PUBLIC LANDS COUNCIL, a non-profit membership organization on behalf of its members; National Cattleman‘s Association, a non-profit membership organization on behalf of its members; American Sheep Industry Association, a non-profit membership organization on behalf of its members; American Farm Bureau Federation, a non-profit membership organization on behalf of its members; Association of National Grasslands, a non-profit membership organization on behalf of its members, Plaintiffs-Appellees, v. Bruce BABBITT, United States Department of the Interior Secretary, in his official capacity; Michael Dombeck, Acting Director, U.S. Bureau of Land Management, in his official capacity; Interior Department; Bureau of Land Management, Defendants-Appellants. The Arizona and New Mexico Coalition of Counties for Stable Economic Growth; New Mexico Public Lands Council; Bert Smith-Ox Ranch; Desert Livestock Producers; Alameda Corporation and Oscar S. Wyatt, Jr., Amici Curiae.
No. 96-8083.
United States Court of Appeals, Tenth Circuit.
Sept. 1, 1998.
167 F.3d 1287 | 154 F.3d 1160
SEYMOUR, Chief Judge.
III. CONCLUSION
This court concludes the Association lacks standing to pursue this action. We therefore DISMISS their claims.
William B. Lazarus, Department of Justice (Lois J. Schiffer, Assistant Attorney General, Gary B. Randall, John W. Watts, and Robert L. Klarquist, Department of Justice, with him on the briefs), Washington, DC, appearing for Defendant-Appellant.
Constance E. Brooks, C.E. Brooks & Associates, P.C., Denver, Colorado (Diane Vaksdal Smith and Michael B. Marinovich, C.E. Brooks & Associates, P.C., Denver, Colorado, and Calvin E. Ragsdale, Marty & Ragsdale, Green River, Wyoming, with her on the brief), appearing for Plaintiff--Appellee.
Before SEYMOUR, Chief Judge, PORFILIO and TACHA, Circuit Judges.
SEYMOUR, Chief Judge.
The question before us on this appeal is whether the Secretary of the Interior acted within his authority under the Taylor Grazing Act of 1934 (TGA),
The Secretary appeals the district court‘s order enjoining enforcement of the aforementioned regulations, asserting that the new rules do not conflict with the governing statutes and that the reviewing courts must therefore defer to the Secretary‘s rulemaking authority. For the reasons stated below, we reverse the district court‘s order holding invalid the permitted use rule, the range improvements rule, and the mandatory qualifications rule, and we affirm the district court‘s order holding invalid the conservation use rule.
I BACKGROUND
A. The Controlling Statutes
Our review of the challenged 1995 grazing regulations is set against the backdrop of Congress’ enacted policy regarding administration of the public lands. The Secretary of the Interior, through the BLM, manages approximately 170 million acres of public rangelands throughout the western United States as guided and constrained by the TGA, FLPMA, and PRIA. We therefore begin with an overview of those statutes.
1. The Taylor Grazing Act
Until 1934, the federal government left unregulated the administration of millions of acres of unappropriated public lands in the western states, including Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. In response to damage to the public rangelands caused by decades of unregulated livestock grazing, Congress enacted the Taylor Grazing Act, establishing a threefold legislative goal: to regulate the occupancy and use of the federal lands, to preserve the land and its resources from injury due to overgrazing, and “to provide for the orderly use, improvement, and development of the range.”
In order to accomplish these purposes, Congress provided for the issuance of grazing permits under the supervision of the Secretary of the Interior, authorizing the Secretary to identify lands “chiefly valuable for grazing and raising forage crops,”
In addition, Congress granted the Secretary broad discretionary authority to balance the interests of those who wish to use the government‘s land against the need to protect the land from injury. The TGA commands the Secretary to “make such rules and regulations and establish such service, enter into such cooperative agreements, and do any and all things necessary to accomplish the purposes” of the Act.
2. The Federal Land Policy and Management Act
Enacted in 1976, FLPMA represents Congress’ express recognition that in over forty years of land management under the TGA, the BLM had failed adequately to protect and enhance the federal lands. See
In order to manage the lands in accordance with the principles of multiple use and sustained yield, FLPMA requires land use planning:
The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, or set aside, or otherwise designated for one or more uses.
3. The Public Rangelands Improvement Act of 1978
Congress enacted PRIA in 1978. Among its purposes was to reaffirm “a national policy and commitment to: manage, maintain, and improve the condition of the public rangelands so that they become as productive as feasible for all rangeland values.”
B. The 1995 Regulations
The 1995 grazing regulations made a number of changes to the administration of the then-existing federal grazing program.1 We address below only those regulations held invalid by the district court.
1. Permitted Use Rule
As part of the scheme for issuing grazing permits and determining grazing levels, the rangeland management rules in effect prior to 1995 employed the term “grazing preference” to mean “the total number of animal unit months [AUMs] of livestock grazing on public lands apportioned and attached to base property owned or controlled by the permittee or lessee.”
The 1995 regulations redefined the term “grazing preference” to mean “a superior or priority position against others for the purpose of receiving a grazing permit or lease,” which is “attached to base property owned or controlled by the permittee or lessee.”
2. Range Improvements Rule
Prior to 1995, BLM‘s regulations provided that title to many range improvements constructed under cooperative agreements upon application and approval by the Secretary, including fences, wells and pipelines, was “shared by the United States and cooperator(s) in proportion to the actual amount of the respective contribution to the initial construction.”
Under the 1995 regulations, the government prospectively asserts title to “permanent” range improvements, such as fences, wells, reservoirs, pipelines, and stock tanks, and “non-structural” improvements such as seeding, spraying, and chaining, authorized after August 21, 1995.
3. Qualifications Rule
Under the previous regulations, in addition to owning or controlling base property used in a livestock operation, permit applicants were required to “be engaged in the livestock business.”
4. Conservation Use Rule
The 1995 regulations added “conservation use” as a permissible use of a grazing permit. See
As under the old rules, the 1995 regulations provide that BLM can temporarily suspend grazing for conservation reasons. See
C. PLC‘s Challenge
Soon after the Secretary‘s proposed regulations took effect on August 21, 1995, PLC filed suit in the United States District Court for the District of Wyoming, challenging the facial validity of several of the new regulations. PLC later substituted a petition for review, seeking declaratory and injunctive relief on the same grounds stated in its complaint. PLC challenged most of the regulations on the grounds that the Secretary had exceeded his statutory authority, lacked a reasoned basis for departing from previous rules, or had failed to provide adequate responses to public comments. PLC also challenged two of the new regulations on constitutional grounds and asserted that the Final Environmental Impact Statement violated the National Environmental Policy Act,
On June 13, 1996, the district court entered an Order on Petition for Review, holding in favor of PLC on four of the challenged regulations. See Public Lands Council v. Department of the Interior, 929 F.Supp. 1436 (D.Wyo.1996). The district court characterized the permitted use rule as ending longstanding recognition of grazing preferences adjudicated following enactment of the TGA, thereby depriving permittees of their statutory “right” to graze predictable numbers of stock. As such, the court held the permitted use rule violates the TGA‘s mandate that “grazing privileges recognized and acknowledged shall be adequately safeguarded.”
