The Forage Improvement Act of 1997: An Analysis of H.R. 2493

The Forage Improvement Act of 1997: An Analysis of H.R. 2493

98-40 A
CRS Report for Congress
Received through the CRS Web
The Forage Improvement Act of 1997: An
Analysis of H.R. 2493
January 13, 1998
(name redacted)
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Forage Improvement Act of 1997: An Analysis of H.R.
2493
Summary
This report analyzes most of the provisions of H.R. 2493, which addresses the
grazing programs of the Bureau of Land Management (BLM) and the Forest Service
(FS). The bill was sponsored by Rep. Bob Smith, chairman of the House Agriculture
Committee and others, and was reported by that committee on September 24, 1997
and was reported by the House Resources Committee on October 8 and October 22,
1997. Both committees amended the bill and it was further amended before passage
by the House on October 30, 1997.
The bill is considerably shorter than was legislation in the 104th Congress and
earlier in the 105th, and addresses primarily monitoring, cooperative management
plans, and grazing fees. Under the bill, monitoring would be conducted according
to regional or state criteria and protocols selected by the Secretary concerned. The
Secretary of the Interior for BLM lands and the Secretary of Agriculture for FS lands
could not accept data from monitoring that was not conducted either in accordance
with such protocols or by persons who are among the groups listed. Cooperative
management plans would be made available to qualifying permittees and could allow
greater flexibility as to grazing practices.
The principal change that would be made by the bill is that a new grazing fee
formula would be enacted, applicable to the grazing programs of both BLM and FS,
but not applicable to the National Grasslands, which are also managed by the FS.
The new formula would be based primarily on 12-year gross beef cattle production
values and be tied to short-term treasury bill rates for the past 12 years, thereby
making the fees more stable and less responsive to yearly fluctuations in beef prices
than the current formula. The bill also would count seven sheep or goats as one
Animal Unit Month (AUM) rather than the current five, thereby allowing more of
such animals to graze for the same fee. The bill does not establish a minimum
payment.
Many definitions were eliminated from the bill. Some of these related to aspects
of the nature of the grazing privilege that currently are being litigated and were
controversial for this reason. The bill also does not address many issues that proved
to be controversial in the 104th Congress, such as water rights, application of the
National Environmental Policy Act in the grazing context, appeals, access across
private lands, or ownership of range improvements. Some provisions are ambiguous
in certain respects and this report discusses possible interpretations.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
H.R. 2493 Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Subleasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cooperative allotment management plans . . . . . . . . . . . . . . . . . . . . . . . 6
Grazing fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Eliminated provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Dropped definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Resource Advisory Councils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Forage Improvement Act of 1997: An
Analysis of H.R. 2493
Background
The grazing programs of the Bureau of Land Management (BLM) in the
Department of the Interior and the Forest Service (FS) in the Department of
Agriculture have generated controversy over the last several years.1 New range
management regulations for the lands managed by the BLM went into effect in
August, 1995. Even before that effective date, legislation was introduced to modify
statutorily some of the provisions contained in the regulations. S. 852 in the 104th
Congress comprehensively addressed BLM grazing and S. 1459 in that Congress
addressed both FS and BLM grazing and would have made the grazing programs of
the FS and BLM more consistent.2 The 105th Congress is again considering
legislation that would alter grazing on federal FS and BLM lands and would establish
a new grazing fee formula.
H.R. 2493, sponsored by Rep. Bob Smith, chairman of the House Agriculture
Committee, was reported by House Agriculture Committee on September 24, 19973
and by the House Resources Committee on October 8 and again on October 22,
1997.4 Both committees amended the bill. The bill was further amended and passed
the House on October 30, 1997 by a vote of 242-182.
This report analyzes most of the provisions of H.R. 2493 as it was received in
the Senate. The report also discusses some of the provisions that were removed from
the bill before passage because some of these provisions addressed issues that might
arise again as the bill is considered in the Senate.
1 See, GRAZING FEES AND RANGELAND MANAGEMENT, IB96006, by Betsy Cody and
(name redacted), updated December 22, 1997.
