K. Corrigan v. Deb HaalandK. Corrigan v. Deb Haaland
FOR PUBLICATION
OPINION
∗ Pursuant to
WESTERN WATERSHEDS PROJECT,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted May 3, 2021
Seattle, Washington
Filed September 2, 2021
Before: Morgan Christen and Mark J. Bennett, Circuit Judges, and Paul L. Friedman,** District Judge.
Opinion by Judge Friedman
SUMMARY***
Grazing Permits
The panel affirmed the district court’s grant of summary judgment in favor of the Department of the Interior and Intervenor Western Watershеds Project in appellants’ action challenging the Bureau of Land Management’s denial of their request to transfer a “preference” to receive a permit to graze on certain federal land allotments.
Appellants Michael Hanley, IV, Linda Hanley, and Hanley Ranch Partnership sought to transfer to Appellants K. John Corrigan and M. Martha Corrigan the preference. The BLM denied the preference transfer application based on its conclusion that Hanley Ranch Partnership did not hold any preference that it could transfer. The Department of the Interior’s Interior Board of Land Appeals (“IBLA”) upheld the BLM’s denial.
The panel upheld the IBLA’s decision at step one of the Chevron framework because the IBLA correсtly applied the clear and unambiguous language of the
COUNSEL
W. Alan Schroeder (argued), Schroeder Law, Boise, Idaho; Laura A. Schroeder, Schroeder Law Offices P.C., Portland, Oregon; for Plaintiffs-Appellants.
Christine G. England (argued) and Robert B. Firpo, Assistant United States Attorneys; Bart M. Davis, United States Attorney; United States Attorney’s Office, Boise, Idaho; for Defendants-Appellees.
Talasi B. Brooks (argued), Western Watersheds Project, Boise, Idaho; Paul D. Ruprecht, Western Watersheds Project, Reno, Nevada; for Intervenor-Defendant-Appellee.
FRIEDMAN, District Judge:
Appellants Michael F. Hanley, IV, Linda Lee Hanley, and Hanley Ranch Partnership sought to transfer to Appellants K. John Corrigan and M. Martha Corrigan a “preference” to receive a permit to graze on certain federal land allotments. The Bureau of Land Management (“BLM”) denied the preference transfer application, concluding that Hanley Ranch Partnership did not hold any preference that it could transfer. The Interior Board of Land Appeals (“IBLA”), an appellate tribunal within the Department of the Interior, upheld the BLM’s denial, concluding that after Hanley Ranch Partnership’s grazing permit expired, and the BLM declined to issue a new permit due to unsatisfactory performance, Hanley Ranch Partnership
Appellants now ask us to reverse the district court’s decision, arguing that a grazing preference survives the expiration of a corresponding permit and continues to exist until the BLM cancels it. Because the BLM never canceled their grazing preference through any formal process, Appellants ask us to conclude that they retained a preference even after their grazing permit expired.
We have jurisdiction pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 1934, Congress has passed laws that govern grazing privileges on the public rangelands. The
Since at least 1988, Hanley Ranch Partnership (“HRP”) received a series of ten-year permits to graze on two allotments in southwestern Idaho: the Trout Springs Allotment and the Hanley Fenced Federal Range Allotment. HRP also held preferences based on its control of рrivate land adjoining the two allotments. On March 12, 2002, the BLM issued HRP’s last ten-year permit, which authorized HRP to graze on the allotments through February 28, 2012.
In 2009, the BLM informed HRP that it would not renew HRP’s permit pursuant to
On August 1, 2013, HRP leased several plots of “base property” attached to the Trout Springs and Hanley Fenced Federal Range Allotments to K. John and M. Martha Corrigan, for a period extending through February 28, 2024.1 Relying on this lease, the Corrigans submitted an application to the BLM to transfer a grazing preference from
HRP to the Corrigans. The BLM denied the application on November 22, 2013, explaining that HRP no longer possessed any grazing preference. The Hanleys and the Corrigans (collectively, “Ranchers”) appealed the BLM’s decision to the Hearings Division, which
On August 10, 2017, the IBLA issued the opinion that is the subject of this appeal, affirming the ruling of the Hearings Division and the underlying decision by the BLM to deny the preference transfer application. The IBLA analyzed the TGA, the FLPMA, and the Department of the Interior’s grazing regulations, codified at
Ranchers sought judicial review of the IBLA’s decision. On February 26, 2020, the U.S. District Court for the District
of Idаho denied Ranchers’ motion for summary judgment and granted summary judgment in favor of the Department of the Interior and WWP. This appeal followed.