D. Standard of Review
We review de novo a district court‘s decision regarding an agency action. See Santa Fe Energy Prod. Co. v. McCutcheon, 90 F.3d 409, 413 (10th Cir.1996) (standard of review of agency action identical in both district and appellate court; “[o]nce appealed, the district court‘s decision is afforded no particular deference“).
Our role as a reviewing court addressing PLC‘s facial challenge to the 1995 regulations is well established. Under
Our review is also guided by the principles governing judicial review of agency action set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In determining whether an administrative regulation permissibly construes the statute that an agency is charged with enforcing, our inquiry is shaped by the specificity of the Congressional enactment:
“First, always, is the question whether Congress has directly spoken to the precise question at issue. 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. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.”
Quivira Mining Co. v. U.S. Nuclear Regulatory Comm‘n, 866 F.2d 1246, 1249 (10th Cir.1989) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778).
Even under Chevron‘s second step, however, “an agency‘s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.” MCI Telecomm. Corp. v. AT & T, 512 U.S. 218, 229, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994); see Southern Ute Indian Tribe v. Amoco Prod. Co., 119 F.3d 816, 835 (10th Cir.1997) (“Even under the deference mandated by Chevron, ‘legislative regulations are [not] given controlling weight [if] they are arbitrary, capricious, or manifestly contrary to the statute.‘“) (alterations in original) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778), aff‘d en banc on other grounds, 151 F.3d 1251 (10th Cir. 1998). “[N]o deference is warranted if the interpretation is inconsistent with the legislative intent reflected in the language and structure of the statute or if there are other compelling indications that it is wrong.” Mountain Side Mobile Estates Partnership v. Secretary of Housing & Urban Dev., 56 F.3d 1243, 1248 (10th Cir.1995) (citation omitted).
With this standard of review in mind, we turn to an examination of the regulations invalidated by the district court. In doing so, we note at the outset that Congress and the various Secretaries of the Interior have developed over the last sixty years a somewhat complicated regulatory scheme governing the federal lands. Yet this complicated scheme stems from a simple premise: the lands at issue here belong to the United States government; the issuance of grazing permits “shall not create any right, title, interest, or estate in or to the lands.”
II. THE PERMITTED USE RULE
Upon examining the relevant statutes, regulations, and the record, we are persuaded the permitted use rule comports with the authority granted the Secretary of the Interior under the TGA and FLPMA and demands our deference under Chevron.
In invalidating the permitted use rule, the district court held that the Secretary‘s decision to change the definition of “grazing preference” and to add the concept of “permitted use,” whereby the terms and conditions specified in all grazing permits are determined in
To place the 1995 permitted use rule in context, and to respond to the dissent‘s erroneous characterization of the regulatory scheme that obtained under the TGA and FLPMA prior to 1995, we begin with a discussion of earlier versions of BLM‘s regulations governing issuance of grazing permits. We follow with an analysis of the changes posed by the permitted use rule. We then explain how a close reading of the statutory language of the TGA and FLPMA mandates our ultimate conclusion that the Secretary of the Interior acted within his authority in issuing the permitted use rule.
A. The Regulatory Scheme
1. The Federal Range Code2
After enactment of the TGA in 1934, the Secretary of the Interior began the process of establishing grazing districts, issuing permits, and granting leases. At the time of the TGA‘s passage, the number of qualifying applicants far exceeded the amount of grazing land available to accommodate them. Therefore, the Department of the Interior (DOI) instituted a detailed adjudication process, guided by a set of priorities articulated in section three of the TGA, to determine which applicants would receive grazing permits. First priority in the issuance of permits went to applicants who owned land or water, i.e., “base property,” in or near a grazing district, who were dependent on the public lands for grazing, who had used their land or water for livestock operations in connection with the public lands in the five years preceding the TGA‘s enactment, and whose land or water was situated so as to require the use of public rangeland for “economic” livestock operations. See DIVISION OF GRAZING, U.S. DEP‘T OF THE INTERIOR, FEDERAL RANGE CODE, §§ 2(g)-(h), 4(a), 6(b)(1) (1938). Once the Secretary issued a favorable grazing decision regarding an individual applicant, the applicant received a ten-year permit which specified the maximum number of livestock, measured in AUMs, that the permittee was entitled to place in a grazing district.
2. The 1978 Regulations
As discussed above, Congress enacted FLPMA in 1976 to address the continued deterioration of federal rangelands that was occurring in spite of the Taylor Grazing Act. “The Federal Land Policy & Management Act of 1976 ... was a comprehensive statement of the public policy of the United States, declaring that public lands be systematically inventoried and subjected to a land use planning process which would enable them to be managed by the Secretary of the Interior....” Natural Resources Defense Council, Inc. v. Hodel, 618 F.Supp. 848, 857 (E.D.Cal.1985). In 1978, the Secretary issued new regulations under FLPMA governing grazing administration, which effected significant changes in the process for issuing grazing permits. See
Serious concern was expressed in several of the comments about how these grazing regulations will affect the livestock operators now authorized to graze on the public lands administered by the Bureau of Land Management. Livestock operators with a grazing license, permit, or lease will be recognized as having a preference for continued grazing use on these lands. There [sic] adjudicated grazing use, their base properties, and their areas of use (allotments) will be recognized under these grazing regulations.
43 Fed.Reg. 29,058 (July 5, 1978).
While the previously adjudicated grazing uses were to be recognized for the length of existing permits, “future adjudications of grazing use would be based on criteria vastly different than those provided in the Federal Range Code.” Delmar & Jo McLean, 133 IBLA at 233. The 1978 regulations specified that “[l]ivestock grazing permits and leases shall contain terms and conditions necessary to achieve the management objectives for the public lands ... identified in land use plans.”