2 For a discussion of previous bills and more detailed background, see ALD General
Distribution Memorandum, Analysis of Changes Made February 8, 1996 to S. 1459, the
Public Rangelands Management Act of 1995, by (name redacted), March 8, 1996; and for
a comparison of FS and BLM regulations and two grazing proposals from the 104th
Congress, see ALD General Distribution Memorandum, Federal Rangeland Management
Regulations and Current Legislative Proposals, by (name redacted) and Betsy Cody,
September 6, 1996.
3 H.Rep. 105-346, Part 1 (October 24, 1997).
4 H.Rep. 105-346, Part 2 (October 24, 1997).

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Both the FS and the BLM administer grazing programs as one of the multiple
uses on their respective lands. Different laws pertain to the two agencies and the
lands they manage.
A comprehensive grazing program was authorized by the Taylor Grazing Act
of 1934 (TGA) for the public lands now managed by BLM. Initially, the program
was administered by the Grazing Service, until the duties of the Grazing Service were
merged with those of the General Land Office when BLM was created in 1946.
Before enactment of the TGA, the public lands remaining in federal ownership were
being grazed freely by all, with the tacit license of the government. By and large,
these lands were too arid to be suitable for agriculture and, as a result of the
communal use, many rangelands were overgrazed, eroded, and otherwise in poor
condition. It was believed that a system under which a permittee would have
exclusive rights to graze an allotted area would both improve range conditions and
protect individual ranchers. The TGA established such a system Implementing
regulations, known as the Range Code, were promulgated beginning in 1938.
Current BLM grazing regulations are found in 43 C.F.R. Part 4100.
There was little additional legislation on BLM range management until
enactment of the Federal Land Policy and Management Act of 1976 (FLPMA).5 Title
IV of FLPMA addresses range management and applies both to lands managed by
the BLM and to lands in national forests. Although FLPMA repealed many previous
statutes related to the public lands, the TGA was left in effect. In 1978 Congress
enacted the Public Rangelands Improvement Act (PRIA), which also covers both
BLM and FS lands, but specifically excludes the National Grasslands, which will be
discussed later.6
There is less statutory guidance with respect to grazing management by the FS
than is true for BLM. Although the original statute7 governing management of the
forest reserves did not expressly mention grazing, that act authorized the Secretary
of Agriculture to regulate the occupancy and use of the forests, and grazing has been
allowed and regulated in the forest reserves since the early twentieth century. Fees
have been charged since 1906.
Grazing on the national forests was recognized and ratified in later enactments.
The Granger-Thye Act of 1950 authorized the Secretary to regulate grazing on the
national forests and other lands administered by him and to issue permits for the
grazing of livestock for periods not exceeding ten years.8 This act also states that
nothing in the act “shall be construed as limiting or restricting any right, title, or
interest of the United States in any land or resources.” The Multiple-Use Sustained-
Yield Act of 19609 stated that the national forests “shall be administered for outdoor
5 Pub. L. No. 94-579, 90 Stat. 2755, codified at 43 U.S.C. §§ 1701 et seq.
6 Pub. L. No. 95-514, 92 Stat. 1803, codified at 43 U.S.C. §§ 1901 et seq.
7 Act of June 4, 1897, ch. 2, 30 Stat. 34.
8 Act of April 24, 1950, § 19, ch. 97, 64 Stat. 88.
9 Act of June 12, 1960, Pub. L. No. 86-517, 74 Stat. 215.

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recreation, range, timber, watershed, and wildlife and fish purposes,” (emphasis
added), but did not provide additional details on range management. As noted above,
both FLPMA and PRIA applied both to lands managed by BLM and the lands within
national forests. PRIA expressly excluded the National Grasslands from its
coverage.10
Both agencies administer some lands that were acquired by the federal
government under the Bankhead-Jones Farm Tenant Act (B/J).11 Most of the B/J
lands managed by the FS are administratively designated as “National Grasslands.”