II. STANDARDS OF REVIEW
A. Summary Judgment
“We review de novo a challenge to a final agency action decided on summary judgment and pursuant to Section 706” of the
Under the APA, we “will reverse the IBLA’s decisiоn only if that decision is arbitrary, capricious, not supported by substantial evidence, or contrary to law.” Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir. 1999). An agency decision construing a statute is not in violation of the APA where the agency accurately applies an unambiguous statute, or permissibly construes an ambiguous statute, and its conclusion is “well supported by substantial evidence in the record.” Akootchook v. United States, 271 F.3d 1160, 1168 (9th Cir. 2001); see also W. Watersheds Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 986–87 (9th Cir. 2010).
B. Chevron Framework
Ranchers’ argument calls into question the IBLA’s interpretation of the TGA and the FLPMA. When a party challenges agency action as inconsistent with
In step one, a court must determine “whether Congress hаs directly spoken to the precise question at issue,” or, instead, whether the statute is ambiguous. Chevron, 467 U.S. at 842. In determining whether Congress has directly spoken, a court uses “traditional tools of statutory construction,” including an examination of the statute’s text, the structure of the statute, and (as appropriate) legislative history. Id. at 843 n.9. “Whether statutory language is sufficiently plain or not is ‘determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.’” W. Watersheds Project, 624 F.3d at 987 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chemehuevi Indian Tribe v. Jewell, 767 F.3d 900, 903 (9th Cir. 2014) (quoting Chevron, 467 U.S. at 842–43).
If a court detеrmines that the “statute is silent or ambiguous with respect to the specific issue,” Chevron, 467 U.S. at 843 – that is, if the disputed language is “reasonably susceptible of different interpretations,” Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 473 n.27 (1985) – the court must proceed to step two. At step two, “the question for the court is whether the agency’s [action] is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. At this step, a court need not determine that an agency’s construction is “the best interpretation of the statute,” United States v. Haggar Apparel Co., 526 U.S. 380, 394 (1999) (quoting Atl. Mut. Ins. Co. v. Comm’r, 532 U.S. 382, 389 (1998)), or that it is “the only [construction that the agency] permissibly could have adopted,” Rust v. Sullivan, 500 U.S. 173, 184 (1991) (quoting Chevron, 467 U.S. at 843 n.11). Instead, courts defer to an agency’s construction “if it is a reasonable one,” even if “it is not the [construction the court] would arrive at.” Dep’t of Treasury, I.R.S. v. Fed. Lab. Rels. Auth., 494 U.S. 922, 928 (1990).
III. STATUTORY FRAMEWORK
Two statutes at issue in this cаse govern grazing privileges on public lands: the TGA and the FLPMA.
A. Taylor Grazing Act of 1934
The TGA authorizes the Secretary of the Interior “to divide the public range-lands into grazing districts, to specify the amount of grazing permitted in each district, to issue leases or permits ‘to graze livestock,’ and to charge ‘reasonable fees’ for use of the land.” Pub. Lands Council, 529 U.S. at 733 (quoting
The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts . . . .
Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as
may be necessary to permit the proper
use of lands, water or water rights owned, occupied, or leased by them . . . . Such permits shall be for a period of not more than ten years, subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior.
B. Federal Land Policy and Management Act of 1976
The FLPMA reinforced the Department of the Interior’s authority “to remove or add land from grazing use . . . while specifying that existing grazing permit holders would retain a ‘first priority’ for renewal so long as the land use plan continued to make land ‘available for domestic livestock grazing.’” Pub. Lands Council, 529 U.S. at 738 (quoting
So long as (1) the lands for which the permit or lease is issued remain available for domestic livestock grazing in accordance with land use plans prepared pursuant to section 1712 of this title or section 1604 of title 16, (2) the permittee or lessee is in compliance with the rules and regulations issued and the terms and conditions in the permit or lease specified by the Secretary concerned, and (3) the permittee or lessee accepts the terms and conditions to be included by the Secretary concerned in the new permit or lease, the holder of the
expiring permit or lease shall be given first priority for receipt of the new permit or lease.
IV. DISCUSSION
Ranchers ask us to conclude that a grazing preference does not automatically expire when an associated permit
expires, and therefore, that the IBLA’s decision upholding the denial of the Corrigans’ preference transfer application contravenes applicable law. They maintain that the TGA, the FLPMA, and the Grazing
We agree with the government and WWP. The facts are undisputed and the IBLA’s decision rests on its interpretation of the TGA, the FLPMA, and the Grazing Regulations.4 Whether to uphold the IBLA’s decision therefore depends in the first instance on whether the IBLA correctly interpreted and applied the statutes, which we evaluate under the Chevron framework. Here, our analysis begins and ends with Chevron step one. The TGA and the FLPMA are unambiguous and are consistent with the IBLA’s conclusions.
