Renewal of Instruction Memorandum (IM) Implementing Provisions within the Consolidated Appropriations Act, 2012 (Public Law 112-74) Related to Livestock Grazing Authorizations in the California Desert Conservation Area

December 11, 2015

In Reply Refer To:
4100 (CA930) P

EMS TRANSMISSION: 12/11/14
Instruction Memorandum No. CA-2015-009
Expires: 09/30/18

To:                   California Desert District Manager

From:               State Director

Subject:           Renewal of Instruction Memorandum (IM) Implementing Provisions within the 
                         Consolidated Appropriations Act, 2012 (Public Law 112-74) Related to Livestock
                         Grazing Authorizations in the California Desert Conservation Area

Program Area:  Livestock Grazing and Land Use Planning

Purpose:  To provide direction for implementing provisions within the Consolidated Appropriations Act, 2012, related to livestock grazing authorizations in the California Desert Conservation Area (CDCA).

Introduction:  The Consolidated Appropriations Act, 2012 (P.L. 112-74) contains provisions which affect management of the Bureau of Land Management’s (BLM) livestock grazing program.  Washington Office (WO) Instruction Memorandum WO-IM-2012-096 provides direction regarding implementation of P.L. 112-74.  The WO IM directed the California State Office to provide policy addressing these specific provisions for the CDCA.

The specific provisions of P.L. 112-74 that apply solely to the CDCA are:

Section 122 (b) “Acceptance of Donation of Certain Existing Permits or Leases”

(b) Acceptance of Donation of Certain Existing Permits or Leases –

1. During fiscal year 2012 and thereafter, the Secretary of the Interior shall accept the donation of any valid existing permits or leases authorizing grazing on public lands within the California Desert Conservation Area.  With respect to each permit or lease donated under this paragraph, the Secretary shall terminate the grazing permit or lease, ensure a permanent end (except as provided in paragraph (2)), to grazing on the land covered by the permit or lease, and make the land available for mitigation by allocating the forage to wildlife use consistent with any applicable Habitat Conservation Plan, section 10(a)(1)(B) permit, or section 7 consultation under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

    

2. If the land covered by a permit or lease donated under paragraph (1) is also covered by another valid existing permit or lease that is not donated under such paragraph, the Secretary of the Interior shall reduce the authorized grazing level on the land covered by the permit or lease to reflect the donation of the permit or lease under paragraph (1).  To ensure that there is a permanent reduction in the level of grazing on the land covered by a permit or lease donated under paragraph (1), the Secretary shall not allow grazing use to exceed the authorized level under the remaining valid existing permit or lease that is not donated.

The Appropriations language directs the Secretary of the Interior to accept “the donation” of any valid existing grazing permit or lease within the CDCA.^[1]  The term donation in this provision is interpreted by the BLM to mean “voluntary relinquishment” of the permit or lease to graze on a public land grazing allotment and the preferential position that the permittee or lessee held, in relation to other applicants, to receive that permit or lease. 

There are several options available to the BLM, United States Fish and Wildlife Service (USFWS) and California Department of Fish and Wildlife (CDFW) for mitigation of impacts on threatened or endangered species from proposed projects.  The donation or “voluntary relinquishment” of livestock grazing permits/leases and subsequent permanent allocation of forage to wildlife as envisioned in P.L.112-74 is one option to “make the land available for mitigation” that promises both direct and indirect benefits across large areas of the CDCA.

Policy/Guidance:

1. Section 122(b)(1)

1. Relinquishment and termination.  With limited exceptions for allotments with multiple permits or leases as provided herein, the Secretary must terminate the donated permit or lease upon confirmation of relinquishment of a valid existing permit or lease and ensure a permanent end to grazing the lands subject to the relinquishment authorization.  While termination is automatic and immediate, the BLM must update its records to reflect termination of the permit or lease.

