Nevada DEPARTMENT of Wildlife



February 5, 2004


General:  A both extensive and intensive agency and public effort was recently, relative to Bureau of Land Management (BLM) resource planning timeframes, completed and culminated in finalizing grazing regulations in 1995.  Progress in implementation of these regulations relative to evaluations and determinations of meeting rangeland standards are slow to be accomplished.  Western rangelands, in many areas, continue to decline in condition as a result of improper grazing strategies, drought without appropriate management changes for harsh conditions, livestock distribution problems, livestock trespass, excessive wild horse numbers, and loss of significant habitats to wildfire and associated exotic annual weed invasions and domination of these rangelands.   All of these factors are contributing to more and more petitions for federal Endangered Species Act listings and ultimately to more restricted and costly management of federal lands.  The BLM would be more responsible and the public better served if BLM were to use resources available to them for on-the-ground management addressing these resource problems rather than initiating more national and programmatic level planning processes, especially in light of the recently completed effort that has not yet been fully implemented.  The purpose and need are not at all clear.


Specific:  Federal Register/Vol. 68, No. 235, page 68,453, sixth paragraph states:  “The proposed amendments of the grazing regulations were developed using three primary concepts: (1) Improving cooperation with all interested persons, especially with directly affected permittees and landowners:”


Comment: The proposed regulations diminish the levels of cooperation, communication and consultation (CCC’s) with interested publics and emphasize the coordination, communication and consultation with a single commercial user of public resources.  This will not result in increases in cooperation with interested publics as stated.  Any newly proposed regulation should include a balanced approach to the requirements of CCC’s and no emphasis should be placed on a single user group.  There should be an emphasis and a reiteration of the requirements under existing legislation in order to provide clear direction of congressional intent relative to the cooperative involvement of publics, user’s and other agencies in management of resources on public lands.  Examples important to this agency and focusing on wildlife issues and the relationships to the state wildlife agencies include mandates found in the following legislation: Federal Land Policy and Management act of 1976; Fish and Wildlife Coordination Act of 1934, as amended in 1946, 1958, 1965 and 1995; Migratory Bird Treaty Act of 1929, as amended; Public Rangelands Improvement Act of 1978; Sikes Act of 1960, as amended; and the Taylor Grazing Act of 1934, as amended.  All of these laws, and others, include declarations of the importance of wildlife and wildlife habitats and provide direction for the coordination and consultation with the state wildlife management agency.  The proposed regulation changes should strongly reflect these directions.


Federal Register/Vol. 68, No. 235, page 68453, sixth paragraph also states:  “(2) Promoting practical mechanisms for assessing change in rangelands and protecting rangelands by increasing monitoring activities;”


Comment:  Increasing monitoring activities leads one to believe that additional resources would be available to actually do this.  The Nevada Department of Wildlife (NDOW) supports any additional monitoring that could be accomplished in support of meeting rangeland health standards, specific habitat objectives, and supporting proper grazing decisions.  However, it has become increasingly clear that the BLM resources to increase this activity are not there, as a matter of fact the resources available for activities of rangeland monitoring, livestock use compliance, and standards assessment have diminished and there is no expectation in the near future for increases in funds or staff that would be required.  The existing regulations provide the flexibility to utilize available data, field observations, ecological site inventory, monitoring, or other data acceptable to the authorized officer.  This has led to the development of scientifically credible assessment tools for making these determinations.  The proposed regulations reduce the flexibility of the local authorized officer and staff, including management partners, and adds requirements beyond the agencies proven capability, thus leading to delays in needed adjustments in grazing use, potential additional litigation, and the inability of the BLM to respond to rangeland conditions that are adding to the rationale used by many in justifications for federal listing of species under the ESA.


Two of the three concepts, as discussed above, presented as the basis for proposed rule changes seem inconsistent with the specific proposals being made.     


4100.0-5 Definitions:  The change of definition of interested public provides a stricter requirement for being recognized as an interested public.  This contradicts the principle concept presented under the background section of this proposed rule where it was identified that there would be “improving cooperation with all interested persons….”.  NDOW recommends not changing the existing definition.


