By Ray Peterson
Late in 2008, two things happened that became a catalyst to the “Emery County Public Land Management Act.” The Price Field Office of the Bureau of Land Management finalized the 2008 Resource Management Plan (RMP). And Washington County, Utah passed federal legislation which designated wilderness and National Conservation Areas, among other things. The 2008 RMP produced a reasonable management plan, except it did not, could not, make any decisions concerning wilderness designation. Commissioners and others in Emery County were concerned that the San Rafael Swell was next in line for a presidentially designated national monument, similar to Grand Staircase/Escalante. At the same time, Southern Utah Wilderness Alliance’s Red Rock Wilderness Act was gaining support in Washington DC.
The question was posed, should Emery County consider federal legislation which would designate conservation areas (including wilderness) with the hope of maintaining control of the process and diminish the possibility of an untenable designation by others? The County Commission charged the Emery County Public Lands Council (PLC) to engage the citizens of Emery County and other stakeholders and make a recommendation. This would not be the first attempt to pro-actively resolve excessive wilderness/national monument designations with federal legislation. Previous unsuccessful bills in 1998 and 2000 were strikingly similar to the Public Land Management Act of 2018.
The Commissioners expanded the PLC from nine members to twelve. Subcommittees were appointed based on resource user groups: Livestock grazing, water resources, cultural/historic, travel/transportation, wildlife, mining/minerals and wilderness/conservation. Each subcommittee scheduled and advertized public meetings. Exhaustive measures were taken to invite stakeholders in each resource user group. Meetings were well attended.
In each meeting, the question was asked of the attendees: “In light of the possibility of either a national monument designation, or congressionally designated wilderness, should Emery County pursue legislation which would designate conservation, including wilderness, with the intent that the County would maintain some control of the process and ensure some measure of regulatory certainty?” The reluctant but clear mandate from every meeting was that a pro-active effort to pursue a local process for conservation was preferable to an option to do nothing and risk a process that would have no local input. Each subcommittee meeting also asked stakeholders to share the concerns and issues that would be most important to them in this process. Again, a clear message came from each meeting: each user group wanted to be able to utilize the natural resources following passage of legislation that they currently enjoyed.
For nearly three years, the PLC hosted work meetings and field trips. Stakeholders, from within and without the County, were able to participate in the process. No one that wanted to participate was excluded. SUWA proposed a process which would basically have been Emery County negotiating with SUWA with the use of a moderator. When the county declined the proposal, SUWA formally ceased participation in the County’s process. In 2012, the PLC presented the County Commission with a recommendation, which consisted of a map and preferred language. Although there would be some boundary modifications, additional designations and changes to the text, the recommendation remains the core of what is included in the HR 5727.
County officials had been in dialogue with our Washington delegation, specifically Senator Bennett, who had championed the Washington County lands bill and was eager to introduce and Emery County bill. Unfortunately, the Senator was unsuccessful in his bid for re-election. However, County officials continued to press the Washington delegation to push our bill and found support from Congressmen Chaffetz and Bishop, as well as Senator Hatch and newly elected Senator Lee.
At about the same time, Congressman Bishop approached Emery County and asked if it would support a multi-county effort similar to our process. This was the inception of what became known as Bishop’s Public Lands Initiative (PLI). Although supportive of Bishop’s vision, county officials were skeptical of the feasibility of several counties completing a thorough process for land use planning and designation in “a couple of years.” For a number of reasons, PLI was an unsuccessful venture. However, through the PLI process, Emery County was able to retain and solidify support from national conservation organizations.
When Jason Chaffetz made the decision to step away from congress and the in the whirlwind election of John Curtis, the County found strong support from the rookie congressman. So, having endured the four-year PLI rise and fall and the new representation in the third congressional district, Emery County was back in the running with its own, stand-alone legislation. It was necessary to jettison some of the language from PLI that had led to its demise, but otherwise the proposed legislation retained the core issues of what PLC had presented to the county commissioners in 2012. Minor modifications of language and tweaking of boundaries on the map since 2016 has produced HR 5727.