2. Individual cattle and sheep allotments.  Generally, only one permit or lease holder is authorized to graze on each CDCA designated cattle allotment.  There are several CDCA sheep allotments authorized for use solely by one permittee or lessee as well.  The relinquishment of preference for these allotments would be accomplished under section 122(b)(1) of the Act.  Where a CDCA cattle allotment is grazed by more than one permittee or lessee (“grazed in common”), each permit or lease typically provides that the permit or lease holder’s use must occur in specific areas (pastures) of the allotment.  In these situations, the permanent ending of livestock grazing on the land that is subject to the permit or lease is limited to the areas specified by the permit or lease, not the entire allotment.  As such, relinquishment in this situation would likewise be accomplished under section 122(b)(2) of the Act.

2. Section 122(b)2.  The limited exception in section 122(b)(1), mentioned above, applies to common allotments (i.e., allotments that are grazed by more than one permittee or lessee).

a. Common sheep allotments.  In the CDCA, there are a number of common sheep allotments that occur on ephemeral rangelands.^[2] The BLM authorizes grazing on these common allotments only when the production of forage is above a certain level.  The BLM issued term grazing permits and leases these allotments to preference holders in accordance with 43 CFR 4110.2-2(a); however, the term permits or leases do not specify the amount of permitted forage use allowed because the amount of forage use, if any, that the BLM allows in a particular year is established only after the amount of ephemeral forage that is being produced that year is determined.

While section 122(b)(2) does not require a reduction in the size of the allotment, specific forage levels will be eliminated from grazing activity upon confirmation of a valid request for relinquishment.  In addition, the level of grazing on the allotment, when considered as a whole, will reflect a reduction in the overall level of grazing activity due to the reduction in use that has been authorized by the relinquished permit or lease.

b. Common cattle allotments.  Where permits or leases are issued for the common whole of the cattle allotment, relinquishment of preference by one permit or lease holder would result in a reduction of the overall authorized number of AUMs on the allotment as a whole under 122(b)(2).  While the entire allotment would continue to be grazed by the remaining permit or lease holder(s), the relinquished permit or lease would result in a reduction in the number of AUMs available for the whole of the allotment.

3.  Implications for land use planning.  In addition to automatic and immediate termination of the relinquished permit or lease, the Secretary is directed to permanently end grazing on the land covered by the permit or lease and make the land available for mitigation by allocating the forage to wildlife use.  Following the  donation of  a permit or lease, the  relinquished   land shall be managed for the conservation of wildlife forage and habitat. Designating specific areas of land as unavailable for livestock grazing is typically a land use plan decision; however, in this case Congress has directed that the lands be unavailable for livestock grazing upon relinquishment.  In tracking the future land use status of these lands, the CDCA plan will be amended to reflect the permanent end to grazing and the allocation of forage from livestock use to wildlife use. The specific management prescription and designation for the relinquished land may include designation of these areas as ACEC’s or Desert Wildlife Management Areas (DWMA’s) or their equivalent.  LUPs may be amended to manage relinquished lands as ACEC’s or DWMA’s.

To immediately reflect the permanent end to grazing, the allocation of forage to wildlife use, making the relinquished land available for mitigation and to bring the CDCA plan into conformance with the Consolidated Appropriations Act, the BLM may update the CDCA plan through plan maintenance and notify the public of the change.  The land use changes resulting from application of the Act may be accommodated during the next scheduled plan amendment.  In the interim, the BLM will implement the statutory provisions and manage the relinquished land within the allotment as required by the Consolidated Appropriations Act.

4.  Mitigation.  The phrase “make the land available for mitigation” must be read in conjunction with the rest of that sentence – “by allocating the forage to wildlife use consistent with any applicable [HCP, ESA section 10 permit, or biological opinion].”  Relinquishment of an allotment does not require an HCP or biological opinion. The language regarding “allocating forge to wildlife use consistent with any applicable HCP, section 10 permit or section 7 consultation” means management decisions for and uses of the relinquished land in allotments cannot be inconsistent with any applicable HCP, section 10 permit or section 7 consultation governing either the related development projects or donated allotment.  Allocating the forage to wildlife provides such forage for consumption by wildlife and the availability of the relinquishment land as wildlife habitat, including its use for shelter, breeding, access, movement and related open space.  Once the permit or lease is relinquished, the relinquished land is set aside and the forage is no longer authorized to be consumed by livestock.  The extent of the biological value of the relinquishment of a permit or lease and the allocation of the forage for wildlife use will be based on its value to wildlife, including, the nature, extent and location of the forage, any measures to achieve the mitigation purposes of the forage; the cessation of livestock grazing practices, ranching and ancillary uses and the resulting effects of conserving the lands for wildlife; and, other relevant factors.

