What to know about your
Forest Service Grazing Permit
Brian Gregg Sheldon[1]
Falen Law Offices, LLC
The U.S.
Forest Service has managed livestock grazing on its portion of the public lands
for over a century. Despite this long history, the agency’s actual
guidelines for day-to-day management of a public lands’ livestock operation
remain somewhat obscure to the average person. The process for acquiring,
transferring, and appealing permits and permit-related decisions may seem a bit
mystifying -- particularly for an operator who is more familiar with the system
used by the Bureau of Land Management. This article aims to give a short
overview of the practical operation of the Forest Service’s grazing management
authority, along with some lessons garnered from experience.
Anatomy of a Grazing Permit. Every Forest Service
grazing permit is based on a standard form. It will state: the
permittee’s contact information; a description of the range being grazed (e.g.,
a map of relevant public and private land); the number, kind, and class of
livestock being grazed; the period of use for grazing; and the grazing
allotment(s) with which the permit will be associated. Typically, grazing
permits are issued for terms of ten years and may be renewed thereafter, albeit
with the potential for new and potentially adverse terms.
Significantly, the permit will
also contain language stating that the permit may be cancelled or suspended, in
whole or in part, for failure to abide by the terms and conditions of the
permit and/or for failure to abide by any applicable laws, regulations, or instructions
of the Forest Service. This includes penalties for making false
statements to the agency, and for violating environmental or wildlife
laws. Relatedly, operators should take care that some activity authorized
by a state permit of some sort (e.g., a hunting license) does not interfere
with federal laws and regulations such as the Endangered Species Act.
For example, while it may be perfectly legal to obtain a license to trap
coyotes that are harming your livestock, the traps you set for the coyotes
could inadvertently trap and injure a wolf (or some other listed species). Even
though your trap was otherwise lawful and any impact to the wolf was
accidental, you could still face legal penalties for violating the Endangered
Species Act, including adverse consequences to your grazing permit.
Obtaining a Grazing Permit. To apply for a term
grazing permit from the Forest Service, a would-be permittee must meet a number
of qualifications. Of primary concern here is the requirement that a
permittee own both the livestock to be grazed and the “base property”
associated with a specific federal grazing allotment. While simple in
concept, this qualification requirement can present a headache for a permittee
because it prevents leasing livestock or land or dividing ownership of same between
different persons and/or corporate entities -- a notable difference from the
Bureau of Land Management’s permits. Moreover, if a permittee disposes of
all or a portion of the land or livestock in question, the permit may be
subject to cancellation.
Furthermore, every operator
should be aware of the requirement to “validate” a grazing permit. Validation
consists of a Forest Service employee personally verifying that the permittee
has turned out at least 90% of the livestock designated in the permit on the
relevant allotment. The validation process need only occur once. While
validation may sound like a formality, it is nonetheless a crucial one –
failure to validate one’s permit renders it subject to cancellation. Moreover,
failure to validate a permit precludes an operator from transferring the
permit, as described below.
Transferring a Grazing Permit. Transferring a Forest
Service permit can be difficult because the transfer process is intertwined
with the qualification requirements described above.
Strictly speaking, a permit is
not transferred between two different parties. Instead, the original
permittee “waives” his or her permit via a standard waiver form and, if the
Forest Service accepts this waiver, issues a new permit to the new permittee
for the remainder of the term period. Waiver forms will generally be
approved provided the new permittee is qualified and the prior permit was
validated to begin with. However, the approval of the new permit is conditioned
on the new permittee purchasing the livestock and base property of the previous
permittee. If the new permittee purchases both the land and the livestock
from the previous permittee, this presents no problem. However, issues
can arise when the would-be new permittee acquires only the previous
owner’s livestock or the base property, but not both.
According to the Forest Service
Handbook on grazing, if the party purchases only the base property,
the operator will need to have the new herd of livestock ready to graze with
proof of ownership and branding information ready. Any livestock
associated with the previous permit must be removed and the new herd put on within
30 days of the execution of the waiver form.