In 1974, Congress included the National Grasslands within the National Forest
System, to be managed as “one integral system” with the national forests.12 Yet the
National Grasslands also maintain their identity as B/J lands, are currently subject
both to the laws governing the National Forest System and to the B/J Act, and have
special regulations applicable to them.13 As a result of a series of Executive Orders,
most of BLM’s B/J lands were administratively included within grazing districts
managed under the Taylor Grazing Act and the Federal Land Policy and Management
Act.14 BLM does not have additional regulations related to the B/J lands it manages.
H.R. 2493 Provisions
General. As discussed, both the FS and BLM manage grazing programs as part
of their overall management. There are many similarities between the programs, but
each is managed under different laws and each of the two agencies have somewhat
different missions and institutional histories. H.R. 2493 attempts to bring about more
consistent management of the grazing programs of the two agencies. However, some
of the bill provisions that address scope and applicability are ambiguous, especially
as to the National Grasslands and as to whether changes beyond grazing are intended.
10 43 U.S.C. § 1907.
11 Act of July 22, 1937, 50 Stat. 525, codified at 7 U.S.C. §§ 1010, 1011.
12 See Section 10 of the Forest and Rangeland Renewable Resources Planning Act of
1974, Pub. L. No. 93-379, 88 Stat. 480, (as amended by the National Forest Management
Act, Pub. L. No. 94-588, 90 Stat. 2949, 2957), codified at 16 U.S.C. § 1609.
13 The National Forest System is defined as specifically including the national
grasslands and land utilization projects administered under B/J. See 16 U.S.C. § 1609(a).
There are special regulations applicable to National Grasslands at 36 C.F.R. §§ 213, 222.52.
14 These Executive Orders are interesting in that they make the Taylor Grazing Act the
controlling management authority for the B/J lands transferred to BLM. See, e.g., E.O.
10175, 15 Fed. Reg. 7201, October 27, 1950. Section 32(c) of the B/J Act states in part:
“The Secretary may recommend to the President other Federal, State, or Territorial agencies
to administer such property, together with the conditions of use and administration which
will best serve the purposes of a land-conservation and land-utilization program, and the
President is authorized to transfer such property to such agencies.” Query whether this
authority validly included specifying that a different law would apply, to the exclusion of
B/J. However, a court faced with the question now might uphold the actions because of the
breadth of discretion granted in the B/J Act and the decades of Congressional acquiescence.

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Section 2 of the bill limits the applicability of the Act, stating, among other
things, that nothing in the Act should “be construed to affect grazing ... in any unit
of the National Forest System managed as a National Grassland by the Secretary of
Agriculture under the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010 et seq.) ....”
As noted above, the National Grasslands currently are a part of the National Forest
System. The exclusion of the National Grasslands from application of anything in
the Act related to grazing is difficult to interpret since some of the provisions of the
Act would also address general management concerns and therefore otherwise would
usually apply to the National Grasslands.
Section 3 directs that the Secretaries of Agriculture and of the Interior “provide
for consistent and coordinated administration of livestock grazing and management
of Federal lands ... consistent with the laws governing such lands.” (Emphasis
added). Section 3 appears to address both administration of livestock grazing and
“management of Federal lands” generally. Yet, in light of the emphasis of the rest
of the bill, it could also be intended to refer only to grazing administration. If, on the
other hand, the provision is to be read literally and general management as well as
grazing administration is included, then reading sections 2 and 3 together might mean
that nothing in the Act related to grazing is meant to apply to the National
Grasslands, but anything in the Act that is more general, such as the direction for
consistency of management generally, does.
Other aspects of the bill relating to the National Grasslands also are ambiguous.
