2021 Idaho legislation seeks to classify irrigation pivot corners for taxation.  House Bill 252 proposes additional language to Idaho Code, Title 63. This language would ensure county assessors classify pivot corners as agricultural land. 

Pivot corners are the parts of a square parcel that a center-pivot irrigation system misses.  Idaho law consideres land “farmland” and “pasture” as long as it is at least five continuous productive acres.   However, according to House Bill 252’s sponsor, Rep. Aaaron von Ehlinger, some county assessors classify unproductive pivot corners as residential or commercial land.  This allows counties to collect higher taxes for that land. 

The proposed bill language includes land farmers use in tandem with qualifying agricultural land as those counties should appraise, assess, and tax as land “actively devoted to agriculture.”  This includes pivot corners for center pivot-irrigated crops. The bill also covers land for storing agricultural commodities or equipment.

House Bill 252 unanimously passed the House on March 9, 2021.  It is currently in its third reading in the Senate.  You can track the progress of the bill here. 

Interested in more Idaho legislation?  Check out our blogs on the water law bills currently before the Idaho House and the Senate. 

(Image credit: https://www.buzzfeed.com/mjs538/100-incredible-views-out-of-airplane-windows; https://agfax.com/2019/01/31/texas-water-management-integrating-center-pivot-irrigation-control-tech/)

In a previous blog, we looked into who owns an aquifer: does it belong to private individuals or the public? Under the ad coelum doctrine, the surface owner holds the ground itself – rocks, dirt, and the like – as private property, owned all the way down to the Earth’s core. On the other hand, the public collectively owns water, taken for private use through the rule of capture, or the ferae naturae doctrine.^[1] Because an aquifer is a “body of permeable rock which can contain or transmit groundwater,”^[2] the rules related to aquifers are a complex combination of the two competing doctrines. In our previous update, we highlighted a California district court case, Agua Caliente Band of Cahuilla Indians v. Desert Water Agency, et al, that seeks an answer to the question of aquifer pore space ownership.^[3]

Background

The Agua Caliente Band of Cahuilla Indians (“Tribe”) sued the Coachella Valley Water District and Desert Water Authority (“Defendants”) to protect the aquifer under its reservation from groundwater depletion and water quality degradation. The Tribe argued that the pore spaces within the aquifer are its property under the ad coelum doctrine. The Defendants believe that the public owns pore spaces. The court has not yet addressed the question of whether the pore spaces are public or private property. However, the case has progressed since our last post and we are due for an update.

The Tribe and Defendants agreed to split the litigation into three phases when the Tribe first filed the case in 2013. Phase 1 was to decide whether the Tribe had a reserved right to groundwater in principle. Thereafter, Phase 2 would resolve if this reserved right contained a water quality component, the method of quantification of a reserved groundwater right, and if the Tribe owned pore spaces within the aquifer. Phase 3, if necessary, would quantify the Tribe’s reserved groundwater right and ownership of pore space.

In Phase 1, the court granted summary judgment to the Tribe on its groundwater right claim. The decision essentially declared without a trial that the Tribe did in fact have a reserved right to groundwater. Phase 2 was delayed while the Defendants unsuccessfully appealed to the 9th Circuit and then unsuccessfully sought Supreme Court review.

Update

Like Phase 1, Phase 2 proceeded to summary judgment. The court ruled that the Tribe can seek a declaration that it has an ownership interest in sufficient pore space to store its groundwater. However, the Tribe did not argue that it owns the pore space as a “constituent element” of its land ownership in its initial complaint, and the court could not consider it. Recently, the Tribe submitted an amended complaint including its pore space as “constituent element” of land ownership argument, which is now before the court.

The question of whether the Tribe has ownership of the pore space beneath its reservation is the only item left for the court to decide in this phase; the answer could have a real impact on groundwater issues, as it may be one of the first cases to directly address the pore space question. Another controversy is bubbling over pore spaces in North Dakota, starting with the case Mosser v. Denbury Res., Inc., 2017 ND 169 (2017), passage of H.B. 2344, and legal challenges to the bill by the NW Landowners. Keep an eye on the blog for our next update on this case that could affect you!