WHAT’S IN THE BILL? RESOURCE BY RESOURCE
From the get go, grazing permittees were thrust to the forefront of issues to be considered in public land use, and not just locally. When the Wilderness Act was passed in 1964, there were many wilderness “purists” who would have preferred that grazing of livestock be eliminated from all designated wilderness areas. The fact that the livestock industry in the west was so large, robust and ingrained on the landscape of areas being considered for designation, made it impossible to pass the Act without allowing grazing to continue in wilderness. Although there have been wilderness area designations which eliminated grazing, unless the particular bill specifically states that this resource use will be eliminated, livestock grazing is an acceptable practice within wilderness areas.
As the PLC proceeded with its evaluation of areas and considered potential designations, grazing was at or near the top of the list of resource uses. The grazing subcommittee hosted more public meetings than any other subcommittee. And indeed, dialogue with this user group continues to the present, as evidenced by County Commission and Public Lands Department presentation at the most recent farm bureau meeting. Every existing Wilderness Study Area (WSA) includes grazing allotments. There is probably less than five percent of the public land in Emery County which is not within a grazing allotment.
The PLC had three criteria to consider in the work meetings and field trips: 1. What is the current management? (as determined by BLM and Forest Service planning documents.) 2. What is the current, actual use taking place? (sometimes management and actual use aren’t consistent). 3. What makes sense? So in the case of livestock grazing, the evaluation was relatively straightforward. First, grazing is a permitted activity in nearly all areas being considered (Desolation/Gray Canyon being the exception). Secondarily, this activity is taking place with reasonable and predictable results, including areas within WSAs. And third, the sensible thing to do is expect the resource use to continue. Boundary modifications which increased wilderness were only considered once it was determined that the modification would have no impact on current resource use.
The actual language in the proposed legislation states that:
(1) IN GENERAL.—The grazing of livestock in the wilderness areas, if established before the date of enactment of this Act, shall be allowed to continue, subject to such reasonable regulations, policies, and practices as the Secretary considers to be necessary in accordance with—
(A) section 4(d)(4) of the Wilderness Act (16 U.S.C. 1133(d)(4)); and
(B) the guidelines set forth in Appendix A of the report of the Committee on Interior and Insular Affairs of the House of Representatives accompanying H.R. 2570 of the 101st Congress (House Report 101–405).
(2) INVENTORY.—With respect to each wilderness area in which grazing of livestock is allowed to continue under paragraph (1), not later than 1 year after the date of enactment of this Act, the Secretary, in collaboration with any affected grazing permittee, shall—
(A) carry out an inventory of facilities and improvements associated with grazing activities in the wilderness area; and
(B) review and revise the applicable allotment management plan and grazing permit information.
Text of Appendix A referred to in (b)(1)(B) above:
APPENDIX A.-GRAZING GUIDELINES Section 4(d)(4)(2) of the Wilderness Act states:
“the grazing of livestock, where established prior to the effective date of this Act, shall be permitted to continue subject to such reasonable regulations as are deemed necessary by the Secretary of Agriculture”.