In addition, the phrase “a permanent end to grazing” will provide mitigation values generally associated with the cessation of livestock grazing practices due to the removal of the animals, dependent infrastructure, and diversion of water.  This will likely include direct and indirect mitigation values, as described, in part, above. The BLM will apply section 7 or section 10 ESA mitigation as appropriate to offset impacts and contribute to conservation of federal ESA species. 

Allocation of the forage to wildlife on a donated allotment is permanent.  Other ancillary mitigation attributable to permanent cessation of livestock grazing is also permanent. 

Additionally, the BLM and the California Department of Fish and Wildlife agreed in a Memorandum of Understanding (11/27/2012) to coordinate and consult regarding state compensatory mitigation on BLM lands.  This compensatory mitigation may include wildlife forage allocated pursuant to the Consolidated Appropriations Act (see MOU section D.2.d.IX).

The CDCA plan (1980) and its land use amendments identify existing measures to mitigate impacts to ESA covered species.  In the future, additional CDCA plan amendments may change existing mitigation measures or incorporate new mitigation measures consistent with the intent of Section 122(b) as provided above.

5.  NEPA review.  Since termination of the permit to lease, the permanent end to grazing the land and the allocation of the forage to wildlife use resulting from the relinquished permit or lease is directed by the Consolidated Appropriations Act, the Secretary (acting through the BLM) has no discretion and no NEPA review or decision document is required for these actions.  It is anticipated, however, that the mitigation value associated with the donation of an allotment, the allocation of forage to wildlife use and removal of livestock may be determined as part of a NEPA or other governmental review process with respect to a specific project to which the mitigation may be applied.

Processing a Section 122(b) Relinquishment Request:

1.  The relinquishment must be made in fiscal year 2012 or thereafter.

2.  The relinquishment must be of a valid permit or lease in existence as of December 23, 2011, that authorizes grazing on the public lands within the CDCA.  The determination whether a valid existing permit or lease exists within the CDCA will be made by the BLM in writing, based upon a review of the permittee or lessee grazing case record.  The relinquishment request must be submitted by the permit or lease holder.

3.  The BLM will confirm to the holder of the permit or lease in writing whether a proposed relinquishment qualifies as a relinquishment under the Act and will send written confirmation of its action to accept such relinquishment to the permit or lease holder.

4.  The relinquishment request of the grazing permit or lease must be made to, and received by the BLM Field Office Manager (FOM) that issued the permit or lease.

5.  When the BLM confirms the relinquishment, the permit or lease is automatically and immediately terminated.

6.  Upon confirmation of relinquishment, the BLM will update the case files accordingly, and will provide a copy of the BLM documentation evidencing the relinquishment to the relinquishing party for their record.  In addition, the BLM will remove the grazing authorization from the Rangeland Administration System and modify the allotment record.

7.  The BLM will prepare a land use plan maintenance report or will update/amend the CDCA plan for the relinquishment action at the time the relinquishment is confirmed.

8.  The BLM will include a discussion of the relinquishment in a subsequent CDCA land use plan amendment or revision, reflect the permanent end to grazing of the land subject to the relinquished permit or lease, and reflect that the relinquished land is available for mitigation by the allocation of the forage to wildlife use.  The BLM will impose restrictions on applications for uses that are inconsistent with the use of the relinquished land for allocation of forage to wildlife and mitigation as are necessary and not inconsistent with any existing and applicable HCP, ESA section 10 permit, or ESA section 7 biological opinion.

9.  The local BLM manager in consultation with the U.S. Fish and Wildlife Service or the California Department of Fish and Wildlife may develop a plan to:  Remove and rehabilitate all former range improvement projects within the relinquished land; rehabilitate any water developments to a more “natural” state; and, eliminate any unnecessary/undesignated roads and trails.  These actions may require separate NEPA review and the issuance of a decision.

