Livestock grazing management on publicly-owned federal lands is periodically opened up to public review, public scrutiny, and public participation during a National Environmental Policy Act (NEPA) review. During a NEPA review, a federal agency proposes a management activity for federal land. Then, at various stages, it invites public comment on the proposal and alternative proposals.
The agency then analyzes the proposals in the context of the public comments that it receives. A NEPA review provides you with your most important opportunity to impact public lands livestock grazing at a site-specific or regional level. If you are prepared, you can often work within this process to achieve your goal of reducing the adverse impacts that are often caused by livestock grazing on some public lands.
One of your goals in this public input process may revolve around a key concept: mobilizing sufficient social pressure to induce the managing agency (usually, the Bureau of Land Management or the U.S. Forest Service) to make a strong, resource-protective decision at the end of the formal NEPA review. If you get such a decision, you do not need to appeal the local managing agency decision to higher levels of the government bureaucracy.
Unfortunately, you or your group must often appeal the agency's decision. This step is required before a lawsuit can be filed. The appeal officer may agree with your appeal and call for changes to the project or throw the project out entirely. In that case, your pro-active efforts have saved you the trouble of having to mount a lawsuit to achieve your goal. The appeal officer may also reject your appeal. In that case, your only legal recourse is litigation.
It is difficult to get the agency to make conservation-oriented decisions, but it is not impossible. To be safe, however, it is wise to assume going into this process that you will not get that resource-protective decision from the agency that you desire. Assume that the agency will make a bad decision, that you will need to appeal, that your appeal will be denied at the higher levels of the agency or government, and that you will need to sue the agency later. However, if you mobilize a great deal of support for your positions, build coalitions with other local environmental groups (like Trout Unlimited local chapters and native plant societies), and submit extensive, thoughtful comments from the start, you might get lucky and get the land the protection that it needs at the formal end of the NEPA process.
Pre-NEPA Process
You will be in a better position to influence the NEPA process and achieve what you want if you have developed, in advance, some familiarity with the grazing allotments being analyzed. Use of the Freedom of Information Act (FOIA) to obtain agency monitoring data, utilization records, watershed assessments, vegetation composition/frequency data samplings, trampling and chiseling (streamside disturbance) data, ecological assessment studies, agency memos, allotment management plans, allotment operating instructions, grazing permits etc is an essential component of this process. You should also use FOIA requests to find out if the allotment has been meeting State BLM range standards (such as Wyoming Rangeland Standards) or allotment specific management goals (such as maintenance of 4-6" post-grazing residual vegetation stubble height.)
Visiting and hiking in the allotment and then writing and submitting complaint letters (with pictures and detailed notes) also establishes more firmly your standing to sue the agency later. You can also include copies of these documents in your NEPA comments and request that these previous submissions be incorporated into the formal NEPA record.
To summarize briefly, your role in the NEPA review process can be partially characterized by the type of contributions you make during the process. The four types of such contributions are presented below:
You provide new information (presence and location of rare flowers, for instance) to the agency of which it was previously unaware; you also provide different possible management approaches (rest-rotation/stocking rate reduction alternatives, for example) that are apparently not being considered to the agency. You also remind the agency what it is required to do in such NEPA assessments, in terms of procedure. It also helps to remind the agency what substantive standards it is required to meet with respect to whatever decision it makes (for instance, proposed grazing in designated wild and scenic river areas must comply with a "non-degradation" legal standard).
You write comments that provide the agency with the public support it needs to make a difficult decision. You and others give ammunition to those within the agency who want to do the right thing by instituting more restrictive grazing management/outright rest scenarios for those ecosystems that have been damaged [and will likely continue to be damaged] by the previous grazing regime. This is the public pressure part of the process. You let them know your preferences, and hopefully you mobilize tens, hundreds, and thousands to also express similarly restrictive (or even more restrictive) preferences to the agency.
You lay the basis for an appeal and a future legal challenge to a presumed future agency decision that you think will damage the land and violate the law. In essence, you start writing your legal claims (that such proposed management actions by the agency will violate this or that law or this or that standard/guideline from the agency's own management plans) and support your claims with as much data, descriptive comments, and photographs of grazing-related damage as possible (from both the agency itself and from other non-agency sources, including your own past allotment visits).
You provide the agency with citations to (and summaries of) peer-reviewed scientific studies that support your position. Agency officials may or may not be familiar with various studies on wildlife species or water quality issues. It is important to submit references and summaries of the findings of these studies into the formal record. You can submit a bibliography or even copies of the articles themselves.
