No. 98-1991: Public Lands Council v. Babbitt



No. 98-1991


In the Supreme Court of the United States

PUBLIC LANDS COUNCIL, ET AL., PETITIONERS

v.

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION


SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney
General
ROBERT L. KLARQUIST
WILLIAM B. LAZARUS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTIONS PRESENTED

The Secretary of the Interior issued final amended public rangeland managementregulations in February 1995, following a lengthy rulemaking in which petitionersparticipated, along with state and local officials, ranchers, and otherpublic land users. The district court held four of the amended regulationsinvalid, and the court of appeals reversed in part, sustaining three ofthose four amended regulations. The questions presented are:

1. Whether the Secretary acted within his authority in issuing amended rulesthat (a) use the term "grazing preference" to denote the preferenceto be accorded qualified applicants for grazing permits, and (b) use theterm "permitted use" to denote the extent of use of rangelandsconferred by a grazing permit.

2. Whether the Secretary acted within his authority in issuing a rule vestingtitle in the United States to new permanent improvements on rangelands ownedby the United States.

3. Whether the Secretary acted within his authority in issuing an amendedrule identifying the "mandatory qualifications" for applicantsfor grazing permits on public rangelands.




In the Supreme Court of the United States

No. 98-1991
PUBLIC LANDS COUNCIL, ET AL., PETITIONERS

v.

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-70a) is reported at 167F.3d 1287. The original opinion of the court of appeals is reported at 154F.3d 1160. The order of the court of appeals granting respondents' petitionfor rehearing (Pet. App. 71a-72a) is reported at 167 F.3d at 1289. The opinionof the district court (Pet. App. 75a-100a) is reported at 929 F. Supp. 1436.

JURISDICTION
The order on rehearing and amended judgment of the court of appeals wasentered on February 8, 1999. On April 23, 1999, Justice Breyer extendedthe time for filing a petition for a writ of certiorari to June 9, 1999,and the petition was filed on that date. The jurisdiction of this Courtis invoked under 28 U.S.C. 1254(1).

STATEMENT

This petition concerns the Secretary of the Interior's authority to regulatelivestock grazing on public rangelands under the Taylor Grazing Act (TGA),43 U.S.C. 315 et seq., the Federal Land Policy and Management Act of 1976(FLPMA), 43 U.S.C. 1701 et seq., and the Public Rangelands Improvement Actof 1978 (PRIA), 43 U.S.C. 1901 et seq.

1. The Secretary of the Interior, through the Bureau of Land Management(BLM), is charged with managing approximately 170 million acres of publicrangelands throughout the western United States. Management of the publicrangelands is guided and constrained by congressional mandates found primarilyin the TGA, FLPMA, and PRIA. Pet. App. 3a.

Until 1934, the Secretary did not have explicit statutory authority to regulategrazing on public lands. "There thus grew up a sort of implied licensethat these lands * * * might be used so long as the Government did not cancelits tacit consent." Light v. United States, 220 U.S. 523, 535 (1911).That tacit consent of the United States to "suffer[] its public domainto be used for [grazing] purposes," however, "did not confer anyvested right" on people using the public lands. Ibid.

The unrestricted access to public lands for grazing led to substantial injuryto those lands. Congress responded to the need to regulate private use ofthe federal lands by enacting the TGA. Act of June 28, 1934, ch. 865, 48Stat. 1269 (codified as amended at 43 U.S.C. 315-315r). The Act was intended"to insure the objects of such grazing districts, namely, to regulatetheir occupancy and use, to preserve the land and its resources from destructionor unnecessary injury, [and] to provide for the orderly use, improvement,and development of the range." 43 U.S.C. 315a. As with the originalstatus of the users of public lands, livestock grazing permits under theTGA do not "create any right, title, interest, or estate in or to the[public] lands." 43 U.S.C. 315b.

The TGA grants the Secretary broad discretion in managing public lands thatsustain livestock grazing. Section 2 directs the Secretary to "makesuch rules and regulations * * *, and do any and all things necessary ** * to insure the objects of such [public lands], namely, to regulate theiroccupancy and use, to preserve the land and its resources from destructionor unnecessary injury, [and] to provide for the orderly use, improvement,and development of the range." 43 U.S.C. 315a.

The TGA recognizes a number of competing uses for federal rangelands. See43 U.S.C. 315a (establishing objects of grazing districts). The Act authorizesthe Secretary of the Interior to issue permits to allow grazing permitteesto construct "[f]ences, wells, reservoirs, and other improvements necessaryto the care and management of the permitted livestock" on public lands.43 U.S.C. 315c. Nothing in the Act restricts the Secretary's authority,either in issuing permits or in requiring authorization prior to modificationsof permits, to consider the management of livestock to the exclusion ofother interests. See LaRue v. Udall, 324 F.2d 428, 430 (D.C. Cir. 1963)("[T]he Taylor Grazing Act is a multiple purpose act."), cert.denied, 376 U.S. 907 (1964).

