Petition for Writ of Certiorari — K. John Corrigan, et al., Petitioners v. Deb Haaland, Secretary of the Interior, et al.
Supreme Court briefDec 1, 2021
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No. _________
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------K. JOHN AND M. MARTHA CORRIGAN,
husband and wife; HANLEY RANCH PARTNERSHIP;
and MICHAEL F. HANLEY, IV. AND
LINDA LEE HANLEY, husband and wife,
Petitioners,
v.
DEB HAALAND, in her official capacity as Secretary
of the U.S. Department of the Interior; TRACY
STONE-MANNING, in her official capacity as Director of
the U.S. Bureau of Land Management; PETER J. DITTON,
in his official capacity as Acting Idaho State Director of
the U.S. Bureau of Land Management; TANYA THRIFT,
in her official capacity as Acting Boise District Manager
of the U.S. Bureau of Land Management; and DONN
CHRISTIANSEN, in his official capacity as Owyhee Field
Office Manager for the U.S. Bureau of Land Management,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------W. ALAN SCHROEDER
Counsel of Record
SCHROEDER LAW
Tulip S Building, Suite 110
1449 South David Lane
Boise, Idaho 83705
Telephone: 208-914-6699
Email: alan@schroederlaw.net
LAURA A. SCHROEDER
SARAH R. LILJEFELT
SCHROEDER LAW OFFICES, P.C.
1915 N.E. Cesar E.
Chavez Blvd.
Portland, Oregon 97212
Telephone: 503-281-4100
Email: counsel@water-law.com
Counsel for Petitioners
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
The Chevron doctrine requires a federal court under certain circumstances to defer to an agency’s interpretation of a statute “if the statute is silent or
ambiguous with respect to the specific issue” before the
court. Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). In this case, the U.S. Court of Appeals for the
Ninth Circuit conceded that the statutes bearing on
this case – the Taylor Grazing Act and the Federal
Land Policy and Management Act – are silent on the
issue of statutory interpretation that was presented to
it, namely, whether the Bureau of Land Management
(“Bureau”) can treat a longstanding Grazing preference as cancelled without following the regulations
specifically governing cancellation of a Grazing preference. The Ninth Circuit resolved this issue of statutory
interpretation, despite the conceded statutory silence,
on the ground that the statutes are unambiguous. The
question presented is:
Whether the Ninth Circuit correctly held that
statutory silence on the issue before the court
can be unambiguous for purposes of the
Chevron doctrine and accordingly justify the
court’s disregarding the statutory interpretation embodied in the agency’s regulations.
ii
PARTIES TO THE PROCEEDING
Petitioners are K. John Corrigan, M. Martha Corrigan, Hanley Ranch Partnership, Michael F. Hanley
IV., and Linda Lee Hanley. Petitioners were the Appellants in the court of appeals.
Respondents are Deb Haaland, in her official capacity as Secretary of the U.S. Department of the Interior; Tracy Stone-Manning, in her official capacity as
Director of the U.S. Bureau of Land Management; Peter J. Ditton, in his official capacity as Acting Idaho
State Director of the U.S. Bureau of Land Management; Tanya Thrift, in her official capacity as Acting
Boise District Manager of the U.S. Bureau of Land
Management; and Donn Christiansen, in his official
capacity as Owyhee Field Office Manager for the
U.S. Bureau of Land Management. Respondents’ official positions were the Appellees in the court of appeals.
RULE 29.6 DISCLOSURE STATEMENT
No corporate disclosure statement is required under Supreme Court Rule 29.6. Petitioners K. John Corrigan and M. Martha Corrigan, husband & wife, are
individual U.S. citizens and residents of the State of
Oregon. Petitioner Hanley Ranch Partnership is an assumed business name registered in the State of Idaho
to Michael F. Hanley, IV. and Linda Lee Hanley. Petitioner Hanley Ranch Partnership is not incorporated
iii
RULE 29.6 DISCLOSURE STATEMENT –
Continued
under the laws of the State of Idaho and is not otherwise owned by a parent corporation or publicly held
corporation that owns ten percent or more of its stock.
Petitioners Michael F. Hanley, IV. and Linda Lee Hanley, husband & wife, are individual U.S. citizens and
residents of the State of Idaho.
RELATED PROCEEDINGS
The underlying proceedings and decisions directly related to this Petition are:
•
K. John Corrigan, et al. v. Haaland, et al., No.
20-35393, U.S. Court of Appeals for the Ninth
Circuit. Judgment and Opinion filed September 2, 2021. App. 1-27.
•
K. John Corrigan, et al. v. David L. Bernhardt,
et al., No. 1:18-CV-512-BLW. U.S. District
Court for the District of Idaho. Memorandum
Decision and Order filed February 26, 2020.
App. 28-36.
•
K. John Corrigan, et al. v. Bureau of Land
Management, 190 IBLA 371 (2017). U.S. Department of the Interior, Office of Hearings
and Appeals, Interior Board of Land Appeals
(“IBLA”). Decision issued August 10, 2017.
App. 37-74.
•
K. John Corrigan, et al. v. Bureau of Land
Management, ID-BD-3000-2014-002, 003, 004,
iv
RELATED PROCEEDINGS – Continued
006, 007 (2016). U.S. Department of the Interior, Office of Hearings and Appeals, Hearings
Division (Salt Lake City, Utah). Decision issued January 25, 2016. App. 75-115.
•
Notice of Field Manager’s Final Decision
dated November 22, 2013, issued to K. John &
M. Martha Corrigan, U.S. Department of the
Interior, Bureau of Land Management, Idaho,
Boise District, Owyhee Field Office. Decision
issued November 22, 2013. App. 116-28.
•
Notice of Field Manager’s Final Decision
dated November 22, 2013, issued to Hanley
Ranch Partnership, U.S. Department of the
Interior, Bureau of Land Management, Idaho,
Boise District, Owyhee Field Office. Decision
issued November 22, 2013. App. 129-45.
•
Notice of Field Manager’s Final Decision
dated November 13, 2013, issued to Payne
Family Grazing Association, LLC, U.S. Department of the Interior, Bureau of Land
Management, Idaho, Boise District, Owyhee
Field Office. Decision issued November 13,
2013. App. 146-200.
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED....................................
i
PARTIES TO THE PROCEEDING .......................
ii
RULE 29.6 DISCLOSURE STATEMENT.............
ii
RELATED PROCEEDINGS .................................
iii
PETITION FOR A WRIT OF CERTIORARI .........
1
OPINIONS BELOW .............................................
1
JURISDICTION ...................................................
1
STATUTORY AND REGULATORY PROVISIONS
INVOLVED .......................................................
2
INTRODUCTION .................................................
3
STATEMENT OF THE CASE ...............................
5
I.
Applicable Statutes and Regulations ........
5
II.
Statement of Facts .....................................
9
REASONS FOR GRANTING THE PETITION ... 13
I.
The Ninth Circuit erred in holding the
TGA and FLPMA are “unambiguous” as to
the cancellation of a Grazing preference
upon the nonrenewal of a Grazing permit
under Chevron step one, when the court
simultaneously found such statutes are silent as to the process to cancel a Grazing
preference .................................................. 15
vi
TABLE OF CONTENTS – Continued
Page
A. A plain reading of the TGA and
FLPMA cannot result in an “unambiguous” interpretation because the statutes are silent on the specific issue as
to the process to cancel a Grazing preference ................................................... 17
B. The structure and purpose of the TGA
and FLPMA cannot make the silence
in the statutes “unambiguous” ............ 20
II.
The Ninth Circuit erred in failing to recognize and apply the Grazing regulations
to fill in the “gap” left by Congress in the
TGA and FLPMA that provide a particular procedure for cancellation of a Grazing
preference in 43 C.F.R. § 4170.1-1(a)......... 23
III.
