United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS Interior Board of Land Appeals

801 N. Quincy St. Suite 300 Arlington, VA 22203

703 235 3750 703 235 8349 (fax)

March 19, 2015

2014-260

JOHN R. HUGHES, II I Grazing

Stay Order Affirmed

ORDER

John R. Hughes, III (Appellant), has appealed from an August 1, 2014, Order of Administrative Law Judge Harvey Sweitzer denying his Petition for Stay (Order Denying Stay) of a May 19, 2014, Proposed Decision of the Bureau of Land Management (BLM) that became a Final Decision by operation of law in the absence of a protest. Proposed Decision, Appeal Case Record (ACR), Document (Doc.) 4, at 1. BLM's decision involved management of BLM-administered grazing allotments located in Petroleum and Fergus Counties, Montana.1

The Board's review of this matter pertains only to the Order Denying Stay. For the following reasons, we affirm the ALJ's Order.

Since approximately 2007, Appellant has been in a dispute wi th Jason A. Hughes (his brother), John Hughes, Jr. (his father), and Shirley A. Hughes (his mother), who are partners in the J&S Family Limited Partnership (J&S Partnership). The dispute has a long and complex history. This appeal involves ownership of the base property associated wi th Grazing Authorization #2506556, which contains 7 of the allotments at issue in BLM's Final Decision. The division of certain property, including base property associated wi th those 7 allotments, was litigated and decided by the Montana Tenth Judicial District Court (Montana District Court) in its Findings of Fact, Conclusions of Law, and Order of Partition dated March 8,

These allotments are: Kaufman, Spring Zimmerman Place, Iverson-Yellowwater, Meadow Pasture, South Pasture, Bench Pasture, Hawkins Pasture, Lower Pike Creek, Rozie Pasture, and North Flatwillow.

I . BACKGROUND

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2012.2 ACR, Doc. 60; Proposed Decision, ACR, Doc. 4 at 1. BLM received conflicting grazing applications from Appellant and J&S Partnership for all 7 allotments within Grazing Authorization #2506556.

In November BLM initiated the Pike Creek Transfers Preliminary Environmental Assessment (EA) to analyze the impacts of completing transfers of grazing preferences for the allotments based on changes of ownership of the recognized base property, as required by 43 C.F.R. § 4110.2-3. 3 The Pike Creek Transfers Final EA (Final EA) also analyzed the removal of three antiquated trade-of-use agreements that are not in compliance wi th BLM regulations, as well as range improvements needed to facilitate proper use of the range upon issuance of any new grazing authorizations. ACR, Doc. 13, at 1.

The Final EA analyzed four alternatives, including a no grazing alternative, a no action alternative, and two action alternatives (Alternatives 1 and 2) that share common elements. Id. at 6-29; see also Proposed Decision, ACR, Doc. 4, at 2. The Final EA considered, but dropped from analysis, a reduced grazing alternative and Alternative 3, which had been suggested by Appellant during the comment period. ACR, Doc. 13, at 4-6. On May 19, 2014, BLM's Lewistown Field Office issued the Proposed Decision to implement Alternative 1 of the Final EA. Proposed Decision, ACR, Doc.4, at 3. Alternative 1 would implement the transfer of grazing preferences based on valid documentation of control of the associated base properties, dissolve

The Montana Supreme Court affirmed in part, and reversed in part, the District Court's decision on July 2, 2013. ACR, Doc. 22. However, the division of property was not an issue on appeal, and the District Court's Order of Partition governs division of the relevant base property.

The base property for the Meadow Pasture, South Pasture, Bench Pasture, Hawkins Pasture, Lower Pike Creek, Rozie Pasture, and North Flatwillow allotments are contained in Grazing Authorization #2506556. The remaining four allotments, under three Grazing Authorizations (#2506333, #2506364, and #2506551), were less controversial, and BLM was provided wi th quitclaim deeds demonstrating ownership of base property associated wi th these allotments in 2010. See Proposed Decision, ACR, Doc. 4 at 1.

