# Amicus Curiae Brief — Public Lands Council v. Babbitt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0283%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 728 ## Text c — Supreme Court, 0.8, | FILED SEP 10 1999 No. 98-1991 OFFICE OF THE OLERS In The Supreme Court of the United States e PUBLIC LANDS COUNCIL, ET AL., Petitioners, BRUCE C. BABBITT, SECRETARY OF THE INTERIOR, ET AL., Respondents. S On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit ¢ BRIEF AMICUS CURIAE OF ALAMEDA BOOK CLIFF’S RANCH, ARIZONA & NEW MEXICO COALITION OF COUNTIES FOR STABLE ECONOMIC GROWTH, PRODUCTION CREDIT ASSOCIATION OF NEW MEXICO AND NEW MEXICO PUBLIC LANDS COUNCIL ET AL. IN SUPPORT OF PETITIONERS e KarREN Bupp-FALEN Counsel of Record Jerrrey B. TeiCHERT Bupp-FAaLen Law Orrices, P.C. 300 East 18th Street Post Office Box 346 Cheyenne, Wyoming 82003-0346 (307) 632-5105 Telephone (307) 637-3891 Telecopier COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 ia eaten (mena aa TABLE OF CONTENTS Page | eT Ns vb N'n 0'sa vcdeses tes eudaudecesauchens | | PE ccaxkeccnsdcoseniwecseutens oxi Gee © Ge Ge cc nccnccccccccccccccosceese 16 GD Gor OO Gee Ga ca ccccccvceccccoccccccens 17 GD Gee © Ge Ge ccccnnccccceoncesevess: 17 > a te ee Cc decccedéctecccvacecesens 16 > CH | GERAD CHGGED ccc cccccccccccccesen 16, 17 > See © Ge Ga cc wcncccccccsssecencecscenes: 15 Gate OF ey CI oc ecs cscnccccéccesésccsocens 8 > Ge © Gr Gh cecccccaccvcccconcatescéns 8 Federal Range Code § SO1.2(e)......... 2.2.2.0 0000. 7, 8 Federal Range Code § 501.4(a) ............ 2. ccc eceneee 8 EE GS Ge Go ceeccccccenancsccndcccounnsucnc 2 Orner AUTHORITIES Sep CR Gs. Ge Gee ose cncnvcccccccecsesenedd 6, 18 ep Sy Sek, Ge Gee bs bed wedccevcssccceseacesuts 6 60 Fed. Reg. 9934 (Feb. 22, 1995)..............22555:. 17 Pe Gee, TB. Fee Gee oe wcccccncscccessicdaces 8, 10 Fe Ge, TEs Bre Go oe ce cveccccvcccceccccsctune 6 FS GU, Gs Fee Ga oc ccovccvcccccecctcesesess 13 Pe Gee, TRGD. Fre Go ccc ccdcccvcsvcscsucscess 9, 18 78 Cong. Rec. 5376 (1934)...... eenbeuceseccuceads 9, 18 TABLE OF AUTHORITIES — Continued Bee as Cs Gre bb Seb seveicndécdesecesenase 9 ee es Ge GD I ov odeswecndcucceccueicotes 13 Bureau of Land Management, United States Depart- ment of the Interior, New Mexico Standards for Public Rangeland Health and Guidelines for Live- stock Grazing Management: Draft Statewide Resource Management Plan Amendment/Environ- mental Impact Statement (1999) “(New Mexico Ee Didcctvivabendesnesetcescnent 9, 11, 13, 14, 15, 18 F. Obermiller, Public Domain Grazing Adjudications Under the Taylor Grazing Act....................... 5 F.R. Carpenter, Establishing Management Under the Re eres 5 J. Fowler, Statement to the Committee for Energy and Natural Resources [of the] United States Senate on Rangeland Reform ‘94 (unpublished manuscript presented om May 14, 1994).............2-eeeeee 10, 19 P. Foss, Politics and Grass (Univ. of Washington I et ne Oe oe ee eee ed alee 3, 5, 6,7, 9 Penny & Clawson, Administration of Grazing Dis- tricts in The Public Lands (V. Carstensen, ed.., University of Wisconsin Press (1962) (reprinted from 29 Land Economics 23-34) (1953).... 7, 9, 10, 18 l INTRODUCTION The Tenth Circuit erred in sustaining two recently adopted federal livestock grazing regulations that had been struck down by the U.S. District Court for the District of Wyoming. The first of these regulations abandoned the adju- dicated grazing preference in favor of “permitted use” (“Per- mitted Use Rule”). The second prospectively vests title in the United States to all range improvements on the public lands. This brief will demonstrate how these regulations will cause pervasive damage to the livestock industry, the financial ser- vices industry, the environment and the unique rural cultures of the American West. The parties represented in this brief respectfully request that the U.S. Supreme Court grant cer- tiorari to hear this case.' ISSUES 1. Whether the holder of a Bureau of Land Management (“BLM”) grazing preference is entitled to retain his “sus- pended use” animal unit months (“AUMs”) on BLM land, which can be activated if increased forage becomes available (i.e., challenge to Permitted Use Rule); and 2. Whether the regulation prospectively vesting title to all future range improvements in the United States contra- venes the Taylor Grazing Act's (“TGA’s”) purposes and requirements to adequately safeguard recognized privileges in the range and to stabilize the livestock industry (i.e., chal- lenge to Range Improvements Rule). ' The parties have consented to the filing of this brief. Counsel for a party did not author this brief in whole or in part. No person or entity, other than the Amicus Curiae, its members, or its counsel made a monetary contribution to the preparation and submission of this brief. This bref was authored by Karen Budd-Falen and Jeffrey B. Teichert, attorneys of Budd- Falen Law Offices, PC. 2 STANDARD OF REVIEW Supreme Court Rule 10 states that “[rjeview on a writ of certiorari is not a matter of right, but of judicial discretion” and “will be granted only for compelling reasons.” Among these compelling reasons are (1) a decision conflicting with precedent in another circuit; or (2) “an important question of law that has not been, but should be, settled by this court... .” Id. While there is technically no split of authority regarding the issues raised in this brief, the Tenth Circuit reversed the U.S. District Court for the District of Wyoming by a bare majority of two votes to one (2-1). The Tenth Circuit's decision was then upheld on a petition for rehearing Sy an en banc court deadlocked at five votes to five (5-5), with two judges abstain- ing. The resulting precedent will, if permitted to stand, leave public lands grazing jurisprudence in disarray to the severe detriment of the 16 Western states. For example, a coalition of 17 rural counties and one municipality in Arizona and New Mexico unanimously approved a resolution warning that: The 10th Circuit panel's decision will have serious adverse social, cultural, economic, physical and biological environmental impacts on the states of Arizona and New Mexico and the Coalition of Ari- zona/New Mexico member counties. Resolution Concerning 10th Circuit Decision in PLC v. Bab- bitt, Coalition of Arizona/New Mexico Counties for Stable Economic Growth (October 2°, 1998). App. 1-2. The reasons why this case is sufficiently compelling to warrant Supreme Court review will occupy the remainder of this brief. ARGUMENT I. The Permitted Use Rule Violates The TGA By Failing To Adequately Safeguard Grazing Privileges A. The Permitted Use Rule Under the prior rule, “[g)razing preference means the total number of animal unit months of livestock grazing on public lands apportioned and attached to base property owned 3 or controlled by a permittee or lessee,” 43 C.F.R. § 4100.0-5 (1994), including “both active and suspended use.” 43 C.F.R. § 4110.2-2(a) (1994). Under these regulations, the preference was not an absolute guarantee of livestock numbers, but allowed the rancher the right to utilize the maximum number of AUMs the range would support, up to the preference limit. P. Foss, Politics and Grass (Univ. of Washington Press) (1960), App. 12-14. If grazing use (“AUMs”) was reduced, the permittee retained the suspended use to be reactivated when forage conditions improved. /d. Once established, the grazing preference “is to be regarded as an indefinitely con- tinuing right.” Shufflebarger v. Commissioner, 24 T.C. 980, 992 (1955). In contrast, under the Permitted Use Rule, “[pJermitted use means the forage allocated by, or under the guidance of, an applicable land use plan for livestock grazing in an allot- ment under a permit or lease and is expressed in AUMs.” 43 C.F.R. § 4100.0-5 (1998). The Permitted Use Rule bases grazing decisions solely on land use plans and other deci- sions, without the guidance of the AUMs historically attached to the permit holder's base property. 43 C.F.R. § 4100.0-5 (1994). Additionally, under the Permitted Use Rule, the per- mittee is not entitled to reclaim suspended use AUMs if forage improves, even if that improvement is caused by the permittee. B. The Grazing Preference is a Privilege That Must Be Adequately Safeguarded Under the TGA The operative language of the TGA is as follows: The Secretary of the Interior is hereby authorized to issue or cause to be issued permits to graze live- stock on such grazing districts to such bona fide settlers, residents, and other stock owners. . 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, 4 occupied, or leased by them. . . . Such permits shall be for a period of not more than ten years, subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior, 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 pur- suant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands. 43 U.S.C. § 315b (emphasis supplied). The Tenth Circuit mistakenly held that historic preference, allowing the permit holder “to graze predictable numbers of stock from permit to permit,” was not a grazing privilege which must be “ade- quately safeguarded” under the TGA. Public Lands Council v. Babbitt, 167 F. 3d 1287, 1294 (10th Cir. 1998). The prefer- ence system made authorized grazing numbers predictable by ensuring that the preference holder’s share of the available forage, vis-a-vis the share granted to other permittees, would not change. A right of “preference” over other potential users or uses is illusory if the preference does not indicate how large a share of the available forage the holder may claim in “preference” over others. Because the Permitted Use Rule eliminates adjudicated grazing limits, a preference holder is no longer guaranteed a fixed share or percentage of the forage available on his grazing allotment. Essentially, the Tenth Circuit held that it must follow “the plain meaning of the regulations” rather than “unat- tributed assertions” that “privileges recognized and acknowl- edged,” 43 U.S.C. § 315b, included historic preference. 167 F.3d at 1297. Thus, the Tenth Circuit left these “privileges” unprotected by its refusal to consider outside sources to supply the scope and substance of the protected “privileges.” Id. Miettinen 2 ee 5 1. Privileges “[S]Jafeguarded” Under the TGA Include the Recognition of “[{G]raz- ing [P]rivileges [R]lecognized and [A]cknowledged” Because of Prior Use Although the TGA does not “create any right, title, interest, or estate in or to the lands,” 43 U.S.C. § 315b (emphasis supplied), it does safeguard privileges in the range that already existed by virtue of “previous use of the range.” F.R. Carpenter, Establishing Management Under the Taylor Grazing Act, address at Montana State College (January 8, 1962), in Rangelands, 1981, App. 14; Public Lands Council, 167 F.3d at 1310 (Tacha, J., dissenting, citing McLean v. BLM, 133 IBLA 225, 231-32 nn.9-10 (1995)). These privi- leges were originally adjudicated in a process that took almost 20 years. Public Lands Council v. United States Dep't of the Interior, 929 F. Supp. 1436, 1440 (D.Wyo. 1996).? The TGA’s policy of recognizing prior use was, essen- tially, a codification of history. Grazing on western public lands began because the various Homestead Acts failed to provide adequate acreage to support a viable livestock opera- tion in the arid west where forage was sparse. P. Foss, Politics and Grass (1960). App. 3-4, 9. Livestock operators therefore resorted to utilizing adjoining public lands for grazing, id., App. 6, 9, and many livestock operators resorted to fencing the unregulated range. /d., App. 6-8. “When the Taylor Graz- ing Act was passed, these privately owned fences on the public range were considered evidence of prior use of the lands and thus gave the owner preference in obtaining ‘range rights’ for his livestock.” /d., App. 8. During debate on the TGA, its sponsoring Congressman recognized the validity of grazing rights springing from prior use: There are many vested rights, which should and must be respected and protected, which have grown 2 For a helpful review of the adjudication process, see F. Obermiller, Public Domain Grazing Adjudications Under the Taylor Grazing Act (paper prepared for this litigation) App. 16-25. 6 up on the range. There are involved the rights of some who graze across State lines; and, naturally, they do not want those rights destroyed. They do not want to take any chances [by leaving grazing regulation to the states]. 78 Cong. Rec. 5372 (1934) (statement of Congressman Tay- lor) (emphasis supplied). Farrington Carpenter, the Director of the U.S. Grazing Service, (predecessor agency to the BLM) described the pro- cess in this way: [T]he Act [TGA] contained a clause that said we should protect prior rights. What were prior rights? Prior rights were previous use of the range... . .... After many, many battles this is what they finally decided. The rule was finally worked out that anyone who in the 5 years immediately preced- ing the Taylor Act had used the range in connection with his land, either continuously for 2 years or any 3 years in that period had prior use rights. Carpenter (emphasis supplied), App. 2; see also P. Foss, Politics and Grass (1960). App. 14-15. Approximately three years after the TGA was enacted, the Interior Department issued a formal opinion stating that “prior use of the public lands for grazing purposes in connec- tion with privately held property may be regarded as a most reasonable standard for the granting of grazing privileges.” 56 Interior Dec. 62, 64 (1937). 