U.S. Supreme Court Upholds 1995 Department of the Interior Grazing Regulations

June 07, 2000

Summary
On May 15, 2000, a unanimous Supreme Court issued its opinion in Public Lands Council v. Babbitt, Cause No. 98-1991, rejecting challenges brought by the livestock industry that 1995 grazing regulations issued by the Department of the Interior violate provisions of the 1934 Taylor Grazing Act, as that Act had been amended by the Federal Land Policy and Management Act of 1976 ("FLPMA"). Despite rejecting the livestock industry's arguments, the case holds some "silver linings." First, the Supreme Court made clear that the Taylor Grazing Act would control cattle growers' substantive rights over anything arguably to the contrary in the Secretary of the Interior's regulations. Second, perhaps as an outgrowth of this principle, the Secretary of the Interior made a number of important concessions in order to get a favorable decision from the Supreme Court. In some respects, the Secretary's concessions assure the livestock industry the same benefits to which they were entitled prior to the 1995 amendments.

On May 15, 2000, a unanimous Supreme Court issued its opinion in Public Lands Council v. Babbitt, Cause No. 98-1991, rejecting challenges brought by the livestock industry that 1995 grazing regulations issued by the Department of the Interior violate provisions of the 1934 Taylor Grazing Act, as that Act had been amended by the Federal Land Policy and Management Act of 1976 ("FLPMA"). Despite rejecting the livestock industry's arguments, the case holds some "silver linings." First, the Supreme Court made clear that the Taylor Grazing Act would control cattle growers' substantive rights over anything arguably to the contrary in the Secretary of the Interior's regulations. Second, perhaps as an outgrowth of this principle, the Secretary of the Interior made a number of important concessions in order to get a favorable decision from the Supreme Court. In some respects, the Secretary's concessions assure the livestock industry the same benefits to which they were entitled prior to the 1995 amendments.

Justice Stephen Breyer, writing for the unanimous Court, began the opinion with a brief history of grazing on the public lands in the West: "Ranchers once freely grazed livestock on the publicly owned range as their herds moved from place to place, searching for grass and water. But the population growth that followed the Civil War eventually doomed that unregulated economic freedom." According to Justice Breyer, the economic success of post-Civil War (known in some other parts of the country as the "War of Northern Aggression") cattle drives and the arrival of sheep in the west resulted in "ever-scarcer water and grass." Overgrazing led to calls as early as 1878, when John Wesley Powell "pressed Congress to enact 'a general law...to provide for the organization of pasturage districts.'" Slip Op. at 2-3, quoting Report on the Lands of the Arid Region of the United States, 28 (1878). About 30 years later, President Theodore Roosevelt renewed Powell's suggestion, urging Congress to "provide for Government control of the public pasture lands of the West." S.Doc. No. 310, 59th Cong., 2d Sess., 5 (1907). To make a long story short, it was not until the days of the Dust Bowl in the 1930s that opposition to federal control of the public domain was overwhelmed by those seeking federal regulation of the cattle and sheep ranchers operating on the public lands. "The devastating storms of the Dust Bowl were...'the most tragic, the most impressive lobbyist, that ha[s] ever come to this Capitol.'" Slip Op. at 3, quoting 79 Cong. Rec. 6013 (1935). Consequently, Congress passed the Taylor Grazing Act, and FDR signed the Act on June 28, 1934.

According to the Court, the Taylor Grazing Act sought to "'promote the highest use of the public lands,'" and to prevent "'overgrazing and soil deterioration,'" among other things. Slip Op. at 3-4, quoting 43 U.S.C. §315. Through the Act, Congress delegated "enormous" administrative responsibilities to the Department of the Interior, including the need to define "the bounds of the public range, create grazing districts, determine their grazing capacity, and to divide that capacity among applicants." Slip Op. at 4. In dispatching these responsibilities, Interior established a permitting system with certain preferences for different categories of livestock owners. Included in the permitting system were the concepts that grazing privileges or rights were leasehold in nature, and that the grant of grazing privileges was discretionary. Id. at 5.

