551-558 and accompanying text.

(546) Rangeland Health, supra note 108, at 117, 119-20.

(547) See, e.g, Feis, supra note 21, at 57-60 (noting criticisms of the ecological processes and recovery mechanism provisions in the amended regulations and BLM's responses to the criticisms).

(548) See generally D. Bruce La Pierre, Technology-Forcing and Federal Environmental Protection Statutes, 62 Iowa L. Rev. 771 (1977) (discussing technology-forcing aspects of technology-based and health-based standards, particularly in the Clean Air Act and Clean Water Act).

(549) Id. at 796.

(550) This "impracticability" argument has also been expressed to the author relative to the requirements in the new regulations to emphasize native species. See 43 C.F.R. [sections] 4180.2(d)(5); (e)(10)-(12), (f)(1)(iv), (f)(2)(vi), (ix)-(x) (1996). Once again, however, the native species requirements in the amended regulations can be viewed as technology-forcing provisions. The author worked for a U.S. Department of Agriculture rangeland plant breeding program for ten years, and during that time observed that considerably less research emphasis was given to native species than to nonnative forage species. To the extent this observation is generally true -- and the author has little doubt but that it is -- claim that native species are impractical or otherwise not as desirable as nonnative forage species may be a self-fulfilling prophecy. Furthermore, by creating a greater, perhaps huge, demand for native species, BLM likely can foster lower costs for native species and stimulate research with native species. See also supra notes 160, 165-167, 316-320, and accompanying text (discussing additional aspects of the legal and biological merits of native species versus introduced forage species).

(551) Rangeland Health, supra note 108, at 120.

(552) Plant demographics is essentially the population biology of plants. The conditions needed for successful reproduction and the number of "seedling establishments" versus deaths that occur in a population of plants are particularly relevant in the context of range management. Id. at 121.

(553) Rangeland Health, supra note 108, at 108 tbl. 4-2, 120-22. The indicators proposed were 1) age-class distribution, 2) plant vigor, and 3) germination and presence of microsites. Id. Age-class distribution indicates, for example, whether there are many older plants incapable of reproduction or many recently established seedlings, which -- depending on the species -- could indicate rangeland health is improving. Id. at 121. Plant vigor is essentially the apparent vitality of a plant: is most of the plant actively growing and healthy or is the plant nearly dead and incapable of reproduction? Id. at 121-22. Lastly, the quality of the "area immediately surrounding a seed" -- the "microsite" -- often determines the ability of a seed to germinate. Id. at 122. Germination of seeds has obvious importance to the ability of a plant community to recover from disturbance, and many plant species have extremely specialized requirements for successful germination, such as cracks in the soil where more moisture is stored. Id. While some of these measures have been incorporated into rangeland surveys in the past, they tend to be very subjective and have not been specifically oriented toward assessing recovery mechanism status. Therefore, as with measures of energy and nutrient cycling, the utility of these measures is uncertain. Id. at 123.

(554) See 43 C.F.R. [sections] 4180.1 (1996). It should be noted, however, that maintenance of "ecological processes" is a fundamental of rangeland health, and this arguably includes recovery mechanisms. Id. [sections] 4180. 1 (b).

(555) Id. [sections] 4180.2(d)(5) (requiring locally developed standards to address "[h]abitat quality for native plant and animal populations and communities"). The PR explicitly required consideration of "recovery mechanism" in the development of local standards. Grazing Administration 1994, supra note 147, at 14,353.

(556) 43 C.F.R. [sections] 4180.2(e)(6) (1996) (requiring local guidelines to address promoting the "opportunity for seedling establishment of appropriate plant species when climatic conditions and [ecological] space allow"); see also id. [sections] 4180.2(e)(10) (requiring local guidelines to address "promoting the physical and biological conditions to sustain native populations and communities"). The PR would have required locally developed guidelines to address grazing management in riparian and wetland areas that would "facilitate reproduction and maintenance of diverse age classes in the desired plant communities." Grazing Administration 1994, supra note 147, at 14,354.

(557) 43 C.F.R. [sections] 4180.2(f)(1)(iv) (1996) ("Healthy, productive and diverse populations of native species exist and are maintained."). The PR explicitly incorporated Rangeland Health's indicators of recovery mechanisms as a fallback standard: "Plants [shall] display normal growth forms and vigor. The plant communities [shall] display a diverse range of age classes." Grazing Administration 1994, supra note 147, at 14,354.

(558) See 43 C.F.R. [sections] 4180.2(f)(2)(vi)-(vii), (ix), (xi) (1996). The most explicit in terms of the specific indicators is a fallback guideline requiring that "[d]esired species are being allowed to complete seed dissemination in 1 out of every 3 years (Management actions will promote the opportunity for seedling establishment when climatic conditions and [ecological] space allow.)." Id. [sections] 4180.2(f)(2)(vii).

(559) Rangeland Health, supra note 108, at 123-26 (Table 4-7 at page 125 is especially useful).

(560) See supra notes 207-220 and accompanying text.

(561) 43 C.F.R. [sections] 4180.1, 4180.2(c) (1996).

(562) Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436 (D. Wyo. 1996).

(563) 43 C.F.R. [sub-sections] 4180.1, 4180.2(c) (1996).

(564) The amended regulations and the regulations they superseded proceed from different premises about the kinds of livestock use subject to changes under this subpart. Under the amended regulations, all changes in livestock use relate to "permitted use." 43 C.F.R. [sections] 4110.3-4110.3-3 (1996). Permitted use means "the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allotment under a permit or lease and is expressed in AUMs." Id. [sections] 4100.0-5. Under the superseded regulations, separate provisions were made for changing "grazing preference" and "active use." 43 C.F.R. [sections] 4110.3, 4110.3-2 (1994). "Grazing preference" was defined as the "total number of animal unit months of livestock grazing on public lands apportioned and attached to base property owned or controlled by a permittee or lessee." Id. [sections] 4100.0-5. Under the amended regulations, "grazing preference" simply -- and more rationally in my opinion -- indicates the priority for receipt of a grazing permit, but it is still "attached" to the base property. 43 C.F.R. [sections] 4100.0-5 (1996). Grazing preference under the superseded regulations probably allocated a greater number of AUMs than would be allocated as "permitted use" under the amended regulations because permitted use likely would be a more up-to-date figure than the hastily determined and excessive forage preference AUMs allocated following passage of the TGA. See supra note 331 (discussing preference determination following passage of the TGA). "Active use" under the superseded regulations meant "the current authorized livestock grazing use." 43 C.F.R. [sections] 4100.0-5 (1994). "Active use" under the amended regulations means "the current authorized use, including livestock grazing and conservation use. Active use may constitute a portion, or all, of the permitted use." 43 C.F.R. [sections] 4100.0-5 (1996).