2. The Grazing Preference was Historically Attached to the Permit Holder’s Private Base Property and the Number of AUMs in the Preference was Based on the Carrying Capacity of the Permit Holder’s Private Land The grazing preference traditionally included sufficient AUMs so that the rancher could graze the same number of livestock on the public lands as he could on his private land. The act [TGA] furnished a clue to the method of allocating grazing privileges. “Preference,” said the 7 statute, “shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business .. . or owners of water rights. . . . ” This clause restricted grazing rights to landowners or owners of water or water rights; the propertyless nomad was thereby eliminated from consideration. The clause “as may be necessary to permit the proper use of lands” was interpreted to mean that the applicant must have private holdings sufficient to sustain his livestock when they were off the district, and conversely, that the district lands should complement his private holdings. . . . The director, after meetings with the stockmen, decided upon an additional system of preferences based on customary past use of federal lands. This modified “squatter’s right” idea was based on the old western common law of “first in time is first in right.” The director found legal justification for this concept in the language of the statute which stated “grazing privileges recognized and acknowledged shall be adequately safe- guarded.” P. Foss, Politics and Grass (1960), App. 10-11; see also Penny & Clawson, Administration of Grazing Districts in The Public Lands (V. Carstensen, ed., University of Wisconsin Press) (1962) (reprinted from 29 Land Economics 23-34 (1953)). App. 28-29. The Federal Range Code’s definition of “base property” further demonstrates that the preference was to be based on the carrying capacity of the permit holder's private base property. According to the Code, “base property” is: Property used for the support of livestock for which a grazing privilege is sought and on the basis of which the extent of a license or permit is computed without reference to forest permits or [other] com- plementary feed. Federal Range Code § 501.2(e). App. 26. Attaching the pref- erence to the base property furthered the purpose of the TGA to “permit the proper use of lands, water, or water rights 8 owned, occupied, or leased by [the permittee].” 43 U.S.C. § 315b. This finding recognized the historic dependance of private ranches on the complementary use of public lands. Id.; see also Federal Range Code § 501.2(e); 501.4(a), App. 26-27. In summary, the TGA requires that historic preference, the right to utilize available forage subject to the preference limit, is a privilege which must be “adequately safeguarded within the strictures of the TGA. The preference is based on: (1) historic use of the range; and (2) the carrying capacity of the permit holder’s base property.* The new regulation issued by the BLM fails to follow these requirements. C. The Permitted Use Rule Contravenes the TGA’s Mandates to Stabilize the Livestock Industry and to Protect the Public Range 1. The Permitted Use Rule Destabilizes the Livestock Industry The Tenth Circuit mistakenly stated that “[w]hile stabi- lizing the livestock industry is one of several purposes of the {TGA}, PLC and the dissent place far too much weight on this point.” Public Lands Council, 167 F.3d 1287 at 1298. This statement is incorrect. Congressman Taylor, author of the Taylor Grazing Act, stated that along with range protection and improvement, the purpose of the TGA to “stabilize the livestock industry dependent upon the public range” was “of the greatest and highest possible importance. . . . ” 78 Cong. Rec. 5371 (1934); see also TGA preamble, 48 Stat. 1269 (uncodified); Chournos v. United States, 193 F.2d 321, 323 (10th Cir. 1952); Red Canyon Sheep v. Ickes, 98 F.2d 308, 314 3 There are minor exceptions to base property ownership requirements. 43 C.F.R. § 4110.1-1 (1997); see 43 CFR. § 4130.5 (1997) (a grazing permit can be issued to persons who do not own or control base property if they graze livestock for subsistence purposes); 43 CFR. § 4130.6-3 (1997) (persons who do not own base property can acquire temporary “trail permits” to allow livestock to graze while crossing public lands). a eae RRS oe cee ; : A 9 (D.C. Cir. 1938); Natural Resources Defense Council v. Mor- ton, 388 F. Supp. 829, 833 (D.D.C. 1974); Foss, App. 9-12; Penny & Clawson, App. 29. Because the lack of predictable forage was the major destabilizing factor for livestock pro- ducers at the time of the TGA’s passage, establishing “cer- tainty of tenure” to graze reasonably predictable livestock numbers was considered essential. 78 Cong. Rec. 5374 (1934) (Statement of Rep. De Rouen, quoting Interior Secretary Harold L. Ickes); /d. at 5376 (Statement of Rep. DeRouen, quoting Agriculture Secretary H.A. Wallace). According to the Congressional record: (To stabilize the stock industry] is to make it possi- ble for a farmer or ranchman engaged in either the cattle or sheep business to know just what range privileges he may expect and how many cattle or sheep he will be allowed to graze on this public domain. 78 Cong. Rec. 6356 (1934). Even today, the BLM admits that the grazing preference was the TGA’s primary mechanism for safeguarding grazing privileges and stabilizing the livestock industry. According to the BLM: John Fowler states that historically “federal land policies have encouraged development and invest- ment by the grazing permittee. The TGA provided enhanced stewardship, financially stable commu- nities and livestock industry” (Fowler, 1994). The key TGA policy is the Grazing Preference, which was adjudicated to provide security of tenure to encourage investment and commitment on the part of the rancher. In return, TGA states that “Grazing privileges recognized and acknowledged shall be adequately safeguarded... . ” Bureau of Land Management, United States Department of the Interior, New Mexico Standards for Public Rangeland Health and Guidelines for Livestock Grazing Management: Draft Statewide Resource Management Plan Amendment/ Environmental Impact Statement (1999) (“New Mexico EIS”) (emphasis supplied), App. 51. 10 Congressman Taylor also explained that providing pre- dictable grazing expectations in federal lands would inspire the confidence of lenders and provide livestock operations with access to badly needed capital: I had the honor of being the acting chairman of this committee much of the time we frequently talked over this matter of . . . the stabilization of the stock industry on the public domain. You Members who do not live in that country may not realize that a herd of cattle or a flock of sheep are worth little or nothing unless the owner has a place to graze them; and in order to build up or maintain and stabilize the stock-raising industry there must be some assur- ance as to where and what kind of range they may have and depend upon for their stock, what they can definitely rely upon in the way of pasturage. Other- wise, there would be no permanence to the business. People who have herds would not be safe; they would have no credit with banks for securing money. They cannot secure money from the banks if they cannot show that they have some definite and sufficient place on the range where their stock may be adequately grazed. 78 Cong. Rec. 5371 (1934) (emphasis supplied). According to Agricultural Economics Professor John M. Fowler, even today the elimination of the “grazing preferen- ce . . . and adding in its place the term ‘permitted use’ provides unusual latitude for the BLM to redefine authorized livestock use.” J. Fowler, Statement to the Committee for Energy and Natural Resources [of the] United States Senate on Rangeland Reform ‘94 (unpublished manuscript presented on May 14, 1994), App. 32; see also Affidavit of Frederick J. Obermiller (“Obermiller Aff.”) ¥ 8, App. 34. This problem is particularly serious in the Southwest where most BLM graz- ing permits are tied to water rights serving as base properties. Penny & Clawson, App. 28; Affidavit of John Fowler (“Fowler Aff.”) ¥ 10, App. 38-39. Unlike deeded land, a water right on public lands is “virtually useless without a BLM grazing permit” because the water right owner must have a grazing permit to utilize the water right. Fowler Aff. ¥ 10, App. 38-39. As stated by one court, owners of water rights “have a property interest in the . . . forage rights appurtenant to their water rights” and the denial of a grazing permit needed to access a water right would amount to an uncompen- sated taking of private property in violation of the Fifth Amendment. Hage v. United States, 42 Cl. Ct. 249, 250-57 (Cl. Ct. 1998). Because the Permitted Use Rule bases public lands stock- ing decisions on land use planning rather than stable prefer- ence adjudications, the assurance of predictable livestock numbers will be eliminated, resulting in drastically reduced loan capital, loan availability and loan size. Obermiller Aff. Ti 7-8, App. 34; Fowler Aff. 411, App. 39; Affidavit of Jack C. McCall (“McCall Aff.”) 49 6-8, App. 62; Affidavit of Jaqueline A. Buchanan (“Buchanan Aff.”) 4¥ 7-8, App. 70; Affidavit of Jimmie C. Hall (“Hall Aff.”) 4] 6-7, App. 74; Letter From Don Kidd, President and CEO of Western Com- merce Bank to Connie Brooks (Oct. 29, 1998) (“Kidd”) (unpublished), App. 87-90. In fact, as a result of the Permit- ted Use Rule, a majority of lenders in both the Pacific North- west and the Southwest will no longer consider BLM grazing privileges in evaluating security for loans. Fowler Aff. ¥ 12, App. 39; McCall Aff. 4 8, App. 62. Additionally, because of the loss of tenure security, BLM grazing permits will also no longer be considered in appraisals of ranch value either for purposes of sale or use of the ranch as collateral for a loan. McCall Aff. ¥ 7, App. 62; Obermiller Aff. ] 7, App. 34. Furthermore, young people will no longer be able to obtain financing to enter the ranching profession, which guarantees that the industry will continue to dwindle. Kidd, App. 90. Most BLM ranchers operate on a one to two percent profit margin and are highly vulnerable to small fluctuations in cost or income that result from changes in public policy. Fowler Aff. 4 17, App. 40; New Mexico EIS, App. 55-57. Thus, many BLM dependant ranches will be 12 forced out of business because of probable livestock reduc- tions* and the inability to obtain loans. Polley Aff. 1 6, App. 92. Buchanan Aff. 47 8-9, App. 70; McCall Aff. 47, App. 62; Obermiller Aff. ¢ 10, App. 35. 2. The Permitted Use Rule Places Agricultural Lending Institutions at Risk of Failure As agricultural operations are driven into insolvency, their preexisting loans will also be placed in default, causing financial losses to agricultural lenders. Buchanan Aff. 1 8, App. 70. This problem will likely affect between forty and ninety-five percent of existing BLM dependent loan portfo- lios. Buchanan Aff. 4 8, App. 70; Kidd, App. 89. In some cases, existing debts are secured up to ninety-five percent by BLM grazing permits. Buchanan Aff. 4 8, App. 70. If these loans are subjected to “CLASSIFICATION” by Federal Deposit Insurance Corporation (“FDIC”), all banks with sig- nificant permit-secured loans will be in danger of default to the Federal Reserve. /d. Losses of even twelve to fifteen percent of an institution's loan portfolios would present a serious threat of failure because of the losses themselves, and because of the resulting loss of confidence by underwriters. McCall Aff. 4 9 App. 63. If BLM permits are rendered valueless by tenure insecurity, it is reasonable to predict a direct loss of approximately $1,000,000,000 to the BLM dependent livestock industry, which has an aggregate value of approximately $8,000,000,000 to $10,000,000,000. Ober- miller Aff. 4 9, App. 34-35. Losses will be felt by approx:- mately seventy-five percent of the livestock industry in the Western states.5 Obermiller Aff. 7 11, App. 35. + Because many costs of production remain constant, livestock reductions increase the per cow cost of production and decrease profits. Obermiller Aff. 4 10, App. 35; Affidavit of Adam C. Polley (“Polley Aff.) q 6. App. 92. * The impact of instability in the livestock industry should not be measured only in dollar amounts. The author of the TGA indicated that ee ee ed 13 D. The Permitted Use Rule Presents Grave Threats to Ecosystem Health “Range improvements are long term investments in the basic land resource that require years to yield a positive return to amortize the dollars invested.” New Mexico EIS, App. 55 ; Fowler Aff. 4 14, App. 39; McCall Aff. 4 10, App. 63. Without “Ye security of tenure provided by the historic grazing preference, permittees will not be willing to invest in range improvements to enhance ecosystem health. Fowler Aff. 41 14, 16, App. 39-40; McCall Aff. | 10, App. 63. Furthermore, since the government no longer makes a long- term commitment to grazing permittees, lenders can no longer afford the risk of funding permanent improvements that require a considerable time to pay for themselves. Kidd, App. 88; McCall Aff. 4 7, App. 64. According to the BLM: Healthy ranges cannot be maintained without secure livestock operations. In short, as the range improves in productivity with the help of the rancher, the rancher should re-establish his or her profitability and pay the variable costs. Once the profitability is achieved, the rancher will invest capital to improve the healthy ranges. The improved healthy ranges will provide a more secure environment for family and community stability. With improved security and stability, the rancher will have greater incen- tive to further invest in public land improvements. New Mexico EIS, App. 50-51. (emphasis supplied). The BLM goes on to state: The intent of Congress [in passing the TGA] was to provide stockholders with “ . . . some type of assurance as to where and what kind of range they may have and depend on in the way of pasturage.” (78 Congressional Record) [sic]. The grazing privi- leges were subsequently adjudicated to determine “the small ranchman™ was the interest the TGA was “most concerned about.” 