Section 101 states that title I applies to the management of grazing on National Forest
System lands managed under enumerated statutes that do not include the Bankhead
Jones Act. Section 102 goes on to define “National Forest System” “in that title” as
having the meaning it does in 16 U.S.C. § 1609(a), except that it does not include the
National Grasslands. This approach to controlling the applicability of the bill in part
by excluding National Grasslands from the definition of the “National Forest
System,” a term that is otherwise defined in law, could produce uncertainty as to
when and in exactly what ways the National Grasslands are to be subject to what
provisions. The National Grasslands currently are included within the National
Forest System for purposes of planning and management consistent with B/J Act and
are to be managed as “one integral system” with national forests. It could be argued
that the definition of National Forest System in the bill would not alter this basic
posture because the definition is changed to exclude the Grasslands only for purposes
of the provisions of title I. Therefore, the new provisions of title I on monitoring of
grazing allotments, fees, cooperative allotment management plans, etc. would not
apply to the National Grasslands. (See the more detailed discussion of fees later in
this report.)
The National Grasslands have been treated separately in the past, having been
excluded, for example, from the range provisions of title IV of FLPMA and from
PRIA and the grazing fee formula it contained. (The same fees have nonetheless
been applied to certain of the National Grasslands administratively.) On the other
hand, the National Grasslands are currently regarded as subject to the same planning
requirements as are grazing lands within national forests. The bill defines land and
resource management plans and uses that term in several instances, but the National
Grasslands would not be subject to these provisions or to those on monitoring or
cooperative management plans. If enacted, the issue would arise as to how the new

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provisions are to relate to current direction in 16 U.S.C. §1609 to manage the
national forests and National Grasslands “as one integral system.” The tension
between having the National Grasslands be a part of the National Forest System for
some purposes, but not for others may produce problems of interpretation.
Section 101(b) states that the act applies to BLM lands, including those BLM
lands managed under the B/J Act. Section 3 directs that “to the maximum extent
practicable, the Secretary of Agriculture and the Secretary of the Interior shall
provide for consistent and coordinated administration of livestock grazing and
management of Federal lands (as defined in section 102) consistent with the laws
governing such lands.” This seems to result in direction for more consistent grazing
management by the two agencies, regardless of the type of lands involved, except that
the National Grasslands would not be subject to the new statutory guidance.
Monitoring. The bill as passed by the House contains provisions on monitoring
on federal lands within grazing allotments. Section 103 directed that monitoring be
performed only by “qualified persons” from the specified groups, which are:
(1) Federal, State, and local government personnel.
(2) Grazing permittees and lessees.
(3) Professional consultants retained by the United States or a permittee or
lessee.
As passed, there is no express requirement that the persons actually performing
monitoring be approved by the relevant Secretary, as had been required in the bill as
reported. Perhaps the Secretaries could impose such a requirement as part of general
regulations on monitoring in general or regulations on what constitutes “qualified
persons.” Absent such approval, because permittees or consultants retained by them
are statutorily approved generally to conduct monitoring, arguably the federal
managers could be put in the position of having to use or contest possibly unreliable
monitoring data.
Under subsection (b), monitoring would be conducted “according to regional
or state criteria and protocols selected by the Secretary concerned.” It is not clear
whether “state criteria” refers to criteria developed by states or to criteria developed
by the Secretaries on a state-wide basis. If criteria developed by states is the intended
meaning, it is not clear what range of discretion the Secretaries might have to modify
those monitoring criteria and protocols. Also, the relationship of the new monitoring
requirements to management decisions is not clear — to what extent could managers
make decisions, for example to reduce active use, based on conditions developing
in any one grazing season?
Subsection (c)(2) states that “The Secretary concerned shall not accept
monitoring data that does not meet the requirements of subsection (a) or (b).” This
use of “or” rather than “and” may be interpreted to mean that either monitoring
conducted in accordance with the protocols or monitoring conducted by persons
within the categories listed under subsection (a) can, and possibly must, be accepted.
If this is the intended reading, permittees could submit monitoring data regardless
of whether it conformed to the protocols and arguably the Secretary might have to
accept it.

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Subsection (d) requires reasonable notice of monitoring to affected permittees,
including prior notice to the extent practicable of not less than 48 hours.
It is not clear how the monitoring requirements, which require that the data
collected from “such monitoring” shall be used to evaluate changes and management
action on resources “over time, relate to the ability of federal managers to take
prompt action if circumstances in any one year warrant; e.g. to reduce active use in
a drought year. Arguably, the authority of the managers to do so is independent of
the monitoring requirements, but Congress might wish to clarify this point.