(565) Public Lands Council, 929 F. Supp. at 1441.

(566) Id. While the Public Lands Council court's holding on this issue, and several of the other provisions it struck down, is assailable on numerous grounds, fortunately, with the exception of the holdings regarding the standards and guidelines, such an analysis is beyond the scope of this paper.

(567) BLM's response to this and all of the unfavorable -- from BLM's perspective -- holdings in Public Lands Council was as follows: For actions taken pursuant to the new regulations prior to the Public Lands Council decision, BLM will take no action to reverse its decisions at this time. See Instruction Memorandum No. 96-138 from Maitland Sharpe, Assistant Director, Bureau of Land Management, to All Field Officers (AFOs) and Area Directors (Ads), Bureau of Land Management 2 (June 28, 1996). But BLM will take no action on any pending applications that would be affected by the Public Lands Council decision. Id. "For those portions of the regulations unaffected by the ruling, field offices should continue to conduct business as usual." Id. at 1.

(568) See, e.g., 43 U.S.C. [sections] 315a (1994) (giving Secretary of Interior authority "to preserve the land and its resources from destruction or unnecessary injury"); id. [sections] 315b (stating the Secretary of the Interior "shall specify from time to time numbers of livestock and seasons of use").

(569) It should be noted, however, that "conservation use," which is a component of active use under the new regulations, was also set aside by the Public Lands Council court. See supra note 564 (defining active use) and infra notes 618-625 and accompanying text (discussing the court's setting aside of the term conservation use). "Suspension" is defined as the "temporary withholding from active use ... of part or all of the permitted use in a grazing permit or lease." 43 C.F.R. [section] 4100.0-5 (1996). "Temporary nonuse" is defined as "the authorized withholding, on an annual basis, of all or a portion of permitted livestock use in response to a request of the permittee or lessee." Id.

(570) 43 C.F.R. [sections] 4110.3 (1996).

(571) 43 C.F.R. [sections] 4110.3 (1994).

(572) 43 C.F.R. [sections] 4110.3 (1996).

(573) As mentioned, however, "[BLM) agrees that professionally accepted and scientific information is needed to justify changes in permitted use." Grazing Administration 1995, supra note 6, at 9930. Nevertheless, BLM believes "[tlhere is no sound scientific reason to limit the authorized officer's flexibility by restricting him to one source of information [monitoring and rangeland studies under the old regulations] or to place specific timeframes for monitoring in the regulations." Id.

(574) 43 C.F.R. [sections] 4110.3 (1994) (emphasis added).

(575) Feller II, supra note 245, at 568.

(576) Under the old regulations no data were explicitly required to change grazing preference to meet specifications in a land use plan or to ensure "rangeland productivity;" under the new regulations some form of data are explicitly required to make changes, regardless of the basis for the change. See 43 C.F.R. [sections] 4110.3 (1994); see also Feller III, supra note 18, at 711 ("The 1994 [PR] provisions concerning BLM's authority to reduce livestock numbers were more liberal than those of the 1993 ANPR (though not more liberal than the [old] regulations)."); cf. 43 C.F.R. [sections] 4110.3 (1996) (requiring that changes "must be" supported by one of several kinds of data).

(577) See Feller H, supra note 245, at 576-77 (discussing the stifling effect of monitoring and rangeland studies on BLM's ability to change livestock numbers); see also supra note 345 (discussing this James Watt-era policy).

(578) Monitoring means the "periodic observation and orderly collection of data" to evaluate the effects of management actions and the effectiveness of actions in meeting objectives. 43 C.F.R. [sections] 4100.0-5 (1994). Rangeland studies means "any study methods ... for collecting data on actual use, utilization, climatic conditions, other special events, and trend to determine if management objectives are being met." Id. The amended regulations did not change these definitions. See 43 C.F.R. [sections] 4100.0-5 (1996).

(579) See supra note 345 (discussing this policy decision); infra notes 593-597 and accompanying text (discussing this "numbers maintenance policy" in more detail).

(580) 43 C.F.R. [sections] 4110.3-2(b) (1996).

(581) Id.

(582) Id.

(583) Utilization means the portion of forage ... consumed by livestock, wild horses and burros, wildlife and insects during a specified period. The term is also used to refer to the pattern of such use." 43 C.F.R. [section] 4100.0-5 (1996). The old regulations limited this definition to forage consumption and use patterns by livestock only. 43 C.F.R. [section] 4100.0-5 (1994).

(584) Livestock carrying capacity means the maximum stocking rate possible without inducing damage to vegetation or related resources. It may vary from year to year on the same area due to fluctuating forage production." 43 C.F.R. [section] 4100.0-5 (1996). The old regulations had the same definition. 43 C.F.R. [section] 4100.0-5 (1994).

(585) Grazing Administration 1995, supra note 6, at 9931 commentary on 43 C.F.R. [section] 4110.3-2 generally failing to distinguish different methods for decreasing use due to the reason for decreasing use). See id. at 9932 ("The authorized officer will make decisions about implementing reductions in permitted use based on monitoring, field observations, ecological site inventory or other acceptable data."). See also supra notes 211-215 (discussing how BLM will generally utilize more rapid, qualitative, or broad-based methods to assess rangeland health).

(586) See supra notes 572-573 and accompanying text.