78 Cong. Rec. 5373 (1934) (statement of Congressman Taylor): see also 78 Cong. Rec. 6364 (1934) (statement of Congressman Taylor). 14 who was eligible for a grazing preference. The term “grazing preference” represents a preference for a grazing permit. The grazing preference was attached to the base property of the ranch and was transferred to the party who owned or controlled the base property. The completion of the adjudication process provided predictability and security of ten- ure to livestock operators. This predictability and certainty in grazing permits provides the security to obtain financing for livestock capital, operations and improvements on the public land. . . . . Good range management and proper stewardship of the rangeland is ultimately linked to the security and tenure of the adjudicated prefer- ence grazing permit/lease, as expressed and demon- strated by a variety of public land research economists (Martin, 1981, Kelso, 1983, Archer, and Snider, 1984). When predictability and certainty are removed, not only do the ranch finances and family suffer, but the incentive for good stewardship and investment into healthy rangeland improvements is thwarted. New Mexico EIS, App. 52-53. The BLM clearly understands that abolishing the grazing preference is destructive to tenure security, destabilizing to the livestock industry, and devastat- ing to rangeland health in contravention of the TGA. The Permitted Use Rule directly contradicts this understanding. E. The Permitted Use Rule is a Death Sentence to the Unique Rural Cultures of the West “The impact from changes to the range livestock industry will be negligible to the urban economies, but highly impos- ing to the rural counties with large acreage of BLM land.” New Mexico EIS, App. 49. This will deprive counties of badly needed revenue for important programs affecting preda- tor control, soil conservation, senior citizens and community centers, and employee salaries. Polley Aff. {¥ 7-8, App. 92-93. i) “Land is the life and well-being of the rural culture in New Mexico. Working the land is the center piece of their livelihood[.]” New Mexico EIS, App. 53. The unique culture and value systems of the rural West are deeply embedded in a sense of “place” meaning “the site or sites marking the life of a person, the story of their life and that of the lives that came before them.” /d., App. 54. For the rural peoples of the West, “place and identity are virtually inseparable.” Jd. A forced separation of rural people from their lands “would destroy the very identity of those people.” /d. The rural cultures of the West include “a bond between people and place that is no less a bond than flesh and blood; it is wholly dependant upon the fabric of land, people, and community being intact and stable.” /d. “It is within place that the values of a region are cultivated.” /d., App. 55. If there is serious instability in the livestock industry, cultural values such as “self-sufficiency, hard work, and other traits, such as community cohesion, cooperation and leadership associated with agrarian communities, could be altered.” New Mexico EIS, App. 58-60. A decline in unique rural cultures would result in “the descent toward a less centered, less self- reliant, more homogenous monoculture.” /d., App. 58-60. Given the devastating effect of the Permitted Use Rule and its contradiction to the TGA, the Tenth Circuit's decision should be reversed. Il. The Range Improvements Rule Violates the TGA by Destabilizing the Livestock Industry, Failing to Ade- quately Safeguard Grazing Privileges Based on Water Rights, and Causing Pervasive Damage to the Public Range A. The Range Improvements Rule For six decades, the BLM recognized that ranchers who constructed range improvements on the BLM lands held title to these improvements in proportion to their contribution toward the construction or maintenance of the improvement. 43 CFR §§ 160.25, 501.27 (1938); 43 C.FR §§ 160.17, 161.14 (1955); 43 C.F.R § 4115.2-5 (1964); 43 C.F.R. 16 § 4120.6 (1978); 43 C.F.R. § 4120.3 (1989); 43 C.F.R. § 4120.3-2 (1994). In 1995, the BLM abruptly reversed this historical recognition and enacted a rule that vested the United States with title to all permanent range improvements authorized after August 21, 1995. The new rule reads, in relevant part: 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 agree- ments. 43 C.F.R. § 4120.3-2(b) (1998). B. The Range Improvements Rule Will Significantly Damage Water Property Rights and Attached Grazing Preferences In order to attach a BLM grazing permit to a water right, the water must be “available and accessible to the authorized livestock when the public lands are used for grazing.” 43 C.F.R. § 4100.0-5 (1994). Without the aid of “wells, reser- voirs, and other improvements” authorized by Section 4 of the TGA, 43 U.S.C. § 315e (“Section 4”), many water rights would not be “accessible” to livestock. Furthermore, when the BLM excludes livestock from primary water sources to “man- age” such areas, improvements such as water pipelines are often necessary to make water “available” to livestock as required for the water to qualify as base property under 43 C.F.R. § 4100.0-5 (1994). Under a Section 4 permit, ranchers can construct and maintain these range improvements with their own money. These improvements are then owned by the permittee. A permit holder's willingness to pay for an improvement obvi- ates the need to wait for government funding. The Range Improvements Rule eliminates this opportunity by requiring lagi ts Be 17 that “authorization of all new permanent water develop- ments . . . shall be through cooperative range improvement agreements.” 43 C.F.R. § 4120.3-2(b) (1998). Title to improvements authorized by cooperative agreements is held by the United States alone. Thus, under this rule, the United States will eventually acquire title to all range improvements because all privately owned improvements will wear out or become inefficient, and replacement will require a new improvement authorization under 43 C.F.R. § 4120.3-1 (1998). See also 60 Fed. Reg. 9934 (Feb. 22, 1995). Notwithstanding the fact that title to range and water improvements is vested in the government, 43 C.F.R. § 4120.3-2(b) (1998), a permittee can be forced to sign a “cooperative range improvement agreement” or risk losing access to his water rights, 43 C.F.R. § 4120.3-1 (1998), and may be forced to “maintain and/or modify range improve- ments on the public lands... . ” 43 C.F.R. § 4120.3-I(c) (1998). The fact that the permittee may be required to expend his own funds and effort to construct and maintain improve- ments which he cannot own, constitutes unjust enrichment in favor of the government and implicates the “takings” clause of the Fifth Amendment. If the federal government retains title, range improve- ments also no longer have any collateral value for securing credit. Buchanan Aff. 4 10, App. 70-71; McCall Aff. qi 11-12, App. 63-64; Hall Aff. {4 8-10, App. 74-75. Lenders will, therefore, be unwilling to loan money to ranchers for projects that would protect and benefit the public range. /d. Inevitably, permittees will be unable to obtain loans to con- struct and maintain the improvements necessary to make water accessible to their livestock. The fact that private ownership of range improvements is being eliminated clears the way for the BLM to more easily reduce or eliminate permitted grazing. Buchanan Aff. q 12, App. 71; McCall Aff. 4 11, App. 63. This possibility raises questions regarding the security of loans to BLM permittees, and makes lending institutions reluctant to do business with ranches. /d. The resulting financial destabilization in the livestock industry offends the purposes of the TGA. TGA 18 preamble, 48 Stat. 1269 (uncodified); 56 Interior Dec. 62 (1937); Chournos v. United States, 193 F.2d 321, 323 (10th Cir. 1951); 78 Cong. Rec. 5374 (1934), (statement of Con- gressman DeRouen); 78 Cong. Rec. 5376 (1934), (statement of Congressman DeRouen). The extreme importance of water base properties to west- ern livestock grazing cannot be overstated. Almost all of the grazing permits in the Southwest are water based. Fowler Aff. q 10, App. 38-39; Penny & Clawson, App. 28. Because private land is scarce in the Southwest, water rights are virtually the only base properties to which grazing privileges can be attached. The fact that the Range Improvements Rule jeopardizes access to water on public lands is a very serious violation of the BLM’s duty to adequately safeguard grazing privileges under the TGA. C. The Range Improvements Rule Discourages the Construction of Range Improvements and Encourages Environmental Degradation As stated above, “range improvements are long term investments in the basic land resource that require years to yield a positive return to amortize the dollars invested.” New Mexico EIS, App. 55; Fowler Aff. ¢ 14, App. 39-40. How- ever, ranchers will not be willing to invest in range improve- ments if they cannot hold title to them. As discussed at the Senate Committee for Energy and Natural Resources: STEWARDSHIP DISINCENTIVES Removing private incentive for investing in federal rangeland by retaining federal ownership of improvements and water rights, eliminating equity and increasing annual costs will not encourage bet- ter stewardship. The federal government will have to fill the void in management and investment; this will be extremely difficult in an era of reduced funding and down-sizing of agencies. ee ee —"* 19 Improvements: The regulations as proposed have two distinct provisions that will preclude economically justifia- ble longterm private sector investment in federal rangelands. The first disincentive is that permanent improvements and temporary improvements will be retained in ownership by the United States; this holds for all future permanent improvements and any temporary improvement if any portion of its cost was borne by the United States. In addition, exclusive right to use the improvement is not con- ferred. Even with a 10 year permit the long run nature of the improvement will not allow the private sector to recapture dollars expended. Market value of federal permits will further decline as this value is a reflection of carrying capacity and improvements. J. Fowler, Statement to the Committee for Energy and Natural esources [of the] United States Senate on Rangeland Reform ‘94 (unpublished manuscript presented on May 14, 1994), App. 30-31; Fowler Aff. { 14, App. 39-40; Obermiller Aff. { 13, App. 35; Polley Aff. ¥ 8, App. 92-93; McCall Aff. | 10, App. 63. In 1986, the State of New Mexico, took title to all future livestock water developments on state lands. Fowler Aff. { 15, App. 40; Fowler, supra manuscript, App. 31. Since that rule was adopted, livestock permittees on state lands have literally made no livestock water improvements. /d. The Range Improvements Rule is likely to have a sim- ilarly drastic result throughout BLM lands. Fowler Aff. { 15, App. 40; Polley Aff. { 9, App. 93; McCall Aff. { 10, App. 63. When this occurs, the BLM simply will not have the man- power or financial resources to construct all of the necessary range improvements. Fowler Aff. { 16, App. 40; Fowler, supra manuscript, App. 30. Thus, the Range Improvement Rule’s discouragement of improvements is likely to result in serious environmental damage. Fowler Aff. | 16, App. 40; McCall Aff. { 10, App. 63. 20 CONCLUSION The Supreme Court should hear this case because of its grave implications for the culture and economy of every Western state with significant acreage of public lands, its destabilizing effect on the entire Western livestock industry, and its potentially devastating impact on the natural environ- ment. RESPECTFULLY SUBMITTED this 10th day of Septem- ber, 1999. KarEN Bupp-FALEN Jerrrey B. TeICHERT Bupp-FaLten Law Orrices, P.C. 300 East 18th Street Post Office Box 346 Cheyenne, Wyoming 82003-0346 (307) 632-5105 Telephone (307) 637-3891 Telecopier fue’ ~ 5 a nel Sat : ; } App. 1 APPENDIX Coalition Of Arizona/ New Mexico Counties For Stable Economic Growth RESOLUTION CONCERNING 10th CIRCUIT DECISION IN PLC V. BABBITT WHEREAS, the 10th Circuit Court of Appeals has issued a ruling in the case PLC v. Babbitt; and WHEREAS, the four regulations at issue in this case were: (1) the use of the terms “grazing preference” and “permitted use” to denote priorities and specify grazing use for purposes of issuing grazing permits (permitted use rule); (2) ownership of title to range improvements (range improvements rule); (3) the elimination of the requirement that applicants for permits must “be engaged in the livestock business” (qualifications rule); and (4) the issuance of permits for “conservation use” in addition to permits for the grazing of livestock (conserva- tion use rule); and WHEREAS, the 10th Circuit reversed the Wyoming Dis- trict Court’s invalidation of the permitted use rule, the range improvements rule, and the qualifications rule; and WHEREAS, the 10th Circuit panel’s decision will have serious adverse social, cultural, economic, physical and biological environmental impacts on the states of Arizona App. 2 and New Mexico and the Coalition of Arizona/New Mex- ico member Counties!. THEREFORE, BE IT RESOLVED that the Coalition of Arizona/New Mexico Counties disagrees with the 10th Circuit’s panel decision to reverse the Wyoming District Court's ruling and request an en banc reconsideration by the 10th Circuit. Done this 23rd day of October, 1998 by a unanimous vote of the Board of Directors. /s/ Leslie E. Thompson Leslie E. Thompson, President 1 The Coalition is comprised of the Arizona Counties of Apache, Cochise, Gila, Graham, Greenlee and Navajo, the New Mexico Counties of Catron, Chaves, Eddy Harding, Hidalgo., Lincoln, Luna, Otero, Sierra, Socorro, Torrance and Union and the Town of Sierra Vista, Az. | | App. 3 P. Foss, Politics and Grass * * * Grazing Homesteads The high casualty rate among homesteaders did not deter other millions of innocents from filing new home- stead claims. As the years passed the western range was being steadily fenced off and pushed back. During this same period stockmen had sponsored bills to allow leas- ing of federal lands and prevent or minimize homestead- ing.