(a) The authorized officer shall specify the kind and number of livestock, the period(s) of use, the allotment(s) to be used, and the amount of use, in animal unit months, that can be made in every grazing permit or lease. The authorized livestock grazing use shall not exceed the livestock grazing capacity and shall be limited or excluded to the extent necessary to achieve the objectives established for the allotment.
(b) If it has been determined that allotment management plans are not necessary, or if allotment management plans have not been implemented where they are needed, the authorized officer shall incorporate terms and conditions under this section in grazing permits or leases. The authorized officer shall modify these terms and conditions if the condition of the range requires modification of grazing use and may cancel grazing permits or grazing leases and grazing preferences as conditions warrant. These modifications and cancellations may be made at any time and shall be put into full force and effect on the date specified by the authorized officer.
Grazing permits were offered “for a term not to exceed 10 years to qualified applicants.”
According to the plain language of the regulation, the renewal of permits was subject to a preference right in the sense that permit holders had priority to renew their permits. However, it is equally clear that new terms and conditions—including the numbers of stock permitted to graze—could be specified by the authorizing officer in such new permits and that any terms and conditions specified were required to be in accord with applicable land use plans. Nowhere in the 1978 regulations was there any requirement, or even the suggestion, that the authorizing officer must recognize or refer to the original grazing adjudications, or even the most recent adjudications, in issuing new permits.
As the drafters of FLPMA envisioned, managing the federal lands through land use planning is a dynamic process that has often led the various Secretaries of Interior to alter the governing regulations. See H.R. REP. NO. 94-1163, at 5 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6179 (the BLM and the Forest Service “treat land use planning as dynamic and subject to change with changing conditions and values“). By 1994, many aspects of the original 1978 regulations had been altered, effectively softening the requirement that grazing preferences must at all times be consistent with land use plans. The 1978 regulations specified that terms and conditions should be modified or canceled “if the condition of the range requires modification of grazing use ... at any time.”
Yet despite the changes from 1978, the primacy of the land use plans mandated by FLPMA remained apparent in the fact that changes specified in land use plans did not require other justification. Most significantly, the provisions for permit renewal remained exactly the same as they had been in 1978, that is, permits were renewable so long as “the permittee or lessee accepts the terms and conditions to be included by the authorized officer in the new permit or lease.”
4. The 1995 regulations
As explained above, the 1995 regulations challenged here divided the concept previously known as the “grazing preference” into two parts, defining “preference” as a priority position against others for purposes of permit renewal and defining “permitted use” as “the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allotment under a permit or lease and ... expressed in AUMs.”
The district court and the dissent believe the 1995 regulations somehow “eliminated” all reference to the original grazing adjudications “recognized” under the pre-1995 regulations. This assertion, of course, begs the question of exactly where this prior recognition
We know of no principle of administrative law that allows us to substitute our own unattributed assertions for the plain meaning of the regulations in seeking to review a regulatory scheme. We must therefore focus on the language of the regulations. As the preceding discussion demonstrates, since 1978 the number of AUMs allowed to graze on public lands has been specified by the Secretary upon the issuance of grazing permits in accordance with land use plans. At the close of the ten-year permit period, permit holders have first priority of renewal subject to the terms and conditions specified by the Secretary in accordance with land use plans. Although it may well be the case that there were long periods in which the Secretary did not exercise his authority to change the permitted number of AUMs in new permits,4 this practice did not rise to the level of a regulatory mandate.
Because the Secretary has long had the authority to specify permitted grazing use upon the renewal of a grazing permit, the district court erred in characterizing the permitted use rule as deviating from past regulations by eliminating all recognition of the original grazing adjudications. To the extent the original adjudications affected the substance of future grazing permits, they were not “recognized” in the manner asserted by the dissent under any regulations promulgated since the enactment of FLPMA.
B. The Controlling Statutes
We now assess whether the permitted use rule is consistent with the statutory mandates set forth in the TGA and FLPMA.
1. TGA
Under the 1995 permitted use rule, “[p]ermitted use is granted to holders of grazing preference and shall be specified in all grazing permits and leases.”
[Grazing 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, who shall specify from time to time numbers of stock and seasons of use. ... So far as consistent with the purposes and provisions of this subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest or estate in or to the lands.
The permitted use rule is also consistent with the underlying purposes of the TGA. While stabilizing the livestock industry is one of several purposes of the Act, PLC and the dissent place far too much weight on this point.5 The Act clearly states that the need
We are not persuaded by the assertion that the TGA unambiguously precludes the permitted use rule by requiring recognition of the original grazing adjudications and thus the right to graze predictable numbers of stock. The TGA gives no hint, much less the unambiguous direction required by Chevron, that the issuance of a grazing permit by the Secretary requires permanent “recognition” of the numbers of stock authorized to graze in that permit. The dissent‘s attempt to find such a mandate in the command that “grazing privileges recognized and acknowledged shall be adequately safeguarded” is unavailing. In the dissent‘s view, the number of AUMs assigned to permits in the original grazing decisions results in “recognized and acknowledged” grazing privileges. Even if this were true, the statute does not provide unconditionally that grazing privileges shall always be “adequately safeguarded.” Rather, such privileges will be adequately safeguarded as long as they are consistent with the purposes and provisions of the TGA, namely protecting the federal rangelands and ensuring their orderly use.
In this regard, the notion that the statute recognizes rights to graze set numbers of stock is itself in direct conflict with the statutory mandate that the Secretary shall specify the numbers and stock and seasons of use from time to time. See
2. FLPMA
The Secretary‘s power to regulate grazing under the TGA must be read in conjunction
the public lands [must] be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; that will provide for outdoor recreation and human occupancy and use....
As noted above, in order to manage the lands in accordance with principles of multiple use and sustained yield, FLPMA mandates that “[l]and use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, or set aside, or otherwise designated for one or more uses.”
(a) Terms and conditions
Except as provided in subsection (b) of this section, permits and leases for domestic livestock grazing on public lands issued by the Secretary ... shall be for a term of ten years subject to such terms and conditions the Secretary concerned deems appropriate and consistent with the governing law, including, but not limited to, the authority of the Secretary concerned to cancel, suspend, or modify a grazing permit or lease, in whole or in part, pursuant to the terms and conditions thereof, or to cancel or suspend a grazing permit or lease for any violation of a grazing regulation or of any term or condition of such grazing permit or lease.
....
(d) Allotment management plan requirements
All permits and leases for domestic livestock grazing issued pursuant to this section may incorporate an allotment management plan developed by the Secretary concerned.... Allotment management plans shall be tailored to the specific range condition of the area to be covered by such plan, and shall be reviewed on a periodic basis to determine whether they have been effective in improving the range condition of the lands involved or whether such lands can be better managed under the provisions of subsection (e) of this section....