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

^[1] https://en.wikipedia.org/wiki/Cuius_est_solum,_eius_est_usque_ad_coelum_et_ad_inferos

^[2] Oxford Online Dictionary, https://en.oxforddictionaries.com/definition/aquifer

^[3] The case is presently before the United States District Court for the Central District of California, Docket No. ED CV 13-00883-JGB-SPX. Plaintiffs filed the complaint on May 14, 2013.

It’s time to call your Congressman—House Bill H.R. 5737, introduced on January 30, 2020 proposes the implementation of procedures to permanently retire federal grazing allotments.

H.R. 5737 or the “Voluntary Grazing Permit Retirement Act” (the Act) proposes the ability of grazing permittees to sell or “waive” their right to graze under their Bureau of Land Management (BLM) or Forest Service grazing permit. The permittees would be compensated for the waiver, however, the BLM or Forest Service would then be barred from permitting any further grazing on the allotment under the permit. For allotments that are covered by multiple permits, the managing agency would be forced to permanently reduce the grazing level by the amount in the waived permit. The BLM and Forest Service would have no say in the retirement of the allotment, nor receive any compensation for its retirement.

The Act as proposed will present a conflict with the Taylor Grazing Act (TGA) and the Federal Land Policy Management Act (FLPMA) by claiming cattle grazing should be “simply removed” in favor of the multiple uses of federal land, such as recreation and wildlife. Both the TGA and FLPMA recognized and protect grazing on federal land as an intended multiple use, and the Act fails to make this recognition. 

The Act also appears to misunderstand the nature of cattle grazing permits, which are generally have 10 year terms. Yet, it will allow the termed permittee to waive any future grazing on the allotment through waiver of their current grazing rights. The Act allows for the retirement of 100 grazing permits per year, with up to 25 in any one state. 

The implementation of this Act as proposed, will likely result in the devastation of public lands grazing and the cattle industry in Western States. The Act proposes no administrative review nor even notice for the waiver of a grazing permit, resulting in permanent retirement of a grazing allotment. Rather it places the management and control of federal land grazing in the hands of the permittee and third parties, mainly environmental groups seeking permanent retirement of grazing areas. 

The Act is supported by numerous environmental groups including the Sierra Club, Natural Resource Defense Council, Defenders of Wildlife, Center for Biological Diversity, Wilderness Watch, the Lands Council, and Southern Utah Wilderness Alliance. It also currently has 10 Democratic cosponsors. 

The Act is currently opposed by the National Cattlemen’s Beef Association and Public Lands Council.

Call your Congressman today to provide your opinion on this Act.

The full text of the Act can be found at:  https://www.congress.gov/bill/116th-congress/house-bill/5737/text

For a more in-depth review, please review the Voluntary Grazing Permit Retirement Act article.

Photo Credit: https://www.agweb.com/article/key-things-to-know-about-federal-land-grazing-in-the-west-NAA-associated-press

The city of Anacortes, WA, is making news by running part of its new fiber optic cable network through its water system.

Brown and Caldwell’s Water News for September 25, 2019, links to a report by KUOW News: “Wifi wires will run through water pipes in northern Washington town.” This “first in North America” system, according to Fred Buckenmeyer, Director of Public Works for Anacortes, has already connected Anacortes with neighboring city, Mt. Vernon.

Richard Walker, of goanacortes.com, writes: “installation of the first fiber optic cable began April 8, using a method commonly used in Europe … using conduit installed in active water lines.” According to KUOW’s report, the internet tube is encased in the same plastic as the water pipe.

Buckenmeyer continues, “Like having a water pipe inside a water pipe. No chance of contamination or anything like that.”

It is also being touted as a way to reduce costs such as eliminating the need to dig under Washington State’s Skagit River, the Swinomish Slough and “15 miles of farms, wetlands, streets and sidewalks along the way.”

Jacqueline Allison, also of goanacortes.com, writes that this is intended to provide a fiber optic telemetry enabling communication between fire stations, water stations and other city facilities.

The city will sell the unused broadband capacity to consumers as part of a municipal wifi network. Interest in connecting to this growing network has already been expressed by Island Hospital in Anacortes, and Western Washington University in Bellingham, among others. The city is hoping to entice customers from commercial internet providers. According to project manager Jim Lemberg, if they can capture a third of the commercial market, the project will “pay for itself in 15 years.”