°> But Congressmen still clung to a sort of sentimental belief in homesteading and to suspicion of the western cattle “barons” who had used the range so long. At the same time Congress finally realized that the existing homestead acts were no longer practical — if they ever had been. Consequently, the size of homesteads was increased to 640 acres in the Stockraising Homestead Act of 1916. Once again, Congress had acted too late with too little. The enlarged homestead (320 acres) would have been a practical acreage at one period in the settlement of the West but by the time of passage that period had passed, and the acreage was inadequate. Later on a 640- acre homestead might have been practical but when the act was finally passed it was again too late. In 1916 the remaining public land was generally of such low produc- tivity that 640 acres was inadequate to support a family. The act is particularly significant, however, because it was the first act of Congress to deal specifically with the land problems of people who earned their living by graz- ing livestock. Prior to this time the stockman had been App. 4 regarded as a “trespasser on the public domain, an obsta- cle to settlement, and at best but a crude forerunner of civilization of which the farmer was the advance guard and the hoe the symbol.”% Even so the act did not in reality apply to western stockmen as a whole. It lured into the desert a group of farmers to whom 640 acres sounded like a lot of land. Their entry on the range usually meant that the old stockman was fenced off while the homesteader over- grazed his homestead section in an attempt to make a living or until he abandoned his claim, sold out to a stockman, or was able to add sufficient territory to his homestead to enable him to stay in business. In an attempt to control strategic points on the range, stockmen or their employes also entered claims to grazing home- steads. The Grazing Homestead Act continued in force until the passage of the Taylor Grazing Act, which had the effect of superseding and nullifying it. The former was the last of major public-land disposal methods. It con- cluded a long series of congressional land acts which, from our vantage point in time, appear to have been inept and impractical. We have noted in passing some of the social costs of unsuitable land policies. We turn now to a consideration of the effects of these policies on western landownership patterns, on the western livestock industry, and on the land itself. App. 5 Results of Land Policies on Ownership Patterns | The system of rectangular land surveys, in conjunc- tion with the homesteads, sales, and grants, resulted ini- tially in landownership patterns scattered out into little squares of 160 or 640 acres. These surveyor’s squares were, of course, superimposed upon the landscape with- out regard to topography. We have lived with this system of land surveying so long that it may seem to be the natural and logical method. Possibly it was the most logical method in the eastern part of the United States. In the West, however, this method of surveying lands cre- ated problems of land disposal, landownership, and land use. Major John W. Powell, in his Report on the Lands of the Arid Region of the United States, recognized the difficulties for the West inherent in the rectangular survey system: Many a brook which runs but a short dis- tance will afford sufficient water for a number of pasturage farms; but if the lands are surveyed in regular tracts as square miles or townships all the water sufficient for a number of pas- turage farms may fall entirely within one dis- trict. If the lands are thus surveyed, only the divisions having water will be taken, and the farmer obtaining title to such a division or farm “ould practically occupy all the country adjacent by owning the water necessary to its use. For this reason divisional surveys should conform to the topography, and be so made as to give the greatest number of water fronts.5” As could be expected, the watering places were the first to be transferred to private ownership. according to Clawson: App. 6 As the range became crowded with range livestock, but generally before the intrusion of farmers, some ranchers began to protect them- selves by acquisition of “key tracts.” The key tract often contained the only available stock water for some distance. By preventing trespass on the land he owned, the rancher could obtain exclusive use of a/l the grazing land that could be used by livestock watering on his land. This process was usually effective.” When an individual owned a “key” tract it meant not only that he had free use of the adjoining public lands but also that ordinarily those lands would not be desired by anyone else. As a consequence, much more public land remained in the hands of the government than would have been the case if the lands had been surveyed and distributed according to topographical features. As pressure for grazing land increased, stockmen began to buy blocks of railroad lands. It will be recalled that the railroads were granted lands by alternate sec- tions, so that their ownership pattern resembled a check- erboard. By purchasing a block of these checkerboarded lands the stockman also acquired the free use of the alternate sections of public domain. In effect, he got two for the price of one. East of the Mississippi, where land enclosures were generally small, lands were ordinarily fenced with stone, rails, or dense hedges. In the West these methods were impractical because of the large areas involved and the lack of wood for rail fences. In 1874, however, J. F. Glid- den of DeKalb, Illinois, patented a successful barbed wire fence and a machine for making it. By 1880 barbed wire — ee App. 7 factories were turning out 40,000 tons of this cheap fenc- ing material; by 1890 this output had been tripled. Western stockmen were quick to take advantage of this new method of controlling the public range. Two Colo- rado cattle companies were reported to have fenced off a million acres each of government land. Three million acres were fenced off in two New Mexico counties. Smaller, but still considerable, amounts of fenced govern- ment lands were reported in other range states. By 1885 fencing of public lands had become so preva- lent and complaints so numerous that congress passed a law making illegal the erection of any obstacle to free passage on the public domain.*? The next year President Cleveland ordered the removal of all fences, and the Secretary of Interior moved to carry out his orders.* By 1891 the Commissioner of the General Land Office was able to state that only thirteen cases of illegal enclosure of public lands had been reported during the previous year and that these cases had involved only 34,358 acres.% The illegal fences had some stabilizing influence on the range. Stockmen made some attempt to manage fenced public domain lands. With the passage and enforcement of the act of 1885, however, the range once more became wide open to the first comer. By mutual agreements stockmen were sometimes able to keep out of each other's way, but sooner or later someone would slip over the boundaries and range wars would result. Nomadic sheep operators generally ignored local agree- ments and grazed wherever they were strong enough to stay. When they were forced off one range they moved to another and repeated the process. App. 8 After the first years of enforcement of the law of 1885, stockmen gradually began fencing off the public domain again. When complaints of illegal fencing became serious enough the government caused the fences to be removed but when the pressure was off they were usually built up again. When the Taylor Grazing Act was passed, these privately owned fences on the public range were considered evidence of prior use of the lands and thus gave the owner preference in obtaining “range rights” tor his livestock. Many of the homesteaders who were able to stay on their claims long enough to gain title later gave up and moved off the land but retained title to it. During the big cattle boom many eastern and foreign companies, as well as western stockmen, acquired large tracts and later went into bankruptcy, with the lands passing into the hands of their creditors. We have already noted the grants of land to states and railroads. Part of these lands are retained by their original owners. All these factors have contributed to a situation in the West where much of the land is held by absentee owners in parcels of various sizes and is rented, leased, or used without charge by local stockmen. Such leased or vacant land is ordinarily overgrazed and has deteriorated considerably. Results of Land Policies on Stockmen’s Tenure and Methods The old lawless West of range wars and conflicts between homesteaders and stockmen, and between cattle- men and sheepmen, was lawless not because it was popu- lated by a peculiar breed of hyperaggressive and unscrupulous people, but because of political acts which App. 9 resulted in land policies that were not suited to the region and that had the effect of encouraging conflict, insecurity, and disrespect for law. Congress offered the homesteader a piece of land so small that he was forced to use public land that did not belong to him. When he used public land be came into conflict with others who desired to use the same land and whose legal (or illegal) rights were as good as his. Since this was an illegal or extralegal matter, there existed no means of arbitrating or settling disputes except by mutual agreement or conflict. When stockmen were able to agree on a division of the public range, they found their plans thwarted by the homesteader who had a legal right which they did not possess. But the homesteader enjoyed a legal right only on his claim, and this was usually insufficient to provide a livelihood. So he did the same thing the old stockman did: he ran his cattle on the public domain. In so doing he had not only deprived the pioneer stockman of the area within his homestead but also competed with the stock- man for the public domain. If and when he became estab- lished, he resented the intrusion of succeeding homesteaders as much as did the oldtime cattleman. Range “Rights” The avowed purposes of the Taylor Grazing Act were to “stop injury to the public grazing lands by preventing overgrazing” and to “stabilize the livestock industry dependent upon the public range.” To carry out these Purposes it was first necessary to determine the grazing App. 10 capacity of the district - that is, the maximum number of livestock that could be grazed without injury to the range. * * * The act furnished a clue to the method of allocating grazing privileges. “Preference,” said the statute, “shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business . . . 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.”’* This clause restricted grazing rights to land- owners or owners of water or water rights; the property- less nomad was thereby eliminated from consideration. The clause, “as may be necessary to permit the proper use of lands” was interpreted to mean that the applicant must have private holdings sufficient to sustain his livestock when they were off the district, and conversely, that the district lands should complement his private holdings.”” The words “in or near a district” caused considerable dispute at first because some operators had customarily trucked cattle in or had driven stock for long distances. But after these requirements of the statute had been satis- fied, there was still “three times as much private land devoted to supporting livestock which was ‘in or near a district,’ as there was range to complement such private lands and give them a ‘proper use,’ ““’ so some addi- tional restrictive device was necessary. The director, after meetings with the stockmen, decided upon an additional system of preferences based on customary past use of the federal lands. This modified “squatter’s right” idea was based on the old western common law of “first in time is App. 11 first in right.”*' The director found legal justification for this concept in the language of the statute which stated “grazing privileges recognized and acknowledged shall be adequately safeguarded.”