(e) Omission of allotment management plan requirements and incorporation of appropriate terms and conditions; reexamination of range conditions
In all cases where the Secretary concerned has not completed an allotment management plan or determines that an allotment management plan is not necessary for management of livestock operations and will not be prepared, the Secretary concerned shall incorporate in grazing permits and leases such terms and conditions as he deems appropriate for management of the permitted or leased lands pursuant to applicable law. The Secretary concerned shall also specify therein the numbers of animals to be grazed and the seasons of use and that he may reexamine the condition of the range at any time and, if he finds on re-examination that the condition of the range requires adjustment in the amount or other aspect of grazing use, that the permittee or lessee shall adjust his use to the extent the Secretary concerned deems necessary. Such readjustment shall be put into full force and effect on the date specified by the Secretary concerned.
As the statutory language makes clear, FLPMA unambiguously authorizes the Secretary to specify terms and conditions in livestock grazing permits in accordance with land use plans. Indeed, all livestock grazing permits are required either to incorporate an AMP or directly to specify the numbers of animals that may be grazed and the seasons of use. The overarching goal of the statute is to ensure that the Secretary‘s management of the lands is consistent with the principles of multiple use and sustained yield as developed in land use plans. See Natural Resources Defense Council, Inc., 618 F.Supp. at 875 (noting the “legislature‘s emphasis on the importance of land use planning caused the leading commentator to observe that Congress ‘intended planning to be the centerpiece of future rangeland management’ and ‘binding on all subsequent multiple use decisions.’ “) (quoting Coggins, supra, at 15). The statute itself simply does not support the notion that once a grazing adjudication has been handed down it must be recognized for all time. To the contrary, the statute explicitly states that permits will in most cases be issued for ten years subject to the terms and conditions the Secretary concerned deems appropriate, and expressly provides the Secretary with authority at any time to adjust animal numbers upon reexamination of range conditions. PLC‘s and the dissent‘s position is without support in the language of the TGA, fails to acknowledge the Congressional purpose and plain language of FLPMA, and runs contrary to the elemental proposition that “an agency is not required to ‘establish rules of conduct to last forever,’ but rather ‘must be given ample latitude to adapt [its] rules and policies to the demands of changing circumstances.’ ” Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (internal quotation marks and citations omitted) (quoting Motor Vehicle Mfrs. Ass‘n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).9
In sum, since the permitted use rule provides that grazing permits shall specify the numbers of stock and seasons of use according to the dictates of applicable land use plans, the rule is easily within the scope of the Secretary‘s authority under FLPMA so long as it does not conflict with the TGA‘s requirement that recognized and acknowledged grazing privileges be adequately safeguarded, the question to which we now turn.
C. Adequate Safeguards
In determining whether the 1995 regulations “adequately safeguard” grazing privileges as required by the TGA, see
First, the 1995 regulations provide exactly the same procedural safeguards that obtained under the previous regulations. The TGA requires the Secretary to “provide by appropriate rules and regulations for local hearings on appeals from the decisions of the administrative officer in charge in a manner similar to the procedure in the land department.”
Second, while PLC argues that the permitted use rule will undermine the stability of the livestock industry, protection of which is a stated goal of the TGA, and that this represents a failure by the Secretary to adequately safeguard grazing privileges, this question is not ripe for consideration on a facial challenge. The Secretary argues and the record confirms that DOI believes the new regulation will actually increase stability, both because DOI does not envision yearly changes in land use plans and because elimination of the distinction between “active” and “maximum” use provides a more accurate account of the actual grazing capacity of a given allotment from year to year. See Final Rule, 60 Fed.Reg. at 9922-23;
Because this record provides no basis for the claim that there is no set of circumstances under which the 1995 regulations as they pertain to enforcement of the permitted use rule can be said to safeguard grazing privileges adequately, Chevron requires us to defer to the Secretary. We therefore hold the permitted use rule is fully within the Secretary‘s authority under the TGA and FLPMA and reverse the district court‘s holding to the contrary.
III. TITLE TO PERMANENT RANGE IMPROVEMENTS
In our judgment, the relevant provisions of the TGA and FLPMA permit the Secretary to promulgate the 1995 regulation under which the United States takes title to all future permanent range improvements constructed under cooperative agreements. Contrary to the dissent‘s assertion, nothing in the statutory language directs where such title must lie. “If a statute is ‘silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.’ ” Rust, 500 U.S. at 184, 111 S.Ct. 1759 (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). Moreover, although the new rule represents a departure from prior practice, we are convinced the Secretary provided a reasoned basis for the change. See State Farm Mut. Auto. Ins. Co., 463 U.S. at 42, 103 S.Ct. 2856.
shall make provision for the protection, administration, regulation, and improvement of such grazing districts as may be created under the authority of section 315 of this title, and he shall make such rules and regulations and establish such service, enter into such cooperative agreements, and do any and all things necessary to accomplish the purposes of this subchapter and to insure the objects of such grazing districts....
Most significant for purposes of analyzing the validity of the range improvements rule is section 315c of the TGA, which provides:
Fences, wells, reservoirs, and other improvements necessary to the care and management of the permitted livestock may be constructed on the public lands within such grazing districts under permit issued by the authority of the Secretary, or under such cooperative arrangements as the Secretary may approve. ... No permit shall be issued which shall entitle the permittee to the use of such improvements constructed and owned by a prior occupant until the applicant has paid to such prior occupant the reasonable value of such improvements to be determined under rules and regulations of the Secretary of the Interior.
With this discretionary statutory language apparently in mind, the Secretary issued the challenged regulation making all permanent range improvements subject to cooperative agreements and providing prospectively that title to these improvements would be in the United States. The regulation provides in relevant part:
(a) The Bureau of Land Management may enter into a cooperative range improvement agreement with a person, organization, or other government entity for the installation, use, maintenance, and/or modification of permanent range improvements or rangeland developments to achieve management or resource condition objectives. The cooperative range improvement agreement shall specify how the costs or labor, or both, shall be divided between the United States and cooperator(s).
(b) Subject to valid existing rights, title to permanent range improvements such as fences, wells, and pipelines where authorization is granted after August 21, 1995 shall be in the name of the United States. The authorization for all new permanent water developments such as spring developments, wells, reservoirs, stock tanks, and pipelines shall be through cooperative range improvement agreements.