The question presented has exceptional
importance ................................................. 29
A. Certiorari is warranted to negate disorder to those who have a Grazing
preference attached to their Base
property ............................................... 29
B. Certiorari is warranted to put bookends
on the other side of the Chevron deference ...................................................... 32
C. Certiorari is warranted to reinforce
this Court’s holding in Christensen,
applying Chevron in the context of
silence as to a specific point in a statute ........................................................ 33
vii
TABLE OF CONTENTS – Continued
Page
IV.
This case is an appropriate vehicle for review of the question presented .................. 36
CONCLUSION..................................................... 37
APPENDICES
Opinion of the United States Court of Appeals for the Ninth Circuit filed September 2,
2021 ............................................................. App. 1-27
Opinion of the United States District Court
for the District of Idaho filed February 26,
2020 ........................................................... App. 28-36
Decision dated August 10, 2017, by the Board
of Land Appeals of the U.S. Department of
the Interior, Office of Hearings and Appeals ........................................................... App. 37-74
Decision dated January 25, 2016, by an Administrative Law Judge of the Hearings Division
of the U.S. Department of the Interior, Office
of Hearings and Appeals ......................... App. 75-115
Decision dated November 22, 2013, issued to K.
John & M. Martha Corrigan, by the Owyhee
Field Office, Boise District, Idaho, Bureau of
Land Management, U.S. Department of the
Interior .................................................... App. 116-28
Decision dated November 22, 2013, issued to
Hanley Ranch Partnership, by the Owyhee
Field Office, Boise District, Idaho, Bureau of
Land Management, U.S. Department of the
Interior .................................................... App. 129-45
viii
TABLE OF CONTENTS – Continued
Page
Decision issued November 13, 2013, issued to
Payne Family Grazing Association, LLC, by
the Owyhee Field Office, Boise District, Idaho,
Bureau of Land Management, U.S. Department of the Interior .............................. App. 146-200
The Taylor Grazing Act, 43 U.S.C. §§ 315, 315a,
315b ......................................................... App. 201-06
The Federal Land Policy and Management Act,
43 U.S.C. § 1752(c) (pre-2014) ................. App. 207-12
The Federal Land Policy and Management Act,
43 U.S.C. § 1752(c) (post-2014) ............... App. 213-21
The Grazing Regulations, 43 C.F.R. Part 4100
(10/1/2005 Edition) ................................ App. 222-309
ix
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Auer v. Robbins,
519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79
(1997) .........................................................................3
American Hospital Ass’n, et al. v. Norris Cochran,
No. 20-1114 (U.S. Supreme Court) .........................32
Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908
(2002) .......................................................................21
National Cable & Telecommunications Assn. v.
Brand X Internet Services,
545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820
(2005) .......................................................................34
Chemehuevi Indian Tribe v. Newsom,
919 F.3d 1148 (9th Cir. 2019) ..................................19
Chisom v. Roemer,
501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348
(1991) .......................................................................19
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984) ............................................................... passim
Christensen v. Harris County,
529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621
(2000) ..................................................... 33, 34, 35, 36
Harrison v. PPG Industries, Inc.,
446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525
(1980) .......................................................................19
x
TABLE OF AUTHORITIES – Continued
Page
Kisor v. Wilkie,
139 S.Ct. 2400 (2019) ................................ 3, 4, 31, 35
Mistretta v. United States,
488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714
(1989) .......................................................................24
Nat’l Ass’n of Home Builders v.
Defenders of Wildlife,
551 U.S. 644, 127 S.Ct. 2518, 128 L.Ed.2d 467
(2007) .......................................................................20
Nat’l Envtl. Dev. Association’s
Clean Air Project v. EPA,
891 F.3d 1041 (D.C. Cir. 2018) ................................34
Oregon Restaurant & Lodging Ass’n v. Perez,
816 F.3d 1080 (9th Cir. 2016) ..................................34
Pit River Tribe v. Bureau of Land Mgmt.,
939 F.3d 962 (9th Cir. 2019) ....................................21
Public Lands Council v. Babbitt,
529 U.S. 728, 120 S.Ct. 1815, 146 L.Ed.2d 753
(2000) .........................................................................5
United States v. Home Concrete & Supply, LLC,
566 U.S. 478, 132 S.Ct. 1836, 182 L.Ed.2d 746
(2012) .......................................................................24
United States v. Wells,
519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107
(1997) .......................................................................19
xi
TABLE OF AUTHORITIES – Continued
Page
Western Watersheds Project v. Kraayenbrink, et al.,
538 F. Supp. 2d 1302 (D. Idaho 2008), aff ’d in
relevant part, 632 F.3d 472 (9th Cir. 2011),
cert. denied, 132 S.Ct. 366 (2011) .............................2
Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ.,
550 U.S. 81, 127 S.Ct. 1534, 167 L.Ed.2d 449
(2007) .......................................................................20
U.S. CONSTITUTION
U.S. Const. Art. I, § 8 ..................................................24
FEDERAL STATUTES
28 U.S.C. § 1254(1) ........................................................2
Fair Labor Standards Act of 1938,
29 U.S.C. §§ 201 et seq. ............................................33
National Environmental Policy Act of 1969,
42 U.S.C. §§ 4321 et seq. ............................................7
Taylor Grazing Act of 1934,
43 U.S.C. §§ 315 et seq. .................................... passim
43 U.S.C. § 315....................................................... 2, 5
43 U.S.C. § 315a............................................... 2, 5, 29
43 U.S.C. § 315b............................................... 2, 5, 17
Federal Land Policy and Management Act of 1976,
43 U.S.C. §§ 1701 et seq. .................................. passim
43 U.S.C. § 1752(a) ....................................................6
43 U.S.C. § 1752(b) ....................................................6
xii
TABLE OF AUTHORITIES – Continued
Page
43 U.S.C. § 1752(c) (pre-2014) ......................... 2, 6, 18
43 U.S.C. § 1752(c) (post-2014) ........................... 7, 30
43 U.S.C. § 1752(c)(1) (post-2014) ...........................18
43 U.S.C. § 1752(c)(2) (post-2014) ...........................18
REGULATIONS OF U.S. DEPARTMENT OF THE INTERIOR
43 C.F.R. § 4.403(a) (10-1-2020 Edition) ....................28
43 C.F.R. § 4.470(d) (10-1-2020 Edition) ....................28
43 C.F.R. § 4.478(e) (10-1-2020 Edition) ....................28
43 C.F.R. Part 4100 ................................................... 2, 8
43 C.F.R. Part 4100, Subpart 4160 ..................... passim
43 C.F.R. Part 4100, Subpart 4170 ................. 22, 28, 35
43 C.F.R. § 4100.0-5 ......................................................8
43 C.F.R. § 4110.1(a) .....................................................8
43 C.F.R. § 4110.1(b)(1)....................... 10, 13, 15, 24, 30
43 C.F.R. § 4110.1(b)(1)(i) ...........................................25
43 C.F.R. § 4110.1(b)(1)(ii) ............................................8
43 C.F.R. § 4110.1(b)(2).................................................8
43 C.F.R. § 4110.2-1(a) ..................................................8
43 C.F.R. § 4160.1 ............................................. 9, 24, 31
43 C.F.R. § 4160.2 ............................................. 9, 24, 31
43 C.F.R. § 4160.3 ............................................. 9, 24, 31
43 C.F.R. § 4160.4 ............................................. 9, 24, 31
43 C.F.R. § 4170.1-1(a) ........................................ passim
xiii
TABLE OF AUTHORITIES – Continued
Page
COURT RULES OF THE U.S. SUPREME COURT
Supreme Court Rule 10(c) ..........................................13
Supreme Court Rule 13 ................................................2
Supreme Court Rule 29.6 ............................................ ii
1
PETITION FOR A WRIT OF CERTIORARI
K. John Corrigan, M. Martha Corrigan, Hanley
Ranch Partnership, Michael F. Hanley IV., and Linda
Lee Hanley petition for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Ninth Circuit in this case.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Ninth Circuit’s opinion is available at 12
F.4th 901 and 2021 WL 3923391, and reproduced at
App. 1-27. The opinion of the District Court for the
U.S. District of Idaho is available at 2020 WL 930490,
and reproduced at App. 28-36. The opinion of the Interior Board of Land Appeals (“IBLA”), Office of
Hearings and Appeals, U.S. Department of the Interior, is available at 190 IBLA 371 and 2017 WL
5653738, and reproduced at App. 37-74. The opinion of
the Administrative Law Judge, Hearings Division, Office of Hearings and Appeals, U.S. Department of the
Interior, is reproduced at App. 75-115. The decisions of
the Bureau of Land Management are reproduced at
App. 116-28 (Corrigan Decision), at App. 129-45 (Hanley Decision), and App. 146-200 (Payne Decision).