*? Since it was impractical and impossible to determine who was originally “first in time” on the range a “priority period” was established as the five years immediately prior to passage of the act. A stockman who had made substantial use of the public range in connection with his private properties for two consecutive years or any three years during this priority period had priority “rights.” In summary, preference in obtaining grazing privi- leges was accorded to owners of land or water who could support their livestock during the seasons when they were off the grazing district, who required the federal lands in conjunction with their own to form an economic ranching unit, and who had used the range during the priority period. * oJ * Finally a range regulatory bill, the Taylor Grazing act, was passed in 1934. The avowed purposes of the act were to stop further injury to the public lands, to provide for their orderly use and development, and to stabilize the livestock industry dependent on them. The Secretary of Interior was authorized to carry out these objectives by the establishment of grazing districts and the issuance of grazing permits to qualified applicants for a “reasonable” fee. Preference in awarding grazing permits was given to those stockmen who lived “in or near” a grazing district, App. 12 who owned private lands capable of supporting their livestock when they were off the district (commensurate properties), and who had a history of use of the public range during the five years immediately prior to the passage of the act. The permit system automatically disqualified nomadic stockmen, those who did not own commensu- rate properties “in or near” a grazing district and those who had not used the range during the priority period. * * * On the basis of this arrangement both class 1 and class 2 applicants were “set-up” in the district office records on an equal basis for the full amount their base properties would support. In other words, priority rights were ignored and the estimated carrying capacity of the unit was also ignored. Commensurate base property was the only factor considered. The total of these commensu- rate base property rights for Soldier Creek amounted to 77, 419 A.U.M.’s. However, it was recognized that the unit would not support this total. The advisory board estimated the carrying capacity of the unit at 43,260 A.U.M.’s.'© Ross has insisted, over the years, that the estimated carrying capacity was 45,000 A.U.M.’s but both the board and the administration generally accepted the 43,260 figure. The applicants agreed that the 77,419 figure would be used only as a starting point for making the downward adjustments necessary to keep licensed use within the carrying capacity of the unit. However, each permittee’s “rights” were not proportionately reduced. Each permittee still had “rights,” on paper at least, for the full amount his commensurate properties would support. App. 13 There were two reasons, in 1943, for not proportionately reducing each permittee’s “rights” to bring the total down to the estimated carrying capacity of the unit. First, the stockmen planned eventually to build bridges across the Owyhee Canyon and consolidate the Jackie’s Butte area with Soldier Creek.'” If this had been accomplished, the total capacity of Soldier Creek would have been increased considerably. Secondly, this system, or lack of system, permitted more flexibility in allocating annual licensed use. Thus, in a particular year, operator A might not desire to use the range at all so operator B could conceivably be licensed for the total amount his base properties would support. * * + App. 14 F. R. Carpenter, Establishing Management Under the Tay- lor Grazing Act * * * Well fortunately or unfortunately, the Act contained a clause that said we should respect prior rights. What were prior rights? Prior rights were previous use of the range. These sheepmen had the range for 20 years. Maybe some operator had just bought an outfit the year before. So all the fellows that had been on 5 years voted for 5 years. All the fellows that had only been on 1 year voted for 1 year. Each fellow was voting so that he got on. What were you going to do? What was going to be the role of prior rights. How much prior use of the range did you have to have in order to submit your commensurability right and get a permit? I didn’t know what to say. So the first year we said, “Now we'll tell you how we are going to do this. The Board meets and your to 10 representative sheepmen are there, your 10 representative cowboys are there and you're going to have to agree by */; majority on some rule for prior use of the range and that first year that rule will apply to that district. And every district will vote their own rule and then we'll all get together in Salt Lake City at the Hotel Utah in the ballroom and we'll fight it out and we'll have one rule for the United States.” So then they started out. Here was a district that was largely all old-time operators, and they had no trouble voting the rule that you had to show 20 years continuous use of the range. Well then some of them found out they hadn’t used it continuously. So they said 15 out of 20 years gives you a prior right. There were other sanctions of the range for one reason or another had just been App. 15 opened up. These operators said anybody using it last year should have prior rights. The Act went in effect June 28, 1934, so anybody using it in 1933 should have the prior rights. Well it sounded pretty good but then a man came in and said, “My wife had a stroke that year and | had to move down to Arizona. I let my neighbors use that range and I didn’t use the range in 1933 but I’ve been here all my life. Are you going to kick me out?” Well we couldn’t go that way. So the really hot battle in setting up the regulations of the Taylor Act was what was prior use of the range. And we were close to 3 years solving it. After we solved it for the north, it wouldn’t go in the south because of the water rights. In the south it didn’t matter how long you had used the range, if you didn’t have water rights you couldn’t continue to use it. So we had to reach a conclusion. After many, many battles this is what they finally decided. The rule was finally worked out that anyone who in the 5 years imme- diately preceding the passage of the Taylor Act had used the range in connection with his land, either, continu- ously for 2 years or any 3 years in that period had prior use rights. App. 16 Public Domain Grazing Adjudications Under the Taylor Grazing Act Frederick W. Obermiller Oregon State University October 30, 1998 A history of grazing forage adjudications based on “Range Surveys” conducted by the predecessors of the Bureau of Land Management currently is being compiled by Bureau of Land Management Land Law Historian James Muhn who is with the BLM Service Center in Denver, Colorado.' The original surveys and adjudica- tions were directed by the Division of Grazing Control organized in 1934, renamed the Division of Grazing in 1935, and again renamed the Grazing Service in 1938 - all of which were units of the United States Department of the Interior organized for the purpose of implementing the Taylor Grazing Act of 1934 (43 U.S.C. 315). The Bureau of Land Management (BLM) is the modern suc- cessor to these earlier units, created through merger of the Grazing Service and the General Land Office in 1946. Although the historical record is both clear and decisive in its documentation of the public domain grazing adjudi- cation process, nonetheless some have questioned whether, in fact, such an adjudication ever happened. For example: The dissent attempts to find [prior recognition of adjudicated grazing preferences] in its own “historical understanding of grazing preferences and the importance that they assumed in the 1 Persona! communication with the author, October 29, 1998. App. 17 Operation of permittees’ livestock busi- nesses .. . Without citation to any authority, the dissent then describes at length a process whereby the Secretary made permit renewal decisions by “reference to” or in “recognition of” the original grazing adjudications. 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 seek- ing to review a regulatory scheme.” [emphasis added] (10th Cir. Filing No. 96-8083, Public Lands Council et. al. v. Babbitt et. al. September 1, 1998) The purpose of this short statement is to provide the authority for the assertions by the dissent in the above- captioned case. This is easy to do. Grazing Adjudication Described by Professor Foss in Politics and Grass First, we have the detailed description of the adjudication process provided by Professor Foss.” F. R. Carpenter [first Director of the Division of Grazing (Control)] expressed it this way: The Taylor Act says preference rights shall be given “FOR THE PROPER USE OF LANDS.” Not of people; not the proper use of the livestock, but of the LANDS .. . these rights will be given to you not as individuals, nor as owners of live- stock —- we do not care how many cattle or sheep you have or how much experience or lack of experience you have in the livestock business. 2 Phillip O. Foss, 1960, Politics and Grass, Seattle: University of Washington Press. App. 18 We care only for your lands. We want to build up your lands and give them stability and value. In doing that we wish to give them the adjunc- tive pasture rights which naturally belong to them, and in proportion to their carrying capac- ity, fertility and crop yield.* Foss states that BLM permittees may transfer their public domain grazing rights together with, or as an appurte- nance to, their commensurate privately owned lands. In this manner, grazing rights are usufructuary property interests standing as incidents to private property, as, for example, are irrigation ditch rights-of-way incidents to diversionary water rights. Then, Foss describes the manner in which the scope, or quantity, of adjudicated usufructuary grazing rights were originally determined. The original carrying capacity of the districts was usually established by estimates of the [grazing district] advisory boards, since funds and personnel were not initially available to make scientific range surveys. Probably most of the boards tended to overrate the capacity of the range, but some limits had to be set, and this was probably the quickest and best method available under the circumstances. If scientific surveys later disagreed with the board’s original estimate, a new carrying capacity was estab- lished and the number of animals licensed on each permit was adjusted accordingly.” [emphasis added] (Foss, page 64) ’ Transcript of remarks of F. R. Carpenter, Director, Division of Grazing Control, Vale, Oregon, December 15, 1934, pages 32, 39-40. App. 19 Foss goes on to describe in detail the adjudication and appeals processes, at which point he states that grazing permits are not issued unless and until both the scope of the grazing forage right is determined via the range survey and the seniority of the user is established. Grazing permits [licenses] are issued on a year- to-year basis until such time as the grazing capacity of the range is established, the charac- ter and amount of base property is substanti- ated, and livestock operations have become generally stabilized. Once these objectives have been accomplished, term permits may be issued for periods up to ten years.” (Id., page 67) To further substantiate the compensable value of the adjudicated grazing right, consider the following state- ment by Foss: When the Taylor Grazing Act was in the process of passage, Senator McCarran of Nevada pro- posed an amendment which was incorporated in the act. The amendment read: ” . . . except that no permittee complying with the rules and regulations laid down by the Secretary of the Interior shall be denied the renewal of such permit, if such denial will impair the value of the grazing unit of the permittee, when such unit is pledged as security for any bona fide loan.” (Id., page 68) This clause in the Taylor Grazing Act is meant to preclude the administrator of the act (i.e., the Secretary, Director, or any authorized officer) from canceling or reducing the scope of a grazing permit if such cancellation or reduc- tion would reduce the carrying capacity, hence the value, of the ranch unit serving as collateral for a loan. App. 20 Foss provides an illustration of the advisory board judg- mental-quasi-judicial /adjudicatory process in establish- ing the scope of grazing rights or preference in a later chapter (Chapter 7 - The Battle of Soldier Creek) in his book. (Foss, pages 140-170)* The “Range Survey” as the Basis for Grazing Adjudica- tion Yet, one may ask, should exclusive reliance be placed on the writings of a professor from what is essentially a non- public lands state? To be definitive, a deeper net must be cast. Enter the approximately semi-annual The Grazing Bulletin, an official report of the Division of Grazing, and, later, of the Grazing Service. The first detailed report of the existence and purpose of the “Range Survey” appears in Vol. 1, No. 3, published in September, 1936, and reproduced in full in Attachment A to this statement. In essence, the 1936 report says that a detailed inventory (“Range Survey”) of the carrying capacity of all lands within grazing districts, existing range improvements by type of improvement (fencing, water developments, irrigation canals, etc.), and the pro- duction capability of associated commensurate base prop- erties is badly needed in order to effectuate the issuance of long-term grazing permits. that survey is to commence immediately in two trial areas: District 5 in New Mexico and District 6 in Colorado. 