The position advanced by the dissent that permittees must be allowed to own improvements they wholly or partially construct because the TGA unambiguously requires it is simply incorrect. The dissent begins its analysis of the statutory language by asserting the TGA unambiguously requires that title to structural improvements constructed and paid for by permittees must be held by the permittees. Dissent at 24. The language upon which the dissent relies states that “[n]o permit shall be issued which shall
We do not agree that the quoted language unambiguously requires the meaning the dissent attributes to it. The dissent takes the words “such improvements constructed and owned” to unambiguously mean “constructed and [therefore] owned.” The statutory language, however, does not mandate this reading, as evidenced by the need to add the word “therefore” to achieve the result the dissent desires. The statute can just as plausibly be construed to say no more than if the Secretary allows a permittee both to construct and own an improvement, the permittee shall be entitled to compensation for its reasonable value upon transfer. Nothing in the unadorned statutory language requires the Secretary to allow a permittee to own an improvement he has constructed, although if the Secretary in his discretion allows ownership, the statute requires compensation. While the language at issue may allow the dissent‘s reading of it, the entire payment provision can also equally be viewed as purely conditional, operative only if the Secretary allows both construction and ownership.
Moreover, an examination of
Whenever a permit or lease for grazing domestic livestock is canceled in whole or in part, in order to devote the lands covered by the permit or lease to another public purpose, including disposal, the permittee or lessee shall receive from the United States a reasonable compensation for the adjusted value, to be determined by the Secretary concerned, of his interest in authorized permanent improvements placed or constructed by the permittee or lessee on lands covered by such permit or lease....
Previous versions of the regulations refute the claim that “constructed and owned” vests obvious and automatic title. The 1978 regulations provided that the United States would hold title to all improvements constructed according to cooperative agreements, whereas permittees would hold title to all improvements constructed according to range improvement permits. See
In our view, therefore, nothing in the Act precludes the Secretary from requiring that
Since the 1995 range improvements rule is based on a permissible interpretation of the TGA, we must defer to the rule unless the government failed to provide a reasoned basis for modifying the previous regulations.
[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856.
The government provided several explanations for the changes,13 any one of which would be sufficient to meet this narrow standard of review. The Secretary first asserts that management of permanent improvements according to FLPMA‘s multiple-use and sustained-yield mandate would be simplified if BLM could avoid having to negotiate with permittees as titleholders to permanent improvements. Given the fact that multiple-use and sustained-yield management is central to FLPMA and requires that the Secretary have considerable administrative flexibility, the Secretary‘s basis for the change is reasonable. Equally reasonable is BLM‘s assertion that the change would unify procedures for authorizing improvements between BLM and the Forest Service given that many permittees use land administered by both agencies and both agencies have the same goals with respect to ecosystem management so far as consistent with the specific terms of their respective governing statutes. Finally, the new regulation clarifies a confusing overlap in the prior rule, under which certain improvements could fall under the category providing for shared title as well as the category granting full title to the United States.
In view of these justifications and in light of the fact that permittees will continue to receive the identical compensation they received under the prior rule upon cancellation or transfer of a permit, we hold the 1995
IV. THE QUALIFICATIONS RULE
We now turn to the Secretary‘s new qualifications rule. Under the pre-1995 regulations, in order to qualify for a grazing permit, an applicant had to “be engaged in the livestock business,” in addition to other requirements.
Section three of the TGA authorizes the Secretary—
to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range.... 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....
PLC asks us to examine the legislative history of the TGA in deciding this issue. PLC spends several pages in its brief expounding on this history to support its argument that “Congress intended and assumed that only persons in the livestock business, whether local settlers or outsiders, would be able to graze the public lands.” Appellees’ Br. at 41. If Congress intended that only persons in the livestock business should be able to graze the public lands, in the statute itself Congress would have required the Secretary to limit the issuance of permits to that class of applicants. Courts should not resort to legislative history in order to ascertain Congress’ intent when the plain language of the statute is unambiguous. See United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) (“Given [a] straightforward statutory command, there is no reason to resort to legislative history.“); see also Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279, 116 S.Ct. 637, 645, 133 L.Ed.2d 635 (1996) (Scalia, J., concurring) (“The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it.“). We therefore do not consider the legislative history of the TGA on this issue.
PLC also asserts that the Secretary‘s removal of the “engaged in the livestock business” requirement must be supported by a “reasoned analysis” because it rejects 61 years of DOI interpretation of the TGA. When an agency departs from a prior
V.
THE CONSERVATION USE RULE
Next, we examine whether the Secretary exceeded statutory authority by allowing the issuance of ten-year permits to use public lands for conservation purposes to the exclusion of livestock grazing. If no set of circumstances exists under which the regulation would be a valid exercise of the Secretary‘s authority, we must strike down the regulation as invalid on its face. See
Section three of the TGA authorizes the Secretary “to issue or cause to be issued permits to graze livestock” on the public lands.
The Secretary makes several arguments in support of the new regulation allowing “conservation use” permits. First, he points out (and PLC agrees) that resting land is a perfectly acceptable practice on the public range and is done with regularity in order to prevent permanent destruction of the lands. Indeed, under the pre-1995 regulations, active use could “be suspended in whole or in part on a temporary basis due to drought, fire, or other natural causes, or to facilitate installation, maintenance, or modification of range improvements.”
The Secretary further argues that the issuance of permits for conservation use is authorized by the TGA, FLPMA, and PRIA. The Secretary points to section two of the TGA, which provides, “The Secretary shall . . . do any and all things necessary to accomplish the purposes of this [Act].”
Notwithstanding the reasonable arguments that the Secretary presents, we are not persuaded. The question before us is not whether the Secretary possesses general authority to take conservation measures—which clearly he does—but rather, whether he has authority to take the specific measure in question, i.e., issuing a “grazing permit” that excludes livestock grazing for the entire term of the permit. We conclude at the first step of the Chevron analysis that Congress has spoken directly to this precise question and answered it in the negative.
Our decision rests on the plain language of the relevant statutes. The TGA provides the Secretary with authority to issue “permits to graze livestock on . . . grazing districts.”
The TGA authorizes the Secretary to establish grazing districts comprised of public lands “which in his opinion are chiefly valuable for grazing and raising forage crops.”
Thus, when the Secretary issues a permit under section three of the TGA, the primary purpose of the permit must be grazing. If range conditions indicate that some land needs to be rested, the Secretary may place that land in non-use on a temporary basis, in accordance with Congress‘s grants of authority that the Secretary manage the public lands “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, [and other] values,”
In short, it is true that the TGA, FLPMA, and PRIA, give the Secretary very broad authority to manage the public lands, including the authority to ensure that range resources are preserved. Permissible ends such as conservation, however, do not justify unauthorized means. We hold that the Secretary lacks the statutory authority to issue grazing permits intended exclusively for conservation use. Because there is no set of circumstances under which the Secretary could issue such a permit, the new conservation use regulation is invalid on its face. See
VI.
