Wyoming attorney addresses Stockgrowers in Billings on legal challenge to BLM’s grazing decision
BRETT FRENCH Billings Gazette
BILLINGS — Montana’s ranchers are at the “spearhead” of what has the potential to become an issue of national concern, attorney Karen Budd-Falen told the Montana Stockgrowers Association on Friday.
Budd-Falen is representing the group, along with the North and South Phillips County Cooperative State Grazing Districts, in an appeal against a Bureau of Land Management decision to allow American Prairie to graze bison on 63,500 acres of public land in north-central Montana. The governor of Montana and the attorney general have also appealed the verdict.
“I have to tell you, I think this is a really, really important case for the livestock industry,” she said during a presentation at the group’s annual meeting at Billings’ Northern Hotel. “In my opinion, this is not just a small fight because the Maltese field office, BLM, has not done things right. I think the precedent we’ve set here about who has to follow the rules and who doesn’t – and you can’t write two separate rule books for two classes of people – will have a wide impact on BLM West grazing permits.
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In October, an administrative judge of the Ministry of the Interior rejected the complainant’s request for a stay of the BLM’s decision. Briefs appealing the judge’s ruling are due December 23, when the BLM has until January 23, 2023 to respond.
Budd-Falen said the legal issues surrounding the decision centered on the BLM’s application of the Taylor Grazing Act. The law was passed by Congress in 1934 so the federal government could regulate grazing on state lands to avoid poor agricultural practices that led to frequent soil degradation during the Dust Bowl.
According to Budd-Falen, the act was a promise to local ranchers. To qualify for grazing, ranchers had to meet three criteria, she said. One of them was that they had to use it for livestock. Second, they had to support community stability. Third, if not using federal land, ranchers needed to have proper property or water rights to maintain their livestock.
A review of the Taylor Grazing Act does not reveal such criteria, save for a basic trait requirement. The BLM Grazing Manual refers to similar terms and concepts but as regulatory targets that have discretionary powers and are intended to guide a decision by the agency.
American Prairie funded its own research with two former Interior Department attorneys. (The BLM falls under the umbrella of the DOI.) Among other things, the attorneys said that the coalition fighting American Prairie seeks to “undermine[American Prairie’s]grazing privileges recognized by the[Taylor Grazing Act].”
Studies show common traits between bison and cattle
Budd-Falen also argued that the BLM’s decision could lead to unforeseen consequences.
“Honestly, I’m very concerned that if (American Prairie) gets away with grazing a non-production herd … so (American Prairie) is labeling it non-production wildlife grazing … I want a plot to graze on, but I do.” going to use them for moose or deer or other wildlife species. And that was not the intent of the Taylor Grazing Act.”
The Montana Department of Fish, Wildlife & Parks is the only entity in the state charged with wildlife management. Domesticated wildlife such as moose farms have been banned because of disease risks. One of the biggest problems the agency is now facing is private landowners harboring wildlife such as large herds of moose migrating to the adjacent landowner and causing damage.
BLM specifically classifies the American prairie bison as “native native livestock,” not a wild animal.
Budd-Falen said the BLM also failed to conduct an assessment of the impact of bison grazing on federal land on recreation seekers. However, the agency’s environmental review found that “recreational opportunities were not raised as an issue during the public or internal scoping process”.
Although the BLM analyzed the economic impact of switching from cattle to bison on the region, Budd-Falen claims the agency’s analysis was flawed.
“And what[American Prairie]is saying is basically they’re going to be recreational and you can drive out there and camp in those certain areas and enjoy the native wildlife,” she said. “And how much money do you think people who probably already have fancy tents and fancy vehicles are going to spend in Malta, Montana? Or one of those other teeny communities? You can’t make that comparison.”
Montana’s nonresident tourism spending was estimated at $7.56 billion in 2021. A recent economic analysis estimates that improving access along the lower Yellowstone River has the potential to generate $5.3 million in local spending and create 50 new jobs. In 2021, Montana State University’s Department of Agricultural Economics calculated the market value of agricultural products sold at $3.5 billion.
Budd-Falen, who poses as a fifth-generation rancher in Big Piney, Wyoming, has been involved in other cases challenging the BLM. In a case that went to the U.S. Supreme Court, Budd-Falen “prosecuted individual BLM employees under an anti-extortion statute typically used against organized crime syndicates,” the Wyoming Tribune Eagle reported in 2017 .
During the Trump administration, Budd-Falen served two years under David Bernhardt, the Secretary of the Interior, as assistant wildlife and parks attorney, working on issues such as the Endangered Species Act.
During her tenure in Washington, D.C., Budd-Falen said she was disappointed with the career staff’s knowledge of ranching, agriculture and the West.
“That has to be part of the problem,” she said.
Jocelyn Leroux, director of Montana’s conservation group Western Watersheds, said the involvement of budd-falen in the BLM’s grazing decision in Phillips County is of concern.
“The fight over American Prairie’s bison grazing on BLM allotments in Phillips County serves to raise unrealistic concerns about the impact bison may have,” she said in an email. “Such outspoken and controversial counsel, coupled with the involvement of similarly extreme and anti-environmental leadership from AG Knudsen and Governor Gianforte, makes this an unnecessarily high-profile issue.”
Western Watersheds and its Wyoming director were sued for trespassing by Budd-Falen in 2014 when she was representing 15 landowners.
Ethridge rancher Butch Gillespie told the gathering he was glad Budd-Falen was representing the stock growers. He said American Prairie was doing a good job selling “the sizzle” but lacked substance.
“They tell you how romantic this is going to be, how neat it is and there’s all this free free space … and they also tell you, oh, it’s great for the environment, trust me, but they never provide any evidence that it is.” will be true and actually it is quite the opposite as we all know. The same applies to our churches. The economic impact on our counties and small towns will be terrible.”
A 2017 study by the University of Montana Institute for Tourism & Recreation Research found that when fully expanded, American Prairie would increase spending in northeast Montana by up to 67% and add $56 million in additional economic output and nearly 700 additional jobs could provide.
Regarding the environment, American Prairie has an entire page devoted to the research and reports conducted on its land, as well as similar prairie meadows.
The stock growers ended the presentation with a reminder that legal challenges are expensive and encouraged members to donate to help with the fees.