---------------------------------♦---------------------------------
JURISDICTION
The Ninth Circuit Court of Appeals entered judgment on September 2, 2021. App. 1-27. This Petition for
Certiorari is timely filed within ninety days after entry
2
of the Ninth Circuit Court of Appeals’ judgment in
compliance with Supreme Court Rule 13. This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
STATUTORY AND
REGULATORY PROVISIONS INVOLVED
The relevant statutory provisions are the Taylor
Grazing Act, 43 U.S.C. §§ 315, 315a, 315b (which is reproduced in the appendix to the Petition at App. 20106), and the Federal Land Policy and Management Act,
43 U.S.C. § 1752(c) (which is reproduced in the appendix at App. 208), but the relevant statutory provision
within the Federal Land Policy and Management Act,
was amended on December 19, 2014, during the mix of
the adjudicative process subject to this Petition (which
is reproduced in the appendix at App. 214-15). The relevant regulatory provisions are 43 C.F.R. Part 4100
(which is reproduced in the appendix at App. 222-309).1
---------------------------------♦---------------------------------
1
Petitioners cite and rely upon the grazing regulations set
forth in 43 C.F.R. Part 4100 (10-1-2005), i.e. the 1996 grazing
rules, because the 2006 grazing rules were enjoined from implementation in all respects. See Western Watersheds Project v.
Kraayenbrink, et al., 538 F. Supp. 2d 1302 (D. Idaho 2008), aff ’d
in relevant part, 632 F.3d 472 (9th Cir. 2011), cert. denied, 132
S.Ct. 366 (2011); see also App. 7, Footnote 2.
3
INTRODUCTION
This case centers on Chevron U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984), and, like Chevron, it involves the
deference to an agency’s interpretation of statutes.
However, unlike Chevron, it involves an agency’s interpretation of statutes that are actually silent with respect to a specific issue, as found by the Ninth Circuit
(App. 19, see also App. 17), yet simultaneously “unambiguous” with respect to the same issue, as also found
by the Ninth Circuit (App. 3, 13 (Footnote 3), 14, 15, 24,
27). A court cannot have it both ways under Chevron,
id. at 842, though that is what precisely occurred here,
resulting in the lower courts assuming a legislative
role which this Court explicitly prohibited in Chevron,
id. at 865.
This Court in Kisor v. Wilkie, 139 S.Ct. 2400
(2019), recently clarified when to apply Auer deference
to an agency’s interpretation of regulations. The Court
explained, “before concluding that a rule is genuinely
ambiguous, a court must exhaust all the ‘traditional
tools’ of construction.” Kisor, 139 S.Ct. at 2415. The
Court stated the “same approach” is used for interpreting ambiguous statutes under Chevron. Id. In Kisor,
the lower court found the regulation at issue ambiguous merely because neither party argued the agency’s
interpretation of the rule was unreasonable. Id. at
2423. This Court found that analysis in error and held,
“the court must make a conscientious effort to determine, based on indicia like text, structure, history, and
4
purpose, whether the regulation really has more than
one reasonable meaning.” Id. at 2423-24.
This Petition involves a case where the lower
courts’ analysis swings too far in the other direction –
where the courts worked so hard to review the text,
structure, and purpose of the statutes at issue that it
imposed a tortured interpretation in the face of actual
statutory silence, resulting in the courts usurping the
legislative authority of Congress. Chevron prescribed a
two-part test for a lower court to follow when faced
with reviewing an agency’s construction of a statute
which it administers. Chevron, 467 U.S. at 842-43. Step
one is “whether Congress has directly spoken to the
precise question at issue.” Id. at 842. Step two is “if the
statute is silent or ambiguous with respect to the
specific issue,” whether the agency’s interpretation of
the statute “is based on a permissible construction of
the statute.” Id. (emphasis added). Here, the statutory
silence was declared by the Ninth Circuit to be “unambiguous” under step one. App. 3, 14, 24, 27; see also App.
13 (Footnote 3), 15. Thus, this Petition asks this Court
to decide whether silence can, in fact, be “unambiguous” under Chevron step one. This case provides an appropriate vehicle for providing that clarification.
---------------------------------♦---------------------------------
5
STATEMENT OF THE CASE
I.
Applicable Statutes and Regulations.
Before the enactment of the Taylor Grazing Act
(“TGA”) of 1934, public lands were openly grazed. Public Lands Council v. Babbitt, 529 U.S. 728, 731-33, 120
S.Ct. 1815, 146 L.Ed.2d 753 (2000). However, with the
enactment of the TGA, Congress delegated authority
to the Secretary of the U.S. Department of the Interior
to divide the public lands and establish Grazing Districts. 43 U.S.C. § 315 (App. 201-03). The self-stated
purposes of the TGA are “to promote the highest use of
the public lands pending its final disposal,” 43 U.S.C.
§ 315 (App. 201), and “to regulate their occupancy and
use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the
orderly use, improvement, and development of the
range.” 43 U.S.C. § 315a (App. 203).
Under the TGA, the Secretary of the Interior is authorized to establish Grazing districts upon the public
lands, id. at § 315 (App. 201), and to give “[p]reference” for “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,” id. at § 315b (App.
204). Grazing permits are issued for periods of not
more than ten years, and are subject to a “preference
right” (aka first priority) of renewal in the discretion of
the Secretary of the Interior. See id. (App. 205).
6
Congress enacted the Federal Land Policy and
Management Act (“FLPMA”) in 1976. 43 U.S.C. §§ 1701
et seq. FLPMA did not change the TGA, but rather “reinforced” the TGA’s provisions. App. 12. FLPMA provides that Grazing permits issued under the TGA are
for a term of ten years, though permits for lesser durations may also be issued. Id. at § 1752(a) and (b) (App.
207-08, pre-2014 version; App. 213-14, post-2014 version). Such permits are subject to terms and conditions, and 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 any
term or condition of such grazing permit or lease.” Id.
at § 1752(a) (App. 207, pre-2014 version; App. 213,
post-2014 version). Id. at § 1752(a). Moreover, FLPMA
provides for the renewal of such permits. The pre-2014
version of FLPMA stated:
So long as (1) the [public] lands for which the
permit . . . is issued remain available for domestic livestock . . . , (2) the permittee . . . is in
compliance with the rules and regulations issued and the terms and conditions in the permit . . . specified by the Secretary concerned,
and (3) the permittee . . . accepts the terms
and conditions to be included by the Secretary
concerned in the new permit . . . , the holder
of the expiring permit . . . shall be given first
priority for receipt of the new permit. . . .