Congress has extended the multiple-use policy in other statutes governingthe management of public lands. In the FLPMA, 43 U.S.C. 1701 et seq., forexample, Congress established a policy to manage public lands on a multiple"use and sustained" yield basis. See 43 U.S.C. 1701(a)(7) (statinggoal of FLPMA to promote "multiple use"); see also 43 U.S.C. 1702(c)(defining "multiple use"). The FLPMA provides for the regulationof grazing through "grazing permit[s]" and the development of"allotment management plan[s]" (AMPs). 43 U.S.C. 1702(k) and (p).AMPs are developed in consultation with the permittees, and prescribe theextent and manner in which livestock operations are to be conducted to meetmultiple-use, sustained-yield, and other management objectives. 43 U.S.C.1702(k). The FLPMA confers broad discretion on the Secretary to modify thenumbers of livestock grazing and to set limits on seasonal use of grazinglands. 43 U.S.C. 1752; see also Perkins v. Bergland, 608 F.2d 803, 806 (9thCir. 1979). Congress also confirmed in FLPMA the rule that a grazing permitconfers no rights in federal lands. 43 U.S.C. 1752(h).

In the PRIA, 43 U.S.C. 1901 et seq., Congress made findings that "vastsegments of the public rangelands are producing less than their potentialfor livestock, wildlife habitat, recreation, forage, and water and soilconservation benefits, and for that reason are in an unsatisfactory condition."43 U.S.C. 1901(a)(1). In PRIA, Congress articulated general findings thatthe public rangelands were in an unsatisfactory state (43 U.S.C. 1901(a)(1),(2) and (3)), and that those conditions could be addressed by increasedmanagement and funding (43 U.S.C. 1901(a)(4)). Congress affirmed a policyof range improvements to make public rangelands "as productive as feasiblefor all rangeland values." 43 U.S.C. 1901(b)(2).

2. In August 1993, BLM published a statement of intention to propose amendmentsto the Department of the Interior's (DOI) rangeland management regulations.See 1 C.A. App. 145; DOI, Bureau of Land Management (BLM), Rangeland Reform'94: A Proposal to Improve Management of Rangeland Ecosystems and the Administrationof Livestock Grazing on Public Lands (Aug. 1993).1 That announcement initiateda formal regulatory process that had been under discussion within DOI duringthe preceding years.2 Those proposals became known as "Rangeland Reform'94," and were described in a booklet entitled Rangeland Reform '94(1 C.A. App 145), approximately 35,000 copies of which were distributedin late August and September 1993 to all BLM grazing permittees and lessees,3interested congressional staff, and others. Public debate, commentary, andreview of the announced proposals followed.4

On March 25, 1994, the Secretary published the proposed rangeland managementrules (59 Fed. Reg. 14,314), with a comment period to end September 9, 1994(58 Fed. Reg. 38,154 (1993)). On May 13, 1994, BLM published a notice ofavailability of the Draft Environmental Impact Statement (DOI, Bureau ofLand Mgmt., Rangeland Reform '94 Draft Environmental Impact Statement 1-7(1994) (DEIS), 59 Fed. Reg. 25,118); for which the comment period also endedon September 9, 1994, 59 Fed. Reg. at 39,778. To facilitate and encouragepublic comment, the Department conducted 48 hearings on the DEIS and theproposed rule throughout the West, as well as one hearing at BLM's EasternStates Office in Virginia (59 Fed. Reg. at 25,385), and held open housesbefore the hearings to answer individual questions about the proposed rules(1 C.A. App. 230; 60 Fed. Reg. 9894 (1995)). More than 1900 people testifiedat the hearings. Ibid. DOI also received and considered more than 20,000pieces of mail from more than 11,000 persons on the notice of proposed rulemakingand the DEIS, and catalogued and considered more than 38,000 individualcomments. Ibid.

On December 30, 1994, DOI published notice that the Final EnvironmentalImpact Statement was available. DOI, Bureau of Land Mgmt., Rangeland Reform'94 Final Environmental Impact Statement (1994) (FEIS), 59 Fed. Reg. 67,717.On February 13, 1995, Secretary Babbitt signed the Record of Decision (ROD)for the FEIS. 1 C.A. App. 309. The final rules were published February 22,1995, with an effective date of August 21, 1995. Id. at. 230; 60 Fed. Reg.at 9894.

3. a. In July 1995, petitioners filed a complaint challenging ten of theamended regulations on their face. 1 C.A. App. 1. Petitioners later substitutedfor that suit a petition for review, seeking declaratory and injunctiverelief on the same grounds that had been stated in their complaint. Id.at 77. Petitioners alleged that most of those rules were invalid for lackof statutory support, poorly-reasoned bases, or inadequate responses tocomments. They challenged two regulations for alleged constitutional defects.In addition, petitioners asserted that the FEIS and accompanying Recordof Decision violated the National Environmental Policy Act (NEPA), 42 U.S.C.4332 et seq. 1 C.A. App. 3.5

b. The district court held four amended regulations to be invalid and enjoinedtheir enforcement, reasoning that the rules exceeded the Secretary's statutoryauthority or lacked a reasoned basis. Pet. App. 75a-100a. Those four regulationsconcern: (1) the distinctions between "grazing preference" and"permitted use," which refer, respectively, to (a) the preferenceto be accorded qualified applicants for grazing permits ("grazing preferencerule"), and (b) the extent of use of the rangelands allowed under apermit ("permitted use rule"); (2) ownership of future permanentrange improvements ("range improvements rule"); (3) mandatoryqualifications for permit applicants ("mandatory qualifications rule");and (4) the issuance of grazing permits for conservation use ("conservationuse rule").