4110.3 (c) Changes in grazing preference:  The documentation of relevant social, economic and cultural effects should emphasize the need for this analysis to be comprehensive in nature.  The public lands provide for a multitude of uses each having their own impacts on the other.  Congress has found and stated in several federal laws that fish and wildlife are of ecological, educational, aesthetic, cultural, recreational, economic and scientific value to the nation.  An example of the information that NDOW expects to be included in any social, cultural, and/or economic considerations are: in Department of Interior, US Fish and Wildlife Service, 2001, National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, total expenditures in the state of Nevada for fishing, hunting and wildlife watching activities equaled $681,000,000.  The proposed wording should include emphasis on a comprehensive consideration of the cultural, social and economic values of natural resources on public lands.


4110.3-1 Increasing active use:  All instances of increasing active use, both temporary and sustained increases, demand the consultation and coordination with the state wildlife management agency.  As the primary manager of the wildlife resources within the state including the federally administered lands, there exists strong and mandated relationship between state wildlife agencies and the federal land management agencies.  The utilization of components of the habitat (forage, cover, water and space and their juxtaposition) supporting wildlife species is critical to the management of these species.  Populations of wildlife species cannot be effectively managed without the coordination of these uses. The NDOW strongly recommends this consultation and coordination requirement be added to the language of this section.


4110.3-3 Implementing changes in active use:  NDOW strongly recommends the term “interested persons” be added to the list of those requiring consultation, communication and coordination.  There are many publics interested in resource management on public lands and particularly in wildlife related activities.  Many of these interested persons (many of them are state wildlife management agency’s constituents) have vast knowledge of field situations affecting their interests and their inputs on site-specific changes should not be diminished by these proposed rules.


The direction for the authorized officer to implement changes of greater than 10% in livestock active use over a 5-year period is inconsistent with the stated objectives “to accelerate restoration and improvement of public rangelands to properly functioning conditions”.  Under the present regulations consultation, communication and coordination are required as well as the assessment and evaluation of available monitoring data, field observations, ecological site inventory or other data acceptable to the authorized officer.  In Nevada, this process is completed on a priority allotment basis and takes a year or two to complete depending upon the complexities of the resource issues within the area being evaluated.  With this intensive process of evaluating the information available and the consultation, coordination and communication taking place during this process the need to delay or phase in adjustments is not justified and will not meet the objectives as described above.  The imperiled ecosystems of the Great Basin, (BLM, 1999, Out of Ashes and BLM, 2000, Healing the Land) and the fragile Southwest deserts cannot tolerate this extended time frame for implementation of changes specifically identified and documented through this process as needed.  Impacts of these delays in these ecological areas will only lead to additional justifications for continued petitions for federally listing species under the ESA, continued degradation of rangelands and ultimately severe impacts on consumptive users of these regions.


4110.3-3 (a) (2):  “Decisions implementing 4110.3-2 will be issued as proposed decisions…” There seems to be a discrepancy between increasing active use and decreasing active use.  This requirement or proposed rule should include both 4110.3-1 and 4110.3-2.


4120.3-2 Cooperative range improvement agreements:  Sharing title to rangeland improvements creates a potential takings issue if and when modification or abandonment of the project may be necessary for meeting multiple use objectives or rangeland health standards.  It must be recognized that these are public lands and there are a multitude of values requiring management and the flexibility for changes in management direction without impunity.  Section 315b of the Taylor Grazing Act states: “Grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands.”  The sharing of title to rangeland projects constructed on the land by their nature become an encumbrance to the land and as such could be construed as an interest affecting the land.  This would be contrary to the intent of the Taylor Grazing Act.  The existing regulation provide for the recognition of financial interest by the permittee in any facility developed on public land based on their contribution.  Changes in the existing rule may also bring up the issue of providing title to other rangeland improvement projects designed specifically to benefit wildlife to those who have invested in these projects, e.g. states and private organizations.  NDOW strongly recommends no changes to the existing regulations on this issue.