Id. at § 1752(c) (App. 208). The post-2014 version of
FLPMA followed the previous version but distinguish
7
the “first priority” standard between a permit that was
expiring and a permit that had expired, stating:
(1) Renewal of expiring or transferred permit or lease
During any period in which (A) the [public] lands for which the permit . . . is issued remain available for domestic livestock grazing
. . . , (B) the permittee . . . is in compliance
with the rules and regulations issued and the
terms and conditions in the permit . . . specified by the Secretary concerned, and (C) the
permittee . . . accepts the terms and conditions to be included by the Secretary concerned in the new permit . . . , the holder of
the expiring permit . . . shall be given first priority for receipt of the new permit. . . .
(2) Continuation of terms under new permit
or lease
The terms and conditions in a grazing
permit . . . that has expired, or was terminated due to a grazing preference transfer,
shall be continued under a new permit . . . until the date on which the Secretary concerned
completes any environmental analysis and
documentation for the permit . . . required under the National Environmental Policy Act of
1969 (42 U.S.C. §§ 4321 et seq.) and other applicable laws.
Id. at § 1752(c) (App. 214-15).
The Department of the Interior enacted regulations to carry out the mandates of the TGA and
8
FLPMA. See 43 C.F.R. Part 4100 (App. 222-309). Under
the regulatory definitions, a Grazing “District” means
“the specific area of public lands administered by a
District Manager.” 43 C.F.R. § 4100.0-5 (App. 230). A
“Grazing permit” means “a document authorizing use
of the public lands within an established grazing district.” Id. (App. 230-31); see also “Grazing lease,” id.
(App. 230). A “Grazing preference” means “a superior
or priority position against others for the purpose of
receiving a grazing permit or lease. This priority is attached to base property owned or controlled by a permittee or lessee.” Id. (App. 231). A “Base property”
means “(1) Land that has the capability to produce
crops or forage that can be used to support authorized
livestock for a specified period of the year, or (2) water
that is suitable for consumption by livestock and is
available and accessible, to the authorized livestock
when the public lands are used for livestock grazing.”
Id. (App. 229).
Under the grazing regulations, there are mandatory qualifications for being issued a Grazing permit.
The first relates to applicant status. 43 C.F.R.
§ 4110.1(a) (App. 237). The second relates to Base property status. Id.; see also 43 C.F.R. § 4110.2-1(a) (App.
239-41). The third relates to performance status wherein
a renewed Grazing permit is subject to a record of
“substantial compliance,” 43 C.F.R. § 4110.1(b)(1)(ii)
(App. 238), and wherein a new Grazing permit is subject to a similar, but different, record of performance,
43 C.F.R. § 4110.1(b)(2) (App. 238).
9
Neither the TGA nor FLPMA includes a single
provision regarding the cancellation of a Grazing preference. The Ninth Circuit’s opinion acknowledges such
point, stating, “[n]either the TGA nor the FLPMA mention a process for cancelling a grazing preference.” App.
19; see also App. 17. The only portion of the grazing
regulations that establish a procedure for cancellation
of a Grazing preference is at 43 C.F.R. §§ 4160.1-4160.4
(App. 294-98), which includes notice and opportunity
for appeal and hearing, i.e. due process, prior to any
cancellation. 43 C.F.R. § 4170.1-1(a) provides:
The authorized officer may withhold issuance
of a grazing permit or lease, or suspend the
grazing use authorized under a grazing permit or lease, in whole or in part, or cancel a
grazing permit or and grazing preference, or a
free use grazing permit or other grazing authorization, in whole or in part, under Subpart 4160 of this title, for violation of a
permittee or lessee of any of the provisions of
this part.
App. 298. Thus, Section 4170.1-1(a) requires that if a
permittee violates certain provisions, the agency may
withhold, suspend, or cancel “a grazing permit . . . and
grazing preference . . . in whole or in part” under the
due process procedures provided in Subpart 4160.
II.
Statement of Facts.
Petitioner Hanley Ranch Partnership (“Hanley”)
is a partnership between Michael F. Hanley, IV. and
Linda Lee Hanley, who are husband & wife. Since
10
1949, other than the years Mr. Hanley was away at college and in the military, he lived at his ranch headquartered in Jordan Valley, Oregon. The ranch owned
and maintained Base property in the form of private
land upon which the Grazing preferences within the
Trout Springs and Hanley FFR Allotments (“Allotments”) were attached to sustain a yearlong livestock
operation dependent by use upon the public lands
within the Allotments. See App. 6; see also App. 79.
The Bureau administrates the public lands within
the applicable Grazing district, and specifically within
the Allotments. It was under this authority the Bureau
recognized the Grazing preferences attached to the
Base property owned by Hanley, and, based thereon,
issued Grazing permits to Hanley over time to authorize their grazing use within the Allotments. Id.
Things changed in 2009. While the change is not
the issue before this Court, the events are. The Bureau
decided not to renew Hanley’s Grazing permit in 2009
due to Hanley’s lack of “substantial compliance” with
the terms of their permit under 43 C.F.R. § 4110.1(b)(1)
(App. 237-38). See App. 6 (Ninth Circuit); App. 29 (District Court); App. 40-43 (IBLA); App. 81-82 (ALJ); App.
131-32 (BLM). While Hanley administratively challenged the Bureau’s decision between 2009 and 2013,
the agency sustained it based upon a decision issued
in March 2013. App. 6, 29, 42, 81-82, 132.
The present case arose at this time, though a
critical note is necessary. It was undisputed both by
the agency and the lower courts that the permit
11
nonrenewal process between 2009 and 2013 neither included nor involved any cancellation of Hanley’s Grazing preferences under any statute or regulation. See
App. 26 (Ninth Circuit); App. 33-35 (District Court);
App. 47, 65-69 (IBLA); App. 101-02 (ALJ). The agency
never (and has never) cancelled the Grazing preferences as provided for in 43 C.F.R. § 4170.1-1(a) (App.
298).
After the agency sustained the permit nonrenewal
in March 2013, Petitioners Martha and John Corrigan
leased Hanley’s Base property in August 2013, and
simultaneously filed with the Bureau a Grazing Preference Transfer Application and a Grazing Permit Application. App. 6-7 (Ninth Circuit); App. 30 (District
Court); App. 42 (IBLA); App. 83 (ALJ); App. 116 (Corrigan Decision). Corrigan sought approval of their
Transfer Application upon the theory that the Hanley
FFR and Trout Springs Grazing preferences were not
cancelled by the Bureau during its previous permit
nonrenewal process under any statute or regulation,
and the preferences remained attached to the Base
property to which Corrigan now controlled via the
Base property Lease. Id.
In November 2013, the Bureau issued decisions2
that denied the Grazing Preference Transfer Application, stating in one such denial, “Hanley Ranch Partnership no longer possesses grazing preference.” App.
2
App. 116-28 (Corrigan Decision dated November 22, 2013);
App. 129-45 (Hanley Decision dated November 22, 2013); App.
146-200 (Payne Decision dated November 13, 2013).
12
117 (Corrigan Decision). The Agency used other word
choices to rationalize the denial of the Application,
stating:
•
“when a grazing permit expires, the associated grazing preference and permitted
use automatically and simultaneously
extinguished,” App. 73-74 (emphasis
added); see also App. 39, 40, 51;
•
“[b]ecause HRP could not realize the
basic (and only) benefit of receiving ‘priority position against others for the purpose of receiving a grazing permit,’ their
preference disappeared when they
could no longer take advantage of that
priority,” App. 169 (emphasis added), see
also App. 124, 140, 144, 167; and,
•
“HRP grazing preference ‘terminated’
upon the expiration of the HRP grazing
permit because HRP was found to have
an unsatisfactory record of performance,”
App. 123, 143, 166, 168 (emphasis added);
see also App. 132, 139.