10.  The BLM may enter into an agreement with an affected agency or interest regarding non-federal mitigation on the donated relinquished lands to ensure consistency with Land Use Plan and federal wildlife mitigation values.

Guiding Principles:

Multiple use.  While relinquishment of grazing preference will result in the elimination of grazing in whole for an allotment with a single permit or in part for a common allotment, the Act provides for the permanent elimination of grazing and allocation of forage to wildlife only and does not address other multiple uses which may be authorized on the allotment.  Restrictions on multiple uses that could impair the allocation of forage to wildlife and the ability of the forage to serve mitigation purposes (e.g., uses that reduce the quantity or adversely affect the availability of forage for wildlife, restrict or hinder wildlife access to the forage, or impair the use of forage or the lands as wildlife habitat) will be imposed by BLM consistent with the applicable ESA authorization and through land use planning.

Relinquishment in Whole or in Part.  The language in section 122(b)(1) appears to require relinquishment of the entire permit or lease, not merely a part of the AUMs or a portion of the permit or lease.  However, given the size of some allotments vs. the size of some of the relinquishments in other authorizations, it may be necessary or appropriate to better match relinquishments based upon fenced pastures or other terrain features.  This is differentiated from relinquishment in part, addressed in section 122(b)(2), that applies with respect to common grazing allotments and where one permit or lease holder may relinquish his/her authorization while the remaining holders may continue to graze their assigned portions of the allotment.  The BLM may consider relinquishment of an allotment in part when practical and consistent with meeting conservation values of the donation.  The California State Office will be consulted to maintain consistency in how this part of the policy is administered.

Compensation.  Any market value ascribed to the forage that becomes available for wildlife use is not an issue that is determined or considered by the BLM.  The BLM will not be a party to any agreement or contract that involves third-party compensation to a permittee or lessee that relies on their relinquishment of a valid existing permit or lease.

Project Mitigation.  Under the Consolidated Appropriations Act a grazing permit or lease will be terminated upon confirmation of relinquishment.  The specific means of allocating forage to wildlife use for mitigation purposes are not described by the Act.  The use of relinquished land as mitigation for any particular project development will be dependent on the BLM mitigation policies, the mitigation valuation criteria developed by USFWS and BLM (which is currently dependent on the federally listed/proposed/candidate species located on the allotment, but which may be revised in the future), any measures that further the mitigation purposes, and the sufficiency of the potential mitigation on a site specific project basis.  To the extent that the relinquished land, including the use of the forage for wildlife, is used by another agency, it may be valued for mitigation purposes in accordance with the other agencies regulations and policies.  Accordingly, it is possible that the relinquishment of the allotment by a permittee or lessee and the allocation of mitigation credit to a particular proposed project impacts may occur at different times.  These credits are outside of the prevue and control of the BLM.

It is the responsibility of the permittee and the project developer to provide an assessment of the mitigation potential for the donated preference.  In addition to allocating forage to wildlife, other direct mitigation values may include: the restoration of springs, seeps or other riparian habitat, the removal of infrastructure such as corrals and fencing, and the donation of water rights.  Indirect mitigation values may include: improved soil stability, improved avian nesting habitat, and reduced potential transmission of disease from domestic sheep to bighorn sheep.  

Existing permits/leases.  Only valid permits or leases in existence at the time of the Consolidated Appropriations Act enactment on 12/23/2011 (including those which have been thereafter renewed, extended or further divided into separate permits or leases) will be subject to relinquishment under the Act.

Newly issued permits and leases.  The Consolidated Appropriations Act does not preclude the issuance of permits or leases within the CDCA for those allotments that were inactive as of the date of enactment of the Act (12/23/2011) or for those allotments for which renewal of current grazing privileges is sought.

Preference transfer and permit renewal.  The existing process for transferring or renewing current permits and leases will continue pending applicable NEPA and ESA review.

Protest and appeal.  The BLM’s confirmation of a valid relinquishment request is not a decision for purposes of protest and appeal under 43 CFR 4160.  Because the BLM does not have the discretion to reject or deny a properly executed relinquishment request, no formal decision is necessary.