4 Foss’s sources are the Act itself, the Annual Report of the Secretary of the Interior, 1935, and other citations given on pages 214 and 215 of his book. ' App. 21 There seems to be very little doubt in the minds of the majority of the board members and the Division of Grazing personnel that simple but effective management plans must be prepared. It is the primary purpose of the range survey program to furnish all of the factual material needed in the preparation of plans for making a proper use of all available resources. There is little question that such plans based on actual facts, incorporating all the knowledge of local conditions supplied by the advisory board members and correlated by experienced range administrators, would be the best obtainable. (page 13) The New Mexico District 5 range survey was completed and reported in full in Vol. 1, No. 5 of The Grazing Bulletin. The preface to the report states that the range survey was “assembled preparatory to determination of preferences for term permits under section 3 of the act of June 28, 1934 (48 Stat. 1296) as amended June 26, 1936 (49 Stat. 1976),” i.e., the Taylor Grazing Act, as amended. (Id., page 1). The first ten year term permits were to be issued in 1939. At the time the Taylor Grazing Act was passed, accurate data were not available either as to the proper carrying capacity of the public range or as to the carrying capacity and facilities of pri- vate properties used in connection therewith. Range surveys in all of the ten States were begun by the Division of Grazing shortly after the creation of the first grazing district in 1935. The survey of two typical district, one in the south where water controls the use of the range and one in the north where feed controls the use of the range, has been carried to completion in App. 22 order to furnish the facts upon which to establish the principle governing the tssuance of term permits. The results of the survey and study of New Mexico Grazing District No. 5 are presented herewith and show that prior to the passage of the Taylor Grazing Act 98.4 percent of the public range within that district was properly serviced with artificially developed water and that the issuance of grazing term permits in that district based upon a proper valuation of such water will by |sic] accepted by all of the local users as a fair and proper distribution of public range. [emphasis added] (Id., page 2) The purpose of the Taylor Grazing Act was said to be, in part, stabilization of the public land dependent livestock industry by affording ranchers assurance of exclusive grazing rights based on the principle of prior possession, and that the range survey would establish the scope, or amount, of forage to which each such prior user would be entitled. (Id., page 4) Upon the recommendation of the advisory boards and the approval of the regional grazier, permits for a period not to exceed ten years will be issued. As there are many factors involved, however, permits of this nature cannot be issued until all necessary data are obtained. This includes the carrying capacity of the public range and the set-up of each applicant. Essentially, a systematic inventory of range and ranch ts necessary for equita- ble determination of range privileges. Rules approved by the Secretary of the Interior March 2, 1936, provided that “permits within section 3 of the act... shall be issued as soon as the necessary data are available upon which to App. 23 ascertain the proper use of the lands and water which entitle their owners, occupants, or lessees to preferential grazing privilege. During the intervening period, temporary licenses will be issued under authority of section 2 of said act to provide for the existing livestock industry using the public lands in such districts.” As amended January 28, 1937, authority to issue temporary licenses was continued in each grazing district until such time as necessary data are available upon which to issue permits. Meanwhile a range survey program of sufficient scope to obtain all basic facts was under- way. [emphasis added] (Id., page 4) In short, the range surveys were detailed land use analy- ses consisting of maps, charts, and data used to decide which public land ranchers were to receive spatially fixed grazing allotments containing specified quantities of for- age — preference AUMs incident to federal ranges cus- tomarily used by ranchers who owned or controlled private land and/or water rights. Prior to issuance of term permits, forage adjudication was required, and so annual temporary grazing licenses were issued pending resolution of complete public domain forage use claims. The authority of the Secretary to issue temporary licenses pending the issuance of ten year term permits was upheld by the U.S. Supreme Court in Brooks v. Dewar et al., 313 U.S. 979 (1941). In reality, there was little alterna- tive other that [sic] to grant temporary licences while the grazing adjudication process was underway for, as Direc- tor Carpenter noted within weeks of his appointment as the first Director in 1934. The Taylor Act, Public No. 482, provides in Sec. 3, that the Secretary of the Interior can issue App. 24 permits to graze livestock on the public domain, for not to exceed ten years. In further provides in said section that the renewal of permits once issued shall not be denied if they would impair the value of the grazing unit of the permittee when the same is pledged as security for any bona fide loan. As 90% of the applicants for permits have bona fide loans on their stuff, any and all permits issued will become irrevocable for all practical purposes. This will in a practical way defeat many of the benefits which the Act means to confer to the permittees on grazing districts. Furthermore in setting these districts up, it is impossible to get sufficient data to issue a longer than one year permit at a time under the going concerns. Nevertheless, a one year permit under the above provision would become as irrevocable and ultimately as unjust to the other users of the range as a ten year permit. In order to avoid this obstacle I would like to issue a revocable temporary grazing license for a period of not to exceed one year without the entailment of any fee, and as a preparatory mea- sure and trial before issuing permits.° In a responding letter to Director Carpenter dated Sep- tember 21, 1934, Solicitor Margold responded in the affir- mative, “I am of the opinion, therefore, that temporary, revocable grazing licenses for the necessary period of adjustment are legally justified, and that if the licenses as ° Letter from Director of Grazing F. R. Carpenter to Nathan Margold, Solicitor, Department of the Interior, September 12, 1934. App. 25 issued so specify they will be free from the nonrevocable conditions set out in the act. App. 26 PART 501 - THE FEDERAL RANGE CODE Section 501.2(e) * * * (e) Base property. Property used for the support of the livestock for which a grazing privilege is sought and on the basis of which the extent of a license or permit is computed, without reference to forest permits or comple- mentary feed. Section 501.4 Rating and classification of properties - (a) Base properties; classes; carrying capacity of land; service value of water. For the purpose of determining the proper use of the base properties of all applicants and their relative dependence upon the Federal range, water conditions and other factors affecting livestock opera- tions in the area will be considered. Base properties will be classified as land or water and further in the following manner: Class 1. Forage land dependent by both location and use, and full-time prior water. Class 2. Forage land dependent by use only, and full- time water. Class 3. Forage land dependent by location only, and full-time water which otherwise would be in class 2 but which was developed later than other water servicing a part or all of the same area. eee App. 27 Base property which is forage land will be rated, for its carrying capacity. Water will be rated for its service value by deducting therefrom the carrying capacity of half of the area serviced jointly by competing water of the same class, and the carrying capacity of all private or State land located within such service area and not owned or con- trolled by the applicant. In computing the service value of water in class 3, there will also be deducted therefrom the carrying capacity of any portion of its service area which is serviceable from any other full-time water ante- dating it in development. * * * App. 28 Penny and Clawson, Administration of Grazing Districts in the Public Land * * *. Possession of sufficient privately owned or controlled base property, land or water, to insure a year-round oper- ation for the permitted livestock, was required of all users. In areas where private land is the backbone of ranching operations, land was considered as the base property. In such areas the permitted livestock was required to spend a specified amount of time on the private land being offered as a basis for securing grazing privileges. However, in the arid southwestern United States water is considered the principal basis for receiv- ing grazing privileges. Applicants there were required to have privately owned or controlled water suitable for consumption by livestock and available, accessible, and adequate during those months for which the range was classified as suitable for use. Preference for grazing privileges was given operators who made substantial grazing use of the public lands in connection with their private properties for two consecu- tive years or any three years in the five years preceding the Taylor Grazing Act (known as the “priority period,” June 28, 1929, to June 28, 1934). For districts established or for additions to districts after June 28, 1938, the prior- ity period for land base property is the five years imme- diately preceding the date of the order establishing them. This provision was extended to water base property on March 16, 1942. Thus grazing privileges were attached to the land rather than to the individual or the livestock.!? eR ee Oe nt I ee ee Pe ee ee + et See App. 29 By later amendment provision was made for the transfer of grazing privileges from one property to another. The amount of available forage to be apportioned was at first estimated very largely upon the knowledge and advice of advisory boards. These estimates, although often too liberal, in a surprising number of cases were in accord with detailed range surveys and studies made later. They were altered or supported according to those findings. * * * Grazing privileges within grazing districts have the distinction of being tied to dependent base property. The transferring of these privileges under Bureau of Land Management administration is unique. Operators owning properties without privileges benefit by acquiring privi- leges through transfer from other properties. Livestock operations may be stabilized by transferring privileges from leased to owned lands or from relatively unproduc- tive to highly productive lands. * * a7 App. 30 Dr. John M. Fowler, Statement to the Committee for Energy and Natural Resources United States Senate on Rangeland Reform ‘94 Presented on May 14, 1994 Albuquerque, New Mexico * * * STEWARDSHIP DISINCENTIVES: Removing private incentive for investing in federal rangeland by retaining federal ownership of improve- ments and water rights, eliminating equity, and increas- ing annual costs will not encourage better stewardship. The federal government will have to fill the void in management and investment; this will be extremely diffi- cult in an era of reduced funding and down-sizing of agencies. Improvements: The regulations as proposed have two distinct provi- sions that will preclude economically justifiable long term private sector investment in federal rangelands. The first disincentive is that permanent improvements and tempo- rary improvements will be retained in ownership by the United States; this holds for all future permanent improvements and any temporary improvement if any portion of its cost was borne by the United States. In addition, exclusive right to use the improvement is not conferred. Even with a 10 year permit the long run nature of the improvement will not allow the private sector to recapture dollars expended. Figure 1 readily displays the reluctance of the private sector to invest in improvements. Since the peak level of App. 31 private investment in 1985 of 2.5 million, the private sector has reduced its investment level until it now repre- sents only 26% of the former level. This reduction in private sector investment is hypothesized to continue further. On a per AUM basis the reduction has been from $.22/AUM to $.15/AUM. Market value of federal permits will further decline as this value is a reflection of carrying capacity and improvements. Will the record of contributed funds that shall be documented by the authorized officer be used to compen- sate the permittee if his/her permit is not cancelled but rather is forfeited if the fee is perceived to be too high too allow continuation in the range livestock business? Water Developments: The proposed water right language that any water right acquired to use water on public land for the pur- pose of livestock watering shall be acquired, perfected, maintained and administered in the name of the United States is a further disincentive to private investment from the range livestock sector. Similar language passed by the State Lands Office (SLO) in 1987 reveals some interesting results. Of the 20 water developments on file with the SLO since 1987 not a single development has been issued for the purpose of a stock watering by a lessee. With this precedence it is reasonable to assume that the federal government will have to assume the expense of water developments. Fifty-seven percent of private sector dol- lars were expended on water development by the 14 Western States in 1991. * * * App. 32 Permitted Use Removing the term “grazing preference” as specified in the former rules, Taylor Grazing Act, and FLPMA, and adding in its place the term “permitted use” provides unusual latitude for the BLM to redefine authorized live- stock use. “Temporary suspended use” and “conservation use” provide the same intent of lower livestock numbers thus isn’t the use of these terms redundant? Provisions are available to withdrawal livestock use or provide con- servation use under the existing language in FLPMA thus why is there a need to change or eliminate the term “grazing preference”? * * . | | App. 33 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 96-8083 PUBLIC LANDS COUNCIL, ET AL., Plaintiffs / Appellees V. BRUCE C. BABBITT, SECRETARY OF THE INTERIOR, ET AL., Defendants / Appellants APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING AFFIDAVIT OF FREDERICK W. OBERMILLER I, Frederick W. Obermiller, do hereby swear on oath as follows: 1. My name is Frederick W. Obermiller. 