See also App. 32 (wherein the District Court’s word
choice was “forfeit[ure]”).
The Petitioners administratively challenged the
Bureau’s decisions, though the agency3 and the lower
courts sustained those decisions.4 The Ninth Circuit
3
App. 37-74 (IBLA Decision dated August 10, 2017); App. 75115 (ALJ Decision dated January 25, 2016).
4
App. 1-27 (Ninth Circuit Decision filed September 2, 2021);
App. 28-36 (District Court Decision filed February 26, 2020).
13
ultimately sustained the decision made by the agency
based upon “Chevron step one” (App. 3, 14, 24, 27),
holding the applicable statutes are “unambiguous” in
authorizing cancellation of Hanley’s Grazing preferences upon the nonrenewal of their Grazing permit
under 43 C.F.R. § 4110.1(b)(1) (App. 237-38), but yet
simultaneously finding that “[n]either the TGA nor the
FLPMA mention a process for cancelling a grazing
preference.” (App. 19; see also App. 17).
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s decision “decided an important federal question in a way that conflicts with
relevant decisions of this Court,” or alternatively, “decided an important question of federal law that has not
been, but should be, settled by this Court.” Supreme
Court Rule 10(c). Specifically, the decision’s found silence in the relevant statutes yet simultaneously held
the same statutes “unambiguous” under Chevron step
one analysis. This holding was either in conflict with
Chevron, or in need of clarification. Lower courts are
required or should be required to go to Chevron step
two analysis when the relevant statutes are actually
silent with respect to a specific issue.
This Court prescribed in Chevron a two-part test
for a lower court to follow when faced with reviewing
an agency’s construction of a statute which it administers, stating:
14
When a court reviews an agency’s construction of the statute which it administers, it is
confronted with two questions. 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.
Id. at 842-43 (emphasis added).
Here, the Ninth Circuit found that the TGA and
FLPMA are silent on the question of how a Grazing
preference may be cancelled. App. 19 (“Neither the
TGA nor the FLPMA mention a process for cancelling
a grazing preference.”). Despite that statutory silence,
the Ninth Circuit held that “our analysis begins and
ends with Chevron step one. The TGA and the FLPMA
are unambiguous and are consistent with the IBLA’s
conclusions.” App. 14; see also App. 3, 24, 27.
The Ninth Circuit’s holding raises a significant
contradiction in the manner lower courts can and
should review an agency’s construction of a statute. It
15
widens, as opposed to narrowing, the door as to how
the courts should interpret an applicable statute when
the statute is found to actually be silent on the specific
point at issue.
I.
The Ninth Circuit erred in holding the
TGA and FLPMA are “unambiguous” as to
the cancellation of a Grazing preference
upon the nonrenewal of a Grazing permit
under Chevron step one, when the court
simultaneously found such statutes are silent as to the process to cancel a Grazing
preference.
The issue of whether a Grazing preference can extinguish, disappear, terminate, or even be forfeited
without actually being cancelled by the Bureau, and
without any statutory or regulatory authority for cancellation, is before this Court. It is of material significance to Hanley, Corrigan, and similarly situated other
applicants upon the vast public lands in the West when
the Bureau finds reasons to not renew a Grazing permit as provided for in 43 C.F.R. § 4110.1(b)(1) (App.
237-38), yet simultaneously finds no reasons to cancel
the Grazing permit and Grazing preference, in whole
or in part, as provided for in 43 C.F.R. § 4170.1-1(a)
(App. 298) – as was the factual situation the present
case.
The Ninth Circuit found:
Ranchers make much of the fact that the statutes do not explicitly state that a preference
16
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.
App. 17-18 (emphasis added); see also App. 19 (“Neither the TGA nor the FLPMA mention a process for
cancelling a grazing preference.”). Thus, the Court
found that the silence in the statutes authorized cancellation of the Grazing preference because such cancellation was not expressly prohibited (and the
omission of a requirement to cancel was somehow
“more significant” than the omission of authority for
automatic cancellation).
For the reasons stated below, the plain text, structure, and purpose of the applicable statutes do not support the Ninth Circuit’s conclusion that the silence in
the statutes was “unambiguous” in authorizing a cancellation of Hanley’s Grazing preferences upon the
nonrenewal of Hanley’s Grazing permit in 2009. In determining that the silence unambiguously authorized
cancellation, the Ninth Circuit took on the role of Congress by creating new law.
17
A. A plain reading of the TGA and FLPMA
cannot result in an “unambiguous” interpretation because the statutes are
silent on the specific issue as to the process to cancel a Grazing preference.
In considering the “plain text” of the statutes, the
Ninth Circuit considered the following from the TGA:
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 . . . [and] 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.
App. 11, quoting 43 U.S.C. § 315b. The court found,
“[t]his language neither states nor implies that a preference may exist as a stand-alone interest or be held
by a former permittee.” App. 15. Of course, the same is
true of the opposite conclusion since the text is silent
on that issue.
Next, the Ninth Circuit reviewed the following
text from FLPMA, which
sets forth three requirements for the exercise
of a preference or “first priority”: (1) the lands
for which a permit a permit was previously issued “remain available for domestic livestock
grazing”; (2) “the permittee or lessee is in compliance with the rules and regulations issued
and the terms and conditions in the permit or
lease”; and (3) “the permittee or lessee accepts
18
the terms and conditions to be included by the
Secretary concerned in the new permit or
lease.” 43 U.S.C § 1752(c).
App. 16; see also App. 208. From this text, the court
concluded from the pre-2014 version of FLPMA, “[t]he
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.” App. 17 (emphasis added). While
this may be true,5 the text does not answer the question at issue in this case, which is the procedure for
cancellation of a Grazing preference.
As acknowledged by the Ninth Circuit, “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.”
5
The words “may be” are used because a reading of the post2014 version of FLPMA is not limited to an existing permittee that
could indicate Congress did not, actually, limit the renewal process to an existing permittee. Specifically, the post-2014 version of
FLPMA added two (2) separate subsections to 43 U.S.C. § 1752(c):
one covering an expiring permit, implicating an existing permittee, i.e. § 1752(c)(1) (App. 214-15), and another covering an expired permit, implicating either an existing permittee or a new
applicant for a permit, i.e. § 1752(c)(2) (App. 215). See App. 13,
Footnote 3 (wherein the Ninth Circuit recognized this distinction,
but attempted to rationalize around it, stating: (1) “ ‘[a] reviewing
court must review the administrative record before the agency at
the time the agency made its decision’ ”; (2) “[t]he 2014 amendments to the FLPMA include no indication that they were intended to apply retroactively to the BLM’s 2013 decision”; and
(3) even assuming the post-2014 version of FLPMA applied, it
“would not alter the outcome.”
19
App. 17; see also App. 19. As such, a “plain reading” of
the statutes only highlights the silence of the statutes.
The statutes neither provide nor disavow that a Grazing preference is cancelled upon the nonrenewal of a
Grazing permit.
The Ninth Circuit employed a canon of construction to support its “plain text” reading of the statutes,
stating Congressional silence should not create “statutory requirements” or “a controlling rule of law.” App.
18 (citing United States v. Wells, 519 U.S. 482, 496
(1997) and Chemehuevi Indian Tribe v. Newsom, 919
F.3d 1148, 1153 (9th Cir. 2019)). However, that is precisely what the court did here. Although the statutes
are silent, the court determined the silence plainly
means a Grazing preference is extinguished, disappears, terminates, or is forfeited. Furthermore, the
court’s analysis conflicts with another canon of construction, namely if Congress intended a certain result, like cancellation of a Grazing preference, it would
have made that intent explicit in the statute. Chisom
v. Roemer, 501 U.S. 380, 396, 111 S.Ct. 2354, 115
L.Ed.2d 348 (1991). “Congress’ silence in this regard
can be likened to the dog that did not bark.” Id. at
Footnote 23. “In ascertaining the meaning of a statute,
a court cannot, in the manner of Sherlock Holmes,
pursue the theory of the dog that did not bark.” Harrison v. PPG Industries, Inc., 446 U.S. 578, 592, 100
S.Ct. 1889, 64 L.Ed.2d 525 (1980). Here, Congress did
not “bark” by legislating that a Grazing preference
attached to the Base property cancels upon the
20
nonrenewal of a Grazing permit. Nor did Congress
make this intent known in the legislative history.
