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Public Lands Council v. Babbitt

May 15, 2000


Court Below: 167 F. 3d 1287






Certiorari To The United States Court Of Appeals For The Tenth Circuit

No. 98-1991.

Argued March 1, 2000

Decided May 15, 2000

The Taylor Grazing Act, inter alia, grants the Secretary of the Interior authority to divide the public rangelands into grazing districts, to specify the amount of grazing permitted in each district, and to issue grazing leases or permits to "settlers, residents, and other stock owners," 43 U. S. C. §§315, 315a, 315b; gives preference with respect to permits to "landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights," §315b; and specifies that grazing privileges "shall be adequately safeguarded," but that the creation of a grazing district or the issuance of a permit does not create "any right, title, interest, or estate in or to the lands," ibid. Since 1938, conditions placed on grazing permits have reflected the grazing privileges' leasehold nature, and the grazing regulations in effect have preserved the Secretary's authority to (1) cancel a permit under certain circumstances, (2) reclassify and withdraw land from grazing to devote it to a more valuable or suitable use, and (3) suspend animal unit months (AUMs) of grazing privileges in the event of range depletion. Petitioners, ranching-related organizations, challenged several 1995 amendments to the regulations. The District Court found four of the new regulations unlawful. The Tenth Circuit reversed as to three of them, upholding regulations that (1) changed the definition of "grazing preference," 43 CFR §4100.0-5; (2) permitted those who are not "engaged in the livestock business" to qualify for grazing permits, §4110.1(a); and (3) granted the United States title to all future "permanent" range improvements, §4120.3-2.

Held: The regulatory changes do not exceed the Secretary's Taylor Grazing Act authority. Pp. 10-21.

(a) Section 4100.0-5's new definition of "grazing preference" does not violate 43 U. S. C. §315b's requirement that "grazing privileges" "be adequately safeguarded." Before its amendment, §4100.0-5 defined "grazing preference" as "the total number of [AUMs] of livestock grazing on public lands apportioned and attached to base property owned or controlled by a permittee or lessee," but the 1995 version refers only to a priority, not to a specific number of AUMs, and it adds a new term, "permitted use," which refers to forage "allocated by, or under the guidance of an applicable land use plan." The new definitions do not exceed the Secretary's authority under §315b. First, §315b's words "so far as consistent with the purposes" of the Act and "issuance of a permit" creates no "right, title, interest, or estate" make clear that the ranchers' interest in permit stability is not absolute and that the Secretary is free reasonably to determine just how, and the extent to which, grazing privileges are to be safeguarded. Moreover, since Congress itself has directed development of land use plans, and their use in the allocation process, it is difficult to see how a definitional change that simply refers to using such plans could violate the Taylor Act by itself, without more. Given the broad discretionary powers that the Taylor Act grants the Secretary, the Act must be read as here granting him at least ordinary administrative leeway to assess "safeguard[ing]" in terms of the Act's other purposes and provisions. Second, the pre-1995 AUM system that petitioners seek to "safeguard" did not offer them anything like absolute security, for the Secretary had well-established pre-1995 authority to cancel, modify, or decline to review permits, including the power to do so pursuant to a land use plan. Third, the new definitional regulations by themselves do not automatically bring about a self-executing change that would significantly diminish the security of grazing privileges. The Department represents that the new definitions merely clarify terminology. The new regulations do seem to tie grazing privileges to land use plans more explicitly than did the old. However, all Bureau of Land Management lands have been covered by land use plans for nearly 20 years, yet the ranchers have not provided a single example in which interaction of plan and permit has jeopardized or might jeopardize permit security. A particular land use plan might lead to a denial of privileges that the pre-1995 regulations would have provided, but the question here is whether the definition changes by themselves violate the Act's requirement that grazing privileges be "adequately safeguarded." They do not. Pp. 10-15.

(b) The deletion of the phrase "engaged in the livestock business" from §4110.1(a) does not violate the statutory limitation to "stock owners." Section 315b, just two sentences after using "stock owners," gives preference to "landowners engaged in the livestock business." This indicates that Congress did not intend to make the phrases synonyms. Neither the Act's legislative history nor its basic purpose suggests an absolute limit to those engaged in the livestock business was intended by the term "stock owner." The ranchers' underlying concern is that the amendment is part of a scheme to end grazing on public lands by allowing individuals to acquire a few livestock, obtain a permit for conservation, and then effectively mothball the permit. However, the remaining regulations, for livestock grazing use or suspended use, do not encompass the situation that the ranchers describe. Pp. 15-19.