(587) 43 C.F.R. [section] 4110.3-2(b) (1994).

(588) Id.

(589) Id.

(590) Id.

(591) 43 C.F.R. [section] 4110.3-2(b) (1994). The new regulations retain the discretion to make changes other than by reducing livestock numbers. 43 C.F.R. [section] 4110.3-2(b) (1996).

(592) 43 C.F.R. [section] 4110.3-3(a) (1994). See also id. [section] 4110.3-3(b) (requiring phase-in for suspensions of grazing preference). The new regulations eliminated these phase-in requirements. 43 C.F.R. 4110.3-3(a) (1996).

(593) See supra notes 574-579 and accompanying text.

(594) Feller II, supra note 245, at 576.

(595) Id.

(596) Id. at 578-79.

(597) Id. at 579.

(598) See Grazing Administration 1995, supra note 6, at 9931 ("[BLM] believes it would be inconsistent with its mandate to manage the public rangelands to allow an allotment to continue to deteriorate while prolonged monitoring studies are conducted in those instances where other reliable measures of rangeland health indicate a need for action."). Id.

(599) Id. (stating a variety of management actions can be used to achieve compliance with the standards and guidelines).

(600) The court in Public Lands Council, 929 F. Supp. at 1436, set aside one new provision in this subpart and affirmed another. The court held that [section] 4120.3-2(b), giving the United States title to permanent range improvements constructed under cooperative agreements after August 21, 1995, violated the Thylor Grazing Act and lacked a reasoned basis. Id. at 1442-43. See also 43 C.F.R. [section] 4120.3-2(b) (1996) (presenting the invalidated language). However, the court affirmed [section] 4120.3-2(d), providing that range improvements, namely water developments, constructed by a permittee will not "confer the exclusive right to use the improvement or the land affected by the range improvement work." 929 F. Supp. at 1445-46 (quoting 43 C.F.R. [section] 4120.3-2(d) (1996)).

(601) "Activity Plan" is defined as "a plan for managing a resource use or value to achieve specific objectives." 43 C.F.R. [section] 4100.0-5 (1996). An AMP is a form of activity plan aimed at "managing livestock grazing use to improve or maintain rangeland conditions." Id.

(602) Id. [section] 4120.2(a)(1). Furthermore, AMPs shall "[p]rescribe the livestock grazing practices necessary to meet specific resource objectives," which now means the objective of achieving rangeland health as codified in the standards and guidelines. Id. [section] 4120.2(a)(2).

(603) Grazing Administration 1995, supra note 6, at 9933.

(604) Id. at 9956 ("Standards and guidelines win be implemented through terms and conditions of ... grazing-related portions of activity plans (including AMPs) . . . "); Instruction Memorandum, supra note 207, at 11 (discussing how standards and guidelines will be applied to AMPs and indicating they will be incorporated only as a need is identified and that only terms and conditions reflecting the standards and guidelines need to be developed).

(605) See 43 C.F.R. [subsections] 4120.3-1 to 4120.3-9 (1996).

(606) Id. [section] 4180.2(c).

(607) Id. [section] 4180.2(e), (f).

(608) Id. The ANPR was considerably more explicit about acceptable range improvement practices than the FR. See Grazing Administration 1993, supra note 198, at 43,230-31 (use of pesticides constrained, spring and seep development constrained, use of salt and protein supplements allowed only if distant from riparian areas, livestock holding facilities only allowed if distant from riparian areas, no land treatments "solely oriented toward meeting livestock forage requirements," range improvements "limited to those that resolve a resource problem and contribute to achieving properly functioning condition"). The PR was intermediate between the ANPR and FR in terms of specifying acceptable range improvements. See Grazing Administration 1994, supra note 147, at 14,354 (requiring that all grazing management practices maintain, improve or restore a diversity of both herbaceous and woody species," and "leave sufficient vegetation biomass").

(609) See generally 43 C.F.R. [section] 4120.3-4 (1996) ("Range improvement permits and cooperative agreements shall specify the standards, design criteria, construction, and maintenance criteria for the range improvements and other additional conditions and stipulations or modifications deemed necessary by the authorized officer.").

(610) Id. [section] 4120.3-8.

(611) Id. [section] 4120.3-8(a). The uncodified old policy required all range improvement funds to be returned to the BLM district of origin. See Grazing Administration 1995, supra note 6, at 9936.

(612) 43 C.F.R. [section] 4120.3-8(a) (1996).

(613) Id. [section] 4120.3-8(b).

(614) Id.

(615) Id. [subsections] 4130.14130.9.

(616) Id.

(617) Suspension means the temporary withholding from active use, through a decision issued by the authorized officer or by agreement, of part or all of the permitted use in a grazing permit or lease." 43 C.F.R. [section] 4100.0-5 (1996). Under the old regulations suspension meant temporarily withholding a portion of grazing preference from active use. 43 C.F.R. [section] 4100.0-5 (1994); see also supra note 564 (describing and defining "preference" and "active use" under the amended and old regulations).

(618) Conservation use "means an activity, excluding livestock grazing, on all or a portion of an allotment for purposes of -- (1) protecting the land and its resources from destruction or unnecessary injury; (2) improving rangeland conditions; or (3) enhancing resource values, uses, or functions." 43 C.F.R. [section] 4100.0-5,(1996). The old regulations lacked an equivalent provision, except, perhaps, "suspended use" and "non-use." Cf. Feller III, supra note 18, at 713-14 ("Conservation use' is a new euphemism for the practice formerly known as `voluntary non-use' ...... ").

(619) 43 C.F.R. [section] 4130.2(a) (1996); see also id. [section] 4110.2-2(a) ("Permitted use is granted to holders of grazing preference and shall be specified in all grazing permits and leases. Permitted use shall encompass all authorized use, including livestock use, any suspended use, and conservation use. . . ").

(620)" Temporary nonuse" means the authorized withholding, on an annual basis, of all or a portion of permitted livestock use in response to a request of the permittee or lessee." 43 C.F.R. [section] 4100.0-5 (1996). "Active use" is composed of grazing use and conservation use, but not suspended use or temporary nonuse. Id. Thus, permitted use is composed of active use (which is composed of grazing use and conservation use), suspended use, and temporary nonuse.

