From the Fall 2000 issue of The News Media & The Law, page 29.
By Rebecca Daugherty
Western ranchers who graze their livestock on U.S. Forest Service lands enjoy benefits from the publicly owned lands of low grazing fees and use of the permits granted them by the government as collateral for their loans, but many would prefer that their uses of the lands be anonymous.
Environmentalists, however, have charged that it is impossible to oversee uses of the lands without knowing if ranchers violate the limits of their grazing permits. Conservationists have also charged that the pervasive use of grazing rights as loan collateral creates incentives for the government to keep the lands for grazing, whatever other resources might be affected by overgrazing.
In North Dakota, grazing associations have refused to turn over the names of permit holders even to the government for fear it will release them in response to Freedom of Information Act requests. In New Mexico, the Forest Service has been sued for information on escrow waivers signed on the ranchers’ behalf, and the ranchers and banking institutions have intervened to try to keep that information secret. In Wyoming, after the Forest Service released the names of some grazing permit holders, a group of permittees brought a class action lawsuit claiming their privacy act rights had been violated.
In the Dakota Grasslands
Local grazing associations in North Dakota issue grazing permits and keep all grazing records from the Little Missouri National Grasslands, lands that are actually the responsibility of the U.S. Forest Service.
The grazing boards have deep roots. Established by state law in 1938, they began to administer grazing permits under agreement with the Soil Conservation Service, which oversaw the lands until 1954 when the federal authority was transferred to the Forest Service. In years since, Congress has given the Forest Service a larger mandate to exercise multiple-use land management.
It is not a perfect system. Bound by law to consider not just grazing but ecological and other interests as well, Forest Service concerns have diverged from those of the local grazing boards. In the grasslands, where the ecology may be more fragile than in the forests, controlling grazing has become increasingly important.
Kimberly Graber, counsel to the National Wildlife Federation in Boulder, Colo., said the Dakota grasslands today are “beaten up” by grazing.
Larry Dawson, grasslands supervisor for the Forest Service in Bismarck, N.D., said protecting grassland ecology can be complicated. Protecting grasslands wildlife may involve protecting migratory songbirds, for instance, not the moose and elk of the forests. The Forest Service created Dawson’s office in 1998. Formerly, ranger districts had reported to the agency’s Custer National Forest office in Billings, Mont.
In late 1998, the National Wildlife Federation filed an extensive FOI Act request with the Forest Service for records on the Little Missouri National Grasslands.
Among the records sought were copies of all grazing permits, records of violations and enforcement actions against permit holders, and records showing sublease agreements, collateral agreements and other permit holder financial arrangements.
Ordinarily the federal FOI Act does not touch records held outside the agency — but ordinarily agencies do not transfer such broad management responsibilities to outside boards either. In formal agreements the boards gave the agency the right to access the grazing permit records at any time, and if they did not, the agency could terminate the boards and take over the permit granting process itself.
Dawson’s office asked for access to the grazing association records so it could respond to the wildlife group. The Little Missouri and the Horse Creek Cooperative associations furnished the records.
But the two largest, the McKenzie County and the Medora associations refused. They would prepare summaries but they would not give up the records in response to FOI Act requests. The associations said the records contain “highly personal” information including financial and business transactions. If the contract allowed the Forest Service access, it did not allow access for FOI reasons, they said.
Since the associations issue grazing permits on the basis of financial and business information, permittees break the rules when they are dishonest about the grounds enabling them to get permits. Without access to financial records, neither the federal agency nor the public could oversee the grazing program.
The permits, which allow ranchers to graze their animals at $1.34 a head each month, charge well below what private landowners could command. So there is a high demand for the permits and some motivation for abusing them.
The permits are not issued to just anyone. A permit holder must show that he owns or leases the base property from which the animals wander. He cannot run other people’s cattle as his own at the low government rate. He can use his grazing rights as collateral for a loan, but he cannot sell or sublease the low-cost grazing rights and profit from them, although he can enter into share-time agreements.
Unable to secure the McKenzie County and Medora association records, Dawson in January gave them six months notice that their agreement with the Forest Service would end. The agency would not cancel permits but it would issue them directly and keep them in the Forest Service offices — the way most grazing permits are issued nationwide.