4. The Secretary appealed, and the court of appeals reversed in substantialpart. Although the court unanimously recognized that the relevant statutesprovide no "right[s]" in private persons "in or to"the public rangelands, but rather govern only "when and how privateindividuals will be allowed to use those lands" (Pet. App. 13a-14a,quoting in part 43 U.S.C. 315b), the court divided on the application ofthat principle to the rules under challenge. By divided vote, the courtreversed the district court's order with respect to the grazing preferenceand permitted use rules and the rule governing title to future permanentrange improvements. Judge Tacha dissented from those determinations. Pet.App. 50a-70a. The panel unanimously reversed the portion of the districtcourt's order invalidating the mandatory qualifications rule and unanimouslyaffirmed the portion of the district court's order invalidating the conservationuse rule.

The court of appeals denied petitioners' petition for rehearing and suggestionof rehearing en banc (Pet. App. 73a-74a), which sought review of the courtof appeals' decisions with respect to the grazing preference, permitteduse, and range improvements rule.6

ARGUMENT

The judgment of the court of appeals is correct and does not conflict withany decision of this Court or any other court of appeals. Accordingly, furtherreview is not warranted.

1. The court of appeals properly upheld the amended rules on grazing preferences.Those rules represent a rational and reasonable construction and implementationof the Taylor Grazing Act, which confers broad authority on the Secretaryto "make such rules and regulations * * *, and do any and all thingsnecessary * * * to insure the objects of such [public lands], namely, toregulate their occupancy and use, to preserve the land and its resourcesfrom destruction or unnecessary injury, [and] to provide for the orderlyuse, improvement, and development of the range." 43 U.S.C. 315a.

Section 3 of the TGA authorizes the Secretary to establish the conditionsfor issuance of grazing preferences:

Preference shall be given in the issuance of grazing permits to those withinor near a district who are landowners engaged in the livestock business,bona fide occupants or settlers, or owners of water or water rights, asmay be necessary to permit the proper use of lands, water or water rightsowned, occupied, or leased by them.

43 U.S.C. 315b. The prior rules defined the term "grazing preference"to include the extent of use of the rangelands allowed under a grazing permit.See 43 C.F.R. 4100.0-5 (1994). The amended rules clarify that (1) the term"grazing preference" denotes the preference to be accorded qualifiedapplicants for grazing permits, and (2) the new term "permitted use"denotes the extent of use of rangelands allowed under a grazing permit.See id. § 4100.0-5 (1995). Both concepts are fully consistent withthe plain language of Section 3 quoted above.7

a. Petitioners assert that the amended rules eliminated "adjudicatedrights to graze" (Pet. 3) held by persons grazing livestock on thepublic rangelands. See Pet. 11-20. Their arguments are misplaced. First,the statute's use of the term "preference" negates petitioners'claim of "rights to graze" (Pet. 3) a particular number of livestockon the public rangelands. See 43 U.S.C. 315b. Petitioners identify no statutoryrequirement that the Secretary define the term "preference" withregard to adjudicated animal unit months (AUMs),8 nor any statutory impedimentto the Secretary's issuance of amended rules implementing the statutoryterm "preference."

Second, petitioners' criticism does not account for the use of the term"preference" in the TGA itself. The amended rule defines "grazingpreference or preference" to mean:

a superior or priority position against others for the purpose of receivinga grazing permit or lease. This priority is attached to base property ownedor controlled by the permittee or lessee.

43 C.F.R. 4100.0-5 (1995). As the Secretary explained in the rulemakingresponse, the change properly reflects the original use of "preference"in the TGA to mean priority in the issuance of grazing permits among potentialusers of those privileges, such that certain applicants for grazing permits(including permittees seeking renewal) are favored over others. 1 C.A. App.259; 60 Fed. Reg. at 9922.9

Third, neither the TGA nor its legislative history uses the term "rights"to describe the grazing privileges on the public rangelands permitted underthe Act, and the "adjudications" themselves did not purport toestablish any such "rights." From the Secretary's initial implementationof the TGA in the 1930s, adjudications determined "grazing privileges,"not "rights to graze." See U.S. C.A. Reply Br. Addendum (copiesof adjudication decisions). As even the dissent recognized, those adjudications

identified the property owned by the permittee that was to serve as thebase for the livestock operation and to which the grazing privileges attached,and * * * identified the maximum amount of forage, expressed in AUMs, thatthe permittee could graze on the public lands. Cf. Federal Range Code, §6(b) (1938) (describing priority of issuance of grazing permits to qualifiedapplicants). That maximum amount of forage eventually became known as thegrazing preference, although that term was not added to the grazing regulationsuntil 1978. See 43 C.F.R. § 4100.0-5(o) (1978).

Pet. App. 51a-52a. The "identification" in the adjudications ofthe "maximum [grazing] amount of forage * * * that the permittee couldgraze" did not establish a "right to graze" that amount offorage. Indeed, as the dissent also recognized, the "preference"identified in adjudications "never guaranteed a permittee the rightto graze that amount of forage every year." Id. at 52a (emphasis added).

The adjudicated AUMs could not have established fixed grazing rights becausethe relevant statutes provide no "rights" in private persons "inor to" the public rangelands, but provide simply "when and howprivate individuals will be allowed to use those lands":

Congress and the various Secretaries of the Interior have developed overthe last sixty years a somewhat complicated regulatory scheme governingthe federal lands. Yet this complicated scheme stems from a simple premise:the lands at issue here belong to the United States government; the issuanceof grazing permits "shall not create any right, title, interest, orestate in or to the lands." 43 U.S.C. § 315b. Congress passedthe aforementioned statutes governing when and how private individuals willbe allowed to use those lands and charged the Secretary of the Interiorwith enforcing its intentions.