Subleasing. Section 104 addresses subleasing and simply states that a permittee
may not “enter into an agreement with another person to allow grazing on the Federal
lands covered by the grazing permit or lease by livestock that are neither owned nor
controlled by the person issued the grazing permit or lease.” This language is similar
to that in current 43 C.F.R. § 4130.7(a). Other provisions on subleasing were
dropped from the bill before passage. These would have authorized the Secretary
concerned to approve subleasing under listed circumstances, including hardship
instances, under a cooperative agreement, or if a permit is issued to a grazing
association whose members have exclusive rights to graze livestock on the federal
lands allotted to the grazing association. Other provisions removed from the bill
would have allowed livestock owned by certain relatives to graze without that
grazing being considered as subleasing. Another eliminated provision would have
mandated transfer of a permit to a new person controlling all or part of the base
property. Some questioned any statutory expansion of subleasing and these
provisions were dropped in favor of current regulations as they might be affected by
ongoing litigation. Another provision would have encouraged the use of coordinated
resource management practices under cooperative management agreements and
exempted such practices and agreements from the Federal Advisory Committee Act.
Cooperative allotment management plans. Section 105 addresses
“cooperative allotment management plans.” Although this is no longer a defined
term in the bill as passed, § 105 allows agreements between a permittee or a group
of qualified grazing permittees and federal personnel such that “outcome-based
standards, rather than prescriptive terms and conditions” will govern grazing
activities in a specified geographic area. A qualified permittee is one who has met
or exceeded forage and rangeland goals in applicable land use plans and in that
person’s grazing permit or lease for the previous five-year period. Agreements under
the section would be required to contain measurable performance goals, and all laws
that apply to allotment management plans and grazing permits would continue to
apply to these agreements. Presumably, the goals and provisions of these
agreements would be derived from these laws. This section appears to allow for
greater flexibility of management for qualifying permittees.
One point could be noted about the cooperative allotment management plans.
The last sentence of § 105(a) states: “[a]t the request of a qualified grazing permittee
or lessee, the Secretary concerned shall consider including such a written agreement
in an allotment management plan or a grazing permit or lease.” This language may
have been intended to mean that a permittee could request an agreement under the
section and if one is executed, it shall be a part of an allotment management plan or
a grazing permit. However, the current syntax is such that the sentence could be read

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as meaning agreements under the section could be executed and may, at the request
of a permittee, be made a part of an allotment management plan or a grazing permit.
Grazing fees. A major aspect of the bill as passed is that § 106 would provide
a new grazing fee formula. A grazing fee formula had been provided by the Public
Rangeland Improvement Act of 1978 (PRIA), but expired in 1985. The PRIA
formula was extended and a minimum fee of $1.35 per Animal Unit Month (AUM)
was established by Executive Order 12548 and has remained applicable to date. An
AUM is currently defined as the amount of forage needed to sustain one animal unit
for one month. An animal unit is currently defined as one cow and calf, one horse,
or five sheep or goats. The PRIA formula reflects changes in private grazing rates,
the price of beef cattle, and the costs of livestock production. The National
Grasslands were not subject to PRIA, and E.O. 12548 applied only to the same lands
as did PRIA. By administrative action, the fees that were applied in the national
forests were also applied to National Grasslands in California, Idaho, and Oregon.
By regulation, grazing fees for the National Grasslands are to be “established under
concepts and principles similar to those for the national forests and “Land Utilization
Projects” (which are the rest of the lands managed by the FS under the Bankhead
Jones Act).15 However, for the rest of the National Grasslands, a modified PRIA
formula is used and certain credits are allowed.
The new formula in H.R. 2493 would be based primarily on historical (12-year)
gross beef cattle production values (including production costs and revenues) and tied
to short-term treasury bill rates for the past 12 years, making it more stable and less
dependent on yearly fluctuations in beef prices than the PRIA formula. The bill also
would count seven sheep or goats as one AUM rather than the current five, thereby
allowing more of such animals to graze for the same fee. There is no minimum
payment established under the bill.