In February, the associations sued. They asked the federal district court in Bismarck to enjoin the U.S. Forest Service from cancelling their contracts. The National Wildlife Federation attempted to intervene but the judge refused to let it.
In August, the two associations reached a settlement agreement hammered out with the U.S. Attorney’s office. The Forest Service will continue to have access to records on permit holders. But the associations will have the right to be notified when an FOI Act request is made. They may flag information as not available to non-Forest Service personnel.
The Medora association wrote its members that it would keep two sets of records, one deleting names, addresses, telephone numbers, social security numbers and monetary amounts. Other records containing “private and confidential records of our permittees and the Grazing Association” would be protected, it said.
The McKenzie group told its members, “Another one of the negative sides is that Congress passed the Freedom of Information Act Law. The Forest Service must comply and they will continue to attempt to comply with agency regulations as they see fit. However, this is balanced by the positive side in that the FOIA documents will be produced and redacted and held under strict guidelines. Further, the Grazing Associations will do all the redaction (removal of key information that is personal, private and confidential).”
Dawson read the settlement agreement somewhat differently. “We allowed names to be redacted and code information used, but if someone [files a FOI Act request] we would get the names and they would be releasable.”
The National Wildlife Federation had received no responsed to its FOI request in late October. (McKenzie County Grazing Association v. Dawson)
The FOI suit in New Mexico
In New Mexico, the Forest Guardians are seeking records on how the Forest Service is involved in the use of “escrow waivers” by grazing permit holders. The conservation group, which tracks how federal government decisions affect the values of natural resources on public lands in the west, filed a FOI Act request for the information nationwide in October 1998. The Forest Service acknowledged, but then ignored, the request until the group filed suit in May 1999 in federal District Court in Santa Fe.
In the meantime, the group filed FOI requests with several regional agency offices and received copies of some escrow waivers but with lienholder names and mortgage amounts redacted. The Forest Guardians appealed those deletions to the Forest Service in Washington, D.C., which ignored the appeal until the group sued.
Forest Guardians wants the information to show how much money is invested in having livestock on the Western Forest Service lands.
Escrow waivers are routinely filed by the agency on behalf of ranchers who use their grazing permit as part of the collateral for loans. The Forest Service agrees that if a loan goes bad, it will turn over the rancher’s grazing permit to the bank. The group contends that if a loan goes bad, the permit should revert to the Forest Service, which should manage it on behalf of the public.
John Horning, in the Guardians’ Santa Fe office, said that the more money that is tied up in collateral, the greater the incentive is to maintain the status quo, and there are lots of problems with that. These are not just “Mom and Pop” ranching operations, he said, there are corporate interests as well.
The Forest Service and the Forest Guardians had proposed a settlement agreeing that the agency would provide escrow waiver records with individual loan amounts redacted if the agency would reveal the aggregate financial amounts involved in the escrow waiver program, aggregated on a forest level. But numerous interveners joined the suit, representing permit holder interests and eight banks. They objected to the settlement and the Forest Service withdrew from the agreement.
Horning said that the lending institutions would rather not have the extent of their loans revealed, but that the ranchers themselves honestly think that the public should not know who holds permits on Forest Service allotments.
The court had not reached a decision in the case by late October. (Forest Guardians v. U.S. Forest Service)
Class action in Wyoming
In August, Hugh McKeen and “99 John Does” filed suit against the Forest Service in federal district court in Cheyenne, Wyo., after the agency provided some escrow waivers to the Forest Guardians in response to their FOI Act request. They brought a class action lawsuit on behalf of grazing permit holders for whom the Forest Service had filed escrow waivers claiming the agency had violated the federal Privacy Act.
McKeen has served as a county commissioner in Catron County, N.M., which passed an ordinance in 1991 calling for the arrest of “any federal agent” violating the property rights of local residents.
The federal Privacy Act contains an exemption allowing the government to disclose information in files on individuals if disclosure is required by the FOI Act, but the ranchers contended that disclosure is not required.
In late October there had been no action on the case.