(621) 43 C.F.R. [section] 4130.2(g) (1996). Conservation use can be approved for up to 10 years when "the proposed use will promote rangeland resource protection or enhancement of resource values or uses, including more rapid progress toward resource condition objectives." Id. [section] 4130.2(g)(1). "Temporary nonuse for reasons including but not limited to financial conditions or annual fluctuations of livestocks may be approved on an annual basis for no more than 3 consecutive years." Id. [section] 4130.2(g)(2).

(622) Public Lands Council, 929 F. Supp. at 1443-44, 1450-51.

(623) Id. at 1444.

(624) Id. at 1441, 1450-51. See supra notes 564-569 and accompanying text.

(625) It is tempting to say the old regulations were resurrected. However, the Public Lands Council court never held that this was the case; it simply ordered that all invalidated provisions were "set aside and the [Secretary of the Interior was] enjoined from enforcing them." Public Lands Council, 929 F. Supp. at 1451. Moreover, the rulemaking process itself not only adopted the amended regulations, it also superseded the old regulations. Thus, the old regulations no longer legally exist.

(626) 43 C.F.R. [section] 4130.3 (1996).

(627) Id. The new regulations reiterate this general provision by stating that the mandatory terms and conditions in grazing permits must "ensure conformance with the provisions of subpart 4180." Id. [section] 4130.3-1(c).

(628) Grazing Administration 1995, supra note 6, at 9941.

(629) See 43 C.F.R. [section] 4130.3-1(a) (1996); cf. 43 C.F.R. [section] 4130.6-1(a) (1994) (mentioning the same requirements).

(630) 43 C.F.R. [section] 4130.3-1(a) (1996).

(631) See id. (requiring only that carrying capacity not be exceeded); cf. 43 C.F.R. [section] 4130.6- 1(a) (1994) (requiring that carrying capacity not be exceeded "as determined through monitoring"). BLM envisions the use of the same methods to determine carrying capacity as are specified in sections 4110.3 and 4110.3-2 of the new regulations, the provisions for changing permitted use. See Grazing Administration 1995, supra note 6, at 9941. See also supra notes 570-573, 580-586 and accompanying text (discussing these provisions).

(632) See 43 C.F.R. [section] 4130.3-2(a), (b) (1996); 43 C.F.R. [section] 4130.6-2(a), (b) (1994).

(633) See 43 C.F.R. [section] 4130.3-2(c) (1996); 43 C.F.R. [section] 4130.6-2(c) (1994).

(634) See 43 C.F.R. [section] 4130.3-2(f) (1996); 43 C.F.R. [section] 4130.6-2(f) (1994).

(635) 43 C.F.R. [section] 4130.3-2(f) (1996). The old regulation allowed for delay to promote reproduction and vigor of plants and to prevent soil compaction, but did not mention proper functioning condition of riparian areas and protection of other resource values. See 43 C.F.R. [section] 4130.6-2(f) (1994).

(636) 43 C.F.R. [section] 4130.3-3 (1996). This provision also allows modification when grazing does not "meet[] the land use plan, allotment management plan, or other activity plan or management objectives." Id. See also supra note 564 (defining "active use"). The old regulations allowed permit modification, but only after "careful and considered consultation, cooperation and coordination" with various parties. 43 C.F.R. [section] 4130.6-3 (1994).

(637) The old regulations required monitoring before terms and conditions could be modified. See 43 C.F.R. [section] 4130.6-3 (1994).

(638) 43 C.F.R. [section] 4130.3-3 (1996) (emphasis added). See also Grazing Administration 1995, supra note 6, at 9942 ("[D]ecisions to increase or decrease the grazing use or change the terms and conditions of a permit or lease must be based upon monitoring and other data.") (emphasis added).

(639) See supra notes 570-573, 580-586 and accompanying text (discussing provisions in subpart 41 10).

(640) 43 C.F.R. [section] 4100.0-5 (1996) (emphasis added).

(641) 43 C.F.R. [section] 4110.3 (1996).

(642) See supra note 463.

(643) See 43 C.F.R. [subsections] 4160.1-4160.4 (1996).

(644) Id. [section] 4100.0-5.

(645) In contrast, the old regulations allowed an "affected interest" to be involved in grazing-related decisions at an allotment-specific level, but BLM had discretion to confer that status. See 43 C.F.R. [section] 4100.0-5 (1994).

(646) See, e.g., 43 C.F.R. [subsections] 4110.2-4 (allotment boundary changes); 4110.3-3(a) (decreasing permitted use); 4120.2(a) (preparation of AMPs); 4120.3-8(c) (range improvements); 4130.2(b) (issuance or renewal of grazing permits); 4130.3-3 (modification of permits) (1996). See also Grazing Administration 1995, supra note 6, at 9949 ("The 'interested public' will be notified of all proposed decisions in order to involve the public in an early stage of the decision making process."). However, the amended regulations may stymie public input in an important regard. Changes in grazing use "within the terms and conditions of [a] permit" are viewed by BLM as a mere "ministerial validation" and apparently will not be a decision subject to appeal. See 43 C.F.R. [subsections] 4130.4, 4160.1(a) (1996); Grazing Administration 1995, supra note 6, at 9943. These ministerial validations may include important decisions, however, such as changing grazing use categories. See Grazing Administration 1995, supra note 6, at 9943. Thus, the "private" decision-making process between BLM and permittees that has plagued BLM's grazing program may continue to some extent. See on the Public Lands: Opening the Process of Public Participation, 26 Land & Water L. Rev. 571, 576, 586 (1991) [hereinafter Feller 1] (discussing the "private" nature of grazing permit renewal and annual grazing authorizations between BLM and a permittee under the old regulations); see also Feller II, supra note 245, at 555, 594-95 (also discussing the "private" nature of these relations). Nevertheless, "[t]his provision for validation of requested grazing use when such use falls within the terms and conditions of the permit or lease does not apply to the issuance of permits or leases. Issuance of permits or leases ... constitute direct Federal actions that are subject to NEPA analysis as well as the provisions of [sections] 4130.2 [relating to grazing permits or leases) of this final rule." Grazing Administration 1995, supra note 6, at 9943.