B. The structure and purpose of the TGA
and FLPMA cannot make the silence in
the statutes “unambiguous.”
The Ninth Circuit examined the structure and
purpose of the statutes. “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 placed in context.’ Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
666 (2007).” App. 18. “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).” App. 22.
First, the Ninth Circuit determined that the inclusion of a Grazing preference under the same section as
a Grazing permit in the TGA “reinforces the view that
a preference is not a stand-alone entitlement.” App. 19.
Regardless of whether such a sweeping generalization
can be made from inclusion within a section of a statute, this still does not answer the issue in this case
about the correct procedure for cancellation of a Grazing preference.
Second, the Ninth Circuit discussed, “[t]he explicit
provision for cancellation of a permit, and the omission
of any corresponding provision for cancellation of a
21
preference, is ‘imbued with legal significance’ . . . ‘for it
is generally presumed that Congress acts intentionally
and purposefully in the disparate inclusion or exclusion.’ ” App. 19 (quoting Pit River Tribe v. Bureau of
Land Mgmt., 939 F.3d 962, 971 (9th Cir. 2019) and
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)).
From that canon of construction, the Ninth Circuit concluded:
If Congress intended grazing preferences to
exist indefinitely until cancelled, as Ranchers
urge, we would expect the statutes to at least
mention cancellation of preferences.
App. 19-20. But at the same time, if Congress intended
a Grazing preference to be cancelled upon nonrenewal
of a Grazing permit, instead of being capable of transfer as otherwise provided in the grazing regulations,
Petitioners would expect Congress to state such intention too. Thus, Petitioners agree it is “legal[ly] significan[t]” that Congress did not expressly state how a
Grazing preference is cancelled. App. 19; see also App.
17. However, this silence cannot be determined to
mean a Grazing preference is cancelled rather than remain intact. Neither the text nor the statutory scheme
can create such a meaning when Congress remains silent on that issue.
Third, the Ninth Circuit considered the “defining
characteristic of the statutory scheme: to preserve the
agency’s discretion over grazing privileges and avoid
establishing any indefinite entitlements for private
parties.” App. 20; see also App. 20-22. However, in so
22
considering, the Ninth Circuit never considered whether
the Bureau’s cancellation of such a Grazing preference
as provided under Subparts 4160 and 4170 of the grazing regulations would also satisfy the purpose of the
statutory scheme. Instead, the court stated that “Section 4170.1-1(a) is not even at play in this case.” App.
25. Thus, the Ninth Circuit simply embraced the fallacy that a Grazing preference either cancels or exists
in eternity. The Ninth Circuit never considered the
very straightforward procedure for cancellation of a
Grazing preference already included and required by
the grazing regulations. See Section II. below.
Finally, the Ninth Circuit discussed the need for
the Bureau to maintain control over public lands to
carry out the purposes of the TGA. App. 22-24. The
court opined that unless a Grazing preference cancels upon nonrenewal of a Grazing permit, “a rancher
whose record of performance disqualifies it from holding a grazing permit nevertheless could hold a transferable, non-expiring privilege to stand first in line for
a new permit.” App. 23 (quoting a party’s brief ). However, in so opining, the court failed to consider that
when the Grazing preference is transferred to a person
qualified to be issued a Grazing permit – as what occurred here with the Grazing Preference Transfer Application from Hanley to Corrigan and with the
Grazing Permit Application by Corrigan – there was no
harm. More importantly, the court failed to consider
that the Bureau could have cancelled the Grazing permit and Grazing preference, in whole – as even the
agency itself acknowledged. See App. 47 (wherein the
23
IBLA stated that the Bureau “could have taken action
to immediately cancel Hanley Ranch’s grazing permit
and preference during the term of the prior permit”);
see also App. 65, 101. The agency, at all times, held the
keys to the public lands relating to the Grazing preferences attached to the Base property owned by Hanley
through 2013, and controlled by Corrigan thereafter.
Because the statutes are silent regarding cancellation of a Grazing preference, the structure and purposes of the statutes cannot answer the question at
issue in this case. The most this analysis can yield is
recognition that regulatory authority was delegated
to the agency, and the agency enacted regulations
requiring notice and hearing prior to cancellation of
a Grazing preference as provided for in 43 C.F.R.
§ 4170.1-1(a) (App. 298). See Section II. below.
II.
The Ninth Circuit erred in failing to recognize and apply the Grazing regulations to
fill in the “gap” left by Congress in the TGA
and FLPMA that provide a particular procedure for cancellation of a Grazing preference in 43 C.F.R. § 4170.1-1(a).
In an apparent effort to backfill, the Ninth Circuit
overlooked and failed to apply the applicable and unambiguous grazing regulations already filling the
“gap” for the statutory silence left by the TGA and
FLPMA.
Federal agencies are creatures of statute. Each
agency is delegated authority by acts of Congress. The
24
Nondelegation doctrine of the U.S. Constitution limits
Congress’s power to delegate legislative power to agencies. U.S. Const. Art. I, § 8. The Nondelegation doctrine
is “rooted in principles of separation of powers” and requires that Congress provide an “intelligible principle”
to the agency to guide the agency’s exercise of discretion. Mistretta v. United States, 488 U.S. 361, 371-72,
109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Thus, “[i]f Congress has expressly left a gap for the agency to fill in,
there is an express delegation of authority to the
agency to elucidate a specific provision of the statute
by regulation.” Chevron, 467 U.S. at 843-44; see also
United States v. Home Concrete & Supply, LLC, 566
U.S. 478, 488, 132 S.Ct. 1836 (2012) (“[A] statute’s silence or ambiguity as to a particular issue means that
Congress has . . . likely delegat[ed] gap-filling power to
the agency.”).
Here, the statutes are silent on the procedure to
cancel a Grazing preference upon the nonrenewal of a
Grazing permit, as even found by the Ninth Circuit itself. See App. 17, 19; see also 43 C.F.R. § 4110.1(b)(1)
(App. 237-38) (wherein the renewal of a Grazing permit rule similarly is silent upon the point). The only
regulation adopted by the agency through formal rulemaking to fill any such “gap” requires the agency to
provide notice and an opportunity for hearing before
cancelling a Grazing preference. 43 C.F.R. § 4170.11(a) (App. 298); see also 43 C.F.R. §§ 4160.1-4160.4
(App. 294-98). If the Bureau had adopted a regulation
stating a Grazing preference would cancel upon nonrenewal of a Grazing permit, Petitioners would not be
25
before the Court today. However, the Bureau has not
adopted such a rule.
Notwithstanding, the Ninth Circuit determined
that the Grazing preference cancellation procedures in
the grazing regulations at 43 C.F.R. § 4170.1-1(a) (App.
298) are not applicable to the current dispute because
that section is only for cancellation of a Grazing permit
“before its scheduled expiration.” App. 24. The court
states that since the Bureau relied on 43 C.F.R.
§ 4110.1(b)(1)(i) (App. 237) in declining to renew Hanley’s Grazing permit in 2009, Section 4170.1-1(a) “is
not even at play in this case.” App. 25. Moreover, the
Ninth Circuit determined “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.’ . . . Because of the conjunction ‘and,’ Section
4170.1-1(a) is most naturally read to mean that BLM
cancels a preference when it simultaneously also cancels a permit or lease.” App. 27.