Stay tuned to Schroeder Law Office blog for water law and water updates all year long.

For the past decade, Schroeder Law Offices has provided opportunities to law students interested in learning water and natural resource law. Former SLO law clerks have established successful legal practices across the Pacific Northwest and beyond.

Schroeder Law Offices is pleased to introduce our 2019 summer law clerk, Katie Jourdan. Katie is returning to work with the attorneys and staff after having clerked previously with SLO during the fall of 2018.

Katie is entering her last year of law school at Lewis and Clark Law School, where she will complete her Juris Doctorate in May of 2020. With an emphasis on Natural Resource and Land Use Law, Ms. Jourdan has experience researching and analyzing water rights issues. Previously, Katie worked with the Western Resource Legal Center on land use and agriculture issues. She also interned with the Washington Cattlemen’s Association where she conducted research on recent land use legislation. 

Katie holds a Bachelor of Science in Environmental Studies and Journalism from Gonzaga University, where her enthusiasm for natural resources has paved her way to law school. Her background in agriculture and small farm life further nurtures an empathy for water users and the issues that rural America faces.

This summer, Katie is putting to good use her time spent in the classroom and exercising her proficiency in legal research. She is working with the attorneys and staff at Schroeder on client cases, educational presentations, and litigation preparation. In the fall, Katie will begin her final year at Lewis and Clark.

The Fallon Range Training Complex (“FRTC”) Modernization Draft Environmental Impact Statement (“EIS”) comment period has now been extended so that public comments may be submitted through Thursday, February 14, 2019. There are several public informational materials available to the general public regarding the modernization, materials can be found at the draft EIS website and include fact sheets and maps regarding the management of natural and cultural resources for FRTC.

The FRTC Modernization Draft EIS assesses the potential environmental impacts of the proposed modernization of the Navy’s FRTC located in Fallon, Nevada and focuses specifically on modernizing the complex to provide the Navy with more realistic training capabilities while maintaining the safety of the local community. The public is encouraged to review the materials and submit comment should they have concerns regarding adverse impacts to the community; comments can be submitted to the Draft EIS by mail or online at the FRTC Modernization database. All comments that are submitted during the public comment become a part of the public record and substantive comments will be addressed in the Final EIS.

The Final EIS statement is expected to be prepared and available to the public by Fall 2019, and will include updates to the Draft EIS and response to any substantive comments submitted during the draft comment period. Once the Final EIS statement is released, there will be a 30-day waiting period for consideration of comments and public review. The Record of Decision is expected to be available by Winter 2019-2020.

We all know that pumpkins make great fall decorations and are an icon of this Halloween holiday, however they also provide many more less known benefits. According to the Old Farmer’s Almanac, all parts of pumpkins are edible except the stem and if kept in a cool, dry space, will keep for up to 6 months or more! Pumpkins are a good source of fiber, vitamin C, several of the Vitamin B complexes, potassium and carotenoids that play a role in cancer prevention, controlling blood-sugar levels and boosts the immune system.

Adding pumpkins into crop rotations help farmers. Their presence helps soil maintain a nutrient balance, reduces weed problems and decreases the likelihood of disease spores, eggs and pests. According to Texas A&M Horticulture, planting pumpkins directly after harvesting sweet corn helps to decay a coarse crop refuse that is resistant to many other crops. And planting pumpkins directly after grass crops results in fewer diseases to the pumpkins. Pumpkins are also unique in that they can tolerate soils with low pH levels as well as extremely acidic soils.

Pumpkins are also somewhat tolerant of dry soil conditions and in certain locations farmers can rely solely on rainfall. When rainfall is inadequate, irrigation is essential especially during the pollination and fruit set periods. Many farmers have found that using a drip system to water their pumpkin crop saves time and money by using less water than flood irrigation or center pivot sprinklers.