If you contribute in all of these ways, and combine them with the organizing and mobilization of the public to participate in the process, you may significantly impact the selection and implementation of future livestock grazing management plans on the public lands in question.
The "Scoping" Stage
The first stage of the NEPA process is called the "scoping" stage. In this stage, the agency usually proposes a single management plan for consideration. It then asks the concerned public to comment on the plan. Additional information may also be provided by the agency (such as a selection of standards/guidelines from the agency's broader management plan and other relevant laws with which the agency is required to comply). Usually, no significant analysis of the plan or existing resource conditions on the allotment is provided at this stage.
It is often hard to comment substantively at this stage. Comments often stress the procedural requirements that the agency must follow, suggest what topics or significant issues the agency should deal with, how to deal with such topics, what biases to avoid in addressing such topics, what alternatives should be considered, etc. The agency is especially looking for information that you know that they may not know (rare flower locations, sightings of, and locations of, rare animals). If you have this kind of information, you should certainly submit it.
However, if you are familiar with the allotment and the resource conditions on the allotment, the "scoping" stage becomes your first opportunity to develop a critique of an agency proposal to promote livestock grazing on a particular piece of federal land. A strong critique, with rigorous and creative analysis supported by documentation of resource conditions on the allotment, can force the agency to seriously consider other, more-protective alternatives, as well as thoroughly disclose the actual resource conditions on the allotment during its later analysis of its proposal.
The latter point is important and needs to be emphasized. Full disclosure of resource conditions by the agency makes it more difficult for the agency to sustain the selection of a management proposal that will not promote meaningful improvement in the resource conditions of the grazing allotment.
Commenting on Environmental Assesments and Environmental Impact Statements
After a federal agency has collected scoping comments from the public and completed all the analyses of different subjects that it feels it needs to do in order to comply with NEPA guidelines, it issues either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). At this stage, you need to carefully evaluate every claim that is made by the agency.
You need to assess for procedural and substantive analytic deficiencies in the agency document. This includes agency compliance with all laws and regulations, as well as complete analysis of site-specific and cumulative impacts. You need to challenge (or refute, as much as you can) any faulty analysis or claim that is being used by the agency to justify plans to continue or expand livestock grazing and associated developments (such as fences, stock tanks, non-native plant reseedings, predator control plans). You can present alternatives to the agency's proposed action that would lessen the adverse impacts that you believe would likely be generated by implementation of the agency's preferred proposal.
You utilize field data, peer-reviewed, published scientific articles, favorable court decisions, and any other "best available information" prod the agency into modifying its preferred proposal so that the adverse impacts likely to be generated by the agency s preferred proposal will be lessened substantially or eliminated altogether. The EA comment stage is critical. The comments you make at this stage (along with those that you have already made during the scoping stage) will largely determine the issues you can raise effectively in future appeals and litigation concerning the final decision made by the agency.
After an agency makes a final decision, you then have an opportunity to file an appeal, usually within thirty to forty-five days after the final decision has been published in the local newspaper of record. You will need to review the agency's response to comments that were submitted, determine the adequacy of its response, and decide what you wish to present in your appeal. If you feel the agency's response to any issue raised in previous stages is inadequate in any way, you should plan to include that issue in your appeal.
The more intimidating your appeal looks (in terms of claims supported by field data, peer-reviewed, published scientific articles, favorable court decisions, and any other "best available information"), the more likely you will succeed in winning an appeal. If you can get the help of an attorney at this stage (or the previous EA/EIS comment stage for that matter), you should have the attorney review your appeal and add supporting legal citations. If the attorney is willing, have him or her submit the appeal for you on the attorney's letterhead.
If your appeal is rejected by the reviewing agency, then you need to assess whether you want to challenge the agency's final decision and appeal rejection through litigation. You will need to evaluate closely whether the agency has violated environmental laws. At this point, you would be wise to consult with lawyers to determine whether the agency has possibly violated environmental laws in making its final decision and rejecting your appeal.
If you and your advising lawyers believe this, then perhaps it is time for you to move beyond the NEPA phase and prepare for a lawsuit. This is a most serious undertaking. This stage requires a much greater level of dedication than the previous stages. Still, this is the stage where you can truly exert a powerful impact upon livestock grazing on Federal lands in the western United States.
Visit our links page for more information on NEPA and litigation.
Members of the Sierra Club National Grazing Committee are available to assist you should you and your chapter wish to pursue grazing-based litigation. Contact the member in, or nearest to, your region for help, or contact the Chair or Vice-Chair of the Grazing Committee.
