Grazing law and how it came to be |

Grazing law and how it came to be

Rohn RobbinsVail, CO, Colorado

In the first part of this two-part series, we ruminated upon the origins of golf and drew a strained line between those origins and the nascent laws of grazing. From Scotland, we leapt across the pond and time and bumped up against the Taylor Grazing Act of 1934, which conferred upon the Department of the Interior broad discretion in creating grazing districts and is generally considered the kick-off point of the modern law of grazing in this country.Next, we touched upon the grazing-related fiefdoms of the U.S. Forest Service and the Bureau of Land Management and the more minor bailiwicks of U.S. Fish & Wildlife and the National Park Service, all of which have a role in issuing grazing permits.In this part, we look at how grazing permits work, allotments and range improvement. And perhaps a word or two as well about herd districts and defining open range.How do permits work? Generally speaking, a grazing permit entitles the holder to graze livestock on a particular area of federal land, the boundaries of which are referred to as the allotment boundary. Through cooperative agreements, the permit may sometimes bleed over onto adjacent state and/or private lands. Permits are considered a privilege and not a property right and may be issued for up to 10 years. A management plan is required for all grazing-permit parcels and includes the season of use and the kind and number of livestock to be grazed. Permit fees are established and paid on a head month basis. A head month, as the name suggests, is a figure derived by a months use by each grazing animal. Goats and sheep are calculated differently from larger animals such as horses and cows (effectively, one horse, cow or bull equals five goats or sheep). To qualify for and maintain the permit, the permittee must own and keep a ranch or farm property with which the permit is associated.An allotment plan is a key component of the permit process. The plan, which is most commonly administered by the BLM or Forest Service, must include three elements: a statement of objectives, which must contain resource-management plans for the livestock and all resources affected by the grazing; a management section, which must spell out how the objectives are to be achieved; and an improvement section, which must include a schedule of how the range land will be rehabilitated in the event the management goals are not achieved.Open rangeAh, the open range. Big sky, fresh air. But what, precisely, is open range? In the realm of grazing law, open range may be defined most simply as that which isnt fenced in. It also can be defined as that which is fenced out. While this may seem like doublespeak, the concept is this: Once upon a time, livestock grazed hither and yon. While a well-established and necessary practice, the government sought to gain a semblance of order and control, at least concerning grazing on the public domain. Fencing the limitless acreage of public lands was cost-prohibitive. In a moment of rare lucidity, however, it dawned on those charged with such deep thinking that private land, relative to public land, was not only of lesser proportions but had the additional virtue of being, well, private. Thus, it became incumbent upon the private landowners to fence out that which they didnt want traipsing over their acreage. In this way, the open range was born.While those who wanted to graze federal land were required to have a permit, it was up to private landowners and not the government to exclude the livestock of others from their land. This legal device survives today in most allotments. Unless, of course, a herd district is involved.So whats a herd district? Well, a herd district stands the concept of open range on its ear. Within a herd district, the county and not private landowners is responsible for and pays most, if not all, of the costs of fencing. The herd district must be contiguous to open range and may not include state or federal land upon which grazing has been historically permitted. Herd districts change the law to fence in from fence out, a benefit of which may be that a landowner may collect damages caused by loose livestock. In many states, a herd district can be created by petition to the county commissioners.As you can imagine, grazing law at times gives rise to problems, conflict and, of course, lawsuits, some of which may involve trespass by livestock, use in excess of an allotment, failure to follow management requirements, failure to pay permit fees and unauthorized lease or transfer of a permit. There are, to be sure, others, as many others as human nature and inventiveness can concoct.In grazing law, the best advice may be to simply keep your head down. And your hooves firmly planted in the terra firma of the open range.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of Community Focus.Robbins can be reached at 926-4461 or by e-mail

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