4120-.5-2 Cooperation with state, county, and federal agencies:  The formation of Resource Advisory Councils (RAC) was designed to provide for a balanced formulation of resource management advice to BLM officials.  The roles and responsibilities of the RAC do not preclude any interested persons from inputs into planning and NEPA documents, including planning rangeland improvements and activity level plans.  The RAC has a well-defined role and includes representation consistent with the interests of the groups identified in this proposed rule.  Existing policy and law provides for the CCC with these groups as well as others.  This proposed rule is duplicative and as such is not needed.  The addition of this language also would lead one to believe that there was an emphasis on these groups over and above other interests and groups.  This would seem inconsistent with the intent of several multiple resource laws and regulation guiding management of public lands.  NDOW recommends that the additional proposed paragraph not be carried forward in these rules.


4130.3-2 Terms and Conditions:  The removal of paragraph (h) could in some instances hamper the BLM in their ability to manage to meet specific resource objectives.  The requirement for reasonable access should be retained in any rule changes.


4130.3-3 Modification of permits or leases:  NDOW strongly recommends interested persons be added back to this rule as being required for CCC.


4130.3 (2)(b) and 4160.1:  By regulation, 50 CFR 402.12(b), biological assessments are only required for “major construction activities”.  50 CFR 402.10 through 402.14 clearly and explicitly describe the conference and consultation requirements and procedures for federal agency actions.  There would be no need to duplicate these regulations.  The proposed regulation changes add to the confusion and misunderstandings of the requirements and procedures of Section 7 of the Endangered Species Act (ESA).  This obvious misunderstanding and confusion has resulted in cases of misapplication of these processes and in all probability led to costly litigation and legal decisions that have added to the complexity and work load associated with the implementation of scientifically sound, effective and appropriate grazing decisions and implementation of rangeland management actions.  The term “biological evaluation” is not found in either the ESA or the CFR dealing with implementation of ESA.  The only regulatory requirement of the federal agency to initiate Section 7 consultations when the action is other than a “major construction” are to provide a description of the proposed action; a description of the affected area; a description of the listed species and/or critical habitat that may be affected by the proposed action; and the anticipated effects, including cumulative effects of the project.  These are described in 50 CFR 402.14(c) 1 through 6.  As the items required for Section 7 consultation initiation are the same specific items found in any associated National Environmental Policy Act (NEPA) compliance document, e.g. an Environmental Assessment etc., which require public involvement including any affected user, the NEPA document describing the proposed action and the impacts should be all that would be required to initiate the Section 7 process.  When Section 7 is initiated through a NEPA compliant document, then the proposed decision has been developed with public inputs fulfilling the requirements for CCC and with thorough analysis using the best available data, information and science consistent with existing regulations.


There are existing regulations that clearly and concisely describe these processes and therefore is no need for overlapping and duplicative federal regulations or any changes in the existing regulations relative to this issue.  More appropriately, it would seem valuable for agency direction emphasizing the above-cited regulations and their requirements in order to attain consistent application within your Bureau instead of confusing the issue with a perpetuation of the misinterpretations of requirements suggested within these proposed rules.


4130.4 Authorization of temporary changes in grazing use within the terms and conditions of permits and leases:  Numbers of livestock and seasons of use are often developed and implemented with regard to other resource objectives within an area.  These objectives often relate to wildlife and wildlife habitat objectives established for the area.  Changes, of active use relative to seasons and numbers called for in these proposed rules should require at a minimum CCC with the state wildlife management agency having wildlife management responsibilities on the public lands.


4140.1 Acts prohibited on public land:  NDOW sees no rationale why there should be a lack of accountability and responsibility for compliance with state, federal, or local level resource related laws as identified in the existing regulations of those reaping financial benefit from our public lands.  To limit the accountability and/or culpability of a permittee or lessee who has performed prohibited acts as described in (c)(1) and (c)(2) to only those acts performed on the allotment for which he is authorized to graze and which are performed while engaged in activities related to grazing use authorized by his permit or lease seems inconsistent with the stated intent to develop strong partnerships with good stewards of the land in development of simple and practicable ways to attain our shared purpose of sustaining open space, habitat and watershed values.  It is strongly recommended any changes relative to the proposed language in 4140.1 (c)(1) and (c)(1)(i) include prohibited acts performed on public lands and not limit the area or criteria for when these acts are performed as proposed.


4180.1 Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration:  As described in our comments above in 4110.3-3, we cannot support delaying or phasing in the implementation of decisions where determinations have been made and are based on existing information that the change is needed.