Pumpkins have both male and female flowers and pollen transfer is a necessary event. Historically many farmers relied on native bees to transfer the pollen, however, due to a decline of bee population in certain areas, some farmers have resorted to renting bee hives for the first few weeks of flowering. Weeds, insects and diseases are a constant battle for pumpkin farmers as well. Farmers are in constant flux of fighting off pests and diseases while maintaining the integrity of the environment necessary for other activities such as bee pollination.

Pumpkins are beneficial in so many other ways than their decorative purposes. The next time you see a pumpkin, remember all of their unique qualities and ways they benefit the farming industry.

On July 31, 2018, Bloomberg released an interactive series of maps demonstrating the breakdown of land use in the United States. The article, which can be found here, provides an in-depth look at the ways in which we utilize the nearly 2 billion acres of land in the contiguous United States.

The United States is a huge country, ranking third in the world in both land mass and population. However, the vast majority remains uninhabited. Only around 70 million cumulative acres are considered “urban” land. Another 50 million-or-so acres qualify as “rural residential” land. So, what do we do with the remaining 94%? First and foremost, we farm.

Between pasture, rangeland, and cropland, over half of America’s total acreage is used for agriculture. As shown in the Bloomberg maps, if all the grazing land in the United States were laid out side-by-side, it would cover nearly all of the western states. Additionally, over 391 million acres throughout the country are used for growing commercial and consumable crops.

It is unsurprising, then, that the United States Department of Agriculture (“USDA”) estimates that over 80% of water in the US is used for agricultural purposes. When the proportion of agricultural land is compared to the proportion of agricultural water, the ratio makes sense.

The Bloomberg maps offer a fascinating breakdown of the way our country as a whole makes use of its space and, by extension, its water. Stay tuned to Schroeder Law Offices’ blog for more water use facts!

Written by Alyssa Holland, Lisa Mae Gage, and Lisa Kane

Water Week 2018 is currently underway as water organizations across the country gather in Washington, D.C. to advocate the importance of water protection and conservation with hopes of ultimately elevating water to a national priority. Organizations in the water sector are using Water Week to ramp up their efforts to educate policymakers about the need for funding to benefit water infrastructure. Many organizations are collaborating for Water Week, including National Association of Clean Water Agencies (“NACWA”), Water Environment Federation (“WEF”), American Water Works Association (“AWWA”), and the National Water Resources Association (“NWRA”), for example.

A few main events will take place during Water Week:

• On April 17-18, 2018 the National Policy Fly-In:
  An event to provide the public with the opportunity to voice concerns and challenges to their policy makers.
• April 17-19, 2018: Water and Wastewater Equipment Manufacturers Association (“WWEMA”) 45th Washington Forum:
  “Effectively Communicating Change at the National, State, and Local Level,” a discussion regarding changes happening in Washington, D.C. and to the nationwide water infrastructure, environmental and public health protection, and legislative and regulatory changes that will impact the water sector.
• On April 19, 2018 the WateReuse Association Water Week 2018 Congressional Briefing:
  Four (4) different communities across the country will be highlighted for their use of water recycling and the local economic benefits that encourage other communities to do the same.

While each organization has a slightly different mission, each has a goal of advancing education regarding water issues and returning to their communities with the priority of educating the general public on the same issues. One of the main events, the Congressional Briefing, will directly discuss tools used in arid states (such as one of our main states of practice, Nevada) to address water scarcity and a way for communities to better manage their local water resources to help spur economic growth and plan for the future.

Schroeder Law Offices Nevada attorney Therese Ure also attends and hosts local conferences in Nevada to continue education regarding how to support the community’s resource challenges and even more particularly, how to support Northern Nevada’s agriculture industry. Click here to see our coming events for local education on the topic. Although attending these events may not be a possibility for everyone, we should all use Water Week as a time to reflect on how valuable water is to our everyday lives and to look for ways to conserve and protect water within our own communities.

Schroeder Law Offices plays some serious water games, and so should you! Serious gaming is an emerging tool in negotiation, mediation, and water conflict. Serious water gaming acts is a way to share knowledge, interact in an engaging way, and build capacity to solve the real problems in water resources. The games allow for role-playing for social learning in a less-threatening environment. Parties that might otherwise be unable to cooperate build capacity, relationships, and deescalate tensions, at least momentary. Careful reflection after the game concludes provides lessons that can be applied to the real-life problems. When we aren’t helping you with your real-life water issues, we are honing our water gaming skills.

