For your information, the thoughts of Idaho's own "Congressman" Helen Chenoweth on the Smith grazing handout
FORAGE IMPROVEMENT ACT OF 1997
ADDITIONAL VIEWS OF MRS. CHENOWETH
I appreciate all of Agriculture Committee Chairman Bob Smith's hard work on the grazing issue. I agree with Chairman Smith that the current federal management of grazing on public lands must be comprehensively overhauled. Although I voted yea to favorably report H.R. 2493 to the House Floor, I continue to have several concerns.
My concerns are twofold: (i) I have specific concerns about the language of the bill, including how it may impact private property rights; and (ii) I am concerned about the bill being further compromised on the House floor to where it will do more harm than good to the public lands cattle industry.
First, I am concerned that a number of the definitions found in Sec. 102 are susceptible to distortion and abuse. Specifically, `allotment' as defined by H.R.2493 is unclear. No doubt should be left that the allotment is the area provided for the grazing of livestock under a grazing preference right as acknowledged in PLC v. Babbitt (the so-called Brimmer Decision), currently on appeal to the Tenth Circuit of the U.S. Court of Appeals. In fact, the concept that an allotment is itself private property when it is used for the exercise of an adjudicated grazing preference will be tried in June, 1998 by the U.S. Court of Claims in Hage v. U.S. I am gravely concerned that the private property right about which these cases are argued could be negatively impacted by H.R. 2493. Until these legal questions are answered, I strongly recommend that H.R. 2493's definition of `allotment' be amended to ensure clarity.
Next, `base property' as defined in the bill could allow the Secretary, when transferring a preference right, to affix any private property (no matter how minimal) or even a state leased cabin site to a grazing preference right and the associated allotment. The Taylor Grazing Act already establishes the foundation for `base property,' and I am concerned H.R. 2493 unnecessarily expands Taylor. As written, the bill may allow the BLM to grant a preference to someone who does not even own private land or a water right. Stability of the western livestock industry is gained by maintaining attachment of grazing preference rights to property in or near an allotment within a grazing district.
Additionally, the definition of `consultation, cooperation and coordination' must be tightened or removed altogether. H.R. 2493 would amend the CCC's current definition found in 43 U.S.C. Sec. 1752(d), and does not contain the words `careful and considered.' As written, H.R. 2493 allows the Secretary to continue to allow interference from the `interested public' in nearly all grazing management decisions. At some point the courts will have an opportunity to evaluate the definition in current regulation for consistency with the intent of Congress in FLPMA. I do not believe that the standard accepted definition of CCC read in Sec. 1752(d) would support the current regulations, and they will be struck. But if H.R. 2493's CCC definition becomes statutory law, the opportunity to challenge the current regulation in court will be lost. Because of this, coupled with the fact that CCC is not mentioned in any other part of H.R. 2493, I would urge the removal of the CCC language.
Regarding Section 106(c) of H.R. 2493, the reference to Allotment Management Plans (AMP) should be changed to Cooperative Allotment Management Plans so that this section does not affect current Allotment Management Plans developed or being developed pursuant to Sec. 1752(d) of FLPMA when they are not intended to be a Cooperative AMP. As H.R. 2493 is written, it would require amendment of all existing AMPs and require that any new AMP (not just the Cooperative AMP) contain the performance standards contained in the subsection. I would recommend that the language be changed to prevent the agencies from revisiting existing AMPs.
Regarding Sec. 107 on grazing fees and charges, I believe that it is not in the best interest of the industry to have grazing fees dependent upon the price of money and a variable (cattle prices) that both react to supply and demand in exactly the opposite direction of the grazing forage market. The administrative fee for grazing use should be based on the private grazing forage market and determined through indexing a base fee with changes in that market. A fee should represent a fair return of administrative costs for the government. Establishing a base fee through an assessment of monthly production value for beef cattle as proposed in H.R. 2493 is a fair and equitable approach. A fee structure which maintains a fair and equitable balance between public land and private land grazers is essential. Adjusting the base fee in relation to changes in the private land grazing forage market will maintain fairness and equity. I do not agree with placing the determination of which animals qualify for the fee into statutory language. This is a matter best left to administrative determination, and Sec. 107 should be redrafted to reflect this.
In addition, I remain concerned about the specific language of the bill in Sec. 108, the Resource Advisory Councils (RAC). I do not see any redeeming value in codifying the RACs. As long as RAC's exist by regulation, they can be eliminated by regulation. By leaving them an administrative entity they can either be fixed or eliminated. I would recommend deleting Sec. 108 in its entirety.
Generally speaking, I am concerned about how the enactment of any grazing legislation will impact the Taylor Grazing Act. The ranchers who will be affected by H.R. 2493 claim a private property right in their grazing preference and forage right which is attached to the surface of the grazing lands in the western states. Their claim to such private property right stems, in part, from the possessory interest and right which their predecessors in interest acquired through settlement of the grazing lands decades ago. Such property rights were acquired through the common law as ranchers settled the arid western lands, laid claim to the water by prior appropriation, and grazed their livestock on the lands served by the water. Through the years, Congress has confirmed and validated such property rights to the surface estate of these lands on many occasions. The Taylor Grazing Act acknowledged the existence of such rights, provided that none of such rights should be diminished or impaired, and authorized the Secretary of Interior to begin an adjudicatory process by which existing grazing allotments would be surveyed. That process was the culmination of the identification of allotments within which ranchers can exercise their private property rights to grazing preference and forage rights.
The private property right in the allotment provides the base for United States District Judge Brimmer's decision in PLC v. Babbitt, and the base upon which the Court of Claims will decide the takings issue in Hage v. United States. Great care must be taken that no new legislation, no matter how good the motive, can provide a basis for the federal management agencies to assert that the Congress has undermined these private property interests and rights which are based upon common law, customary law, state law, and previous confirmatory and validation Acts of Congress.
Finally, in my state of Idaho, I have constituents who run their ranching operation on nearly 100 percent federally managed lands. Some are third, fourth and even fifth generation ranchers. Over the years they have been asked to compromise and compromise, and then compromise again, to where they've nearly been compromised right off the land, out of business and out of their family's livelihood. I will not stand idly by and let this happen.
Some have characterized my views on this issue as being in the extreme. It is not my intention to hold to an unrealistic or unreasonable position, which might then be described as extreme. I believe I am merely representing a portion of my constituency who believe they would be negatively affected by this legislation. Although this constituency may be in the minority, I believe it is sometimes the role of government to secure the rights and interests of the minority from the tyranny of the majority.
James Madison observed in 1787, `That as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority. * * * How is the danger in all cases of interested coalitions to oppress the minority to be guarded against?' Again, I will not stand idly by and let this happen.
There has grown a mistrust between ranchers, the managing federal agencies, and many extreme environmental groups who are dedicated to the eradication of cattle ranching on public lands. We have taken steps to educate and bridge the gap of misunderstanding. Indeed, I brought the House leadership to Idaho to examine many of these issues, including the fact that most ranchers are excellent caretakers of the range. But until the education is complete and people understand that the multiple-use management of public lands necessarily includes the livestock industry, it is my view that no meaningful or beneficial legislation can be enacted.
HELEN CHENOWETH