2. Iam over the age of 18 years and make this affidavit based on my personal knowledge. 3. My office is at 232C Ballard Extension Hall, Oregon State University, Corvallis, Oregon 97331. My tele- phone number is (541) 737-1425. 4. I hold a Ph.D. in Agricultural Economics from the University of Missouri. I was awarded this degree in 1969. 5. I am a full Professor of Agricultural and Resource Economics at Oregon State University. | have been a Professor at Oregon State University since 1974. I teach courses in public land policy, public land law, App. 34 agricultural law, and an honors college colloquia entitled “Public Land Law Reform.” Before coming to Oregon State, | spent two years as an Assistant Professor at Purdue University. I have produced well over 100 scholarly publications regarding public lands issues. Almost all of these publications concern livestock grazing issues. Commercial cattle ranches are bought and sold on the basis of their livestock carrying capacity, not on acreage. If the carrying capacity of a ranch is reduced, the value of the ranch will suffer a corre- sponding reduction. Ranch appraisals have histori- cally considered adjudicated animal unit months (“AUMs”) including suspended use AUMs as well as active use AUMs. The Tenth Circuit's decision in Public Lands Council v. Babbitt (“PLC”), to uphold regulations extinguishing suspended use AUMs and linking permitted livestock numbers to the shifting sands of continuous land use planning, decreases the value of virtually every ranch relying on Bureau of Land Management (“BLM”) grazing permits. Although livestock operations have seldom been permitted to utilize all of their adjudicated AUMs, the adjudication of maximum AUMs (“Preference”) provided a stable baseline from which to measure management changes in permitted grazing. Since the 1995 regulations do away with this baseline Prefer- ence adjudication and with the requirement that grazing levels not be reduced without good cause, ranchers’ and lenders’ business confidence in BLM permits is likely to be substantially reduced, and the western livestock industry will undoubtedly be destabilized if these regulations are upheld. Ranches will BLM grazing permits attached have aggregate value of between $8,000,000,000 and $10,000,000,000 dollars. The permits themselves have 10. 11. 12. 13. 14. App. 35 an aggregate value of approximately $1,000,000,000. Based on these statistics, it is reasonable to suggest that weakening business confidence in BLM grazing permits will result in approximately $1,000,000,000 in losses to the livestock industry, if the permits themselves are rendered valueless due to markedly increased tenure insecurity. Given that many overhead costs of operating a ranch are constant regardless of the number of cattle, the average cost of production increases as herd size decreases. Based on the Tenth Circuit’s decision in PLC, herd sizes are likely to decrease. Since the average BLM dependent ranch runs approximately 350 to 400 cows, I doubt most ranches could not sustain a reduction of more than 35 head in carrying capacity. Many BLM dependent ranches are already approaching the threshold where costs of production exceed income. For these reasons, a very marginal decrease in AUMs would be sufficient to cause a substantial portion of BLM dependent ranches to be destabilized. 75 percent of commercial size ranching operations in eastern Oregon are BLM dependent. Oregon is typi- cal of the other western states in this respect. Rancher investment in range improvements on BLM land has been consistently decreasing in recent years due to increasing uncertainty in livestock tenure on BLM lands and because of the convergence of live- stock price and cost of production. The 1995 rule prospectively vesting title to all future range improvements in the federal government, will eliminate the desire of rational ranchers to invest in range improvements. This rule will also make it impossible to secure financing for such improvements, since such App. 36 improvements no longer have any collateral value. For these reasons range improvements are likely to deteriorate and will not be replaced when they are fully obsolete. These consequences would result in poorer range conditions on the public lands and will further decrease the monetary value of BLM depen- dent ranching operations. FURTHER AFFIANT SAY- ETH NAUGHT. /s/ Frederick W. Obermiller Frederick W. Obermiller STATE OF Oregon ) )ss. COUNTY OF Benton ) The foregoing instrument was acknowledged before me this 28th day of October, 1998 by Frederick W. Ober- miller. Witness my hand and official seal. /s/ Louise E. Barker Notary Public My Commission Expires: 4/30/02 [SEAL] OFFICIAL SEAL LOUISE E BARKER NOTARY PUBLIC - OREGON COMMISSION NO. A309034 MY COMMISSION EXPIRES APRIL 30, 2002 App. 37 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 96-8083 PUBLIC LANDS COUNCIL, ET AL., Plaintiffs / Appellees v. BRUCE C. BABBITT, SECRETARY OF THE INTERIOR, ET AL., Defendants/ Appellants APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING AFFIDAVIT OF JOHN FOWLER 1, John Fowler, do hereby swear on oath as follows: My name is John Fowler. I am over the age of 18 years and make this affidavit based on my personal knowledge. My Address is: Department of Agricultural Eco- nomics, New Mexico State University, Box 30003, MSC 3169, Las Cruces, New Mexico 88003. My tele- phone number is (505) 646-2841. I hold a Ph.D in Agricultural Economics from lowa State University. | was awarded this degree in 1979. A more complete statement of my professional cre- dentials and published works is appended to this affidavit. 5. 10. App. 38 I have been a full Professor of Agricultural Eco- nomics at New Mexico State University for Approxi- mately 12 years. I currently serve on a team commissioned by the Lieutenant Governor of New Mexico to prepare a portion of a Environmental Impact Statement (“EIS”) as a joint lead agency with the federal Bureau of Land Management (“BLM”). A copy of relevant por- tions of the EIS is appended to this affidavit. This team’s portion of the EIS concerns economic, social, and cultural impacts associated with implementation of standards and guidelines for the management of BLM land. The EIS analyzed alternatives generated from: (a) the 1995 range reform regulations; (b) The New Mexico Resources Advisory Council (“RAC”) proposal; (c) the Arizona and New Mexico Coalition of Counties for Stable Economic Growth; and (d) taking no action whatever. The “fall back” proposal, based on the 1995 regula- tions, considers only the health of the physical envi- ronment but does not consider impact to humans. The RAC proposal considers the impact of range policy to humans, but gives the physical environ- ment priority over human needs. The Coalition of Counties proposal considers human needs and ecosystem health to be equally important considerations, and proposes livestock reductions in the interest of range health only when there is no other reasonable alternative. New Mexico is a water-based state, meaning that almost all of the BLM grazing permits in the state are based on water rights rather than on land owner- ship. The 1995 rule eliminating historic preference rights from the BLM grazing system will erase the tie between the grazing permit and its water base. —* 11. 12. 13. 14. App. 39 Historically, BLM grazing preferences provided the means for livestock operators to utilize their water rights and were therefore intrinsically tied to such water rights. In New Mexico, BLM grazing permit is virtually worthless without water rights, and water rights are virtually useless without a BLM grazing permit. If the connection between water rights and BLM grazing permits is severed, and the continuity of the grazing permit is interrupted, agricultural lenders can capitalize the value of the permit only for the term of the permit. Before the 1995 permitted use rule, grazing preferences were considered by lenders to be indefinitely continuing rights with much higher collateral value than temporary use permits. As a result, lenders have drastically reduced the number and size of their loans to BLM dependent livestock operations. Because of the 1995 permitted use rule and the resulting lack of security of tenure in grazing per- mits, the majority of agricultural lenders in New Mexico will no longer accept BLM permits as collat- eral for loans. In 1982, BLM grazing permits were worth approxi- mately $1,600 per animal unit. Today, such permits are worth approximately $800 per animal. This dra- matic devaluation is a result of uncertainty regard- ing the security of tenure in BLM grazing arrangements. The 1995 permitted use rule increased this uncertainty substantially. Investments in improvements on public lands require a significant period of time to pay for them- selves. Permittees must, therefore, feel secure in their long-term tenure before they will commit financial resources to making improvements. During public debate over the 1995 permitted use rule, 15. 16. 17. 18. App. 40 uncertainty regarding permittee tenure in grazing arrangement was heightened and remains high because of the elimination of the historic prefer- ences. As a result, BLM permittees have stopped making improvements on public lands. The 1995 regulation prospectively vesting title to all future range improvements in the federal govern- ment has further removed the incentive of permit- tees to invest in range improvements. In 1986, using a similar rule, the State of New Mexico took title to all future livestock water developments on state lands. Since that rule was adopted, livestock permit- tees have literally made no livestock water improve- ments. I predict that the 1995 range improvement rule will have a similarly dramatic result throughout BLM lands. The BLM simply does not have the financial or man- power resources to construct all of the improve- ments necessary for the protection and enhancement of range resources. I therefore predict that the 1995 regulations, with their built-in disincentives for grazing private investment in range improvements, will result in serious damage to the environment. The historic rate of return on invested capital in New Mexico livestock operations is between one and two percent. New Mexico is reasonably typical of the other western states in this respect. This small profit margin illustrates that livestock operations are highly vulnerable to policy changes, and do not have a great tolerance for increased costs or decreased income resulting from public policy changes. Historically, livestock producers attempt to remain in business to preserve their culture and way of life, even though their assets could generate more income and provide greater security in other invest- ments. Ee el a a ee App. 41 FURTHER AFFIANT SAYETH NAUGHT /s/ John Fowler John Fowler STATE OF New Mexico ) )ss. COUNTY OF Dona Ana ) The foregoing instrument was acknowledged before me this 22 day of June, 1999 by John Fowler. Witness my hand and official seal. /s/ Elizabeth A. Crabb Notary Public My Commission Expires: February 3, 2003 BIOGRAPHICAL SKETCH Dr. John M. Fowler PROFESSIONAL TITLE Coordinator-Range Improvement Task Force Professor Agricultural Economics and Agricultural Business ADDRESS Department of Agricultural Economics New Mexico State University Box 30003, MSC 3169 Las Cruces, NM 88003 (505) 646-2841 — Business (505) 646-3808 -— Fax (S05) 524-2482 - Home EDUCATIONAL BACKGROUND App. 42 B.S. Forestry, lowa State University, 1972 M.S. Agricultural Economics, New Mexico State University, 1974 Ph.D. Agricultural Economics, lowa State University, 1979 - Range and Forestry Economics HONORARIES AND PROFESSIONAL SOCIETIES EXPERIENCE Society for Range Management Western Agricultural Economics Association Society of American Foresters Fabian Garcia Founders Award of Excellence, NMSU Agricultural College, 1987 Distinguished Service, U.S. Forest Service, Region #3, 1989 Academic Advisor to Public Lands Council of National Cattleman’s Association, Distinguished Service, U.S. Forest Service, Region 3, 1992 NMSU Board of Regents, Outstanding Service Award, 1996 Farm Bureau Distinguished Service Award, 1996 Inter regional Fire Suppressionist- USFS, 1970-71 Management Trainee, Timber and Range Management, USFS, Washington Office - Summer Experience, 1972-73 Teaching Assistant, New Mexico State University, 1974-76 RELEVANT ACTIVITIES App. 43 Research Assistant, lowa State University, 1974-76 Research Associate, lowa State University, 1976-79 Assistant Professor, New Mexico State University, 1979-83 Associate Professor, New Mexico State University, 1983-86 Professor, New Mexico State University, 1986-present Agricultural Economist, Range Improvement Task Force, 1979-86 Coordinator, Range Improvement Task Force, 1986-present Expert Witness on State and Federal Grazing Fees: — Invited statement at Senator Dominici U.S. Senate Subcommittee of Parks, Recreation and Renewable Resource Hearings, 1991 - Invited statement at Senator Schmidt U.S. Senate Appropriations Subcommittee Hearings, 1989 - Invited statement at Congressional Hearing before Subcommittee on National Parks and Public Lands, 1989 and 1990 - Presentation to Senate Grazing Fee Hearings, August 1992. - Presentation to Public Forum in Economics of Ranching, Jan. 1994 1993 1992 App. 44 Statement to Senate Energy and National Resources Committee, May 14, 1994 Statement to the Senate Forests and Public Land Management Subcommittee of the Senate Energy and National Resources Committee, June 22, 1995 - Statement to U.S. House of Representatives, National Parks, Forests, and Lands Subcommittee of the committee on Resources, July 11, 1995 - Statement to