We apply the version of the 43 C.F.R. Part 4100 regulations in effect as of Oct. 1, 2005 (as did the ALJ), given the promulgation of subsequent extensive revisions of the regulations. See, e.g., Hanley Ranch, 183 at 199 n.20; see also Western Watersheds Project v. 538 F. Supp. 2d 1302 (D. Idaho 2007), in relevant part, vacated in part, and remanded, 632 F.3d 472 (9th Cir. 2011); see 60 Fed. Reg. 9894, 9927 (Feb. 22, 1995), codified at 43 C.F.R. Part 4100 (1995-2005).

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antiquated trade-of-use agreements, and approve various range improvement projects. Id.; Final EA, ACR, Doc. 13 at 7-24.

Alternative 1 would further split Grazing Authorization #2506556 into two grazing authorizations (#2506556 and new authorization #2506558) and allocate grazing preferences on a pro rata basis of the controlled base property as partitioned by the Montana District Court's Order of Partition. Proposed Decision, ACR, Doc. 4, at 3, 10-15. BLM determined, pursuant to 43 C.F.R. § 4110.2-2, that because the District Court granted 84.3% of the recognized base property to J&S Partnership, the Partnership would receive 84.3% of the authorized use under Authorization #2506556, to include the Bench Pasture, Hawkins Pasture, North Flatwillow, Rozie Pasture, and Lower Pike Creek Allotments. Id. at 3, 15-22. Likewise, because Appellant was granted 15.7% of the recognized base property he would receive that percentage of authorized use under new Authorization #2506558, to include the Meadow Pasture and South Pasture allotments.

No party protested BLM's Proposed Decision, and therefore i t became the Final Decision by operation of law on June 3, 2014. On July 8, 2014, Appellant filed his Notice of Appeal and Petition for Stay. He challenged as "inequitable" BLM's Final Decision to divide Grazing Authorization #2506556 and its associated animal unit months (AUMs) based on a pro rata share of recognized base property as determined by the District Court. He sought a stay of BLM's Final Decision.

On August 1, 2014, the ALJ issued his Order Denying Stay. On that same day, the ALJ's office received J&S Partnership's Motion to Intervene and Supporting Brief, which sought denial of the Petition for Stay. On August 24, the ALJ granted J&S Partnership's Motion to Intervene. The Appellant filed his appeal of the Order Denying Stay on September 2, 2014, and BLM filed an answer on October 1, 2014.

II. ANALYSIS

A. Petition for Standards

Under 43 C.F.R. § 4.471(c), a petition for a stay of a grazing decision pending appeal must show "sufficient justification" based on the following standards: (1) the relative harm to the parties i f the stay is granted or denied; (2) the likelihood of the appellant's success on the merits; (3) the likelihood of immediate and irreparable harm i f the stay is not granted; and (4) whether the public interest favors granting the stay. "The burden to show that issuance of a stay is justified under the rule, each element of which must be established, rests wi th the Appellants." Oregon Natural Resources Council, 148 IBLA 186, 188 (1999) (citing, inter alia, 43 C.F.R. § 4.21(b)(2)); see 43 C.F.R. § 4.471(d).

The ALJ specifically addressed the likelihood of success on the merits and the public interest criteria of 43 C.F.R. § 4.471(c), and concluded that Appellant had

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failed to establish that a stay is justified under those two standards. He therefore denied the Petition for Stay.

B. Likelihood of Success on the Merits

"Management of the public lands, in accordance with the Taylor Grazing Act, 43 §§ 315-315r (2006), and its implementing regulations, is committed to the broad discretion of BLM, which, as the delegate of the Secretary of the Interior, is generally instructed 'to preserve the land and its resources from destruction or unnecessary injury,' and provide for the orderly use, improvement, and development of the [Federal] Ranch Partnership v. BLM, 183 IBLA 184, 198 (2013) (quoting 43 U.S.C. § 315a (2006); v. BLM, 171 IBLA 244, 249, 251 (2007); Glanville Farms, Inc. v. BLM, 122 IBLA 77, 87 (1992)).