CONCLUSION
An examination of the statutes Congress has enacted to guide administration of the range land at issue in this case makes it abundantly clear that Congress intended the federal lands to be managed in such a way as to maximize their use for many purposes. There can be no doubt that Congress has vested the Secretary of the Interior with broad authority to decide entitlement to the grazing rights on the range as long as he does not exercise it contrary to clear Congressional mandates. Having considered Congressional intent as expressed in the TGA, FLPMA and PRIA and our deferential role as a reviewing court, we REVERSE the district court‘s invalidation of the permitted use rule, the range improvements rule, and the qualifications rule, and we AFFIRM the district court‘s invalidation of the conservation use rule.
TACHA, Circuit Judge, dissenting.
I dissent from parts II and III of the majority opinion.
I. Permitted Use Rule
With respect to the new permitted use rule, I fundamentally disagree with the majority on the meaning and importance of the statutory command that “[s]o far as consistent with the purposes and provisions of [the Taylor Grazing Act], grazing privileges recognized and acknowledged shall be adequately safeguarded . . . .”
This issue is a highly complicated issue to review because it is virtually impossible to adequately understand the mechanics of grazing on the public range and how it is administered from a reading of the relevant regulations. Even upon reading the briefs, cited authorities, BLM decisions, and scholarly commentaries on the public lands, one is left with a rather incomplete comprehension of the system. Nevertheless, as thorough an understanding as possible of how the grazing preference system has worked since its inception in 1934 is essential for our proper review.
A. Historical Role of the Grazing Preference
At the time the TGA was passed in 1934, there were many more applicants for grazing privileges than could be accommodated, a fact that Congress knew. See
Following the TGA‘s passage in 1934, the Secretary began the lengthy adjudicatory process of allocating grazing privileges. That process took many years to complete. When the Secretary made a favorable decision on a grazing application, he (1) issued a permit to the applicant, (2) identified the property owned by the permittee that was to serve as the base for the livestock operation and to which the grazing privileges attached, and (3) identified the maximum amount of forage, expressed in AUMs, that the permittee could graze on the public lands. Cf. Federal Range Code, § 6(b) (1938) (describing priority of issuance of grazing permits to qualified applicants). That maximum amount of forage eventually became known as the grazing preference, although that term was not added to the grazing regulations until 1978. See
The grazing preference, or the historically adjudicated grazing level, was distinct from the permit to graze. The permit was the ten-year license granted to the applicant, giving him the right to graze livestock on the public range up to the amount of forage allocated by the Secretary. The grazing preference was the Secretary‘s maximum allocation of forage to the individual permittee and was in most cases, if established prior to 1978 (as most preferences were), based on either the permittee‘s historical use of public range or the historically available forage on the permittee‘s private lands, whichever was lower. See McLean v. BLM, 133 I.B.L.A. 225, 231-32 & nn. 9–10 (1995). There is no question that FLPMA and the 1978 regulations altered the criteria for awarding new preferences and increasing already-existing preferences, see id. at 235, but there is also no question, contrary to the majority‘s assertion, that the 1978 regulations continued to recognize already-existing grazing preferences, see 43 Fed.Reg. 29,058 (July 5, 1978) (stating that permittees’ “adjudicated grazing use, their base properties, and their areas of use (allotments) will be recognized under these grazing regulations.“).
The grazing preference never guaranteed a permittee the right to graze that amount of forage every year. Rather, the grazing preference represented the upper limit of forage that the permittee could graze if enough forage were available. Under the 1978 regulations, a permittee‘s grazing preference included both “active use” and “suspended use.”
Under the 1978 regulations, the Secretary could change the maximum amount of forage represented by the grazing preference on a case-by-case basis. See
The grazing preference served as a stabilizing force for the livestock industry and promoted orderly use of the range by guaranteeing permittees the right to graze a predictable number of stock on the public lands and by allowing them to gauge how large or small their livestock operations could be. Stabilization of the livestock industry and promoting orderly use of the range were two of the primary purposes of the TGA. See TGA preamble, 48 Stat. 1269 (uncodified). Possession of a grazing preference attached to qualified base property guaranteed a rancher in possession of a permit the right to graze forage up to the amount specified by the preference so long as forage was available. The fact that a permittee‘s authorized active use might differ from the total forage in the grazing preference did not remove the certainty that accompanied the preference. Permittees knew and understood that there would be year-to-year fluctuations in available forage and changes in the overall conditions of the range, and the Secretary had full authority under the TGA to make individual adjustments in active use. See
Despite annual fluctuations in active use, the preference level generally remained the same from year-to-year, through transfers of the base property, and from permit-to-permit, though there is no question that the Secretary could also effect changes in preference levels as described above. Such authority to change preference levels was in accord with section three of the TGA, which gives the Secretary the authority to “specify from time to time numbers of stock and seasons of use.”
Based on my historical understanding of grazing preferences and the importance that they assumed in the operation of permittees’ livestock businesses, I can only conclude that these adjudicated grazing levels, whether referred to by the label “grazing preference” or by any other name, were an essential part of the permittees’ grazing privileges. Section three of the TGA gives permittees a preferential right of renewal of their permits; in my judgment, the adjudicated grazing levels are part and parcel of that preferential renewal right. In making the grazing decisions, the Secretary determined that certain permittees were entitled to priority in the issuance of permits and that, based on their historic use of the range, they were entitled to graze up to a quantifiable level of forage. When the Secretary reviewed grazing permits for renewal, he was guided by the original adjudications in which he had determined that the permittee was a preferred applicant and in which he had identified the maximum forage level that the permittee was entitled to graze.
B. Grazing Adjudications Continued in 1978 Regulations
At least two statements from the majority‘s opinion demonstrate that we clearly do not share the same understanding of the issue before us today, particularly regarding the nature and role of the grazing adjudications. In discussing FLPMA and the 1978 regulations promulgated thereafter, the majority states that “[w]hile the previously adjudicated grazing uses were to be recognized for the length of existing permits, ‘future adjudications of grazing use would be based on criteria vastly different than those provided in the Federal Range Code.‘” Maj. Op. at 1169 (quoting Interior Board of Land Appeals decision, McLean v. BLM, 133 I.B.L.A. 225, 233 (1995)). The majority also states that “[n]owhere in the 1978 regulations was there any requirement, or even the suggestion, that the authorizing officer must recognize or refer to the original grazing adjudications, or even the most recent adjudications, in issuing new permits.” Maj. Op. at 1169 (emphasis added). The italicized portions, in particular, demonstrate that the majority thinks that under the new regulations, each time a ten-year permit is renewed, the Secretary somehow engages in a new “adjudication.”