(647) 43 C.F.R. [sub-section] 4160.1-4160.4 (1996).

(648) See 43 C.F.R. [sections] 4160.4 (1996) ("Any person whose interest is adversely affected by a final decision of the authorized officer may appeal the decision for the purpose of a hearing before an adminisatrative law judge by following the requirements set out in [section] 4.470 of this title.").

(649) Grazing Administration 1995, supra note 6, at 9949.

(650) BLM stated the basis for this type of appeal as follows: The regulations require the authorized officer to provide ... the opportunity for permittees or lessees, States managing resources within the affected area and the interested public to review, comment and give input during the preparation of reports that evaluate monitoring data and other data used as the basis for making decisions ([43 C.F.R. [sections] 4130.3-3]).... If agreement cannot be reached, the decision of the authorized officer that an area does or does not meet a standard is appealable. Instruction Memorandum, supra note 207, at 17-18.

(651) Presumably, these determinations will also be based on reports and evaluations that will guide decisions about whether grazing use or the terms and conditions of a permit should be modified, thus they should be appealable on the same basis that assessments are appealable. See id.; see also 43 C.F.R. [sections] 4130.3-3 (1996) (discussing reports and other data upon which decisions will be based, and the opportunity for interested parties to comment thereupon).

(652) 43 C.F.R. [sections] 4180.2(b) (1996) ("The Bureau of Land Management State Director will also coordinate with ... the public in the development of State or regional standards and guidelines.").

(653) 43 C.F.R. [sections] 4160 (1996).

(654) 43 C.F.R. [sections] 4160.1(a) (1996) (providing that proposed decisions shall be served on the affected applicant). See also 43 C.F.R. [sections] 4160.3 (1996) (providing for two ways in which a proposed decision becomes a final decision).

(655) It should be noted, however, that Professor Feller succeeded in challenging BLM's narrow view of "action" under the old regulations, and thereby opened up grazing permit renewal and annual grazing authorizations to public involvement. See Feller I, supra note 646, at 580-84, 587-89; Feller 11, supra note 245, at 586-95.

(656) 43 C.F.R. [sections] 1610.5-2 (1996) ("Any person who participated in the planning process and has an interest which is or may be adversely affected by the approval or amendment of a resource management plan may protest such approval or amendment. A protest may raise only those issues which were submitted for the record during the planning process.").

(657) See Instruction Memorandum, supra note 207, at 4-5 (stating local standards and guidelines are "developed by the State Director through the land-use planning process" and "[local standards and guidelines] are State Director decisions articulated through land use plans, which will amend, modify or supplement existing decisions"); see also infra notes 707-709 and accompanying text (reiterating that local standards and guidelines must conform to land use plans).

(658) See infra note 706 and accompanying text (pointing out that violations of NEPA could also serve as the basis for legal challenges to local standards and guidelines).

(659) 43 C.F.R. [sections] 4160.3(c) (1994).

(660) 43 C.F.R. [sections] 4160.3(c) (1996); see also Grazing Administration 1995, supra note 6, at 9949-50 (discussing petitions for stay filed with an appeal to the Office of Hearings and Appeals and decisions thereon).

(661) 43 C.F.R. [sections] 4160.3 (1996).

(662) Id. [sections] 4100.0-2.

(663) 43 C.F.R. [sections] 4110.1 (1994). It was also necessary to be a U.S. citizen or have applied for citizenship, or be a corporation authorized to do business in the state where grazing occurs. Id. [sections] 4110.1(a)-(c). The citizenship requirements are unchanged in the amended regulations. See 43 C.F.R. [sections] 4110.1(a)(1) (1996).

(664) C.F.R. [sub-section] 4110.1(a), 4110.2-1(a)(1) (1996) (emphasis added).

(665) Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436, 1444-45 (D. Wyo. 1996).

(666) See supra note 567 (discussing BLM's instructions on how to comply with Public Lands Council).

(667) Id.

(668) An affiliate is "an entity or person that controls, is controlled by, or is under common control with an applicant, permittee or lessee." 43 C.F.R. [sections] 4100.0-5 (1996). The term "control" in this context is also defined quite broadly as "having any relationship which gives an entity or person authority directly or indirectly to determine the manner in which an applicant, permittee or lessee conducts grazing operations." Id.

(669) Id. [sections] 4110.1(b).

(670) Id. [sections] 4110.1(b)(1), (2). The Public Lands Council court affirmed BLM's authority to extend the substantial compliance requirement to "affiliates." Public Lands Council, 929 F. Supp. at 1441-42.

(671) 43 C.F.R. [sections] 4110.24 (1996) (allowing allotment boundaries to be designated, adjusted, combined, or divided by agreement or decision after consultation with various parties "when necessary for the proper and efficient management of public rangelands"); cf. 43 C.F.R. [sections] 4110.24 (1994) (stating that allotments may be designated and adjusted after consultation with permittees or lessees).

(672) 43 C.F.R. [sections] 4120.3-1(f) (1996). NEPA is codified at 42 U.S.C. [sub-section] 4321-4370d (1994 & Supp. I 1995).

(673) 42 U.S.C. [sections] 4332(C)(iv)..

(674) 43 C.F.R. [sections] 4120.3-9 (1996). This provision only applies to water rights acquired on or after August 21, 1995. Id. See Grazing Administration 1995, supra note 6, at 9937 (stating "it has been BLM's policy to seek water rights under state substantive and procedural requirements; the language adopted [in this provision] does not alter that policy").

(675) Id.

(676) See Grazing Administration 1995, supra note 6, at 9937 (stating BLM's intent in adopting this section was to "promote the use of the public lands on a sustained yield basis for multiple use purposes" and that "wildlife and range conditions will be benefited by clarifying BLM water policy").

