The Hammond family of Oregon was alerted recently that their BLM grazing permit had been pulled.
The current Acting Assistant Secretary of Land and Minerals Management, Laura Daniels-Davies effectively reversed a Jan. 19, 2021, action taken by Trump’s Secretary of the Interior, David Bernhardt, to enter into a 10 year grazing permit agreement with the Hammonds.
Wyoming property rights attorney and former Deputy Solicitor for Parks and Wildlife (within the Department of the Interior) Karen Budd-Falen believes there is a chance that Daniels-Davies was acting outside of her authority.
The grazing permit was issued by Bernhardt, a Senate-approved appointee, while it was effectively revoked by an acting assistant secretary who has not been approved by the U.S. Senate, she pointed out.
“I think that is a huge legal question – whether an unconfirmed individual exercising authority can revoke a decision by a senate-confirmed appointee,” she said.
Daniels-Davies said the public had not been provided the required 15 days to comment on the issue, so she was remanding the matter to the BLM 43 C.F.R. subpart 4160. Budd-Falen believes that Secretary Bernhardt, as the head of the “parent” agency to the BLM, may very well have had the legal authority to make the final decision on that matter.
“The order actually temporarily rescinds the permit so that there can be more public process. They didn’t say the Hammonds will never get their permit back,” said Budd-Falen. She believes this was a “clever” move on the part of the acting assistant secretary.
“That makes it even harder to challenge in court,” she said. “A federal judge will look at that and think ‘it doesn’t say they can never get their permit.’”
But the reality is that the BLM can seek comments and continue finding loopholes to hold up the permit process, possibly never making a final decision on whether or not to renew the Hammonds’ permit, she said.
Budd-Falen has seen this happen. “An agency issues a proposed decision and then doesn’t get around to issuing a final.” She said she tried to address this – urging for a mandated timeline for agencies to complete an action – during her tenure in the Department of Interior. But no such timeline exists, so often a proposal remains just that – a proposal, with no action taken.
“I think it is horrible government – to leave decisions in limbo so that people don’t know how to react. It happens all the time. Even if the decision is going to be no, they should issue the decision so the individual affected can take it to court or appeal, or change their proposed action.”
Another aspect of the recent situation that Budd-Falen questions is the “reversal” of a decision made in an earlier administration. “Can one secretary just reach back and change the decision of another secretary? I don’t know that they can do that,” she said, adding that she hasn’t conducted legal research yet, on that topic. “I can’t think of situations in the past where they reached back to a past action and reversed it, as if to say, ‘just kidding.’”
Budd-Falen said that the Hammond ranch situation has been highly publicized, but that they are not the only ranchers dealing with a government staff and anti-grazing organizations out to drive their cattle off the land. While the Hammonds are under the world’s microscope because they happen to live in an area of the country that special interest groups have tried for years to get federally designated as a “monument.”
Steven Hammond said he believes the anti-grazing groups such as the Western Watersheds Project, who is claiming credit for the most recent action, have used the Hammonds as a fundraising project. They file suit against the BLM for issuing their grazing permit, and the donations from well-meaning Americans looking to “save” the sage grouse, roll in. “It feels good to donate and give, especially when you see some action for it. These organizations don’t even pretend like they need to take a tour of the land and actually find out what’s best for it. That isn’t even a consideration at the local level,” he said.
“It is common knowledge that one of the last fights the WWP was in was over a parcel of land with two sage hens on it. I’m thinking, after being rested for how many years – there are still only two sage hens there. Maybe they should acknowledge that removing grazing isn’t providing the results they claim to be looking for,” said Hammond.
“You drive around the west and look at what sage grouse habitat should look like – we’ve got millions and millions of acres of that, and yet the birds don’t seem to be in it. So this isn’t about a sage hen any more than the demise of the timber industry was to save the spotted owl,” said Hammond.
Hammond said he tries to stay positive and continues to enjoy every day ranching. The tough days are some of the best days because they keep his mind off of politics and his family’s uncertain future for a few hours, he said.
“I think this happens more often than not, and some ranchers don’t fight because it’s too expensive or they don’t know what to do, so they give up,” Budd-Falen said.
Ranchers in a similar situation should reach out to a cattlemen’s organization or an attorney, she said. “I think there are a lot of agency decisions that could be questioned. BLM lands are designated grazing lands. The Taylor Grazing Act (of 1934) requires grazing on those lands. That was the whole point of the Taylor Grazing Act.”
Dwight Hammond and his son Steven Hammond of Burns, Oregon were pardoned by President Trump in 2018, and allowed to return home after serving more than half of their five year arson sentences for the approximately 140 acres of BLM land they burned in two separate occasions in 2001 and 2006.
Dwight was found guilty of burning one acre of BLM land, when a prescribed burn on private land to reduce overcrowding juniper, spilled over onto the adjoining federally administered land in 2001.
Steven was found guilty of burning that same one acre, plus 139 more acres in 2006, when he lit a back burn to protect the family ranch headquarters when a series of lightning fires was heading toward them. The backfire succeeded in protecting the home quarters.
The Hammond permits total over 26,000 acres; the burned segment amounted to about one half of one percent of the total range the family owns the grazing rights to.
Anti-grazing groups claim in the opening statement of their lawsuit that the two fires set by the Hammonds “resulted in the destruction of important habitat for greater sage-grouse and in the spread of…cheatgrass.”
A range specialist testified under oath that the condition of the rangeland actually improved following the fires.