As I understand it, this has never been the case, as the discussion above indicates. Rather, a grazing adjudication was a one-time decision of the Secretary, made when he first allocated grazing privileges on a particular allotment of the public range. Historically, there were many more applicants for use of the range than could be accommodated, so the Secretary had to grant grazing privileges to some and deny privileges to others. The adjudicatory process of allocating those privileges took nearly two decades. Thereafter, the Secretary engaged in that same type of adjudicatory process only when new public lands became available for grazing. In determining which applicants were to receive grazing privileges, the Secretary determined whether the applicant was a member of a preferred group listed in section three of the TGA, and evaluated the amount of forage on the public lands the applicant had typically used. Then, the Secretary issued a decision, issuing a grazing permit and also declaring the maximum level of forage the permittee could graze (i.e., the grazing preference). When a permit came up for renewal, the Secretary either renewed the permit in accordance with the grazing preference, or he denied the permit. Based on my understanding of this system, I can only conclude that the historically adjudicated grazing preference is an integral aspect of a permittee‘s grazing privileges, and in particular the “preference right of the permittees to renewal” of their permits, referred to in section three of the TGA.
I agree with the majority that passage of FLPMA and the 1978 regulations drastically changed the criteria that were to guide the Secretary in future adjudications. Indeed, the majority cites an Interior Board of Land Appeals decision that makes that point convincingly. See Maj. Op. at 1169 (quoting McLean, 133 I.B.L.A. at 233). The majority, however, simply does not understand what that means. A “future adjudication,” as that phrase was used in the McLean decision, does not refer to the renewal of a grazing permit, as the majority asserts, nor to future
The McLean decision makes clear that most permittees’ grazing preferences arose in pre-1978 grazing adjudications since most BLM land was opened to grazing immediately following the TGA‘s passage in 1934. Some grazing preferences derived from post-1978 adjudications, when new land became available for grazing. In either case, however, the only difference is the criteria that guided the Secretary in allocating the grazing privileges. Both sets of grazing preferences derived from grazing adjudications and were individualized to particular permittees. An original grazing decision awarded forage use according to a particular permittee‘s application for a grazing permit. If a permittee‘s grazing permit were renewed at the end of the life of the permit, the adjudicated grazing preference generally continued unchanged in that new permit. In most cases, recognition of the results of the original grazing decisions continued up to the 1995 revisions. See, e.g., Ortiz v. BLM, 126 I.B.L.A. 8, 9 (1993) (discussing permittee‘s grazing preference which, despite numerous transfers, “dates from the early 1930s,” when it was issued to the original applicant). In the time since BLM issued an original grazing decision, changes in grazing preferences have been individualized, based on the circumstances of particular permittees and the condition of particular grazing allotments. Thus, until the 1995 regulations, the Secretary had safeguarded the results of the original grazing adjudications through continued recognition of the original grazing preference.
C. Effect of the Secretary‘s New “Permitted Use” Regulation
The Secretary‘s new permitted use rule ends the long-standing DOI recognition of the adjudicated levels of grazing known as the grazing preference. The Secretary argues that “AUMs are protected and not eliminated under the new rules, and the language in the new term ‘permitted use’ . . . does not effect a substantive change from the previous regulation.” Appellant‘s Br. at 20 (emphasis in original). The Secretary does not acknowledge that the new regulations end recognition of the adjudicated grazing preference. Rather, the Secretary asserts that the
The pre-1995 “grazing preference” was defined 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.”
The “permitted use” introduced in the 1995 regulations is defined as “the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allotment under a permit or lease and . . . expressed in AUMs.”
Grazing preference is redefined to mean the priority to have a Federal permit or lease for a public land grazing allotment that is attached to base property owned or controlled by a permittee. . . . The definition omits reference to a specified quantity of forage, a practice that was adopted . . . during the adjudication of grazing privileges. . . . BLM will identify the amount of grazing use (AUMs), consistent with land use plans, in grazing use authorizations to be issued under a . . . permit.
A definition of Permitted use is added to define the amount of forage in an allotment that is allocated for livestock grazing and authorized for use . . . under a grazing permit. . . . The term replaces the AUMs of forage use previously associated with grazing preference.
60 Fed.Reg. at 9921 (emphasis added); see also
Under the permitted use rule, the maximum amount of forage that a permittee can graze is established solely by a land use plan adopted by the BLM, with no reference to the results of the grazing adjudications. By contrast with the old system, the new permitted use approach ends recognition of the grazing preference across the board, for all permittees, without reference either to their individual circumstances or to the condition of the land covered by their permits. Under the new regulations, a permittee‘s grazing privileges consist of the right to use the AUMs specified in the grazing permit for a ten-year term and a bald right to preference at renewal time. Gone is recognition of the underlying adjudication in which the Secretary made a determination that, vis-a-vis other applicants, the permittee was a member of a priority group entitled to graze up to a maximum amount of forage on a particular allotment, and to which the Secretary previously always referred in renewing grazing permits.
There is no guarantee that the permittee will be allowed to graze predictable amounts of forage upon renewal, nor that the permittee‘s priority position is secure. I think this difference is significant, for it erases the certainty and predictability that existed under the pre-1995 regulatory scheme and that I am certain was required by Congress under the TGA. The result is that the agency
D. Statutory Mandate
The dispositive question at issue regarding the new permitted use rule is whether the Secretary‘s elimination of adjudicated grazing preferences conflicts with Congress‘s mandate that “grazing privileges recognized and acknowledged shall be adequately safeguarded.” To answer this question, Chevron requires us to ask whether that mandate is an unambiguous expression of Congressional policy, for if it is, the courts, “as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In examining this language, we assume that the words chosen by Congress are employed in their ordinary sense and accurately express Congress‘s legislative purpose. See FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). The words “grazing privileges” are straightforward. In the context of the TGA, a grazing privilege is the legislatively authorized right to use an allotment of the public lands for grazing livestock under terms set by the Secretary. See
I would hold that the phrase “grazing privileges recognized and acknowledged” unambiguously refers to the grazing privileges that Congress charged the Secretary with allocating in section three of the TGA, including the adjudicated grazing levels. The Secretary allocated these privileges to qualified applicants through a detailed adjudication process that took many years to complete. Although Congress did not specify the exact system to be used beyond the initial preferences set forth in section three of the Act, it knew that such an adjudicatory process was necessary in order to identify those livestock operators who should be able to use the public range for grazing.