(c) Section 4120.3-2, which specifies that title to permanent range improvements, such as fences, wells, and pipelines, made pursuant to cooperative agreements with the Government shall be in the name of the United States, does not violate the Act. Nothing in statute denies the Secretary authority reasonably to decide when or whether to grant title to those who make improvements. Any such person remains free to negotiate the terms upon which he will make those improvements, including how he might be compensated in the future for his work, either by the Government or by those granted a Government permit. Pp. 19-21.

167 F. 3d 1287, affirmed.

Breyer, J., delivered the opinion for a unanimous Court. O'Connor, J., filed a concurring opinion, in which Thomas, J., joined.

The opinion of the court was delivered by: Justice Breyer

Opinion of the Court


On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit

This case requires us to interpret several provisions of the 1934 Taylor Grazing Act, 48 Stat. 1269, 43 U. S. C. §315 et seq. The Petitioners claim that each of three grazing regulations, 43 CFR §§4100.0-5, 4110.1(a), and 4120.3-2 (1998), exceeds the authority that this statute grants the Secretary of the Interior. We disagree and hold that the three regulations do not violate the Act.


We begin with a brief description of the Act's background, provisions, and related administrative practice.


The Taylor Grazing Act's enactment in 1934 marked a turning point in the history of the western rangelands, the vast, dry grasslands and desert that stretch from western Nebraska, Kansas, and Texas to the Sierra Nevada. 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.

A new era began in 1867 with the first successful long drive of cattle north from Texas. Cowboys began regularly driving large herds of grazing cattle each year through thousands of miles of federal lands to railheads like Abilene, Kansas. From there or other towns along the rail line, trains carried live cattle to newly opened eastern markets. The long drives initially brought high profits, which attracted more ranchers and more cattle to the land once home only to Indian tribes and buffalo. Indeed, an early-1880's boom in the cattle market saw the number of cattle grazing the Great Plains grow well beyond 7 million. See R. White, "It's Your Misfortune and None of My Own": A History of the American West 223 (1991); see generally, E. Osgood, The Day of the Cattleman 83-113 (1929); W. Webb, The Great Plains 205-268 (1931).

But more cattle meant more competition for ever-scarcer water and grass. And that competition was intensified by the arrival of sheep in the 1870's. Many believed that sheep were destroying the range, killing fragile grass plants by cropping them too closely. The increased competition for forage, along with droughts, blizzards, and growth in homesteading, all aggravated natural forage scarcity. This led, in turn, to overgrazing, diminished profits, and hostility among forage competitors -- to the point where violence and "wars" broke out, between cattle and sheep ranchers, between ranchers and homesteaders, and between those who fenced and those who cut fences to protect an open range. See W. Gard, Frontier Justice 81-149 (1949). These circumstances led to calls for a law to regulate the land that once was free.

The calls began as early as 1878 when the legendary southwestern explorer, Major John Wesley Powell, fearing water monopoly, wrote that ordinary homesteading laws would not work and pressed Congress to enact "a general law ... to provide for the organization of pasturage districts." Report on the Lands of the Arid Region of the United States, H. Exec. Doc. No. 73, 45th Cong., 2d Sess., 28 (1878). From the end of the 19th century on, Members of Congress regularly introduced legislation of this kind, often with Presidential support. In 1907, President Theodore Roosevelt reiterated Powell's request and urged Congress to pass laws that would "provide for Government control of the public pasture lands of the West." S. Doc. No. 310, 59th Cong., 2d Sess., 5 (1907). But political opposition to federal regulation was strong. President Roosevelt attributed that opposition to "those who do not make their homes on the land, but who own wandering bands of sheep that are driven hither and thither to eat out the land and render it worthless for the real home maker"; along with "the men who have already obtained control of great areas of the public land ... who object ... because it will break the control that these few big men now have over the lands which they do not actually own." Ibid. Whatever the opposition's source, bills reflecting Powell's approach did not become law until 1934.

By the 1930's, opposition to federal regulation of the federal range had significantly diminished. Population growth, forage competition, and inadequate range control all began to have consequences both serious and apparent. With a horrifying drought came dawns without day as dust storms swept the range. The devastating storms of the Dust Bowl were in the words of one Senator "the most tragic, the most impressive lobbyist, that ha[s] ever come to this Capitol." 79 Cong. ...

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