Despite the regulatory regime implemented under the Taylor Grazing Act, the condition of the public range did not improve, in the eyes of many. In 1976, Congress passed the Federal Land Policy and Management Act ("FLPMA"), which, in relevant part, "instructed the Interior Department to develop district-wide land use plans based upon concepts of 'multiple use'...and 'sustained yield...." Slip Op. at 8. The Department's grazing regulations under the Taylor Grazing Act were amended to incorporate FLPMA's land use planning and related requirements, tying grazing permit renewal and related regulatory actions to land use plans established under FLPMA. Id.

Against that historical backdrop, in 1995, the Clinton Administration adopted additional regulatory changes to the federal grazing regulations. Petitioners brought the lawsuit against the Secretary challenging ten of the new regulations. The District Court found four of the ten unlawful, and the Tenth Circuit Court of Appeals reversed the District Court in part, upholding three of the four reversed regulations. The three regulations which are the subject of the Public Lands Council suit change the definition of "grazing preference," permit those not engaged in the livestock business to qualify for grazing permits, and grant the U.S. title to all future "permanent" range improvements.

First, the 1995 regulations define grazing preferences with reference to applicable land use plans rather than providing a preference for a specific number of animal unit months or AUMs. The court rejected the ranchers' arguments that the unpredictable nature of land use plans would discourage lenders from taking mortgages on ranches as security of loans. Thus, the regulations would fail to safeguard the grazing privileges guaranteed by the Taylor Grazing Act.

The Court held that the Secretary's duty to "safeguard" such interests was specifically subject to the overall purposes of the Act, which would be incorporated in the applicable land use plans. Moreover, the Court held the Secretary has always had the authority to reduce AUMs or withdraw rangeland from grazing use. Finally, and perhaps most importantly, the Court noted the Secretary's concessions in this respect:

The Department has said that the new definitions do "not cancel preference," and that any change is "merely a classification of terminology." 60 Fed.Reg. 9972 (1995). It now assures us through the Solicitor General that the definitional charges "preserve all elements of preference" and "merely clarify the regulations within the statutory framework."

Slip. Op. at 14. The Court went on to note that a land use plan that denied grazing privileges would be subject to judicial challenge (id.), and this notion was emphasized in Justice O'Connor's concurrence. O'Connor Concurrence at 2.

Second, the Court upheld a change in regulations that eliminated the limitation that only those stock owners "engaged in the livestock business" were eligible to receive grazing permits. This regulation was challenged on grounds that the change would allow grazing permits to be obtained by nominal "stock owners" who could use the land only nominally for grazing while precluding use by persons engaged in the livestock business.

While the Court rejected this challenge, it did so in a way that largely protects existing grazing interests. The Court recognized that the Tenth Circuit had held regulations allowing issuance of permits for conservation use to be unlawful (see Public Lands Council 167 F.3d 1287, 1307-08 (10th Cir. 1999)) and that the Secretary had not appealed that determination. Slip Op. at 18. The court concluded that, under the existing regulations, a permit holder is expected to make substantial use of the grazing permit and that "the Secretary has represented to the Court that '[a] long-standing rule requires that a grazing permit be used for grazing.'" Slip Op. at 18-19.

However, the Court rejected an argument that the regulations' reservation of title to the United States in "permanent range improvements" violated the Taylor Grazing Act. The Court held that nothing in the Act denied the Secretary's authority reasonably to decide when or whether to grant title to those who make improvements.

Although Public Lands Council v. Babbitt is nominally a loss for the grazing industry because it upholds these three 1995 regulations, the Supreme Court's analysis and the Secretary of the Interior's concessions essentially support the status quo of continued grazing on public lands. The Secretary assured the Supreme Court that:

The new regulations do not in actual practice "alter the active use/suspended use formula in grazing permits" and that "present suspended use would continue to be recognized and have a priority for additional grazing use within the allotment.

J. O'Connor, Concurrence at 1. As stated by Justice O'Connor:

Should a permit holder find, however, that the Secretary's specific application of the new regulations deviates from the above assurances and in the process deprives the permit-holder of grazing privileges for such an extent that the Secretary's conduct can be termed a failure to adequately safeguard such privileges, the permit-holder may bring an as-applied challenge to the Secretary's action at that time.

Id. at 2.

Coupled with the Tenth Circuit's determination that the Secretary's regulation allowing grazing permits to be issued for conservation use is unlawful Public Lands Council 167 F.3d at 1307-08), the Supreme Court's decision in Public Lands Council v. Babbitt, provides the industry some assurance of the continued validity of their rights under the Taylor Grazing Act.