The United States Army Corp of Engineers has started playing too! They have built a dam-based game resembling the way the agency balances water needs for agriculture, flood control, habitat, water quality, and hydropower. The “River Basin Balancer Game” is available for free at: http://www.nwo.usace.army.mil/Missions/Dam-and-Lake-Projects/Missouri-River-Dams/Basin-Balancer/

The United Nations plays “Aqua Republica.” This game simulates the demands placed on water managers, balancing food, energy, and wildlife. The game includes social revolts, population increases, and economic impacts. There are multiple versions available representing different regions. Choices of crops, environmental policies, and irrigation technology all influence the player’s success. To begin playing for free, follow this link to the registration menu: http://capnet.aquarepublica.com/register

For those that enjoy board games, the California Water Crisis Game pits the three regions of California against each other in a competition for water, but also reputation! Different stages of water law are represented, including the Gold Rush era and today’s Sustainable Groundwater Management Act. (See our blog post on the Act here: https://www.water-law.com/california-will-have-regulations-on-groundwater-pumping/) More information is available here: http://www.californiarailmap.com/cawater

Schroeder Law Offices will be developing its own game to show the kinds of legal problems you could encounter with your water issues! For more information and games, see Dr. Todd Jarvis’s blog at http://rainbowwatercoalition.blogspot.com/2016/04/serious-gaming-in-water.html and the upcoming paper titled “Serious Water Gaming” by Shelby Hockaday, Todd Jarvis, and Fatima Taha.

Make sure to stay tuned to Schroeder Law Offices’ Water Blog for more news that may affect you!

This article was drafted with the assistance of Law Clerk Jakob Wiley, a concurrent student at Oregon State University’s Water Resources Policy and Management graduate program and a law student at the University of Oregon School of Law.

I was able to attend the Rocky Mountain Mineral Law Foundation’s course on Advanced Public Lands held in Santa Fe this January. Between all agencies, there is approximately 652 million acres of federally managed lands. Given the timing of the conference, many speculated and discussed what development of public lands might bring under the current Trump Administration. Many speculate that this Administration will bring more of a use, disposal and/or privatization model.

Various models of public lands use have come and gone throughout the history of the US including Acquisition, Disposal, Privatization, Retention, Management, and Nature Conservation, among others. With many forces driving our models including population growth, energy development, increased recreation and environmental values, and limited natural resources, it will be interesting to see how this is all balanced in the next four years.

Those at the RMMLF conference speculate that we will see reform to the ESA, Antiquities Act, Federal Land Transfers, Energy Initiative, Land Use, and Ocean Withdrawal Orders. There is speculation that the President will revise National Monument Orders and/or reverse several of the Executive Orders signed in the last months of the Obama Administration. Will there be administrative reform on the coal moratoriums, climate initiatives and BLM plan and regulations? Exciting times are ahead as we are in a front seat to watch history change with regard to public land use!

During the month of January, the Nevada Cattlemen’s Association is hosting a series of workshops around the state regarding grazing permits on federal lands. The Bureau of Land Management and U.S. Forest Service agencies (and other agency representatives) will be giving presentations on their plans to implement land use changes that have been established for managing federal lands.

Materials to be reviewed during the meetings include the January 5, 2015 Order No. 336 by the Secretary of the Interior regarding Rangeland Fire Prevention, Management and Restoration policy and strategies, as well as resource management plans as drafted by the BLM. Attendees are strongly encouraged to review the materials to be informed prior to attending the meetings.

There will be five workshops beginning in mid-January in locations across the state; Nevada. Meetings will be held in Winnemucca, Elko, Ely, Battle Mountain and Fallon, more information regarding location and time can be found below or by contacting the Nevada Cattlemen’s Executive Director, Kaley Sproul, at (775) 738-3214.