(677) 43 C.F.R. [sections] 4130.2(d)(4) (1996). The old regulations also had this provision. 43 C.F.R. [sections] 4130.2(c)(3) (1994). The ANPR proposed a graduated scale of permit tenure (ten-year maximum) based on the permittee's compliance with permit terms and conditions and actual progress toward "established resource condition objectives." Grazing Administration 1993, supra note 198, at 43,226. This language was not carried forward in the PR due to adverse comments regarding the impact of this proposal on ranchers' ability to secure loans. See Grazing Administration 1994, supra note 147, at 14,335. The PR proposed essentially the same language as that adopted in the FR. Id. at 14,348-49.

(678) 43 C.F.R. [sections] 4130.2(e) (1996) (granting priority if lands still available for grazing, permittee in compliance with permit and other rules, and permittee accepts terms and conditions in new permit).

(679) Id. [sections] 4130.2(f). The old regulations had a similar provision that required acceptance of terms and conditions to obtain priority for a new permit when an old permit was expiring. 43 C.F.R. [sections] 4130.2(d)(3) (1994). The new regulations retain that provision also. 43 C.F.R. [sections] 4130.2(e)(3) (1996).

(680) 43 C.F.R. [sections] 4130.1-2(g) (1996).

(681) Id. [sections] 4130.1-2(h). The old regulations provided for considering "[p]roper range management and use of water for livestock." 43 C.F.R. [sections] 4130.1-2(b) (1994). The amended regulations changed that provision to consideration of "[p]roper use of rangeland resources." 43 C.F.R. [sections] 4130.1-2(b) (1996).

(682) It should be noted that the Public Lands Council court affirmed, in the face of a due process claim, BLM's authority to add a provision in this subpart. The provision imposed a surcharge to grazing fee billings if the permittee allowed livestock owned by someone else to graze under his permit (a "pasturing agreement"). Public Lands Council, 929 F. Supp. at 1446-47; see also 43 C.F.R. [sections] 4130.8-1(d) (1996) (providing that the surcharge will equal 35% of the difference between current federal grazing fees and the prior year's private grazing land lease rates, but a permittee's sons and daughters are not subject to the surcharge).

(683) 43 C.F.R. [sections] 4140.1 (1996); 43 C.F.R. [sections] 4140.1 (1994).

(684) 43 C.F.R. [sub-section] 4140.1(a), 4170.1 (1996); 43 C.F.R. [sections] 4140.1(a), 4170.1 (1994).

(685) 43 C.F.R. [sub-section] 4470.1(b), 4170.2 (1996); 43 C.F.R. [sub-section] 4140.1(b), 4170.2 (1994).

(686) 43 C.F.R. [sections] 4140.1(c) (1996).

(687) 43 C.F.R. [sections] 4140.1(a)(1), (b)(1)(ii)-(iii) (1996); 43 C.F.R. [sections] 4140.1(a)(1), (b)(1)(ii)-(iii) (1994).

(688) 43 C.F.R. [sections] 4140.1(a)(4) (1996); 43 C.F.R. [sections] 4140.1(a)(4) (1994).

(689) 43 C.F.R. [sections] 4140.1(a)(5), (b)(2) (1996); 43 C.F.R. [sections] 4140.1(a)(5), (b)(2) (1994).

(690) 43 C.F.R. [sections] 4140.1(b)(3) (1996); 43 C.F.R. [sections] 4140.1(b)(3) (1994).

(691) 43 C.F.R. [sections] 4140.1(c) (1996). This provision changed substantially as the amended regulations were developed. The basic proposal was included in the ANPR; however, it appeared that any violation of environmental laws could subject a permittee to penalty. See Grazing Administration 1993, supra note 198, at 43,220, 43,228-29. The PR made essentially the same proposal but it listed the kinds of laws that were contemplated. See Grazing Administration 1994, supra note 147, at 14,323-24, 14,337-38, 14,351-53. The intent of this regulation is to return to the prohibitions that existed prior to 1984; that is, to the Carter-era regulations. Id. at 14,337. See also supra note 344 and accompanying text (discussing the Carter-era prohibition). As discussed in the text, the FR more narrowly consigned the applicability of this provision.

(692) Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436, 1446 (D. Wyo. 1996).

(693) 43 C.F.R. [sections] 4140.1(c)(1)(i) (1996).

(694) Id. [sections] 4140.1(c)(1)(ii).

(695) Id. [sections] 4140.1(c)(1)(iii).

(696) Id. [sections] 4140. 1(c)(1)(iv).

(697) Id. [sections] 4140.1(c)(1)(v).

(698) Id. [sections] 4140.1(c)(1)(vi).

(699) 16 U.S.C. [subsection] 668-668d (1994).

(700) 16 U.S.C. [subsection] 1531-1544 (1994).

(701) 43 C.F.R. pt. 4700 (1996).

(702) 43 C.F.R. [section] 4140.1(c)(2) (1996). Violation of state livestock laws, such as brand laws, is also prohibited. Id. [sections] 4140. 1(c)(3). The old regulations only prohibited violation of the Endangered Species Act and Bald Eagle Protection Act. See 43 C.F.R. [sections] 4140.1(b)(10) (1994).

(703) 43 C.F.R. [sections] 4140.1(c) (1996).

(704) Grazing Administration 1995, supra note 6, at 9899 (to be codified at 43 C.F.R. pts. 4, 1780, and 4100).

(705) Id.

(706) Of course, for those who disagree this could provide another legal avenue for challenging locally developed standards and guidelines.

(707) See supra notes 273-280 and accompanying text (discussing FLPMA-mandated Resource Management Plans).

(708) Grazing Administration 1995, supra note 6, at 9899.

(709) Id.

(710) See supra notes 358-381 and accompanying text.

(711) Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436, 1436 (D. Wyo. 1996).

(712) Petitioner's Opening Brief at 1, Public Lands Council v. U.S. Dep't of the Interior, 729 F. Supp. 1436 (D. Wyo. 1996), appeal docketed, No. 96-8083 (10th Cir. Aug. 9, 1996).

