Court denies request for a stay through appeals process

Cokeville — In early May the 10th Circuit Court of Appeals in Denver, Colo. ruled that permittees grazing the Smithsfork Allotment northeast of Cokeville have no right to an administrative appeals process before Bureau of Land Management (BLM) implements management changes on their grazing allotment.
    That decision applies not only to members of the Smithsfork Grazing Association, but to the rights of all grazing permittees utilizing BLM land.  
    “The court basically said that, as a matter of law, grazing permittees are not entitled to an automatic stay in a BLM decision,” says the ranchers’ attorney Brandon Jensen, a senior associate with Budd-Falen Law Offices, LLC in Cheyenne.
    He says the decision required an analysis of several statutes and cases, and the court ultimately concluded the law does not provide a stay on the implementation of changes during an administrative appeal.  
    Jensen says this policy is difficult for the operators. “They’ve had to live with a decision implemented against them despite the fact they appealed through the administrative appeals process. They have to live with it, despite the fact they disagree with it and they think they have valid arguments against it.”
    “They shouldn’t have to live with a decision until the BLM has proved a case against them, but instead it’s the reverse. They have to live with it until they prove their case against the BLM,” adds Jensen.
    Cokeville-area rancher Fred Roberts says the issue began in 1995 when a Coordinated Resource Management program was formed in the area. “There were changes needed on the allotment, and there was a lot of money spent on both sides. Now the allotment’s in a lot better shape, which is documented by rangeland monitoring every year.”
    Roberts says winning the court case would have put ranchers in a better position to negotiate what they’re trying to do in the Smithsfork area.
    “Three years ago the BLM and the Smithsfork Grazing Association came to an agreement on the allotment’s rotation,” says Roberts, who leads the grazing association.
    Because of the geography of the allotment, it’s been broken into four pastures. In two of every four years, Roberts says the official rotation is virtually impossible because it moves cattle diagonally instead of circular around the pastures.
    “I think the BLM recognizes that,” notes Roberts. “The problem was when we came to an agreement, which wasn’t perfect for either side, and then Western Watersheds intervened in our agreement and stopped it.”
    “That has been the real problem,” says Roberts. “After years of working together we came to an agreement, then Western Watersheds intervened and stopped it, so we proceeded with the court case, hoping to better our position, as far as how we could renegotiate with the BLM regarding the rotation.”
    Jensen says the group first appealed the decision in April 2005. “Here it is May 2009, and we still have the appeal pending, hoping to get an administrative hearing.”
    He says currently the operators are in a “no man’s land” as far as their options are concerned. The only place to go from the circuit court is the Supreme Court.
    Roberts says the permittees won’t pursue the issue any farther. “We figured if we could prevail here, that would be our best chance.”
    “We consider it unfair that the permittees have to live with a decision while they’re appealing it,” says Jensen. “Sometimes it can take two to five years to get an administrative hearing.”
    “When a decision is issued by the BLM it goes into full force until you take it to court and sort it out,” says Roberts.
    “If we’d have been successful, it really would have changed how BLM lands are managed,” notes Jensen.
    For now, Roberts says he and his neighbors have to use the nearly unworkable rotation system that’s been put in place, unless the BLM is willing to go back and sign another agreement as they had before Western Watersheds stepped in.
    Although there’s public land in the allotment, Roberts says there’s virtually no public access so the area landowners have posted the boundaries, limiting who can travel through. “We have permission forms, and we let anybody come and go exactly as they have in the past for hunting, fishing and gathering firewood, except Watersheds is no longer welcome,” he says.
    “We’re going to have to figure out with the BLM how we can get back to the agreement we signed,” says Roberts. “We thought we had a system that was doable for both sides, then Watersheds intervened so we’re looking at another way to get there. We’d hoped with the court case would make our position stronger in renegotiating the allotment.”
    Despite the legal drama, Roberts says the permittees will strive to keep improving and to meet their goals for the land, along with the BLM. “We’ve gotten to the point that we both seem to have the same goals,” he comments. “In the years the rotation doesn’t make sense, then it’s a real struggle to meet the goals for that year.”
    “I can’t say I didn’t anticipate the outcome,” says Roberts of the case. “It would have been a real plus for everyone involved – that you’d have a stay when a decision was issued until you had your day in court.”
    Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.