A. Chevron Step One: The Statutes are Unambiguous
The “precise question at issue” in this case, Chevron, 467 U.S. at 842, is whether a former permittee’s preference continues to exist after the associated grazing permit expires and is not renewed due to bad behavior. The TGA and the FLPMA unambiguously answer this question in the negative. After a permit expires, a former permittee does not retain аny preference to stand first in line for a future permit.
1. Plain Text
In construing “what Congress has enacted,” a court must “begin, as always, with the language of the statute.” Navajo Nation v. HHS, 325 F.3d 1133, 1136 (9th Cir. 2003) (en banc) (quoting Duncan v. Walker, 533 U.S. 167, 172 (2001)). The TGA provides that “[p]reference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business,” and that “permits shall be for a period of not more than ten years, subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior.”
This language also indicates that, following the very first round of permits issued upon passage of the TGA, Congress anticipated that “preference” would be a privilege exercised in conjunction with the renewal process and alongside a valid permit. The TGA provides that “permits shall be for a
period of not more than ten years, subject to the preference right of the permittees to renewal.”
The second and third requirements of Section 1752(c) of the FLPMA make explicit that only an existing permittee may exercise a preference right as part of the permit renewal process. Both refer in the present tense to “the permittee or lessee,” underscoring that Congress expected renewal priority to be exercised by individuals who hold valid permits or leases at the time of apрlication. The second requirement refers to “the terms and conditions in the permit or lease,” pointing to the existence of a still-valid permit or lease. The second requirement also mandates that an applicant be “in compliance” with the terms of the permit,
underscoring that a former permittee such as HRP, whose permit was not renewed after the BLM determined it was not in compliance with the terms and conditions of its permit, is ineligible to exercise a priority for renewal. Finally, the language that follows the three requirements confirms that the priority for renewal may be exercised by “the holder of the expiring permit or lease.”
Ranchers fail to offer any textually grounded explanation of how a former permittee whose permit expired and was not renewed for bad behavior could exercise a preference. Ranchers make much of the fact that the statutes do not explicitly state that a preference expires upon non-renewal of a permit. Yet the statutes also do not require the agency to formally cancel a preference, separate and apart from its non-renewal decision. This latter omission is more significant, because the other statutory language discussed above supports the conclusion that a preference cannot be exercised after a permit expires.
Ranchers’ view “would require us to assume that Congress chose a surprisingly indirect route to convey an important and easily expressed message.” Landgraf v. USI Film Prods., 511 U.S. 244, 262 (1994). The Supreme Court has “frequently cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law,” United States v. Wells, 519 U.S. 482, 496 (1997) (citations, brackets, and quotation marks omitted), and we “avoid reading in unstated statutory requirements” concerning cancellation of a preference, Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148, 1153 (9th Cir. 2019).
2. Statutory Structure
In making the threshold determination under Chevron step one, “a reviewing court should not confine itself to examining a particular statutory provision in isolation. Rather, the meaning – or ambiguity – of certain words or phrases may only become evident when plаced in context.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (citations,
The TGA introduces the concept of “preference” in a section entitled “Grazing permits; fees; vested water rights; permits not to create right in land.”
Neither the TGA nor the FLPMA mention a process for canceling a grazing preference. Yet both statutes do address circumstances under which the agency may cancel a permit prior to its scheduled expiration. See
significance,” Pit River Tribe v. Bureau of Land Mgmt., 939 F.3d 962, 971 (9th Cir. 2019) (quoting SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003)), for “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,”
Several “words [and] phrases” of the TGA and the FLPMA, “when placed in context,” Nat’l Ass’n of Home Builders, 551 U.S. at 666 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)), illuminate a defining characteristic of the statutory scheme: to preserve the agency’s discretion over grazing privileges and to avoid establishing any indefinite entitlements for private parties. The TGA specifies that the agency retains “discretion” over whether to grant a permit even when an applicant seeks renewal subject to a preference, and admonishes that grazing privileges “shall not create any right, title, interest, or estate in or to the lands.”
