APR’S DEFENSE OF PROPERTY RIGHTS LACKS LEGAL UNDERPINNING

by Nathan Descheemaeker

Can private property serve as a privileged sanctuary from which multi-national tax-exempt foundations can incrementally transition and consolidate millions of acres of productive agricultural lands?

The APR in its paper Building a Legacy of Conservation pg. 1 states “When complete, the Reserve will consist of more than three million acres of private and public land (using the existing 1.1-million-acre Charles M. Russell National Wildlife Refuge as the public land anchor). The result will be a wildlife complex the size of Connecticut, set aside for conservation and public access.” On pg. 2 of the paper the APR reveals their appeal for the chosen area, “There’s a tremendous amount of public land to leverage.”

Cumulatively the APRs stated aim is to consolidate an additional 1.5 to 2 million acres of Private and BLM administered land around the buffer region of the CMR to be set aside for wildlife and biodiversity (The BLM acknowledged the APRs mission to create a prairie-based wildlife reserve in the Flat Creek Allotment Change in Use EA (2015) under cumulative effects). This mission would result cumulatively in the special designation/or withdrawal of well over 50% of the federally managed lands of the combined Highline Field Office and Lewistown Field Office, also the retirement of the remainder of acres available for livestock grazing on the CMR. This would consolidate large percentages of federal land within the geopolitical boundaries of the counties involved, also an even greater impact to counties is the tens of thousands of acres of private land that would be consolidated into the reserve.

This project spans 2 Resource Management Planning Regions, 7 Counties, 5 State Grazing Districts, and 3 Taylor Grazing Act districts. Yet APR and its representatives still claim they are ordinary applicants.

The APR is exploiting the Administrative branch of the government in order to accomplish piecemeal what otherwise would require Secretarial/Congressional decision. “Significance cannot be avoided by breaking it down into small component parts.” CEQ Reg. 40 CFR 1508.27(b)(7)

Montana Law is consistent with and reinforces the language in the Taylor Grazing Act and Executive Order 6910 relating to the preference extended to those engaged in the livestock industry.

Montana Laws Relating to the Organization of Community Grazing Districts chapter 67 states that it is its policy “to place the farming’ and livestock industries upon a permanent and solid foundation; to extend preference in sales and leases of lands to resident farmers, stockmen and taxpayers.” (Montana Code Annotated Title 76 Chapter 16 Grazing Districts)

This preference extended to those engaged in the livestock industry, and the federal regulations that serve those interests is acknowledged within Academic literature. One reference is a 2019 publication in the Natural Resource Journal on APRs grand scheme to rewild a massive area, James L. Huffman states:

“If and when grazing lands become more available for conservation purposes, it will be important for the BLM and Forest Service to eliminate regulations and procedures intended to serve grazing management objectives.” James L. Huffman, American Prairie Reserve: Protecting Wildlife Habitat on a Grand Scale, 59 Nat. Resources J. 35 (2019)

The APR themselves in their Revised Proposed Action (November 20, 2017) pg. 2 under ‘Other Terms and Conditions of APR Proposed Action’ states:

5: Authorize the construction and reconstruction of exterior fences prior to stocking the allotment with indigenous animals. Authorize removal of all interior fences once BLM allotments under a single permit once they are stocked with 1 (indigenous animals). At that time remove cattle as a livestock option for the permit.

7: Discontinue the existing BLM Allotment Management Plans once allotments are stocked with 1 (indigenous animals).

The Federal Land Policy Management Act left fully intact the TGA reservations, TGA grazing provisions/preferences, and the Chiefly Valuable for Grazing classification which established grazing districts with geopolitical boundaries that remain to this day. The classification, boundaries, and mission (stabilization of industry) as defined and codified across the last century is clear and unambiguous.

The designated purpose of TGA grazing districts is threefold, (1) Protection of the range (2) Orderly use by farmers and stockmen (3) Stabilization of livestock and farming industry. Conservation was considered in the context of the development and promotion of an essential industry to the nation.

TGA lands cannot be phased out of livestock grazing by retiring permits, reducing AUMs (while forage is available), or substituting livestock grazing with indigenous animal grazing, with the exception of special grazing permits or leases authorized by 43 C.F.R § 4130.6-4. These special permits are the exception not the rule and should be limited to a small percentage of lands available for livestock grazing, consistent with the statutory preference extended to landowners engaged in the livestock and farming industry, providing for the stabilization of said industry and protection of the properties dependent upon the public range.

To publish plans over a geographical landscape encompassing all of your neighbors, saying, (“when complete”) here is what we will do with it is itself a pressure to those living in and around the area. In short, the agency does not have the authority to approve an incremental application of any property owner (individual or organization), that is justified by an overall plan that requires the collaboration of even a single adjacent property owner who may or may not agree with such a plan, let alone a multitude of property owners for the goal to be realized.

CEQ Reg. 40 CFR 1508.25 (a)(1)(iii)- “Actions are connected if they: Are interdependent parts of a larger action and depend on the larger action for their justification.”

The fact the APR retracted its prior application and resubmitted a further incremental application has not changed the cumulative and indirect effects. APR seeks to prove out their grazing proposal on a smaller scale with monitoring to then use the “science” to justify a proposal on a large scale. The problem resides as A. Brecht’s work Political Theory (Princeton 1959), on page 147 states: “Science. . . is unable to decide which state of affairs is really just. Opinions differ and science cannot decide between them in absolute terms.”

This is not a question of science, this is a question of procedure, and prerogative.

Though they are issues, the issue is not bison, grazing, and fencing. The issue is the piecemeal consolidation and setting aside large amounts of federal and private land spanning six counties to dominant wildlife specific purposes, which is not consistent with the principle of multiple-use and sustained-yield or private property in the means of production.

Nathan Descheemaeker was born and raised in Central MT on a cattle ranch, he currently raises registered piedmontese feeder calves in Petroleum County. Nathan is a husband and father. He is active in local government serving on the local Conservation District while also providing technical analysis, support, and writing to help equip local governments to effectively engage in the federal administrative process as regards Federal lands and decisions within their jurisdiction.