Amendments to charge fees comparable to those on state-owned grazing lands,
to charge higher fees for larger producers, and to strike the provision allowing seven
sheep or goats to be counted for billing purposes were defeated. However an
amendment to charge foreign grazers different fees was adopted. Section 106(a)(2)
provides that in the case of a grazing permit or lease held or controlled in whole or
in part by a foreign corporation or a foreign individual, the fee shall be the higher of
either the average grazing fee charged by the state in which the grazing lands lie for
grazing on state lands or the average grazing fee charged for grazing on private lands
in the relevant state. This calculation is almost certain to result in higher fees. It is
not clear how extensive foreign participation in federal grazing is and hence how
much grazing this provision would likely affect. The provision may violate the terms
of NAFTA and other trade agreements of the United States.16
15 36 C. F. R. § 222.52.
16 E.g., § 1102 of the North American Free Trade Agreement requires a party to the
agreement to treat foreign investors no less favorably than it treats its own investors with
respect the “establishment, acquisition, expansion, management, conduct, operation, and
sale or other disposition of investment.” Higher fees would appear to affect the management
and operation of grazing by a foreign individual or a corporation with foreign shareholders.
(continued...)

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Eliminated provisions
Several provisions were eliminated from H.R. 2493 before passage by the
House. Because these provisions addressed issues that might come up again as the
bill is considered in the Senate, some of them are discussed here.
Definitions. Past proposals for changing definitions related to grazing have
proven controversial, in part because some perceive the proposals as changing current
law or as making applicable to one agency’s grazing program, elements of the other
agency’s program that are viewed as objectionable.
Some definitions in H.R. 1493 proved controversial and were removed from the
bill before passage by the House, but may be reconsidered by the Senate.
“Allotment” had been defined as “an area of Federal land subject to an adjudicated
or apportioned grazing preference that is appurtenant to a commensurate base
property.” This definition raised several issues. It used language relevant to grazing
administered by the BLM under the Taylor Grazing Act and would have made that
language applicable to grazing administered by the FS. Depending on how the
courts ultimately decide issues addressing the nature of a grazing preference under
the TGA, an issue currently being litigated,17 because of the consistency requirement
in § 3, the proposed definition might have produced changes in the nature of FS
grazing. Absent the definition change, § 3 might otherwise necessitate some changes
in FS grazing to make that agency’s grazing consistent with that of BLM, to the
extent “consistent with the laws governing such lands.” However, new enacted
definitions would be new law applicable to both FS and BLM lands and therefore,
arguably more changes to FS administration could have been possible and possibly
mandated as consistent with the laws governing both agency’s lands. This result
could be desirable or not, depending on one’s point of view.
The definition of allotment eliminated before passage also would have stated
that the federal lands in an allotment would be “appurtenant to a commensurate base
property.” Base property is non-federal property that is used as the basis under the
TGA for determining that an applicant for a grazing permit may be entitled to a
preference for a grazing permit. The eliminated definition of “base property” also
would have referred to the federal allotment being “appurtenant” to private base
property. Some argued that using the term appurtenant would lend support to
assertions that a grazing permit is more than a mere privilege or license, but rather
being more in the nature of a right, thereby making adjustments in grazing permits
and active use more difficult to achieve and possibly resulting in compensation being
owed when the federal managers made such changes. The TGA states expressly that
16(...continued)
17 Public Lands Council v. Babbitt, 929 F. Supp. 1436 (D. Wyo. 1996). This case is
currently on appeal. The district court struck down the new BLM regulations that separated
“grazing preference” (a priority to receive a permit) from “permitted use” (actual AUMs
allowed on an allotment), finding that the Secretary failed to “adequately safeguard
adjudicated grazing preferences” and that the regulations lacked a reasoned basis in this
regard.