Similarly, I would conclude that use of the term “adequately safeguarded” is an unambiguous expression of Congress‘s intent that the Secretary protect the grazing privileges that are recognized and acknowledged by the adjudication process undertaken following passage of the TGA. To safeguard means to protect or defend. See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY (1981). Even though the modifier “adequately” is necessarily ambiguous, and what constitutes an adequate safeguard rests with the discretion of Secretary, the Secretary cannot altogether abandon his obligation to safeguard recognized grazing privileges. I do not question the authority of the Secretary to revoke a grazing permit because of a permittee‘s failure to comply with the terms and conditions of the permit or the grazing regulations. See
There are at least two well-settled aspects to the Secretary‘s obligation to safeguard grazing privileges. First, the Secretary “must observe statutory preferences and priorities in granting and renewing permits.” GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW § 19.02[1][c] (1997). Second, the Secretary must protect a permittee‘s allotment from trespasses by competing livestock operators. See
Congress requires the Secretary to safeguard permittees’ recognized and acknowledged grazing privileges. In the permitted use rule, the Secretary has failed to safeguard the results of the grazing adjudications in which permittees’ privileges were first recognized and acknowledged. The new permitted use rule, in effect, wipes the slate clean. That permittees will not immediately lose their right to graze on the public lands seems, to me, irrelevant. When the Secretary undertook to allocate privileges to various applicants to graze a particular allotment of the public range, he made a series of determinations. He determined that the applicant either was or was not a member of a priority group. He determined whether the applicant had made historic use of the range. He determined what level of forage the applicant had used and whether, vis-a-vis all other applicants, that applicant should be entitled to continue that level of use. Then, he awarded a successful applicant a grazing preference to graze up to a certain amount of forage, not just for the life of the permit, but for as long as the Secretary allowed the permittee to graze on the public lands. The majority‘s decision upholding the permitted use rule, in my judgment, reads out the central statutory mandate of section three of the Taylor Grazing Act.
I do not deny that the Secretary has full authority to control permittees’ use of the range. See
II. Title to Range Improvements
I also disagree with the majority‘s conclusion that section four of the TGA is ambiguous with respect to ownership of rangeland improvements constructed by a permittee on the public lands. The majority concludes that the TGA is ambiguous as to whether permittees who construct improvements should hold title to those improvements, and therefore the Secretary was within his authority promulgating new
I agree with the PLC that the TGA grants permittees ownership rights in improvements constructed either in whole or in part by the permittee. The following language from section four of the TGA is relevant:
Fences, wells, reservoirs, and other improvements; construction; permits; partition fences.
Fences, wells, reservoirs, and other improvements necessary to the care and management of the permitted livestock may be constructed on the public lands within such grazing districts under permit issued by the Secretary or under such cooperative arrangement as the Secretary may approve. . . . No permit shall be issued which shall entitle the permittee to the use of such improvements constructed and owned by a prior occupant until the
applicant has paid to such prior occupant the reasonable value of such improvements to be determined under rules and regulations of the Secretary of the Interior.
The district court determined that section four of the Taylor Act “strongly suggests that the individual who constructed the improvement should own it” and, therefore, struck down the Secretary‘s range improvements rule as “exceed[ing] statutory authority.” Public Lands Council v. Babbitt, 929 F.Supp. 1436, 1442-43 (D.Wyo. 1996). The majority disagrees with the district court, concluding that this statutory section gives the government unlimited discretion to determine what improvements, if any, may be both “constructed and owned” by a permittee.
I cannot agree with the assertion that Congress wanted the Secretary to decide whether a permittee should hold title to improvements paid for and constructed by the permittee. In my judgment, the statute is not ambiguous on this point. It is a well-accepted principle that the first step in interpreting a statute is to determine whether the relevant language has a plain meaning with respect to the particular dispute in the case. See Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. See
The provision for compensation in section four of the statute supports my reading. The majority‘s reading of the statute, together with the Secretary‘s new regulation, renders that compensation provision meaningless; without title, a permittee is not be entitled to the compensation for which the statute provides. It is true, as the majority points out, that other regulations still guarantee permittees full compensation for their investments in improvements, even when they do not own those improvements. See
My conclusion that the statutory language is unambiguous on who holds title to improvements constructed on the public lands also reveals a great divide between the majority and me on the role that courts have in interpreting statutory language. We ought not examine statutory language so as to needlessly create ambiguities where no such ambiguity exists. Rather, in interpreting a
Nor do I agree with the majority that “nothing in the statutory language directs where such title must lie.” Maj. Op. at 40. That Congress specifically discusses ownership of improvements demonstrates to me that it thoroughly considered that question. The TGA is a statute replete with discretionary language and congressional grants of rulemaking authority. Such discretionary language or rulemaking authority is conspicuously absent on the question of who should hold title to range improvements. That is for good reason. Congress considered the question and spoke precisely to the issue. As I understand the role of the courts, I do not think Chevron gives us license to ignore the plain meaning Congress employed.
Roman STERLIN, on behalf of himself and all others similarly situated, Plaintiff-Appellant,
v.
BIOMUNE SYSTEMS; David Derrick; Aaron Gold; Charles J. Quantz; Jack Solomon; The Institute for Social and Scientific Development; Genesis Investment, Defendants-Appellees.
No. 97-4074.
United States Court of Appeals, Tenth Circuit.
Sept. 2, 1998.
Notes
60 Fed.Reg. 9894, 9922-23 (Feb. 22, 1995).In the absence of a major change in the overall situation and where [land use plan] objectives are being met, changes in permitted use through BLM initiative are unlikely. This provides a high level of security, stability and predictability from year to year.
Permitted use is not subject to yearly change. Permitted use will be established through the land use planning process, a process which requires data collection and detailed analysis, the completion of appropriate NEPA documentation, and multiple opportunities for public input. Establishing permitted use through this planning process will increase, not decrease, the stability of grazing operations.
Although in some cases reductions made under this section of the rule may be carried in temporary suspension, the Department does not believe that it serves the best interest of either the rangeland or the operator to continue to carry suspended numbers on a permit, unless there is a realistic expectation that the AUMs can be returned to active livestock use in the foreseeable future.