Conversely, the Handbook states
that if the party purchases only the previous owner’s livestock,
they must obtain the required amount of property necessary to support the
permit. This may require re-designating nearby private land as the base
property associated with the permit, which is a separate process that the
Forest Service may, within its discretion, not approve. Moreover,
livestock purchased as part of a permit must be the same livestock that were
permitted at the time of the purchase.
In addition, operators should be
wary of entering into any “buy-back” agreements – both with livestock and with
base property. Livestock that has previously grazed on Forest Service
land may not be resold to the original owner within two years of the purchase
without prior approval of the Forest Supervisor. Similarly, base property
purchased from a permittee in connection with issuance of a new permit must not
be transferred back to the original owner within two years of the purchase
without prior approval. Violation of the “two-year” rule may result in a
cancellation of the permit.
Operators should be aware that
all the above-mentioned requirements for qualifying for and transferring
permits are strictly enforced by the Forest Service. The Forest Service
has “seen it all” when it comes to creative attempts to finagle base property
or livestock ownership, and any attempt to circumvent these requirements will
dealt with harshly by the agency. While certain isolated exceptions exist
-- e.g., for foreclosed mortgages and “escrow” waivers, as well as the
possibility of obtaining a conditional one-year permit if base property or
livestock requirements are not met through no personal fault of the permittee
-- the end result of trying to bend the rules may well be a cancelled permit.
Appealing an Unfavorable Decision. If your permit or
transfer application is denied, or if your permit is renewed with unfavorable
terms, it may be necessary to appeal the decision. Unfortunately, those
operators who are familiar with the Bureau of Land Management’s appellate
procedures will find that the Forest Service does things differently. Comparatively
speaking, there are fewer due process rights available to an appellant. Pursuant
to the Forest Service’s grazing regulations the Forest Service appeals process
typically consists of a single appeal to the Forest Supervisor (assuming the
original decision was issued by a District Ranger), although a higher-level
“discretionary review” is sometimes available in rare instances involving
large-scale land management decisions. If the appeal is likewise
unfavorable, then one may seek judicial review in federal court.
Based on our experience with
Forest Service appeals, a couple of points are worth bearing in mind. First,
an operator should be aware that the Forest Service has very strict formal
requirements for its appeals and is known to reject appeals for not following
formatting guidelines. This is why seeking legal assistance in the
preparation of your appeal is often a good idea. Second, if you are
appealing a decision to cancel or to not renew a permit based on resource
conditions and/or grazing practices, it is strongly recommended that you obtain
the services of a rangeland consultant to provide a technical basis to ground
your appeal and rebut any claims by the agency. This is especially true
if your appeal reaches the level of “post-decisional” agency review or judicial
review in federal court, as you will face an uphill battle owing to inherently
deferential standards of review in each instance.
Conclusion. The Forest Service’s grazing
management authority is highly discretionary. Any applicant must own both
the base property and livestock to qualify for the permit and must properly
validate the permit before seeking to transfer it via waiver. Special
care must be given when acquiring a permit via waiver so that base property and
livestock requirements are met – particularly if new livestock or new base
property will be designated. Permittees must be transparent about their
operational structure to avoid penalties from the agency. Finally, while
a permittee is allowed an administrative appeal of any adverse decision, the
technical difficulty inherent in this administrative proceeding means it is a
good idea to seek the help of legal counsel and rangeland consultants before
filing your appeal.
[1] Brian Gregg
Sheldon is an Associate Attorney with the Falen Law Offices, LLC with a primary
focus on property, environment and natural resources law. Falen Law
Offices, LLC, has attorneys licensed to practice law in Colorado, Idaho,
Illinois, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota,
and Wyoming. This article should not be understood to state or imply that any
lawyers of this law firm are certified as specialists in a particular field of
law. Colorado does not certify lawyers as specialists in any field. The Wyoming
State Bar does not certify any lawyer as a specialist or expert. Anyone
considering a lawyer should independently investigate the lawyer's credentials and
ability, and not rely upon advertisements or self-proclaimed expertise. This
article is informational and is not legal advice. Use of this article or
contact with this law firm does not create an attorney-client relationship.
Labels: Livestock Grazing
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