Pet. App. 13a-14a (emphasis added).10

Fourth, the amended rules preserve all elements of preference previouslyfound in the "grazing preference" rule. Indeed, in the final rulemakingthe Secretary responded to the very same claim that petitioners now advance-thatthe amended rules "mean that preference was being abolished"-byexplaining that the amended rules represent "merely a clarificationof terminology" and do "not cancel preference":

The term "preference" was used during the process of adjudicationof available forage following the passage of TGA to establish an applicant'srelative standing for the award of a grazing privilege. * * * Through time,common usage of the term evolved to mean the number of AUMs attached toparticular base properties. But this usage dilutes the original statutoryintent of the term as an indication of relative standing. The term "permitteduse" captures the concept of total AUMs attached to particular baseproperties, and use of this term does not cancel preference. The changeis merely a clarification of terminology. * * * The Department believesthat permitted use is the more appropriate term to describe and quantifythe number of AUMs of forage being allocated.

1 C.A. App. 259; 60 Fed. Reg at 9922 (emphasis added). The rules thus shouldnot adversely affect the stability of the livestock or lending industries;they merely clarify the regulations within the statutory framework in whichthe terms "preference" and "use" appear.

b. Petitioners also incorrectly contend that the court of appeals erredin upholding the Secretary's authority to shift components of the priorgrazing preference rule into the "permitted use" rule. See Pet.13-14. The rangeland management rules in effect prior to 1995 used the term"grazing preference" to mean "the total number of animalunit months [AUMs] of livestock grazing on public lands apportioned andattached to base property owned or controlled by a permittee or lessee."43 C.F.R. 4100.0-5 (1994). A permittee's "grazing preference"under the prior rule included both "active use" (defined as "thecurrent authorized livestock grazing use," ibid.) and "suspendeduse" (representing the adjudicated AUMs held in "suspension"from active use, ibid.). See id. § 4110.2-2(a) (1994).11

The amended rules simply move the reference to AUMs from the definitionof the term "grazing preference" in the prior rules to the newregulatory term "permitted use," which is defined as "theforage [expressed in AUMs] allocated by, or under the guidance of, an applicableland use plan for livestock grazing in an allotment under a permit or lease."43 C.F.R. 4100.0-5 (1995). Like "grazing preference" in the priorrule, "permitted use" in the amended rules expressly "shallencompass all authorized use including * * * suspended use." Id. §4110.2-2(a) (1995) (emphasis added). And, like "grazing preference"in the prior rules (see note 11, supra), "permitted use" is (1)specified in permits as a designated amount of forage expressed in AUMs(43 C.F.R. 4110.2-2(a) (1995)); (2) attached to base property (id. §4110.2-2(c) (1995); and (3) transferable with the base property, in wholeor part, upon application and approval (id. § 4110.2-3 (1995)).12

In the 1995 rulemaking process, the Secretary expressly decided not to alterthe pre-existing scheme and rejected the elimination of suspended use:

The present suspended use would continue to be recognized and have a priorityfor additional grazing use within the allotment. Suspended use providesan important accounting of past grazing use for the ranching community andis an insignificant administrative workload to the agency.

FEIS 144. The issuance of the amended rules thus should have no effect onthe predictability of grazing on the public rangelands or "financialstability" (Pet. 18) in livestock operations (including policies affectinglending to grazing permittees).13

c. The change in terminology from "grazing preference" in theprior rules to "grazing preference" and "permitted use"in the amended rules will not decrease the stability of the livestock industryby instituting a new connection between grazing-use determinations and theland use planning process, as petitioners erroneously assert. See Pet. 15,17-18. The Secretary has employed land use plans to set allowable grazinglevels at least since 1978, as a result of the land use planning processrequirements established by Congress in FLPMA. See 43 C.F.R. 4110.2-2(a)(1978); Delmer McLean v. BLM, 133 Interior Bd. Land App. 225, 230 (1995)("As a comparison of the post-1978 regulations with the previouslyexisting Federal Range Code makes clear, the entire basis upon which grazingpreferences was determined was drastically altered."). Thus, petitioners'apparent complaint (Pet. 17) about a land use planning process in effectsince 1978 is unpersuasive as a challenge to the 1995 amended rangelandmanagement rules.

Moreover, using land use plans in determining grazing preferences will likelyresult in greater, not lesser, stability for grazing permittees. As theSecretary explained when the final rules were issued, absent a major changein the overall situation on the range, "changes in permitted use throughBLM initiatives are unlikely" where land use plan objectives are beingmet. 1 C.A. App. 260; 60 Fed. Reg. at 9923. As even the dissent below recognized,under the prior rules, "[p]ermittees knew and understood that therewould be year-to-year fluctuations in available forage and changes in theoverall conditions of the range, and the Secretary had full authority underthe TGA to make individual adjustments in active use." Pet. App. 54a.But that does not mean that a permittee's "permitted use" changeson an annual basis. Rather, as explained in the final rulemaking:

Permitted use is not subject to yearly change. Permitted use will be establishedthrough the land use planning process, a process which requires data collectionand detailed analysis, the completion of appropriate NEPA documentation,and multiple opportunities for public input. Establishing permitted usethrough this planning process will increase, not decrease, the stabilityof grazing operations. The rule clearly defines preference to be a superioror priority position for the purpose of receiving a grazing permit. * ** The concept of assigning first priority to certain persons is well-establishedin TGA and is an appropriate way to contribute to the stability of dependentlivestock operations and the western livestock industry. The redefinitionof preference is intended to resolve the confusion and misinterpretationof the concept that has developed over the years.