grant only temporary grazing privileges. See
Ranchers nonetheless contend that “the Grazing preference remains attached to base property until separately canceled,” suggesting that a grazing preference is a stand-alone interest that runs with the
This Court and other federal courts have likewise underscored that the agency’s discretion over public lands supersedes any preference right. See United States v. Est. of Hage, 810 F.3d 712, 717 (9th Cir. 2016) (ownership of water rights adjacent to an allotment “has no effect on the requirement that a rancher obtain a grazing permit” which “‘has always been a revocable privilege’ and is not a ‘property right[]’” (quoting Swim v. Bergland, 696 F.2d 712, 719 (9th Cir. 1983))); Fed. Lands Legal Consortium ex rel. Robart Est. v. United States, 195 F.3d 1190, 1198 (10th Cir. 1999) (“Although FLLC may have a priority during renewal, this court has repeatedly held that the decision whether to issue or deny a permit is a discretionary one[.]”), abrogated on other grounds as recognized in Onyx Props. LLC v. Bd. of Cnty. Comm’rs of Elbert Cnty., 838 F.3d 1039, 1043 n.2 (10th Cir. 2016);
Alves v. United States, 133 F.3d 1454, 1457 (Fed. Cir. 1998) (“[T]he distinction between grazing ‘permits’ and grazing ‘preferences’ is irrelevant because neither constitutes a property interest compensable under the
Ranchers’ argument that a grazing preference runs with the base property also misses the mark because it overlooks the fact that this appeal stems from the BLM’s denial of the Corrigans’ preference transfer application. As the IBLA correctly concluded, with no valid permit, there was no preference to transfer, irrespective of who controlled the base property.5
3. Statutory Purpose
In interpreting a statute, a court must also account for that statute’s history and purpose. See Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 90–93 (2007). The stated purposе of the TGA is to “promote the highest use of the public lands.”
range,” Pub. Lands Council, 529 U.S. at 735, the Secretary of the Interior must be able to prevent former permittees from continuing any pattern of conduct that causes “injury to the public grazing lands,” 48 Stat. 1269.
We agree; this interpretation makes no sense. Where Congress has expressly empowered the Secretary of the Interior to manage the public lands and has declined to limit the Secretary’s discretion to revoke grazing privileges, it strains credulity that a former permittee such as HRP – whose permit the BLM declined to renew after “numerous and continuous instances of non-compliance” – should retain a preference right that it can transfer to a party of its choosing.
In sum, the text, structure, and purpose of the TGA and the FLPMA, when viewеd together, make clear that Congress intended preferences for renewal to be exercised only by individuals who hold valid grazing permits and are
in compliance with the terms of those permits. Ranchers “offer[] no persuasive authority compelling [their] preferred conclusion.” W. Watersheds Project, 624 F.3d at 989. The intent of Congress is clear, and we affirm at Chevron step one.
B. The Grazing Regulations do not Support Ranchers’ Position
Because a plain reading of the statutory language of the TGA and the FLPMA resolve this case, there is no reason for the Court to consider the Grazing Regulations. But it is clear that Ranchers would fare no better under the Regulations, which – contrary to Ranchers’ argument – are wholly consistent with the statutes they implement.
Ranchers’ theory depends on thеir reading of Section 4110.1(b)(1)(i) and Section 4170.1-1(a) of the Grazing Regulations. Section 4110.1(b)(1)(i) describes the qualifications for permit renewal, and Section 4170.1-1(a) describes a process by which the agency may cancel a grazing permit before its scheduled expiration.
This argument is unpersuasive. Not only is there a complete absence of authority for the notion that a preference exists until it is canceled under Section 4170.1-1(a), but Section 4170.1-1(a) is not even at play in this case. Ranchers ask the Court to elide the
distinction between non-renewal of a permit and cancellation of a permit. But the distinction they ask us to ignore bears directly on the continued existence of a preference.
As the government explained at oral argument, when the BLM issues a grazing permit, that permit may include a preference for renewal. When the term of that permit is set to expire, the permittee may
The BLM did not cancel HRP’s permit pursuant to Section 4170.1-1(a); rather, it declined to renew the permit upon the expiration of its term pursuant to Section 4110.1(b)(1)(i). Accordingly, we agree with the government’s statement that “the Grazing Regulations’ cancellation procedures were not applicable in this case,” because of the simple fact that neither HRP’s permit nor HRP’s prefеrence was canceled prior to their scheduled expiration. As the district court correctly explained, the
statutory and regulatory framework make clear that “once the permit is not renewed due to noncompliance, the preference disappears at the same moment the permit disappears.”6
Even if Section 4170.1-1(a) were at all relevant, it would not have been possible for the BLM to cancel HRP’s grazing preference pursuant to that provision, which provides for cancellation of a “grazing permit or lease and grazing preference.”
V. CONCLUSION
We uphold the IBLA’s decision at Chevron step one because the IBLA correctly applied the clear and unambiguous language of the TGA and the FLPMA, which
establish that a grazing preference cannot be exercised after the corresponding grazing permit is not renewed for bad behavior. Because the IBLA correctly interpreted and applied the statutory authorities, and therefore did not act “contrary to law,” it follows that the decision is not arbitrary and capricious in violation of the APA. The district court’s grant of summary judgment was therefore proper.
Notes
Even if the amended version of the FLPMA applied, this would not alter the outcome. The revised language still limits the “first priority” for renewal to the “holder of the expiring permit or lease” who “is in compliance with the rules and regulations issued and the terms and conditions in the permit or lease.”