"In challenging a BLM decision adjudicating grazing privileges, an appellant bears the burden to establish that the decision fails to substantially comply with the Department's grazing regulations or that, by a preponderance of the evidence, the decision is unreasonable and thus lacks a rational basis." Hanley Ranch, 183 IBLA at 198 (citing 43 C.F.R. § 4.480(b); Foianini, 171 IBLA at 250-51; Mercer v. BLM, 159 IBLA 17, 29 (2003); Yardley v. BLM, 123 IBLA 80, 90 (1992)).

In his appeal of Judge Sweitzer's Order Denying Stay, Appellant advances the following arguments: (1) BLM allocated grazing preferences based on erroneous calculations as to base property ownership; (2) the presence of a prairie dog town in the South Pasture wi l l mean that he "wil l be out [the] AUMs" allocated to that pasture; and (3) BLM's allocation of grazing preferences is inequitable in light of the location of Appellant's contiguous base property and the inadequate water supply for the South Pasture. Notice of Appeal at 2-4. We wi l l address these issues in turn.

Base Property and Use Allocation

With respect to the base property and BLM's allocation of grazing preferences, wi th 15.7% going to the Appellant and 84.3% to J&S Partnership, Appellant contends that the Decision does not reflect what was decided by the Montana District Court's Order of Partition. He points out that 1,041.4, or approximately 29% of the total acres, were distributed to him in the Order of Partition. Petition for Stay at 5. He states that there are a total of acres of base property associated wi th permit #2506556 and #2506558 in the Decision, and that half of the property in those permits was not involved in the partition action. Id.

However, Appellant appears to acknowledge that he owns only 15.7% of the recognized base property. Notice of Appeal at 2. He argues that he "owns far more land that could be base property under either permit 2506556 or 2506558." Id. He states: "Although the BLM may not have an affirmative duty to ask for a resubmittal of base property, i t makes sense that they would inquire into all possibilities before

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making such a decision." Id. at 2-3. He further states that the authorized officer is supposed to cooperate, consult and coordinate with the affected permittees before issuing a decision. Id. at 3 (citing 43 C.F.R. § 4130.2(b)).

Appellant emphasizes that base property is not required to be contiguous to the allotment that the base property is associated with, but that i t only must be capable of serving as a base of operation for the permittee's livestock. Id. (citing 43 C.F.R. § 4110.2-1). He further points out that one of the factors for BLM to consider when there are conflicting grazing applications for the public land is "the general need of an applicant's livestock operation." Id. (citing 43 C.F.R. § Appellant argues that BLM has completely disregarded his need for the AUMs that were taken from him, and that he is only able to now run of said AUMs. Id. He states that he has used a greater number of AUMs "for years." Id. at 3.

Looking at the Montana District Court's Order of Partition, we see that it partitions property so that Appellant received 1,041.40 acres and J&S Partnership received 2,581.72 acres (i.e., Appellant received approximately 29% from that partitioning). Order of Partition, ACR, Doc. 60, at 8-9.4 Appellant argues that BLM, in relying on the Order of Partition, should have distributed the authorized use according to the same percentages that the Order of Partition used. Petition for Stay at 5.

The ALJ faulted Appellant for not identifying how much of the base property he actually owns or controls and that he did not challenge the breakdown of the base property ownership in Appendix A of the Pike Creek Final EA, which shows he owns only 15.7% of the base property following Order of Partition issued by the Montana District Court. Order Denying Stay at 6. Consequently, the ALJ ruled that BLM's allocation of AUMs in accordance wi th these percentages did not appear inequitable. Id. Furthermore, the ALJ determined that BLM's allocation of the AUMs based on the percentage of base property ownership is consistent wi th 43 C.F.R. §§ 4U0 .2- l (d ) and 4110.2-2(b) (1), which provide that where ownership or control of property is lost, the grazing preference remains wi th the base property. Order Denying Stay at 5-6. He also cited 43 C.F.R. § 4110.2-2(b)(l), which states that AUMs of permitted use attach to the acreage of land base property on a pro rata basis. Id. at 6.