1 C.A. App. 265; 60 Fed. Reg. at 9928.14 There is no statutory impedimentto the Secretary's issuance of those amended rules, and the court of appealsproperly accorded deference to the Secretary's considered judgment on thebasis of extensive rulemaking proceedings.

2. The court of appeals correctly upheld the Secretary's authority to issuethe amended rule governing ownership of title to future permanent rangeimprovements. By its terms, Section 4 of the TGA, 43 U.S.C. 315c, providesthat improvements may be constructed on the public lands either "underpermit issued by the authority of the Secretary, or under such cooperativearrangement as the Secretary may approve." Section 4 further states:

No permit shall be issued which shall entitle the permittee to the use ofsuch improvements constructed and owned by a prior occupant until the applicanthas paid to such prior occupant the reasonable value of such improvementsto be determined under rules and regulations of the Secretary of the Interior.

43 U.S.C. 315c. The amended rule implementing that provision states:

Subject to valid existing rights, title to permanent range improvementssuch as fences, wells, and pipelines where authorization is granted afterAugust 21, 1995 shall be in the name of the United States.

43 C.F.R. 4120.3-2(b) (1995).

Petitioners argue that this amended rule "is plainly inconsistent withthe TGA." Pet. 20. In doing so, however, they mistakenly assume that,because Section 315c uses the phrase "improvements constructed andowned by a prior occupant," all permanent range improvements constructedby permittees must be owned by them. The court below correctly rejectedpetitioners' contention that the quoted phrase obligates the Secretary tofurnish permittees with title to any and all range improvements that thepermittee may construct, in whole or in part in the future. See Pet. App.34a-41a.

Nothing in Section 315c limits the Secretary's discretion to determine prospectivelywhat improvements, if any, may be both "constructed and owned"by a permittee. 43 U.S.C. 315c (emphasis added). Consistent with Section315c, the amended rules provide that permittees may hold title to some rangeimprovements. See 43 C.F.R. 4120.3-3(b) (1995) ("The permittee or lesseemay hold the title to authorized removable range improvements used as livestockhandling facilities such as corrals, creep feeders, and loading chutes,and to temporary structural improvements such as troughs for hauled water.").But the fact that permittees may own some range improvements does not meanthat the TGA requires that permittees obtain title to any or all permanentrange improvements. Section 315c confers broad discretion on the Secretaryto restrict title to permanent range improvements on federal rangelandsin the federal government.

Moreover, by its terms Section 315c obligates a new permittee to providecompensation to prior occupants for those improvements that both were constructedand are owned by the prior occupant. That provision thus addresses a relationshipbetween private parties- compensation from a new permittee to a prior occupant.It does not support petitioners' contention that grazing permittees haveoutright ownership of permanent improvements subsequently constructed bypermit on the public lands. The amended rule, although prospectively accordingthe United States title to future permanent range improvements, continues-likethe prior rule-to provide full compensation to permittees for both pastand future investments in permanent improvements. 43 C.F.R. 4120.3-5, 4120.3-6(c)(1995). The only change in the rule is a prospective restriction on ownershipof permanent range improvements, not a restriction on compensation to permitteesfor their relative investments in such improvements.

Petitioners incorrectly suggest (Pet. 27-28) that federal ownership of futurepermanent range improvements under the amended rule will adversely affectinvestment in such range improvements. Under the amended rule, permitteescontinue to receive compensation for the reasonable value of permitted permanentrange improvements. 43 C.F.R. 4120.3-5, 4120.3-6(c) (1995). As the Secretaryobserved, "[t]he Forest Service [a component of the Department of Agriculture]has long had a policy of retaining title to permanent improvements and hasnot observed that private contribution has been discouraged." 1 C.A.App. 272; 60 Fed. Reg. at 9935. Harmonizing the Interior and AgricultureDepartments' approaches to ownership of permanent range improvements willsimplify regulatory compliance for the large number of federal operatorswho hold both Forest Service and BLM permits. 2 C.A. App. 736; J.M. Fowleret al., Economic Characteristics of the Western Livestock Industry 3, Tab.5 (Jan. 1994).15 It also will achieve consistency in the management of federallands.

3. Petitioners assert (Pet. 21-24) that the court of appeals erred in upholdingthe Secretary's deletion in the 1995 mandatory qualifications rule of theprior rule's requirement that applicants for grazing permits be "engagedin the livestock business." That contention is incorrect. Althoughthe TGA explicitly provides a "preference" for permit applicantsengaged in the livestock business, it does not impose a mandatory qualificationthat a permittee be engaged in the livestock business.

The TGA directs that grazing permits be granted only to stock owners:

The Secretary of the Interior is authorized to issue or cause to be issuedpermits to graze livestock on such grazing districts to such bona fide settlers,residents, and other stock owners as under his rules and regulations areentitled to participate in the use of the range.

43 U.S.C. 315b (emphasis added). That passage authorizes the Secretary toissue grazing permits only to stock owners - bona fide settlers, residents,and other types of stock owners. But the statute does not require that allpermittees be "engaged in the livestock business." Rather, theTGA uses the phrase "engaged in the livestock business" only inrelation to the "preference" given in issuing permits within grazingdistricts:

Preference shall be given in the issuance of grazing permits to those withinor near a district who are landowners engaged in the livestock business,bona fide occupants or settlers, or owners of water or water rights.