First, the Ninth Circuit failed to examine the complete regulatory text in 43 C.F.R. § 4170.1-1(a). The
regulation states:
The authorized officer may withhold issuance
of a grazing permit or lease, or suspend the
grazing use authorized under a grazing permit or lease, in whole or in part, or cancel a
grazing permit or lease and grazing preference, or a free use grazing permit or other
grazing authorization, in whole or in part, under Subpart 4160 of this title, for violation of
26
a permittee or lessee of any of the provisions
of this part.
43 C.F.R. § 4170.1-1(a) (App. 298). As is plainly and expressly stated in the text of the regulation, the Bureau
may “withhold issuance of a grazing permit,” “suspend
. . . a grazing permit,” or “cancel a grazing permit . . .
and grazing preference . . . in whole or in part, under
Subpart 4160.” In other words, the regulation is not
only applicable to early suspension or cancellation of
an existing Grazing permit. In addition, the Bureau
may “cancel a grazing permit or lease and grazing preference . . . in whole or in part.” Id. (emphasis added).
Thus, the regulatory text does not restrict the agency
to cancel a Grazing permit and Grazing preference
simultaneously. Rather, a Grazing permit and Grazing
preference may be cancelled under Section 4170.1-1(a)
“in whole or in part” without any such limitation. The
regulatory language “in whole or in part” includes no
restrictions on which parts may be cancelled independently.
Second, the Bureau could not point to a single
other situation in which a Grazing preference automatically cancelled upon nonrenewal of a Grazing
permit. This record disclosed two examples that confirmed no precedent for this interpretation. The first
was in Bureau’s Payne Decision issued as part of the
present matter wherein BLM considered and assessed a range of alternatives in authorizing grazing
use on the Trout Springs Allotment. See App. 151-54.
One of the alternatives considered and assessed was
27
the “No-Grazing Alternative” wherein the Bureau
stated in a decision-document that:
The BLM would not authorize livestock use on
public lands within the Trout Springs Allotment for the next 10 years. The BLM would
deny your application for permit renewal (i.e., not reissue the permit) and
for the next 10 years not approve any applications to graze public lands in this allotment. After 10 years, the BLM would
reevaluate whether to again authorize grazing on the public lands within the allotment,
considering such factors as meeting or making significant progress towards meeting
Idaho S&G, conformance with the ORMP, and
other applicable resource needs not known at
this time. We would not cancel the existing preference for grazing use of this allotment’s public lands as part of this
action but would continue to administer
it under applicable law and regulation.
After 10 years, the BLM would grant first
priority for receipt of a future authorization, if any, to graze public lands within
the allotment to the qualified applicant
who holds this preference.
App. 152-53 (emphasis added). The Bureau itself admitted in its own Payne Decision that it could simultaneously deny the renewal of a Grazing permit and still
recognize the Grazing preference, as much as 10-years
after the nonrenewal of the permit.
28
The second example was similar to the first discussed above but involved a situation the Bureau followed the Section 4170.1-1(a) procedure to cancel the
Grazing preference, as much as 12-years after the nonissuance of the permit. See App. 26, Footnote 6. As
such, the undisputed evidence in the record showed
that the Bureau has already recognized that a Grazing
preference still exists until it is cancelled even after
the nonrenewal of a Grazing permit.
The Ninth Circuit discounted this later, i.e. second
example, only because there was “no evidence that this
decision was ever appealed to or affirmed by the IBLA,
whose decisions represent the agency’s official position.” App 26, Footnote 6. However, an unrelated former permittee’s lack of appeal to cancel its Grazing
preference has no bearing on the evidence of the Bureau’s use of this procedure previously, in contradiction
to its current arguments. Moreover, it is hornbook law
before the agency that, while the IBLA is the last word
for the agency, 43 C.F.R. § 4.403(a) (10-1-2020 Edition),
it is not necessarily the final word for the agency
when the Bureau issues a grazing decision and the
adverse party does not elect to appeal it. See 43 C.F.R.
§ 4.470(d) (10-1-2020 Edition); 43 C.F.R. § 4.478(e) (101-2020 Edition).
As such, the Department of the Interior already
filled the “gap” left by Congress since the TGA and
FLPMA do not state how a Grazing preference is cancelled. The grazing regulations address this issue and
require certain procedures under Subparts 4160 and
4170. The Bureau has even followed such procedures
29
in highly analogous situations. The Bureau cannot
point to a single other case in which the Bureau asserted that a Grazing preference was cancelled upon
nonrenewal of a Grazing permit. The Bureau’s new arguments, in this case, are contrary to the statutes, regulations, and the Bureau’s own past practice – and are
illustrative of the Bureau taking on the role of Congress by creating new law.
III. The question presented has exceptional
importance.
A. Certiorari is warranted to negate disorder to those who have a Grazing preference attached to their Base property.
A purpose of the Taylor Grazing Act was “to regulate their occupancy and use” of the public lands and
“to provide for the orderly use, improvement, and development of the range.” 43 U.S.C. § 315a (App. 203).
However, here, the Ninth Circuit’s decision creates disorder. Very notably, while seemingly satisfied with its
decision, the court materially qualified it in Footnote 5,
stating:
[w]e leave open the possibility that if a permit
terminates and the base property is sold in an
arm’s length transaction, the new owner of
the base property might be entitled to a preference in applying for a new grazing permit.
App. 22, Footnote 5. The court thereby admitted that
its interpretation of the statutes is tainted by prejudice
30
based upon how the control of the Base property was
transferred in this particular case.
Here, in December 2009, the Bureau exercised its
discretion to decide not to renew Hanley’s Grazing permit as per 43 C.F.R. § 4110.1(b)(1) (App. 237-38). App.
131. After such decision was affirmed by the agency in
March 2013, Hanley transferred their Grazing preferences in August 2013 via a Base property Lease to
Martha Corrigan, along with her husband, John Corrigan. See App. 6-7 (Ninth Circuit); App. 30 (District
Court); App. 42 (IBLA); App. 83 (ALJ); App. 116 (Corrigan Decision). Martha Corrigan is the daughter of
Michael Hanley. App. 6, Footnote 1; see also App. 30. It
was only then that the Bureau decided, for the first
time, in November 2013, that Hanley’s Grazing preferences extinguished, disappeared, or terminated
upon the nonrenewal of Hanley’s Grazing permit in
December 2009,6 citing FLPMA, 43 U.S.C. § 1752(c)
(App. 133-34). Thus, the court admits that its statutory
analysis may not apply if someone unrelated to the
owners of Hanley leased the Base property. App. 22,
Footnote 5.
The Ninth Circuit’s conclusion about cancellation of a Grazing preference upon nonrenewal of a
Grazing permit is situational and not actually derived
from statutory interpretation of the TGA and FLPMA,
6
See the word “extinguished” used by the agency. App. 7374; see also App. 39, 40, 51. See the word “disappeared” used by
the agency. App. 169, see also App. 124, 140, 144, 167. See the
word “terminated” used by the agency. App. 123, 143, 166, 168;
see also App. 132, 139.
31
which are silent on that point. The court worked extremely hard, as did the District Court and the agency
before it, to glean an “unambiguous” interpretation
from the silence in both statutes. This effort was
clearly the result of disfavor to the facts underlying
the applications, rather than a truly impartial examination of the statutes using the tools of interpretation
as required by Chevron and Kisor.