The Board concedes that it may have been for BLM to state that it was relying on the Order of Partition as a basis for allocating the grazing preferences, and yet grant rather than 29% of the authorized use to Appellant without further explanation. See Decision at 3, 11, 16. For instance, BLM's Decision states: "Based on the acreage of controlled base property on a pro rata basis as stated by the

The subsequent appeal before the Montana Supreme Court of that case was focused primarily on other issues. See Hughes v. Hughes, 2013 MT 176, 305 P.3d 772 (July 2, 2013), ACR, Doc. 22.

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Order of Partition submitted by the Montana Tenth Judicial District Court, BLM wi l l allocate 84.3% (837 AUMs) to J&S Family Limited Partnership and 15.7% (156 AUMs) to [the Appellant.]" Id. at 11.

However, as noted by ALJ Sweitzer, half of the base property for Grazing Authorizations #2506556 and #2506558 were not at issue in the litigation. Order Denying Stay at 5. Moreover, as we indicated, and as ALJ Sweitzer further noted, Appellant does not identify how much of the base property he actually owns or controls, or challenge the breakdown of base property ownership in Appendix A of the Final EA. "That breakdown shows that [Appellant] owns only 15.7% of the base property after the court partitioning some of the base property." Id. The ALJ concludes that "BLM's allocation of AUMs of preference in accordance with these percentages does not appear unreasonable." Id.

In its Final Decision, BLM made its authorized use division on the basis of "recognized base property." Id. Despite the Decision stating that i t was following the Order of Partition, it is undisputed that Appellant controls only 15.7% of recognized base property for the allotments associated wi th the the Grazing Authorization partitioned by the Court. BLM based the allocation of use on the acreage of "controlled base property on a pro rata basis . . . ." Decision at 11. With respect to allocating permitted uses, the grazing regulations call for division based on a pro-rata basis of the base property. 40 C.F.R. § 4110.2-2(b)-(c).

We believe it significant that there is no record of Appellant seeking to have his recognized base property of 15.7% adjusted in light of the Order of Partition or based on any other contiguous properties. We note that Appellant himself seems unsure of whether BLM has an affirmative duty to ask for resubmittal of the base property, and the ALJ found no such requirement. Notice of Appeal at 2; Order Denying Stay at 7. We observe that the base property regulation provides a procedure by which an applicant "shall provide" a legal description of the property and "shall certify" that the base property meets the requirements under the regulation, including, for example, whether i t is contiguous property. 43 C.F.R. § (c). Appellant has not claimed to make such a filing, and BLM's Answer states that since 2007 it has received no application by Appellant to add additional base property. Answer at 10.

Furthermore, after the Order of Partition was issued, which was on March 8, 2012, Appellant had ample opportunity to engage BLM in discussions regarding its impact. On May 10, 2013, BLM notified Appellant of the Pike Creek Preliminary EA, which explicitly put Appellant on notice that BLM intended to allocate of the permitted use to him, in accordance wi th Alternative 1. ACR, Doc. 32, at unpaginated see App. A. Appellant offered Comments regarding the Preliminary EA on May 2013, raising some questions wi th respect to base property and opposing Alternative 1, but he did not state that the allocation should be 29% instead of 15.7%. ACR, Doc. 24. BLM offered other opportunities to raise

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that argument. For instance, on June 7, 2013, BLM sent a letter to Appellant, providing him wi th a copy of J&S Partnership's comments in which they support Alternative 1. In his Notice of Appeal, Appellant advocates for Alternative 2. Appellant raised a trespass allegation on November 13, 2013, and BLM engaged in a discussion wi th him regarding that matter. However, there is no record of Appellant requesting such a discussion with BLM regarding the 15.7% instead of 29% issue. We find no basis for Appellant's argument that BLM failed to comply wi th 43 C.F.R. §

BLM's Decision has a rational basis in that i t is undisputed that Appellant owns of the recognized base property, and Appellant has not sought a modification of the base property amount to reflect contiguous property. Furthermore, assertions that BLM did not sufficiently consult wi th the Appellant are without merit, in light of the record showing that BLM communicated on multiple occasions wi th Appellant, and he was on notice that BLM planned to use the 15.7% figure for the use allocation under Alternative 1 (per the Preliminary EA).