Ibid. (emphasis added). Thus, preference in the issuance of grazing permitsshall be given to those who are "within or near a district" ifthey are either landowners engaged in the livestock business, or bona fideoccupants or settlers, or owners of water or water rights. If the lattertwo groups are to receive a preference, they necessarily must be qualifiedto receive permits.

Petitioners' insistence that permittees must - as a mandatory qualification- be engaged in the livestock business thus improperly reads out of thestatute the independent clauses in the preference provision giving preferenceto "bona fide occupants or settlers" or "owners of wateror water rights." See Moskal v. United States, 498 U.S. 103, 109-110(1990) ("[A] court should give effect, if possible, to every clauseand word of a statute.") (internal quotation marks omitted).16

Moreover, both the text of the TGA and its legislative history show thatCongress's chief concern was that applicants possess nearby base property,not that they be engaged in the livestock business. Congress required allpermit applicants seeking a preference to own or control base property "withinor near a district." 43 U.S.C. 315b. The legislative history showsthat Congress was most concerned about migrant grazers,17 and thereforewished to give permits to those who owned, controlled, or had improved,nearby base property.18 Likewise, the Department of the Interior's earlyrules and administrative decisions were consistent with the language ofthe statute that mentioned this group of applicants only in the contextof preference, not as a mandatory qualification.19 After nearly a decadeof such a regime, in the early 1940s the Department of the Interior substitutedthe words "engaged in the livestock business" for "owns livestock"in the mandatory qualifications regulations. See 3 C.A. App. 1179; RalphE. Holan, 18 Interior Bd. Land App. 432, 434 (1975). Accordingly, the requirementthat applicants be "engaged in the livestock business" came notfrom the TGA, but from an administrative decision that the Secretary hasthe discretion to remove, especially given the demonstrable anachronismsof the old rule.20

4. Petitioners argue (Pet. 29-30) that the Court should grant certiorarinotwithstanding the absence of a circuit conflict because this lawsuit isthe only vehicle to consider the rules at issue in this case due to thefinancial constraints on affected persons mounting similar challenges. Theycite no case for that proposition. Yet it is clear from their own submissionthat the issue affects other western States, such as those in the Eighthand Ninth Circuits. See Pet. App. 3a; 1 C.A. App. 212; DEIS 1-7. Petitionerschose to bring this lawsuit as a facial challenge to the rules, rather thanto build a factual record to demonstrate the effects of the amended rulesin practice.21 The petition thus asserts grave harm to petitioners as aresult of the rule changes without any record to support those claims. Inour view, the amended rules will not produce the harms about which petitionersspeculate. But if such consequences do occur in the application of the amendedrules, the issues presented by the certiorari petition in this case willlikely arise in other circuits. There accordingly is no reason for thisCourt to abandon its normal standards for granting certiorari.

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney
General
ROBERT L. KLARQUIST
WILLIAM B. LAZARUS
Attorneys


SEPTEMBER 1999


1 For convenience, citations to the court of appeals appendix (C.A. App.)also include a parallel citation to the publicly-available document.

2 In 1990, BLM initiated the "Range of Our Vision" program andpublished a document entitled State of the Public Rangelands 1990, The Rangeof Our Vision, 2009: Diamond Jubilee of the Taylor Grazing Act, as a firststep toward addressing and resolving public rangeland issues.
In 1991, the BLM Director asked the agency's National Public Lands AdvisoryCouncil (NPLAC) to make recommendations to help guide BLM's rangeland managementprogram. 1 C.A. App. 180; 58 Fed. Reg. 43,208 (1993). NPLAC in turn assigneda "Blue Ribbon Panel" (Panel) to review the rangeland managementprogram needs and to recommend reform. The Panel produced a report in March1992, Rangeland-Program Initiatives and Strategies (Panel Report), which(1) cited a need for grazing program goals and objectives that sustain naturalsystems while providing for human needs and desires (id. at 5); (2) recommendedin part that BLM develop rangeland program goals and objectives based onmodern ecological concepts, to assure protection of the basic resources(soil, water and vegetation) and the sustainability of the rangeland systems(1 C.A. App. 209; DOI, Bureau of Land Mgmt., Rangeland Reform '94 DraftEnvironmental Impact Statement (DEIS) 1-4 (1994)); and (3) concluded thatBLM should give foremost consideration to the protection of the basic rangelandcomponents of soil, water and vegetation, explaining that, "withoutassurances for the future well-being of these basic natural resources, thereis precious little to squabble about" (Panel Report 1).
BLM then initiated a major effort to analyze critically how it conductsresource management across the full spectrum of its activities and programs(1 C.A. App. 180; 58 Fed. Reg. at 43,208, and also organized an Incentive-BasedGrazing Fee Task Force to study alternative grazing fee concepts coupledwith land management stewardship initiatives. In the spring and summer of1993, the Secretary of the Interior held five town hall meetings in theWest to discuss improvement of rangeland management (ibid.). The publicscoping process to develop an Environmental Impact Statement (EIS) beganin July 1993.

3 Throughout this brief, "permit" refers to both "permit"and "lease," and "permittee" refers to both "permittee"and "lessee."