Permanent end to grazing.  Under the Consolidated Appropriations Act, relinquishment of a valid existing permit or lease immediately terminates the permit or lease.  The BLM is directed to ensure a permanent end to grazing the allotment upon confirmation of a valid relinquishment.  All livestock must be removed from the grazing allotment upon the date agreed to as part of the donation of the permit or lease.  The BLM will reflect the permanent end to grazing the allotment through an amendment or revision of the CDCA plan.

No obligation to compensate for range improvements.  When the BLM confirms a voluntary request for relinquishment, the relinquishing party’s permit or lease is automatically terminated.  Relinquishment under existing law does not obligate the United States to compensate the permittee/lessee for any interest in authorized range improvements used in conjunction with the permit or lease (see 43 U.S.C. 1752(g); 43 CFR 4120.3-6(c)).  The Consolidated Appropriations Act makes no change to existing regulations in this regard.  While water rights are not issued or controlled by the BLM, the BLM encourages the transfer of water rights at the time the permit or lease is relinquished.  The local BLM manager may grant a permittee/lessee up to 180 days from the date of relinquishment to remove and rehabilitate any projects associated with the allotment (4120.3-6(d)).

Release of base property lien requires as part of relinquishment.  If the base property to which the preference for a permit or lease is attached is encumbered or otherwise used to secure a financial or other obligation, then the request for relinquishment must show that the preference holder has obtained written consent to the relinquishment from the base property lienholder(s) or entity(ies) holding the security interest. 

Conditional relinquishment.  The BLM will not be bound by any provisions that purport to require conditions or specific action(s) by the BLM.  If such provisions accompany a proposal of relinquishment, the relinquishing party will be informed that the relinquishment will not be processed and that the BLM will continue to administer the grazing permit or lease on public lands accordingly.  The permittee or lessee may enter into agreements with others to provide mitigation as described in this IM, conditioned upon the relinquishment.

Trespass.  If livestock are discovered grazing on lands where grazing has been ended due to relinquishment, the BLM will take appropriate enforcement actions in accordance with 43 CFR subpart 4150.

Budget Impact:  None.

Background:  The BLM permits livestock grazing use on public lands that have been deemed available for livestock grazing by land use plans developed pursuant to the Federal Land Policy and Management Act of 1976 (as amended).

Under the regulations at Title 43, Part 4100 (2005), to qualify for a permit or lease, an applicant must own or control base property.^[3]  Typically, a prospective permittee or lessee purchases base property to which the BLM has previously attached a preference^[4], or applies to the BLM to have an existing preference holder transfer preference from their base property to property owned or controlled by the prospective permittee or lessee.  The BLM issues the preference holder a permit or lease that specifies how grazing use will be made (generally and at a minimum, the number and kind of livestock authorized, the allotment(s) to be used and periods that use will occur).  The number of animal unit months (AUMs) of grazing use that each permit authorizes is based on the total AUMs attached to the base property for that permit^[5].  A permit or lease conveys no right, title, or interest held by the United States in any lands or resources^[6].

Relinquishment of grazing preference for a grazing permit or lease typically results in forage becoming available for livestock grazing by another applicant, or for other purposes depending on land use plan provisions^[7].  Relinquishment of the permit or lease does not typically result in the land becoming unavailable for livestock grazing^[8].  In a typical situation, in order to make an allotment unavailable for livestock permitting, the BLM must amend the applicable land use plan.  Relinquishment under the Consolidated Appropriations Act section 122(b) has modified the meaning of relinquishment of valid existing permits or leases within the CDCA as of December 23, 2011, the date of its enactment.

Timeframe:  This guidance is in effect immediately.

Manual/Handbook Sections Affected:  Qualifications and Preference (H-4110-1) Grazing Management (H-4120-1) and Land Use Planning Handbook (H-4160-1).

Contact:  For further information, please contact Jack Hamby, Range Program Lead at (916) 978-4633, or via E-mail at jhamby@blm.gov.

Signed by:                                                                                          
Angie Lara                                                                                         
Associate State Director                                                                    

Authenticated by:
Shanen E. Fox
Procurement Technician

Attachment - 1
1 – CDCA allotments as of 12/23/2011 (2 pp)