From the June 13, 2003 edition - http://www.billingsgazette.com/index.php?display=rednews/2003/06/13/build/wyoming/30-rancher.inc
By MIKE STARK
Gazette Wyoming Bureau
WORLAND, Wyo. -- A Thermopolis rancher with a history of violations and clashes with the Bureau of Land Management is being allowed to continue his operations on public land under a special agreement brokered with top government officials in Washington, D.C.
Since it began in the 1990s, the dispute between Frank Robbins and the Worland BLM has become a saga of escalating frustration on both sides, complaints and countercomplaints, lawsuits, appeals and now a unique settlement agreement.
The deal is highly unusual within the BLM and appears to depart from long-running requirements spelled out in federal law about who can receive grazing permits.
Robbins' record with the Worland BLM includes dozens of trespassing notices, cancellation of permits, charges of unauthorized use of public land, attempts to block BLM workers from monitoring the land, alleged violations of cease-and-desist orders and defiance of emergency closures to protect the environment during drought, according to BLM documents.
"Mr. Robbins has shown a complete disregard for the terms and conditions of the permits and of the authority of the BLM to manage public lands," Darrell Barnes, manager of the Worland BLM office, said in an internal memo to the BLM state director in March 2002. "The cumulative effects of unauthorized grazing is causing significant damage to public land resources on his permitted allotments."
Robbins, too, has leveled serious complaints against the BLM and appealed many of the violation notices issued against him.
He has said the BLM has harassed him for years, impeding his business, creating unnecessary confrontations and acting in bad faith, and even filed criminal charges against him for allegedly interfering with the work of federal officers -- charges that were quickly rejected by a jury after a three-day trial.
Robbins and other ranchers have protested outside the Worland BLM offices for what they say is unfair treatment over the years.
Robbins has also said the BLM conspired and retaliated against him in a dispute over an easement.
A trial has been set for December for charges against eight current and former BLM workers for constitutional interference and violations of the federal Racketeering Influence and Corrupt Organization Act.
In an August 2000 letter to the BLM about ongoing problems with the agency, Robbins said the BLM has acted "through intimidation, harassment and confrontation."
Robbins couldn't be reached for comment. His attorney, Karen Budd-Falen, said strained relations and personality conflicts may have fanned the flames of the dispute between Robbins and the BLM.
"The relationship was very contentious," she said.
Robbins bought the High Island Ranch in May 1994 and obtained a grazing permit later that year. In 1998, he bought the HD Ranch and obtained a grazing permit the next year. He bought land at Owl Creek in 2000.
Over the years, BLM officials fielded calls from neighbors that Robbins was running his cows on certain land without authorization, according to internal documents.
From 1996 to 2001, BLM officials issued eight "nonwillful" trespass violations, four willful trespass violations and 13 "repeated willful" trespass violations involving about 151 animal unit months, according to government documents.
In 2000, BLM refused Robbins' request for a grazing permit at Owl Creek "based on Mr. Robbins' extensive, and continuing, unsatisfactory performance record," Barnes wrote in his memo.
As the Wyoming drought set in 2000 and 2001, Worland officials asked local ranchers to curtail or change their grazing patterns to lessen damage on vulnerable, water-starved land.
Most complied but, according to the BLM, Robbins essentially ignored their requests.
"His conduct was so lacking in reasonableness or responsibility that it became reckless or negligent and placed significant undue stress/damage on the public land resources," Barnes wrote in his memo.
Because of alleged violations, Worland officials canceled Robbins' High Island and HD grazing permits.
Robbins appealed those violations and the Interior Board of Land Appeals (IBLA), which stayed those cancellations until a judge could review the case.
As the legal battles between Robbins and the BLM mounted, government officials grew increasingly concerned about the money and staff time that the conflict with Robbins was costing.
Meanwhile, Robbins went to Washington, D.C., last year to meet with top Interior Department officials about the ongoing problems.
BLM officials agreed to look for another solution that would allow Robbins to continue working on public land and help stem the legal battles.
"We could've continued down that path with lawsuits and counterlawsuits, but we saw a glimmer of hope of maybe doing something better," said Fran Cherry, deputy director of the BLM in Washington, D.C. "This was an attempt to break new ground and get to a settlement."
By most accounts, the agreement is unique in the country.
"We've had similar agreements off and on around the West, but none of the size and magnitude of this one," said Cherry, who signed the agreement on behalf of BLM.
While government officials and Robbins negotiated the agreement last year, Worland BLM staff members continued to document problems with Robbins' operations, including grazing on public land without permission, according to BLM records.
Higher-ups at BLM told Worland employees not to pursue violations against Robbins while the agreement was being worked out.
By late last year, the 16-page agreement had taken shape.