4 During the 70-day scoping process and the 60-day comment period on theAdvance Notice of Proposed Rulemaking, the BLM received approximately 12,600pieces of mail from approximately 8000 persons on that notice, an accompanyingnotice of intent to prepare an Environmental Impact Statement (EIS), andthe Rangeland Reform '94 summary booklet. 1 C.A. App. 204-212; DEIS 1-7.BLM then identified and refined key components of the rangeland improvementeffort in preparing a proposed rule and a draft EIS. Id. at 212. Duringa three-month period beginning November 17, 1993, Secretary Babbitt met20 times around the West with groups that included governors, state andlocal officials, ranchers, and other public land users. 1 C.A. App. 209;DEIS 4.

5 The certiorari petition raises no claims of constitutional defects, andno claims of NEPA violations.

6 The panel granted respondents' petition for rehearing (Pet. App. 71a-72a),which sought to amend a small portion of the court's reasoning with respectto its invalidation of the conservation use rule, but did not seek to disturbthe result. That portion of the court's decision is not at issue here.

7 Thus, the term "grazing preference" in the amended rules isa construction of the phrase "[p]reference shall be given in the issuanceof grazing permits" in Section 3, while the term "permitted use"in the amended rules is a construction of the phrase "as may be necessaryto permit the proper use of lands." 43 U.S.C. 315b.

8 After Congress enacted the Taylor Grazing Act in 1934, the Departmentof the Interior initiated an administrative process called "adjudications"in which livestock carrying capacities expressed in animal units per month(AUMs) were identified for owners of "base property" (i.e., ownersof land or water in or near a grazing district).

9 See McNeil v. Seaton, 281 F.2d 931, 936-937 (D.C. Cir. 1960) ("Theword [preference] in the context here used is to be taken in its ordinarysense. Its meaning is plain. It is a term with which Congress is fully familiaras in legislation dealing with immigration, preference in employment, Indianland allotments and many other fields. So here."); 2 C.A. App. 839;DOI, Division of Grazing, Federal Range Code § 1b (Mar. 16, 1938) ("Preferencein the granting of grazing privileges will be given to those applicantswithin or near a district."). See also Red Canyon Sheep Co. v. Ickes,98 F.2d 308, 314 (D.C. Cir. 1938) ("those who * * * bring themselveswithin a preferred class set up by the statute and regulations, are entitledas of right to permits as against others who do not possess the same facilitiesfor economic and beneficial use of the range") (emphasis added).

10 See United States v. Fuller, 409 U.S. 488, 493-494 (1973); Holland LivestockRanch v. United States, 655 F.2d 1002 (9th Cir. 1981); Diamond Ring Ranch,Inc. v. Morton, 531 F.2d 1397 (10th Cir. 1976); McNeil v. Seaton, 281 F.2dat 936; Red Canyon Sheep Co., 98 F.2d at 314.

11 The "grazing preference" under that rule was (1) specifiedin all grazing permits or leases as a designated amount of forage expressedin AUMs (43 C.F.R. 4110.2-2(a) (1994)); (2) attached to base property (id.§ 4110.2-2(c) (1994)); and (3) transferable with the base property,in whole or part, upon application and approval (id. § 4110.2-3 (1994)).

12 Petitioners improperly rely on Oman v. United States, 179 F.2d 738 (10thCir. 1949), in support of their claim that the amended rules conflict withSection 315b. In Oman, the court of appeals merely stated that Section 315brequires adequate "safeguards" for "grazing privileges recognizedand acknowledged," a proposition wholly consistent with the decisionbelow. "[G]razing privileges recognized and acknowledged" aresubstantively protected under the amended rules by the inclusion in "permitteduse" of "all authorized use * * * including suspended use."43 C.F.R. 4110.2-2(a) (1995). Moreover, the same procedural safeguards attendgrazing use decisions under the amended rules as under the prior rules.Section 315h of the TGA broadly requires that the Secretary "provideby appropriate rules and regulations for local hearings on appeals fromthe decisions of the administrative officer in charge in a manner similarto the procedure in the land department." 43 U.S.C. 315h. Under theprior rules, decisions affecting active use could be challenged administratively,and under the amended rules, decisions affecting active use likewise maybe challenged administratively. 43 C.F.R. 4160.4 (1995). And, like the priorrules, the amended rules provide that "[a]ny person whose interestis adversely affected by a final decision of the authorized officer mayappeal the decision for the purpose of a hearing before an administrativelaw judge." Ibid.

13 The amended rules are consistent with the "savings provision"in FLPMA, which preserves "any valid lease, permit, patent, right-of-way,or other land use right or authorization existing on the date of approvalof this Act." 43 U.S.C. 1701 note (Savings Provisions) (emphasis added)."Permitted use" in the amended rules includes "all authorizeduse," and thus on its face is consistent both with the FLPMA savingsprovision and with decisions of the court of appeals. 43 C.F.R. 4110.2-2(a)(1995) (emphasis added). See, e.g., Sierra Club v. Hodel, 848 F.2d 1068(10th Cir. 1988); City & County of Denver v. Bergland, 695 F.2d 465(10th Cir. 1982).

14 Like "grazing preference" in the prior rules, "permitteduse" in the amended rules does not change from year to year. It haslong been the case, however, that the ratio between active use and suspendeduse may change annually, depending on range and other conditions. Underboth the prior and the new rules, and consistent with the Secretary's authorityin issuing permits to "specify from time to time numbers of stock andseasons of use," 43 U.S.C. 315b, BLM had and continues to have theability and the duty periodically to review the use specified in a grazingpermit and make changes as needed. 43 C.F.R. 4110.3 (1994); ibid. (1995).Under both sets of rules, BLM could decrease grazing use by suspending it.Id. § 4110.3-2 (1994); ibid. (1995). The provisions for increasingpermitted use under the amended rules (id. § 4110.3-1 (1995)) are essentiallythe same as the provisions for increasing active use under the prior rules(ibid. (1994)). Under the prior and amended rules, the AUMs not in activeuse were (and are) not available to permittees, and the same mechanism was(and is) provided for seeking an increase in active use.