2. Prairie Dogs

Appellant takes issue with the Order Denying Stay in that i t does not discuss available measures to combat a prairie dog town in the South Pasture. Notice of Appeal at 3. The ALJ faulted him for not explaining the basis for his opinion that the prairie dog town wi l l expand and for not discussing the availability of measures to combat the purported expansion, and concluded that his opinion was speculative. Id. at 6. The ALJ properly held that Appellant had failed to establish a likelihood of success on the merits of this argument.6

3. Contiguous Land and Water

In the Petition for Stay, Appellant raised lengthy arguments challenging BLM's choice of which allotments he was granted versus those granted J&S Partnership. He claims that BLM's choice is inequitable and results in damage to him. For example, he asserts that he wi l l have to build miles of expensive fencing and that "he cannot provide the same amount of water as the Partnership." Order Denying Stay at 7. The

This regulation provides: After consultation, cooperation, and coordination wi th the affected grazing

permittees or lessees . . . and the interested public, the authorized officer may designate and adjust grazing allotment boundaries. The authorized officer may combine or divide allotments through an agreement or by decision, when necessary for the proper and efficient management of public rangelands.

In addition, BLM aptly points out that even i f the prairie dog town were to expand, there is a regulatory process for requesting modifications. Answer at 14-15 (citing 43 C.F.R. § 4130.3-3).

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ALJ found that "his assertions were not supported by adequate elucidation." Id. He noted that Appellant does not identify why or where the fence must be built, nor "state that the amount of water he could provide would be inadequate for the allotment." Id.

In his appeal to the Board, Appellant provides more of an explanation as to why he believes i t would have been more efficient for BLM to assign the Lower Pike Creek Allotment to him. He contends that topography should be a consideration when there are conflicting applications, citing 43 C.F.R. § 4130.1-2(e).

In its EA, BLM recognized that Alternative 1 (which i t ultimately selected) may not provide the optimal management potential for the allotments. Final EA, ACR, Doc. 13, at 45. However, BLM reasoned that Alternative 1 would provide orderly management and administration of allotments that would reduce user conflict and administrative oversight. Id. BLM found that such simplicity and orderly administration would provide resource benefits to the allotments pursuant to BLM's grazing regulations, 43 C.F.R. Part 4180. Id. at 45-46.

BLM's reasoning regarding orderly and simplified management, aimed at reducing the historic conflict between Appellant and J&S Partnership, provides a rational basis for its determination. When there is more than one applicant for grazing use of the same public lands, BLM is not limited to considering topography, but rather may take into account a number of different factors. See 43 C.F.R. § 4130.1-2.

With respect to the South Pasture, Appellant contends that water is inadequate as i t pertains to him. Notice of Appeal at 4-5. He also points out that in the EA, BLM states there is insufficient water in the South Pasture. He asserts that BLM's allocation of the South Pasture was given to the permittee who can utilize it the least. However, as noted above, BLM recognized that its allotments may not provide for optimal management potential, and emphasized the need for and value of simplicity and orderly administration. Final EA, ACR, Doc. 13, at 45-46. We conclude that BLM's Decision has a rational basis.

Similar to these arguments, Appellant advocates for selection of Alternative 2 on the ground that i t w i l l result in the need for building less fence, asserting that minimizing fencing wi l l be more efficient for the permittees and wi l l result in less disturbance to the critical sage grouse habitat. He claims that Alternative 2 wi l l result in positive opportunities for livestock management and potential for resource benefits. Notice of Appeal at 5-6 (citing Final EA, ACR, Doc. 13, at 50).

