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Monday, July 15, 2024 | Back issues
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Grazing Intent Isn’t Required to Hold Lease

(CN) - Permit holders don't have to prove their intent to graze livestock to hold public land leases, the 10th Circuit ruled. Ranchers challenged the Grand Canyon Trust and affiliate Canyonlands Grazing Corporation after they bought and tried to retire grazing leases on Utah's Grand Staircase-Escalante National Monument.

Under the Taylor Grazing Act of 1934, certain ranchers transferred permits for grazing rights on three allotments in exchange for a cash payment from the environmentalists.

After the Bureau of Management denied ranchers' permit applications on the already claimed allotments, the cattlemen appealed to administrative court, which affirmed the denial. The federal district court also denied the applications, bringing the case to the 10th Circuit.

In the meantime, Garfield and Kane counties intervened as plaintiffs, although the district court dismissed them due to lack of standing.

The Denver-based federal appeals court read the 1934 Act to allow the holding of grazing permits if the parties possess base property and fulfill citizenship requirements.

Ranchers argued that permit-holders must not only own livestock, but must also prove their intent to graze. The court pointed out that the Canyonlands Grazing Corporation qualified as a stock owner since it had received four head of cattle after paying one rancher's $3,000 trespass penalty in exchange for permit rights on one allotment.

The opinion also cited regulations that allow the bureau to revoke a permit if it is not utilized after two years, writing that "it would be untenable to have the BLM engage in a subjective inquiry of every permit applicant's specific intent to graze" since the purpose of applying for a permit is to graze.

The court also denied standing to the rural Utah counties that had claimed decreased tax revenue if the allotments were retired, calling this injury "merely speculative."

In a related ruling, also authored by Judge Kelly, the 10th Circuit upheld a fee waiver and reversed access to certain grazing documents requested by Garfield and Kane counties in a Freedom of Information Act petition.

The BLM denied the counties' request to waive the $280,000 cost of searching through archived emails for correspondence related to the retiring of monument grazing permits, and refused to grant access to documents produced by a paid consultant.

The 10th Circuit said the district court was correct in denying the fee waiver since the bureau "likely produced all the relevant e-mail" under its policy of requiring employees to print out messages and store them in hard-copy files. Requiring the agency to search through the more than 600 tape backup tapes was "unduly burdensome given the speculative nature of the records requested."

The counties can pay the fee if they need to access the email backups, the appeals court concluded.

The 10th Circuit court reversed a district court ruling that had granted access to documents prepared by a paid consultant, saying that although the consultant may advocate his own views promoting a market-based approach to grazing, that doesn't disqualify his advice from being treated as confidential "intra-agency" communications exempt from FOIA.

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