Among the elements:
- Ten trespass violations and six other cases brought against Robbins by the BLM are put on hold.
- Robbins agrees to put on hold charges against BLM that the agency violated the Freedom of Information Act.
- Robbins is allowed to continue grazing under the High Island and HD permits, and the BLM agrees to conditionally transfer the Owl Creek grazing permit to Robbins.
- Robbins will have two years to show that he is a capable steward of the public land. If there are no major problems, Robbins will be allowed to apply for a longer-term grazing permit at Owl Creek. Also, if all goes well, several past cases brought against Robbins by the BLM will be dropped.
- The BLM will continue to have access to Robbins' allotments, a point clarified in a previous IBLA decision, but employees must now work more closely with Robbins in monitoring the land.
- BLM and Robbins agree to use an "informal dispute resolution" process to discuss problems before they escalate into formal action.
The agreement was signed by both parties in December and January.
Although Cherry insists that federal lawyers say the agreement passes legal muster, government insiders clearly have had some misgivings.
One internal memo spends eight pages documenting several points on which the agreement seems to violate federal law, significantly altering the Taylor Grazing Act, the Federal Land Policy and Management Act, the Federal Advisory Committee Act and the Code of Federal Regulations.
Among the concerns are that the BLM is extending grazing permits to Robbins despite his record of violations.
"One of the mandatory requirements is that all applicants and any affiliate of the applicants have a satisfactory performance record. The foregoing is not discretionary," the memo says.
Alan Kesterke, assistant director for the BLM in Wyoming, acknowledged that Robbins probably would not have been qualified to hold those permits if not for the settlement agreement.
"Clearly up to that point, the position of the bureau was that there was not a satisfactory performance record," he said. "But to get away from the courts, we were going to have to try something different."
Behind the scenes, officials were also worried about the BLM granting a right of way for Robbins without asking for a "reciprocal" across Robbins' property, a provision that gives Robbins more flexibility in his operations if he controls more than 50 percent of a pasture, and, in general, applies federal laws inconsistently.
Once the agreement was completed, it was passed on to BLM officials in the state office and in Worland to carry it out.
Right from the start, there was disagreement about the agreement.
The deal said the BLM would move the Owl Creek permit to Robbins only after he submitted an "appropriate and acceptable" grazing plan. Robbins, through his attorney, sent a note to the Worland BLM saying he planned to use the permit "under substantially the same terms and conditions as the previous owner." The note also specified how many animal unit months would be used on different allotments.
Local BLM officials said they didn't believe that the memo constituted a grazing plan but BLM officials beyond Worland told the local office to issue the permit anyway. It was transferred to Robbins in February.
State and Worland BLM employees, who did not participate in drawing up the settlement, said they would try to implement it.
"We were handed the agreement and told to implement it ,and we are committed to implementing the agreement," said David Wallace, supervisory rangeland management specialist in Worland.
Kesterke said BLM is trying in good faith to carry it out and is "cautiously optimistic" that it will smooth troubled waters.
"Mr. Robbins has indicated a willingness to work closely with us on this," Kesterke said.
But internal notes of a meeting between BLM and Robbins in March shows that Kesterke is a little more uneasy.
"Alan started by saying that the settlement agreement specified things that no one in the Bureau has ever seen before," the notes say. "Alan stated that he was uncomfortable with several of the issues and how they are dealt with."
As for Robbins, he still contests the allegations made against him over the years by the Worland BLM.
Budd-Falen, his attorney, said the settlement would help clarify whether the edgy relationship between Robbins and BLM stems from personality conflicts.
"I believe there were personality problems, that's apparent in terms of the number of trespasses," she said. "That's no judgment on whether that colored BLM in their decisions, but in reality, everyone is affected by personality. ... Now, we've removed some of the contentiousness, and it seems to have gotten better."
Robbins is dedicated to carrying out the terms of the agreement and plans to show the BLM that he is a good steward of the land, she said.
"He is working at making the settlement agreement work," she said.
The agreement, however, does not including putting on hold the RICO charges against eight BLM workers. A trial date is set for Dec. 8.
But even if the settlement agreement works on the ground, there are lingering questions about what it could mean in the future.
Kesterke and Cherry said the settlement with Robbins doesn't mean that similar agreements will be forged with other ranchers.
"This could be perceived as a precedent, but my hope is that people recognize this is one set of issues, one rancher, where we're trying to resolve a very significant problem for us," Kesterke said. "Our goal is not to set a precedent."
No doubt the settlement will be watched closely by the BLM and others involved with ranching issues.
Other government officials have taken an interest, including the federal Office of Inspector General, which, among other things, keeps an eye on other agencies to make sure they're following the law.
"The Inspector General has been involved in an investigation on this settlement for quite a few months now," the office's Jack Romer said.
He declined to give further details.
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