(713) Id.

(714) Id. at 57.

(715) Id. at 1.

(716) Id.

(717) Id. at 7.

(718) Id.

(719) Id.

(720) Id. at 8.

(721) Id.

(722) Id.

(723) Id.

(724) Id. at 9; see also supra notes 256, 565-569 (provision for permitted use set aside), 256, 600 (provision giving title to range improvements to U.S. set aside but provision prohibiting sole use of water diversions affirmed), 256, 278, 622-625 (provision defining conservation use set aside but provision limiting period for temporary nonuse affirmed), 256, 663-667 (provision reducing mandatory qualifications set aside), 670 (provision requiring affliates to have satisfactory record of performance affirmed), 682 (provision for pasturing agreement surcharges affirmed), 692 (provision for compliance with environmental laws affirmed) and accompanying text. The United States appealed all four issues on which it received an unfavorable ruling from the district court First the United States claims the district court erred in holding the redefinition of "grazing preference" and addition of the term "permitted use" violated the TGA and lacked a reasoned basis. Brief for Appellants at 18-27, Public Lands Council v. U.S. Dep't of the Interior, No. 96-8083 (10th Cir. Aug. 9, 1996). Second, the United States Claims the term "conservation use" does not violate the TGA or FLPMA, and the Public Lands Council's facial challenge to the term must fail because these are valid applications of the term. Id. at 27-34. Third, the deletion of the requirement that permittees "be engaged in the livestock business" is not inconsistent with the TGA, nor was it irrationally adopted. Id. at 34-40. And fourth, the new regulation allowing the United States to prospectively acquire water rights does not violate the TGA or FLPMA and was not irrationally promulgated. Id. at 40-50. The Public Lands Council did not appeal any of the issues on which it received an unfavorable ruling from the district court, including the holdings related to the standards and guidelines. Response Brief for Appellees, Public Lands Council v. U.S. Dep't of the Interior, No. 96.-8083 (10th Cir. Aug. 9, 1996). See also infra notes 725-740 and accompanying text (discussing the district court's holdings relative to the standards and guidelines).

(725) They did not directly challenge the standards and guidelines. Public Lands Council, 929 F. Supp. at 1448.

(726) Petitioner's Opening Brief at 54-56.

(727) Public Lands Council, 929 F. Supp. at 1448.

(728) Id. at 1448. See also id. at 1449-50 (giving similar summary affirmation on of the fundamentals in the context of BLM's NEPA analysis in Rangeland Perform '94).

(729) Petitioners in Public Lands Council cited the criticisms of several range scientists and therefore asserted that the Fundamentals of Rangeland Health (and implicitly the model proposed in Rangeland Health) are based on faulty, unproven, or controversial science. See Petitioner's Opening Brief at 56. As discussed above, many range scientists also reject Dyksterhuis's traditional range condition model. See supra notes 151-164 and accompanying text. The only other major model that I am aware of is a model published by the "Task Force on Unity in Concepts and Terminology" Committee of the Society for Range Management in the Journal of Range Management ("JRM model") in 1995 after the FR was published. See Smith et al., supra note 130, at 271. See also E. Lamar Smith et al., Evaluating Rangeland Sustainability: The Evolving Technology, 17 Rangelands 85 (1995). The JRM model states that so long as soil erosion is not accelerated on a given site beyond the Site Conservation Threshold" one of several plant communities can be chosen as the management goal ("Desired Plant Community) for that site. See Smith et al., supra note 130 at 274-276. The only concrete benchmark for the acceptability of range management is that soil erosion is not "accelerated," although even that is not absolute. Id. at 274-75. Thus, the JRM model allows for highly discretionary and situation-dependent management. The JRM model appears to be a direct outgrowth of a proposal made in the 1992 "Blue Ribbon Report," which was prepared when the old regulations were in place during the Bush Admission. Report of the Blue Ribbon Panel, supra note 42, at 8-9. The exact same terminology was used: "Site Conservation Rating," "Site Conservation Threshold," "Desired Plant Community." Compare id. with Smith et al., supra note 130, at 274-76. Moreover, the same measure of "sustainability" (soil erosion) was also proposed. Report of the Blue Ribbon Panel, supra note 42, at 9. The JRM model is similar to the model presented in Rangeland Health Appendix (Figure 2) in that it adopts -- perhaps more accurately, was the source of -- the "state and transition" model of rangeland vegetation change. As mentioned, the state and transition model can provide a theoretical justification for the soft path of range management See supra notes 161-167 and accompanying text. The JRM model differs, however, in at least two ways from the model proposed in Rangeland Health. First there are only two categories of rangelands (those above and below the "site conservation threshold," which is defined by whether soil erosion is "accelerated"), rather than three. See supra notes 187-192 and accompanying text (discussing the three categories of rangeland health proposed in Rangeland Health. More importantly, the only criterion explicitly considered is soft erosion -- recovery mechanisms and nutrient and energy cycling are not considered. See supra Part VIII.C.3 (discussing the three criteria proposed in Rangeland Health). Moreover, native species -- plant or animal -- receive no particular emphasis under the JRM model, and may well be de-emphasized. See supra note 167 (quoting Smith et al., supra note 130, at 274); Blue Ribbon Report, supra note 42, at 8. Therefore, not only is the JRM model highly discretionary, it is also not based on broad-based ecosystem management precepts to the extent of the model in Rangeland Health, which as discussed was a principle reason for amending the regulations. See supra Part IV.B.3. While the JRM model may be "good science" in the sense that a number of rangeland experts developed it, it is my opinion that it is too narrowly focused and discretionary to be appropriate for range management on public lands. That is because public lands management, where accountability is particularly critical, should have a more definitive statement of what is acceptable range management than the JRM model provides. Moreover management based on multiple use precepts (not to mention ecosystem management) demands explicit consideration of many factors, not just soil erosion. Neither the model presented in Rangeland Health, the standards and guidelines in BLM's amended regulations, nor the JRM model are completely developed scientifically. See Rangeland Health, supra note 108, at 127-33; Smith et al., supra note 130, at 274-277. However, the model in Rangeland Health as well as BLM's standards and guidelines are more consistent with BLM's multiple use legal mandate, other legal mandates such as the Clean Water Act, and BLM's policy commitment to ecosystem management than the JRM model. See supra Parts IV.B.3 and VI (discussing these mandates and commitments). Moreover, the standards and guidelines codify desired resource conditions, acceptable management outcomes, and to some extent appropriate management practices. See supra Part VIII. Therefore the fundamentals and standards and guidelines better meet BLM's duty to be accountable to the public. Consequently, contrary to the Public Lands Council's arguments, BLM was legally justified in adopting the fundamentals and standards and guidelines.