• January 17: 2-6:30pm, Winnemucca, Humboldt Coop Extension

• January 18: 2-6:30pm, Elko, Great Basin College (HSCI Room #108)

• January 19: 2-6:30pm, Ely, Bristlecone Convention

• January 20: 2-6:30pm, Battle Mountain, Battle Mountain Civic

• January 21: 12 to 4:30pm, Fallon, Old Post Office

As an update to the previous blog posted regarding the Fallon Range Training Complex Modernization and Public Comments, https://www.water-law.com/deadline-approaching-submit-nepa-scoping-comments-nevadas-fallon-range-training-complex/, the deadline to submit comments has been extended. The new deadline is December 12, 2016. If you are interested in submitting comments there are several ways to submit comments including online or by mail.

Submit Comments Online:

To submit comments online, please visit:
https://frtcmodernization.com/Public-Involvement/Submit-Your-Comment

Mail In Comments:

For a written form, please follow the link to download and print a pdf form:
https://frtcmodernization.com/portals/FRTCModernization/files/forms/FRTCMEIS_Scoping_Comment_Form.pdf

Mail written comments to the address listed below:

Naval Facilities Engineering command Southwest
Code EV21.AK
1220 Pacific Highway
Building 1, 5^th Floor
San Diego, CA 92132

In order for your comments to be considered in the draft Environmental Impact Statement (EIS), the comments MUST be postmarked or received online by December 12, 2016.

Washoe County is hosting a public forum to discuss the Public Lands Bill on Wednesday, November 2, 2016 from 4:30 pm – 7:00 pm at the Reno Sparks Convention Center. A few of the main priorities of the bill include:

• Make certain federal lands available for future economic development opportunities
• Expand recreational opportunities to include parks, trails, and open space
• Create opportunities for local jurisdictions to acquire federal lands
• Create new wilderness areas and provide funding for habitat restoration and conservation

Please see the following maps of the proposed areas surrounding the greater Reno-Sparks area to be transferred out of federal ownership:

Map 1: https://www.washoecounty.us/csd/files/Files/Land_Bill_8-16_Disp_Boundary.pdf
Map 2: https://www.washoecounty.us/csd/files/Files/Land_Bill_8-16_Transfer_Req.pdf

For more information relating to the maps of the proposed areas: https://www.washoecounty.us/csd/planning_and_development/conservation-act.php

If you are interested in participating in or attending the public forum, please see the information below:

For more information relating to the Public Lands Bill or the Public Forum, please contact the following Washoe County representative:
Scott Oxarart
soxarart@washoecounty.us
775-328-2068

Original news release: https://www.washoecounty.us/outreach/2016/10/2016-10-26-public-lands-bill.php

NEPA is the acronym for the National Environmental Policy Act.  NEPA’s purposes included setting national policy to encourage productive and enjoyable harmony between humans and their environment; promoting efforts that will prevent or eliminate damage to the environment; and, enriching the understanding of the ecological systems and important natural resources. See 42 U.S. C. 4321 for additional details.  To promote these purposes, NEPA defined processes federal agencies must follow when they propose an action, grant a permit, or agree to fund or otherwise authorize any other entity to undertake an action that could possibly affect environmental resources. Thus, an  EA (Environmental Assessment) or an EIS (Environmental Impact Statement) are resulting products of NEPA analysis.  Generally speaking, NEPA’s requirement is simply to engage in the a process that analyzes the effects on the environment with public input and disclosure, before taking action.

Once a project is determined to have a federal nexus to require NEPA, the first stage in the process is scoping.  In scoping the lead federal agency asks for comment and input from the public as to the nature and the extent of the issues and impacts to be addressed in the EIS.  It is during scoping that your comment on the proposed action’s effect on you or the environment, rangeland resources, water sources, wildlife, livestock grazing, cultural resources, and the like, are required. During scoping, you can identify a reasonable alternative solution, state that alternative with specificity, and request that it be considered in the NEPA process.  In the end, your input in the scoping process could change what the agency determines are the issues and what alternatives might be considered when that lead federal agency prepares the Environmental Impact Statement.

NEPA processes do NOT give the agency authorization to proceed on a project or provide funding for a project.  It is merely one required step in the federal process of decision making.  Once NEPA is completed, the agency usually issues a ROD (Record of Decision) that outlines how, or under which alternative, the agency may proceed forward. Generally speaking, lawsuits related to NEPA seek declaratory judgments or writs of mandamus to establish the NEPA obligations (ie the agency needs to follow more process).  NEPA does not authorize awards of attorney’s fees and expenses for prevailing parties unless a plaintiff can qualify under EAJA, 28 USC 2412.