This argument, too, fails to show that BLM lacked a rational basis for its decision. In fact, the Final EA recognizes that although Alternative 2 would generally provide positive opportunities for livestock management and potential for resource benefits, i t would also result in an increased risk of user conflict and increased

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administrative oversight. Final EA, ACR, Doc. 13, at 50. Given the history of conflict between Appellant and J&S Partnership, BLM's reasoning appears reasonable.

The ALJ reasonably determined that Appellant has not sustained his burden to show that he is likely to succeed on the merits as reflected in the record. Namely, he has not shown that BLM lacked a rational basis for its Decision.

C. Public Interest

In his Petition for Stay, Appellant argued that it is in the public interest to maximize the use, proper care, and maintenance of public lands. Petition for Stay at 13. He contended that J&S Partnership would be a poor steward of the land, and argued that its permit should have been suspended in the past. He asserted that the Partnership failed to maintain fencing, overgrazed the grass, improperly released cattle on allotments, and neglected a pipeline. Id. at 9. He also mentioned past trespass by the Partnership. Id. He claimed that by denying a stay, the BLM property could be irreparably damaged, not only by a lack of stewardship, but also by the placement of a waterline on BLM's property. Id. at 13.

The ALJ ruled that denying the stay petition best serves the public interest by facilitating orderly administration of grazing on the public lands through separation of the multiple livestock management herds and authorization of livestock grazing to individual applicants on individual allotments. Order Denying Stay at 8. He further reasoned that implementing the Decision would reduce the potential for trespass of livestock. Id. He found that these changes wi l l also best promote the achievement of resource objectives by, for example, allowing for successful implementation of grazing rotations, and that the public's interest in legal compliance is served by implementing the changes because they are consistent with the law governing allocation of grazing preferences when ownership or control of base property is lost. Id.

The ALJ acknowledged that while Appellant's livestock operation may be harmed by implementation of the Decision, it is not clear that allowing grazing under the pre-Decision scheme of running herds together, when the managers are in conflict, would not be equally or more harmful to the various livestock operations. Id. Accordingly, he concluded that the public interest favors denying the stay. Id.

The parties agree that a stay would result in the implementation of the previous scheme, i.e., the suspension of grazing. Notice of Appeal at 5; Answer at 17-18. The Appellant contends that pasture is always in the public interest," and does not see how implementing Alternative 1 wi l l benefit ingress and egress. Notice of Appeal at 5. He contends that harm wi l l occur to him when J&S Partnership is allowed to graze and utilize the forage in the Lower Pike Creek and Rozie allotments. Id.

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In its Answer, BLM contends that under a stay BLM would continue to see deterioration of existing fences and range improvements, wi th no permittees on the majority of allotments to ensure their upkeep. Answer at 19. Furthermore, BLM would expect to see more unauthorized use and cases of trespass. Id. It maintains that although utilization of forage by another permittee may be harmful to Appellant in a given year, it is not an argument that speaks to the public interest of granting a stay. Id. In conclusion, BLM believes its ability to provide orderly management of these lands would be diminished by granting a stay-that proper care and maintenance wi l l occur when BLM is allowed to implement its decision, not by continuing the scheme of suspended permits that allow no grazing. Id.

We conclude, as did the ALJ, that Appellant has not shown that a stay, which would result in a suspension of grazing, is in the public interest. BLM has shown that granting a stay would result in further deterioration to rangeland health and would not promote the orderly management of the allotments. Thus, we agree with the ALJ's reasoned determination, supported by the record, that granting a stay is not in the public interest.

We conclude that the ALJ reasonably held that Appellant had not shown a likelihood of success on the merits or that the public interest favors granting a stay. Appellant has not carried his burden of proof.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of Interior, 43 C.F.R. § 4.1, the Order Denying Stay is affirmed.

III. CONCLUSION

I concur:

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