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issuance of a grazing permit “shall not create any right, title, interest, or estate in or
to the lands.”18 Black’s Law Dictionary (6th ed.) indicates that the terms
“appurtenance” and “appurtenant” connote a relationship of two things, one of which
is subservient to the other; one thing that is incident to the other, which is the
principal. However, the examples given in Black’s to illustrate the concept are
property interests (rights of way, easements, etc.) and this is the most common way
in which the terms are used. Even if the terms can be used in connection with things
that are not property interests, the fact that the terms usually are used in that context
could be seen as connoting a greater status for grazing privileges. Also, it would be
more correct to say that a grazing preference might be appurtenant to base property,
rather than federal lands themselves being appurtenant, since lands cannot be
appurtenant to other lands. In any event, these are terms currently used only in the
TGA; the new statutory language would also be applicable to FS grazing permits.
Another definition dropped during consideration was “consultation, cooperation,
and coordination,” that was defined as engaging in “good faith efforts to fully
communicate and provide for a mutually supported action to achieve a mutually
agreed purpose.” There was some concern that this language could potentially give
a veto power over federal decisions, especially in those situations where only grazing
permittees would be interacting with federal managers, as for example in §103,
which would have referred to terms and conditions of grazing permits arrived at “by
the authorized officer in consultation, cooperation, and coordination with the
permittee or lessee.”
The eliminated term “coordinated resource management” would have been
defined as voluntary management activities that involve consultation, cooperation,
and coordination of FS or BLM managers with “affected State or Federal agencies,
private land owners, and users of Federal lands.” The use of the phrase involving
“mutually agreed upon” actions and purposes appears quite appropriate when non-
federal lands and activities are involved, but the same objection to the potential for
a veto power with respect to users of the federal lands could be raised.
The eliminated term “cooperative management agreement” would have been
defined as an agreement between the Secretary and a permittee that would be
consistent with and incorporate by reference relevant provisions of existing land use
plans, but would allow flexibility “beyond the limits of an allotment management
plan or a grazing permit or lease.” See §105 of the bill as passed.
Resource Advisory Councils. The provisions in earlier versions of H.R. 2493
that related to the Resource Advisory Councils (RACs) were also removed from the
bill. RACs were established under the new Department of the Interior grazing
regulations applicable to BLM lands; including them in the bill would have made the
Councils applicable to FS lands as well. The RAC provisions in H.R. 2493 differed
from current regulations in several respects. Under H.R. 2493, as reported, a RAC
by a simple majority vote could seek Secretarial review of instances where it felt its
advice on a BLM decision was arbitrarily disregarded. The prospect of Secretarial
review could be daunting to range managers and other decision-makers facing the
18 43 U.S.C. § 315b.

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opposition of a relevant RAC on issues. Under current regulations, a RAC may only
seek Secretarial review upon the unanimous vote of its members.
In addition, before the RAC provisions were dropped, H.R. 2493 required
RACs to include “balanced and broad representation” of various interest groups
similar to those mentioned under current regulations, but with some differences. For
example, the reference to environmental participants was to representatives of “local”
environmental organizations, thereby arguably precluding representatives of national
environmental groups from participating on a RAC. (There also was a requirement
that RAC members be local residents.) Also, the members would not have been
grouped as they are under current regulations and the voting provisions of the bill
would have made the RACs function less as consensus bodies than is true under the
regulations. Current regulations stipulate that RAC membership be divided into
three general groupings: 1) grazing permittees and commercial user groups; 2)
environmental, recreational, archeological, and historical groups; and 3) tribal, state
or local elected officials, state natural resources managers, academicians, and the
affected public at large. Under each of the three models for RACs available under
the regulations, no actions may be taken by the RAC unless the majority of the
representatives of each of the three groups concurs. This structure protects the
viewpoint of each of the three categories of members. As originally written, in H.R.
2493, all voting would have been by simple majority vote, lessening the protection
for minority points of view. This difference in RAC decision-making could have
resulted in very different outcomes.
The bill as passed is silent on many issues that proved controversial in the 104th
Congress, such as: water rights, application of the National Environmental Policy Act
in the grazing context, appeals, access to federal lands across private lands, and
ownership of range improvements.

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