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U.S. Forest Service officials are slated to spend two days behind closed doors this week, in settlement discussions with anti-grazing activists. Other parties to the lawsuit over the reauthorization of grazing permits, including the grazing permittees whose allotments are at issue, have been denied the right to participate in the talks, according to three sources affiliated with the case.

The multi-state lawsuit was filed in federal court in Idaho by anti-grazing activists Western Watersheds Project, Center for Biological Diversity, Utah Environmental Congress, and Grand Canyon Trust. These groups challenge the Forest Service use of "categorical exclusions" (CEs) to reauthorize grazing permits instead of going through a much more detailed and time consuming
environmental analysis process for each permit (through creation of either Environmental Assessments or Environmental Impact Statements). The use of CEs has been authorized by Congress, but these groups allege that the Forest Service is using CEs improperly, and that extensive analysis should be done on grazing permits since livestock grazing "causes so many adverse environmental impacts." It’s worth noting that several of these groups have declared their intention to rid public lands of livestock, and use the environmental planning process and litigation in attempt to drive permittees from public lands.

Intervening in this case are Wyoming Stock Growers Association, Wyoming Wool Growers Association, Public Lands Council, Peter R. Arambel, Wyoming County Commissioners Association, and the State of Wyoming.

This case challenges the use of CEs to authorize grazing on national forests in Wyoming, Idaho, and Utah. A CE may be used by the agency to authorize grazing only under certain conditions, including:
(1) the decision continues current grazing management of the allotment; (2) monitoring indicates that current grazing management is meeting, or satisfactorily moving toward, objectives in the land and resource management
plan, as determined by the Secretary; and
(3) the decision is consistent with agency policy concerning extraordinary circumstances.
If these three conditions are met, the decision to allow grazing upon an allotment can be excluded from full review under the National Environmental Policy Act.

When the court had a look at how CEs had been used in this administrative region of the Forest Service, it examined 43 allotments in four national forests, finding: "The great majority of the analyses done, and decisions made, by the Forest Service in connection with the Categorical Exclusion decisions at issue in this case, withstand judicial scrutiny. However, there are some issues raised by the decisions from each Forest that call into question the propriety of using the categorical exclusion for these grazing permit decisions."

For the 14-allotment Southern Wind River Allotment Complex along the western front of the Wind Rivers in the Bridger-Teton National Forest, the court found that the Forest Service range report on the conditions of the allotments was lacking in several ways. This is significant because the range report was relied upon for issuing the CE for continued livestock grazing. The court noted that although the relevant data to support the agency’s findings may exist, the range report used to justify the CE decision was lacking in its explanation and analysis. The court noted: "Forest Service must support its conclusions with reliable studies and data and adequately explain why the underlying evidence is reliable."

The agency’s attempt to provide such an explanation and analysis in court proceedings was rejected by the court, which must base its decision on the existing administrative record already before it, not by additional records generated in response to issues that arise while in court.

Because of the complexity and scale of the issues before the court, a federal Magistrate Judge conducted a detailed review of the record before the court, and in a February 2013 report to the court, issued recommendations to the federal judge overseeing the case. U.S. Magistrate Judge Ronald E. Bush concluded:
"The Court recommends that the Forest Service be ordered to make its decision as to whether to initiate a NEPA compliance process, or issue a new CE decision, pertaining to each of the allotments at issue in this case, according to the following timetable.
The Forest Service shall take one of the following actions:
(1) the Forest Service withdraws its CE decision, sets the earliest possible time-
frame for complying with NEPA as part of its ultimate decision as to whether
grazing should be authorized, and completes the NEPA process by July 31,
2013, to be followed by a new decision on the grazing permit no later than
September 30, 2013; or
(2) by July 31, 2013, the Forest Service issues a new CE decision, to include specific and appropriate response to the areas of the prior CE decision found to have fallen short of the 2005 Rider requirements. In the intervening time period, the current status quo shall be maintained – that is, grazing can continue under the terms of the currently existing permit."

That’s where the case remained until the environmental groups and Forest Service scheduled a two-day settlement conference for this week. The other parties to the case – the livestock associations, permittees, and state and county officials – were not invited to the settlement conference. When they objected to being excluded, the environmental groups agreed that they could attend the settlement conference, but would not be allowed to speak or materially participate. Yet the Forest Service agreed to participate, knowing that the other parties had been excluded.

Only when the settlement conference ends on Thursday afternoon will the public learn whether the federal agencies caved to anti-grazing concerns, or held its own, with the court report behind it, to uphold the use of Congressionally authorized Categorical Exclusions in place.

BACKGROUND:
The History of CEs
Most grazing permits on Forest Service lands are issued for ten years. In 1995, due to a large number of expiring permits and concerns over the time and effort needed for renewal reviews, Congress enacted a series of legislative directives requiring the Forest Service to "establish and adhere to a schedule for the completion of National Environmental Policy Act analysis and decisions on all allotments within the National Forest System unit for which NEPA analysis is needed."

Among other things, Congress sought to protect ongoing grazing permittees by requiring that any grazing permit which would otherwise expire before completion of its NEPA analysis pursuant to the Rescissions Act schedule, to be reissued "on the same terms and conditions" as the expired permit, pending NEPA compliance.

Congress further strengthened the protections for ongoing livestock grazing with the 2003 Omnibus Appropriations Act. This Act provided that term grazing permits issued prior to or during fiscal year 2003"shall continue in effect until such time as the Secretary of the Interior or the Secretary of Agriculture completes processing of [the renewed] permit . . . in compliance with all applicable laws and regulations . . ."

Finally, in 2005, an appropriations rider was passed that entirely exempted grazing permit renewals from NEPA requirements under certain conditions. This created what has become known as the 2005 Categorical Exclusion, and under its language, all grazing authorization decisions made during the fiscal years 2005 through 2007 were given the benefit of a NEPA categorical exclusion if three benchmarks were satisfied.