NEPA, is the only the precursor to agency action.  If your rights or interests may be affected by a proposed action, now it the time to start positioning yourself to show harm so that you may be adequately compensated in separate proceedings should the proposed action proceed.

In Fallon Nevada, NEPA scoping began for the Fallon Range Training Complex Modernization’s proposed action that will 1) renew existing 202,589 acres of public land withdrawal that is set to expire on November 6, 2021; 2) withdraw and reserve for military use 604,744 acres of additional public land to expand existing land ranges; 3) acquire 65,160 acres of “non-federal” land (think state owned or privately held) to expand existing land ranges; 4) expand special use airspace, as well as reconfigure existing airspace; and 5) modify range infrastructure to support he expansion. Scoping Comments are due, pursuant to the Federal Register Notice, on November 25, 2016 (see, Vol. 81, No. 166 at 58919 dated August 26, 2016).  See also, www.frtcmodernization.com for more information relating to the proposed action.

This expansion will include several grazing allotments.  Some of these allotments will be completely closed to grazing, while others will be modified in some way.  Both the Nevada Farm Bureau and the Nevada Cattlemens Association are working to prepare comments in this scoping process, however you should also submit your own comments related specifically to your affected areas. A map of the effected grazing allotments in relation to the proposed action can be found at: https://frtcmodernization.com/portals/FRTCModernization/files/maps/FRTCLM05140v11_NAS_Fallon-Proposed_Land_Renewal_and_Expansion_Map_with_Grazing_Allotments.pdf

Once the scoping period closes, the agencies will prepare a draft EIS.  According to the public meetings, the draft EIS is expected to be published in the Winter of 2018.  After the draft is published, there will be another round of public meetings and another comment period relating to the draft EIS document.  Currently the final EIS is expected in the Fall of 2019, with Record of Decision to be issued in the Winter of 2020.

Don’t wait to get your comments drafted as the November 25^th deadline is the day after Thanksgiving!

The Department of Defense Plans to Expand the Fallon Nevada Navy Training Complex. Now is the Time to Participate and Comment in the NEPA process!

The Fallon Range Training Complex (FRTC) is planning expansion of its Fallon Nevada facilities and announced in the Federal Register its intent to prepare an environmental impact statement (EIS). The EIS will assess the potential environmental consequences of maintaining and modernizing the FRTC which would include land range expansion through additional land withdrawal and land acquisition, airspace modifications, and public land withdrawal renewal. The proposed action includes withdrawal and reservation for military use of approximately 604,744 acres of additional public land, and acquisition of approximately 65,160 acres of non-federal land to expand existing ranges.

A recent Nevada Farm Bureau newsletter notes concerns for the adverse impacts on farmers and ranchers due to the grazing allotments that would be impacted.
If you would like to participate in this process, there will be a series of open house meetings scheduled to take place.

Along with participation in these meetings, it is imperative that you submit comments with all your concerns over the proposed project to ensure you have legal standing as to the impacts of the proposed action in the future. Comments must be postmarked or received online no later than November 25, 2016. Stay tuned for a blog on the importance of drafting NEPA comments. More information is available at: http://www.FRTCModernization.com

The Bureau of Land Management has scheduled a workshop to explore the ideas of strategic targeted grazing. Targeted grazing is a natural approach using controlled livestock to accomplish vegetation management. More specific examples of vegetation management include: weed control, reducing the fuels of wildland fires, aiding in restoration projects as well as landscape enhancement. One of the primary tasks of the BLM for targeted grazing is to reduce the fine fuels that contribute to the severity of wildland fires. Through this workshop, the BLM hopes to involve all stakeholders through both collaboration and participation. In order to participate in this workshop, you must register.