15 The amended range improvements rule at most reinstates a policy on ownershipof permanent range improvements that was in place before 1984 regulatorychanges left the ownership question unclear. BLM data on pre- and post-1984range improvement investment by permittees further show that there is noempirical basis for a belief that the amended rule will discourage suchinvestments. See 2 C.A. App. 458; DOI, Bureau of Land Mgmt., Total FundsSpent by Ranchers for Improvements Through Section 4 (RI) Permits 1978 to1993 (July 11, 1994). The data show an annual average of $1.7 million inrange improvements from 1978 to 1983, and $1.9 million from 1984 to 1993.Ibid. In any event, the Secretary has the authority to reconsider and modifythe rules, if petitioners' concerns become realized. Those concerns, however,properly have no place in this facial challenge to the amended rule.

16 Nothing in the TGA indicates a different congressional intent. Indeed,petitioners' construction of the provision necessitates reading "and"for "or," but the consequence of that interpretation is that applicantswould have to be both "bona fide occupants or settlers" and "ownersof water or water rights" in order to receive a preference. The TGAand its implementing rules have never been interpreted to require that applicantspossess both land and water rights before they may receive grazing permits.2 C.A. App. 808; DOI, Rules for Administration of Grazing Districts (Mar.2, 1936); 2 C.A. App. 817, DOI, Rules for Administration of Grazing Districts(June 14, 1937); 43 C.F.R. 4110.2-1 (1994) (allowing owners of either landor water rights to apply for grazing permits). To the contrary, Section4 of the TGA, 43 U.S.C. 315b, plainly gives a preference in the issuanceof grazing permits to applicants in any of the three categories.
17 4 C.A. App. 1595; 78 Cong. Rec. 6356 (1934) (expressing concern over"[s]ome foreigner who * * * travels from one place to another, campingfirst at one watering hole or spring and then another until the grassesare all destroyed"); 4 C.A. App. 1597-1598; 78 Cong. Rec. at 6358-6359.

18 4 C.A. App. 1595; 78 Cong. Rec. at 6356 ("preference shall be givenoccupants and settlers on land within or near the grazing district");4 C.A. App. 1597; 78 Cong. Rec. at 6358 (preference shall be given to "theperson owning or having rights to land adjacent to the public domain");4 C.A. App. 1598; 78 Cong. Rec. at 6359 (preference shall be given to "[t]hosewho have made improvements in the public range and the water holes").

19 For example, the 1937 Rules of Grazing Administration stated that a stock-ownerapplicant is preferred if "he is a member of any one of the followingfour classes:
1. Landowners engaged in the livestock business.
2. Bona fide occupants.
3. Bona fide settlers.
4. Owners of water or water rights."
2 C.A. App. 817 (emphasis added). See also 2 C.A. App. 842; DOI, Divisionof Grazing, Federal Range Code § 3, at 4 (Mar. 16, 1938) (same). Forearly administrative decisions that did not impose any "engaged inthe livestock business" requirement, see 3 C.A. App. 1182; Joseph Livingston,56 Interior Dec. 305, 306 (1938) (citing 1936 rules for the propositionthat a "qualified applicant will be considered in a preferred classificationif he is a member of any one of the following four classes: 1. Landownersengaged in the live-stock business. 2. Bona fide occupants. 3. Bona fidesettlers. 4. Owners of water or water rights."); 3 C.A. App. 1189;Willis J. Lloyd, 58 Interior Dec. 779, 787 (1944) (business of parties dismissedas unimportant).

20 The old rule created uncertainties for legitimate applicants under theTGA "where the livestock operator is in an initial developmental stageand is not yet ready to run cattle on the range." 1 C.A. App. 263;60 Fed. Reg. at 9926. See 3 C.A. App. 1179; Holan, 18 Interior Bd. LandApp. at 434 (application denied to possessor of livestock who was not yet"a recognized livestock operator"); 3 C.A. App. 1190-1191; JohnF. MacPherson, Interior Grazing Dec. 566, 567-568 (1952) (application deniedto livestock owner on basis that he was not engaged in the livestock business).In at least two cases, the Interior Board of Land Appeals affirmed the denialsof an application from livestock owners who indicated that they "wouldbe in the livestock business if BLM were to grant them the desired leaseor permit." 3 C.A. App. 1178; Holan, 18 Interior Bd. Land App. at 433;3 C.A. App. 1190; MacPherson, Interior Grazing Dec. at 567 (applicant soughtto graze 500 cattle).

21 The revised regulations allow the Secretary to issue grazing permitsto start-up operators, banks, and conservation organizations that own livestockand wish to run cattle on the range but may not have an established recordin the livestock business at the time they apply for a permit. See 1 C.A.App. 263; 60 Fed. Reg. at 9926. Petitioners' stated fear that non-ownersof livestock will use the new rule to end livestock grazing on the publiclands is without foundation. The Secretary has indicated that "[d]ecisionsto retire grazing allotments are considered through BLM's land use planningprocess," 1 C.A. App. 277, and those decisions are subject to administrativechallenge, see 43 C.F.R. 4160.4 (1995).



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