The legislative history of this language is very clear in its intent that livestock grazing, and activities and the necessary facilities to support a livestock grazing program, will be permitted to continue in National Forest wilderness areas, when such grazing was established prior to classification of an area as wilderness. Including those areas designated in 1964 by the Wilderness Act, Congress has designated a large number of wilderness areas, including areas which are managed by the Forest Service, Fish and Wildlife Service, and Bureau of Land Management. A number of these areas contain active grazing programs, which are conducted pursuant to existing authorities. In all such cases, when enacting legislation classifying an area as wilderness, it has been the intent of the Congress that the cited language of the Wilderness Act would apply to grazing within wilderness areas administered by all Federal agencies. To avoid any possible confusion, however, the Committee believes it would appropriate to reiterate the guidelines and policies (which have been set out previously in the Committee’s Report on H.R. 5487 of the 96th Congress, House Report N. 96-617) that are to be utilized by BLM in implementing the relevant provisions of the Wilderness Act with respect to livestock grazing in the wilderness areas designated by this bill. It is the intention of the Committee that these guidelines and policies be considered in the overall context of the purposes and direction of the Wilderness Act of 1964 and this bill, and that they be promptly, fully, and diligently implemented and made available to Bureau of Land Management personnel at all levels and to all holders of permits for grazing in the wilderness areas designated by this bill. The guidelines and policies are as follows:
- There shall be no curtailments of grazing in wilderness areas simply because an area is, or has been designated as wilderness, nor should wilderness designations be used an excuse by administrators to slowly “phase out” grazing. Any adjustments in the numbers of livestock permitted to graze in wilderness areas should be made as a result of revisions in the normal grazing and land management planning and policy setting process, giving consideration to legal mandates, range condition, and the protection of the range resource from deterioration. It is anticipated that the number of livestock permitted to graze in wilderness would remain at the approximate levels at the time an area enters the wilderness system. If land management plans reveal conclusively that increased livestock numbers or animal unit months (AUMs) could be made available with no adverse impact on wilderness values such as plant communities, primitive recreation, and wildlife populations or habitat, some increases in AUMs may be permissible. This is not to imply, however, that wilderness lends itself to AUM or livestock increases and construction of substantial new facilities that might be appropriate for intensive grazing management in non-wilderness areas.
- The maintenance of supporting facilities, existing in an area prior to its classification as wilderness (including fences, line cabins, water wells and lines, stock tanks, etc.), is permissible in wilderness. Where practical alternatives do not exist, maintenance or other activities may be accomplished through the occasional use of motorized equipment. This may include, for example, the use of backhoes to maintain stock ponds, pickup trucks for major fence repairs, or specialized equipment to repair stock watering facilities. Such occasional use of motorized equipment should be expressly authorized in the grazing permits for the area involved. The use of motorized equipment should be based on a rule of practical necessity and reasonableness. For example, motorized equipment need not be allowed for the placement of small quantities of salt or other activities where such activities can reasonably and practically be accomplished on horseback or foot. On the other hand, it may be appropriate to permit the occasional use of motorized equipment to haul large quantities of salt to distribution points. Moreover, under the rule of reasonableness, occasional use of motorized equipment should be permitted where practical alternatives are not available and such use would not have a significant adverse impact on the natural environment. Such motorized equipment uses will normally only be permitted in those portions of a wilderness area where they had occurred prior to the area’s designation as wilderness or are established by prior agreement.
- The replacement or reconstruction of deteriorated facilities or improvements should not be required to be accomplished using “natural materials”, unless the material and labor costs of using natural materials are such that their use would not impose unreasonable additional costs on grazing permittees.
- The construction or new improvements or replacement of deteriorated facilities in wilderness is permissible if in accordance with these guidelines and management plans governing the area involved. However, the construction of new improvements should be primarily for the purpose of resource protection and the more effective management of these resources rather than to accommodate increased numbers of livestock.
- The use of motorized equipment for emergency purposes such as rescuing sick animals or the placement of feed in emergency situations is also permissible. This privilege is to be exercised only in true emergencies, and should not be abused by permittees. In summary, subject to the conditions and policies outlined in this report, the general rule of thumb on grazing management in wilderness should be that activities or facilities established prior to the date of an area’s designation as wilderness should be allowed to remain in place and may be replaced when necessary for the permittee to properly administer the grazing program. Thus, if livestock grazing activities and facilities were established in an area at the time Congress determined that the area was suitable for wilderness and placed the specific area in the wilderness system, they should be allowed to continue. With respect to areas designated as wilderness prior to the date of this Act, these guidelines shall not be considered as a direction to reestablish uses where such uses have been discontinued.