(730) Natural Resources Defense Council v. Hodel, 624 F. Supp. at 1047-48 (upholding BLM resource management plan prescribing a soft path approach to range management rather than a hard path approach). See supra notes 234-242 and accompanying text (discussing Hodel in more detail).

(731) Respondent's Brief at 57, Public Lands Council v. U.S. Dep't of the Interior, 929 F. Supp. 1436 (D. Wyo. 1996), appear docketed, No. 96-8083 (10th Cir. Aug. 9, 1996). See also discussion infra Parts V, VI, and VII (pointing out the broad discretion delegated to the Secretary of the Interior pursuant to the TGA, FLPMA, and PRIA and how the Public Lands Council court implicitly relied on these provisions in affirming the standards and guidelines). Similarly, the United States cited to several parts of the record where BLM stated it would not necessarily reduce livestock numbers to achieve rangeland health. See Respondent's Brief at 55-56.

(732) Petitioner's Opening Brief at 56, Public Lands Council (No. 96-8083).

(733) Id. at 57-60.

(734) Id. at 58-62.

(735) Id. at 58-63.

(736) Id. at 57-63.

(737) Id. at 65-67.

(738) Public Lands Council, 929 F. Supp. at 1449-M. The court, using similar language, also swept aside the Public lands Council's NEPA claims regarding range condition, biological diversity, the impacts of grazing on rare species, and the potential for increasing the rate of improvement of range conditions. See id. at 1448-49.

(739) Id. at 1450.

(740) Id. In my opinion, the Public Lands Council's arguments reflect a belief that range scientists, primarily from western land grant universities, should have a dominant say over range management on BLM lands. But the debate over range condition and the role of livestock in determining that condition is not purely a scientific question in the first place, and in any event public lands are at issue. Moreover, there is no single, well-established scientific method or model for determining range condition or defining appropriate range management: Dyksterhuis's method is being rejected and both the model in Rangeland Health (a product of the National Research Council) and the JRM model (a product of the Society for Range Management) are new and have little testing at a large-scale level. See supra note 729 and citations therein. And when ecosystem management is viewed as the appropriate paradigm for range management, which BLM now does, the number of relevant disciplines to consider is greatly increased, making interdisciplinary consultation critical. See supra Part IV.B.3 (discussing BLM's commitment to ecosystem management). Therefore, the Public Lands Council's apparent belief that range scientists should define appropriate BLM range management was unwarranted. Moreover, such a view contradicts the principal message of the past twenty-five years of federal natural resources law: rejection of the notion that small groups of specialists should determine appropriate management in favor of greater public participation and reliance on the expertise of many disciplines. See generally Jonathan Poisner, A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 Envtl. L 53 (1996) (discussing public participation provisions of the National Environmental Policy Act of 1969).

(741) Efforts made by the 103d Congress to address impending rangeland regulatory reform were mentioned above. See supra notes 358-367 and accompanying text.

(742) S. 852, 104th Cong. (1995).

(743) Jennifer Babson, Republicans Aim to Pre-Empt Babbitt's Land Regulations, 53 Cong. Q. Wkly. REP. 2178 (July 22, 1995).

(744) H.R. 1713, 104th Cong. (1995).

(745) Special Report, Appropriations, 53 Cong. Q. Wkly. REP. 264142 (Sept. 22, 1995).

(746) Id. at 2642.

(747) Bob Benenson, Panel Approves Bill to Strike Tougher Grazing Regulations, 53 Cong. Q. Wkly. REP. 2799 (Sept. 16, 1995).

(748) Allan Freedman, Panel Approves Measure on Grazing Overhaul, 53 Cong. Q. Wkly. REP. 3653 (Dec. 2, 1995).

(749) Id.

(750) S. 1459, 104th Cong. (1995).

(751) Freedman, supra note 748, at 3653; see also Allan Freedman, Clash of Interests and Ideology Threatens Grazing Overhaul, 54 Cong. Q. Wkly. Rep. 609, 610-11 (Mar. 9, 1996).

(752) Freedman, supra note 751, at 609, 610-12; Allan Freedman, Short-term Victory in Senate May Not Save Grazing Bill, 54 Cong. Q. Wkly. Rep. 793 (Mar. 23, 1996).

(753) 142 Cong. Rec. S 2622 (daily ed. Mar. 21, 1996) (results of vote); Freedman supra note 752, at 793.

(754) See Allan Freedman, Grazing Policy Provision May Stymie Parks Bill, 54 Cong. Q. Wkly Rep. 2108 July 27, 1996); Special Report, Appropriations, 54 Cong. Q. Wkly Rep. 2440-41, 2443 (Aug. 31, 1996).

(755) See Freedman, supra note 754, at 2108; Special Report, Appropriation, 54 Cong Q. Wkly. Rep. 244041, 2443 (Aug. 31, 1996).

(756) This is how one person familiar with the deliberations explained the grazing bill's fate to the author.

(757) See Allan Freedman, After Teetering an the Brink, Parks Bill Finally Clears, 54 Cong. Q. Wkly. Rep. 2856 (Oct. 5, 1996). This "Omnibus Parks Bill" was signed by President Clinton and includes provisions to protect the Presidio in San Francisco, create a Tallgrass Prairie National Preserve in Kansas, and protect the Sterling Forest in New York and New Jersey. Id. at 2857.