If the tools of statutory construction are impartially applied to the TGA, FLPMA, and the grazing regulations, several conclusions are clear. As admitted by
the Ninth Circuit, neither the TGA nor FLPMA state
how a Grazing preference is cancelled – the statutes
are silent. App. 19; see also App. 17. No “unambiguous”
interpretation of the silence found in the TGA and
FLPMA can be made. The grazing regulations fill the
“gap” left by Congress, and provide that the Bureau
may cancel a Grazing permit and Grazing preference
“in whole or in part.” 43 C.F.R. § 4170.1-1(a) (App. 298).
If the Bureau decides to cancel a Grazing preference,
the procedure is set forth in Subpart 4160, and requires notice and hearing. Id.; see also 43 C.F.R.
§§ 4160.1–4160.4 (App. 294-98). This analysis is clear
and simple, as compared to the Ninth Circuit’s extremely complicated rationalization for its determination that silence can be “unambiguous.” Such efforts by
courts go beyond simply interpreting statutes as directed under Chevron and Kisor and instead lead to
courts adding and supplementing statutes due to subjective biases, resulting in predetermined outcomes.
Thus, the Ninth Circuit’s “interpretation” at issue in
32
this Petition was an exercise of legislative power and
cannot be permitted to stand.
B. Certiorari is warranted to put bookends
on the other side of the Chevron deference.
Before this Court on writ of certiorari is a case entitled American Hospital Ass’n, et al. v. Norris Cochran,
No. 20-1114 (Petition for Writ of Certiorari granted on
July 2, 2021, and Oral Arguments heard on November
30, 2021). That case involves the outer limits of deference to agency interpretations, and whether such deference is appropriate. This case is different than
American Hospital Ass’n in that this case provides an
important opportunity for the Court to put a bookend
on the other side of Chevron deference. This case involves whether a court may interpret the silence in
statutes and find that such statutes are unambiguous
under Chevron step one, before even reaching the issues of ambiguity and agency deference (step two).
Members of this Court have raised concerns about the
wide-sweeping application of Chevron. Through this
case, the Ninth Circuit now holds that under Chevron
it may interpret the silence in statutes under Chevron
step one analysis, in contradiction to this Court’s prior
decisions. The Court should grant this petition for writ
of certiorari to prevent the lower courts in the Ninth
Circuit from determining that silence may be “unambiguous,” under Chevron step one analysis.
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C. Certiorari is warranted to reinforce this
Court’s holding in Christensen, applying
Chevron in the context of silence as to a
specific point in a statute.
In Christensen v. Harris County, 529 U.S. 576, 578,
120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), this Court interpreted provisions of the Fair Labor Standards Act,
29 U.S.C. §§ 201 et seq. Under that Act, overtime pay
may be compensated by paid time off or monetary
compensation. Id. at 578. Harris County adopted a
policy requiring employees to use accrued paid time
off to avoid large cash payouts, and certain employees
brought suit to challenge that policy. Id. at 578. This
Court rejected the claim, finding that nothing in the
Act prohibited employers from compelling the use of
accrued time off, and therefore the county’s policy did
not violate the Act. Id. The Act was silent on that issue.
Id. at 585.
Further, this Court in Christensen considered the
agency’s implementing regulations under the Act. The
regulations also did not prohibit employers from compelling the use of accrued paid time off. Id. at 584. However, the agency wrote an opinion letter stating that
employers may only compel the use of accrued paid
time off if the employee agreed in advance to that practice. Id. at 586. The petitioners and the United States
(appearing as amicus curiae) argued that the Court
should defer to the agency’s opinion letter as an interpretation of its regulations. Id. at 586-88. The Court
rejected that argument, stating “[o]f course, the framework of deference set forth in Chevron does apply to
34
an agency interpretation contained in a regulation.” Id. at 587 (emphasis added).
The Ninth Circuit itself in Oregon Restaurant &
Lodging Ass’n v. Perez, 816 F.3d 1080 (9th Cir. 2016),
recognized the impact of Christensen on the interpretation of statutes that are silent regarding the particular issue in the case, stating:
[A]s Christensen strongly suggests, there is a
distinction between court decisions that interpret statutory commands and court decisions
that interpret statutory silence. Moreover,
Chevron itself distinguishes between statutes
that directly address the precise question at
issue and those for which the statute is ‘silent.’ Chevron, 467 U.S. at 843. As such, if a
court holds that a statute unambiguously protects or prohibits certain conduct, the court
‘leaves no room for agency discretion’ under
Brand X, 545 U.S. at 982. However, if a court
holds that a statute does not prohibit conduct
because it is silent, the court’s ruling leaves
room for agency discretion under Christensen.
Oregon Restaurant & Lodging Ass’n, 816 F.3d at 1088.
This is consistent with other circuit courts as well. See
also Nat’l Envtl. Dev. Association’s Clean Air Project
v. EPA, 891 F.3d 1041, 1050-51 (D.C. Cir. 2018)
(wherein the D.C. Circuit applied the Chevron step two
analysis after determining the applicable statute was
silent).
Here, although the TGA and FLPMA are silent
as to cancellation of a Grazing preference, the
35
implementing grazing regulations, adopted under formal rulemaking pursuant to congressional delegation
of authority, filled the statutory “gap.” The grazing regulations provide that a Grazing permit and Grazing
Preferences may be cancelled “in whole or in part” under Subparts 4170 and 4160. Unlike Christensen, the
Bureau has not issued a written policy interpreting
these provisions of the grazing regulations. But similar
to Christensen, the grazing regulations at issue are unambiguous. As explained above, the Bureau followed
the process set forth in Subparts 4170 and 4160 to cancel a Grazing preference previously in an analogous
situation when the Grazing permit was not renewed by
the Bureau 10 to 12 years earlier. This is why Petitioners tried the case below under a theory that the lower
courts should review the regulations under Kisor v.
Wilkie. As such, the Ninth Circuit also erred in not
reaching the issue of the grazing regulations. App. 24
(“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.”). The dicta in the Ninth Circuit’s decision regarding the grazing regulations did not consider the
full regulatory text, relying instead on its statutory interpretation of the silence in the statutes. See App. 3,
14, 24, 27.
The Bureau’s interpretation of the statutes and
regulations created de facto regulations where none
existed, contrary to the regulatory process already
adopted in the grazing regulations. Further, the Ninth
Circuit’s decision created de facto statutes where none
36
existed to the same effect. Instead of finding statutory
silence to be “unambiguous,” Chevron and Christensen
required the Ninth Circuit to recognize that Congress’s
silence left a “gap for the agency to fill,” and look to the
unambiguous grazing regulations that so clearly set
forth the procedure for cancellation of a Grazing preference.
IV. This case is an appropriate vehicle for review of the question presented.
There are no legal obstacles to prevent review of
the question presented. The Petitioners have standing.
The agency decisions are final. The Petitioners have
exhausted their administrative remedies. The procedural posture of this case poses the question presented cleanly and in a manner that makes the issue
dispositive. Specifically, should this Court reverse the
decisions by the agency and the lower courts, the matter should be remanded by this Court to the Bureau to
process Corrigan’s Grazing Preference Transfer Application and Grazing Permit Application, or in the alternative, to the lower courts to apply Chevron step two
analysis.
---------------------------------♦---------------------------------
37
CONCLUSION
For the foregoing reasons, the Court should grant
a writ of certiorari.
Respectfully submitted,
W. ALAN SCHROEDER
Counsel of Record
SCHROEDER LAW
Tulip S Building, Suite 110
1449 South David Lane
Boise, Idaho 83705
Telephone: 208-914-6699
Email: alan@schroederlaw.net
LAURA A. SCHROEDER
SARAH R. LILJEFELT
SCHROEDER LAW OFFICES, P.C.
1915 N.E. Cesar E.
Chavez Blvd.
Portland, Oregon 97212
Telephone: 503-281-4100
Emails: counsel@water-law.com
schroeder@water-law.com
s.liljefelt@water-law.com
Counsel for Petitioners
December 1, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.