See the workshop details below:

For more information on this workshop as well as to register for this workshop, please visit: https://www.surveymonkey.com/r/BLMTGWORKSHOP

With the political race underway, one group has taken a hard look at land management objectives on federal lands. In response, this group prepared a list of the top ten ways to improve federal land management in an open letter to the United States Presidential Candidates. In summary, top ten items include:

1. Retain federal ownership of most federal lands, but with significant changes.
2. Enhance the National Park System by converting some of the existing National Monuments to Park status with approval of the applicable State.
3. Adopt and implement State sage grouse management plans, and withdraw BLM and USFS land use and forest planning as related to sage grouse.
4. Manage wild horses and burros to achieve “appropriate management levels” (AML) within 4 years with priority timing on sage grouse breeding, late-brood rearing, and winter habitat areas.
5. Repeal (or amend) the Antiquities Act of 1906, to negate the ability of the President to unilaterally establish National Monuments without the approval of Congress.
6. Release Wilderness Study Areas (WSAs) within 4 years unless Congress approves to establish the same (in whole or in part) to Wilderness status.
7. Retain, but amend, the Equal Access to Justice Act, and similar fee-shifting statutes.
8. Amend the Endangered Species Act to more precisely defining the terms “species,” “endangered species,” and “threatened species.”
9. Amend the Administrative Procedure Act to provide litigants a meaningful opportunity for participation and for judicial review.
10. Consolidate administration of the public lands and national forest system lands into one federal land management agency.

Click here for a full copy of this open letter. Open Letter to Presidential Candidates — Top Ten Ways to Improve Federal Land Management in the West 

• The positions expressed in the letter are those of the individual signatory and do not intend to express the positions of the firm/business or its clients/customers to which the signatory is associated/employed.

The Nevada Cattlemen’s Association posted a news release on May 16, 2016 regarding the Permittee Outreach Workshop. This workshop is geared towards Nevada Cattlemen and Cattlewomen who graze cattle on BLM permits.

With the listing of the Sage Grouse as “Not warranted” now more than ever it is imperative to establish with state and Federal Agencies that proper grazing has and can have a positive influence on the Sage Grouse Habitat. The Nevada Cattlemen’s Association in conjunction with Nevada Bureau of Land Management and the Nevada Department of Agriculture will be putting on a series of workshops around the state to have information sharing and discussion about how the Greater Sage Grouse Land Use Plan Amendment, and implementation of Table 2.2 will apply to permittees.

The series of workshops will take place as follows:

On September 18, 2015, the Bureau of Land Management (“BLM”) and United States Forest Service (“USFS”) issued Records of Decision (“RODs”) related to land management in support of sage grouse populations on lands managed by the agencies. The RODs put land use plans in place in lieu of listing sage grouse under the Endangered Species Act (“ESA”). The land use plans are extremely long and complicated, and are summarized in the article Sage Grouse Conservation without an Endangered Species Act Listing: Digging into the National Greater Sage Grouse Planning Strategy Records of Decision, available at: http://www.water-law.com/water-rights-articles/sage-grouse-conservation/.

In general, producers are skeptical that existing activities will not be affected by the new land use plans, as the agencies promise, and are worried about increased fire risks due to the plans. Further, the plans may prove more restrictive than an ESA listing. Parties in Idaho and Nevada have filed lawsuits to challenge the amended land use management plans. See: http://www.gov.idaho.gov/mediacenter/press/pr2015/2%20Feb/pr_61.html, and http://ag.nv.gov/News/PR/2015/Attorney_General_Laxalt_Issues_Statement_Confirming_the_Support_of_Nevada_Counties_in_Sage-Grouse_Lawsuit/.

Law suits involving sage grouse have not halted in the shadow of these new, comprehensive land use plans. On March 29, 2016, Western Watersheds Project (“WWP”) filed suit in the U.S. District Court for the District of Nevada against the BLM for approving fences within the Argenta Allotment in Nevada, claiming the approval violated the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”) and that alternatives to fencing existed that BLM should have considered. WWP also alleges that the BLM sage grouse use plan required BLM to consider certain alternatives. To view a copy of WWP’s complaint, visit: https://drive.google.com/file/d/0B1T2j7JW1SeoWV9FbVh2SW1wdEU/view. WWP’s law suit comes on top of other attacks against grazing in the Argenta Allotment that are currently being litigated.

Be sure to stay tuned to Schroeder Law Offices’ Water Law Blog for more news that could affect you!