U.S. House of Representatives, Committee on Agriculture, Subcommittee on Livestock, Dairy and Poultry, September 17, 1997 CONSULTING EXPERIENCE 1985-1996 Employer Corralitos Venture Ranches Martin Koldyke Navajo Board of Supervisors Arizona Cattleman’s Assoc. Navajo/ Hopi Responsibility Easement Valuation Charles R Ranch, Las Vegas, Operational Opportunities Equitable Lease Arrangements Leasehold Valuations & Analysis Range Renovation Costs ee et IS ae be a RE RS Soe ee 1991 1990 1990 1988-89 1988 1988 1987-88 1987 1987 1986 1986 App. 45 Livingston & Associ- ates Craig S. Barnes Frontenac Company Federal Deposit Insur- ance Corp. (Kemp, Smith, Dun- can, Hammond) Jones, Snead, Wertheim, Wentworth (for Bill Sanders) Shafie Hindie, Inc Jones Firm (w/J.C. Heimann) American Farm Bureau Federation Hinkle Law Fimm [sic] Howard McDonald Benally & Associates N.M. Ranch Valuation & Income Arizona Allotment Management Develop- ment of Ranch Management Profit Plan N.M. Ranch Valuation of Midland Bank Asset Obtain easement through State Land Office Easement Valuation and Ranch Impact Analysis Impact Analysis of Oil & Gas Development on Ranch Profitability Analysis of Federal Grazing Fees in Public Rangelands Improve- ment Act Ranch Valuation for White Sands Missile Range Range Improvement Valuation, White Sands Jemez Recreational Plan Development App. 46 1986 South Research & Ute Mountain, Ute & Development Southern Mountain Ute Recreational Plan Development 1985-86 Soil Conservation Ser- Analysis of Resource vice (Jim Maetzold) Conservation Act and Development of Eco- system Ranch Budgets Selected Research Publications Fowler, John M., D. Rush, J. Hawkes, “Economic Charac- teristics of the Western Livestock Industry,” Range Improvement Task Force Report #35, New Mexico State University AES/CES, 1995. Fowler, John M., L.A. Torell, and G. Gallacher, “Competi- tive Pricing for the McGregor Range: Implications for Federal Grazing Fees,” Journal of Range Manage- ment, 47:155-158, March 1994. Fowler, John M., “The Art and Science of Being an Effec- tive Expert Witness on Natural Resource Issues,” Rangelands, Vol. 12, No. 4, August 1990. Fowler, John M. and J.R. Gray, “Rangeland Economics in the Arid West,” Chapter 6 in Rangelands, University of New Mexico Press, 1988. Fowler, John M. Grazing Fees and Public Rangeland Man- agement. Hearing before Subcommittee on National Parks and Public Lands of the Committee on Interior and Insular Affairs. House of Representatives, 100th Congress, Washington, DC. Serial #100-18, pp. 192-217. Fowler, John M. and L.A. Torell, Economic Conditions Influencing Ranch Profitability,” Rangelands, Vol. 9, No. 2, April 1987. App. 47 Fowler, John M. and J. Witte, “Growth Characteristics and Thinning Response for P-J Woodland Type in New Mexico,” Proceedings of Pinyon-Juniper Conference, USDA-Forest Service General Technical Report INT-215, January 1987, pp. 266-272. Workman, J.P. and J.M. Fowler, “Optimum Stocking Rate - Biology vs. Economics,” Proceedings of Second International Rangeland Congress, Australian Acad- emy of Science, 1986, 634p. Fowler, John M. M. Blake, and L.A. Torell, Heterogeneity of Data: Implications for a Variable Federal Grazing Fee,” Journal of Range Management, 39(3), May 1986. Fowler, John M. and J.M. Witte, “Oil and Gas Activity on Ranch Operations and Rangelands,” Rangelands, 7(1):35-37. Torell, L. Allen and J.M. Fowler, “The Impact of Public Land Grazing Fees on New Mexico Ranch Values,” Journal of the American Society of Farm Managers and Rural Appraisers, Vol. 50, No. 2, October 1986. Fowler, John M., J. Witte, and J. Schickedanz, “Oil and Gas Interactions with the Ranching Industry in New Mexico,” New Mexico State University, Agric. Exp. Sta. Bulletin #715, February 1985, 32p. Fowler, John M. L.A. Torell, J.M. Witte, and R.D. Bowe, “Private Land Grazing Transactions in New Mexico 1983-84, Implications for State Trust Lands Grazing Fees,” New Mexico State University, Agric. Exp. Sta. and Coop. Ext. Service, Range Improvement Task Force Report #18, March 1985, 44p. Torell, L. Allen and J.M. Fowler, “Market Values of Ranchers and Grazing Permits in New Mexico, 1984,” Agric. Exp. Sta. Research Report 570, June 1985, 10p. App. 48 Fowler, John M., B. Peacock, and M. Schaber, “Pinyon- Juniper Woodland Type in New Mexico: Asset or Liability,” New Mexico State University, Agric. Exp. Sta. Bulletin 18, October 1985, 67p. —— = —— 7 App. 49 The Bureau of Land Management, United States Depart- ment of the Interior, New Mexico Standard for Public Rangeland, Health and Guidelines for Livestock Graz- ing Management: Draft Statewide Resources Manage- ment Plan Amendment/Environmental Impact Statement, 1999 + * * ECONOMIC CONDITIONS This section describes the current economic situation of the State of New Mexico. As a part of the entire New Mexico economy; the range livestock sectors are a very minor portion; however, when New Mexico is considered as a group of economics (counties), the number of agri- cultural economies are greater than the number of urban economies. The total level of economic output for New Mexico is approximately $60 billion, including the $18 billion household sector. The impact from changes to the range livestock industry will be negligible to the urban economies, but highly imposing to the rural counties with large acreage of BLM land. * * * Financial, Social and Cultural Conditions Financial Financial Conditions for a Properly Functioning Rangelands: Allen and Hokstra, (1994) state that “ .. . a stable and adequate economic base is a requirement for sus- tainability” (for reaching a properly functioning healthy rangeland condition). As a business, the public land App. 50 rancher looks at the net return on his/her investment, according to resource economist John Nalivka, (1993): The net return to the rancher is the result of combining all of the resources (feed, water, capital, and management) and because it results in an economic return to the rancher, his long term incentive is to enhance the total productivity of these resources and use them more effec- tively. The management of these resources in an environ- ment of risk and uncertainty to produce a marketable product at a competitive cost is the essence of determin- ing the value of the ranch. In other words, the economic condition of the business which is dependent upon scien- tific condition and sustained yield of the renewable graz- ing resource determines the economic value of the ranch. The economic well-being of each ranch subsequently con- tributes to the economic health of the industry and the industry contributes to the economy of the county, state and Western U.S. as a whole. A secure and optimal bal- ance of forage, water, market access, and capital access is the key to the long term viability of any operation more specifically, the public land rancher, whether the major consideration of range livestock operations and their abil- ity to manage risk and maintain economic viability is access to and the ability to utilize a forage base, which is well balanced with regard to availability, quality, and seasonal use. In short, as the range improves in productivity with the help of the rancher, the rancher should re-establish his or her profitability and pay the variable costs. Once the profitability is achieved, the rancher will invest capital to improve the healthy ranges. The improved healthy ranges will provide a more secure environment for family and fadine to App. 51 community stability. With improved security and stabil- ity, the rancher will have greater incentive to further invest in public land improvements. John Fowler states that historically “federal land policies have encouraged development and investment by the grazing permittee. The TGA provided enhanced steward- ship, financially stable communities and livestock indus- try” (Fowler, 1994). The key TGA policy is the Grazing Preference, which was adjudicated to provide security of tenure to encourage investment and commitment on the part of the rancher. In return, TGA states that “Grazing privileges recognized and acknowledged shall be ade- quately safeguarded, but the creation of grazing district or the issuance of a permit pursuant to the provisions of this Act shall not create any right, title, interest, or estate in or to the land”. * * * In 1934, the U.S. Congress enacted the Taylor Grazing Act which provides for grazing leases and permits: ... permits to graze livestock . . . to such bona fide settlers, residents, and other stock own- ers .. . Preference shall be given in the issuance of grazing permits to those within or near a [grazing] district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights. The Taylor Grazing Act goes on to state, PROVIDED FURTHER. That nothing in the Act shall be con- strued or administered in any way to diminish or impair any right to possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the App. 52 public lands or which way [sic] be hereafter initiated or acquired and maintained in accor- dance with such law. So far as consistent with the purposes and provisions of this Act, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pur- suant to the provisions of this Act shall not create any right, title, interest, or estate in or to the lands”. The intent of Congress was to provide stockholders with “... some type of assurance as to where and what kind of range they may have and depend upon in the way of pasturage” (78 Congressional Record). The grazing privi- leges were subsequently adjudicated to determine who was eligible for a grazing preference. The term “grazing preference” represents a preference for a grazing permit. The grazing preference was attached to the base property of the ranch and was transferred to the party who owned or controlled the base property. The completion of the adjudication process provided predictability and security of tenure to livestock operators. This predictability and certainty in grazing permits provides the security to obtain financing for livestock capital, operations and improvements on the public land. The Secretary of the Interior has the authority to regulate the grazing to protect the rangeland. Good range man- agement and proper stewardship of the rangeland is ulti- mately linked to the security and tenure of the adjudicated preference grazing permit/lease, as expressed and demonstrated by a variety of public land research economists (Martin, 1981, Kelso, 1983, Archer, and Snider, 1984). When predictability and certainty are App. 53 removed, not only do the ranch finances and family suf- fer, but the incentive for good stewardship and invest- ment into healthy rangeland improvements is thwarted. The existence of rural families and communities con- tinues to depend foremost on the availability of land for livestock, crops, timber, and other resources. Land is the life and well-being of the rural culture in New Mexico. Working the land is the center piece of their livelihood; supported by multiple sources of supplemental income from wages and jobs in town. The land and water based cultures of New Mexico depend on use of natural resources that are derived from iand and water. Such uses include ranching, farming, mining, and timber harvesting which leads to sustainability of these communities. These customs include long term use, land ethics and steward- ship of the land by individuals and communities. Slowly these communities are changing due to influences outside the community. Televisions, new restrictions on the con- sumptive use of resources on the public lands, computers, immigration, and out-migration are all examples of influ- ences that are modifying the unique character of the communities. In spite of the modifying influences to their communities, many communities do not have a program to maintain custom and culture on a sustainable manner. Customs & Cultures of Counties The counties, Indian tribes and pueblos of New Mexico were asked to define their customs and cultures in their own terms. Their statements have been included in Appendix E. App. 54 The customs and cultures of rural New Mexico are out- growths of the people’s values, beliefs, and ways of life, combined with ali other aspects of living, which weave a complex whole. These customs and cultures are practiced within a relationship between people and place. Place is the site or sites marking the life of a person the story of their life and that of the lives that came before them. All of these attributes are embodied in the struc- tures they call home, the communities they live near or within, and the environment. The customary uses of the lands continue to be for crop- lands, grazing, timber and mining that support rural communities and are [sic] contribute to the overall state’s economy. The commitment to the land they live and work on is so powerful as to evoke words like: “I don’t want to be here [alive], if I can’t live here [this person’s ranch].” It should be clear then that place and identity are virtually inseparable. This is especially true of rural New Mexico where people often cannot, will not, separate themselves from the land they call home (Smith, 1994). Such a sep- aration would destroy the very identity of those people. The customs and cultures that rural New Mexicans prac- tice on their landscape is inclusive of their home and family and the community they consider themselves a part of. It is a bond between people and place that is no less than the bond between flesh and blood; it is wholly dependent upon the fabric of land, people, and commu- nity being intact and stable. The importance of community stability is expressed in the statements of custom and culture form the counties. App. 55 An example of a commonly held feeling on the commu- nity is 1: “will pass along many of the beliefs and values that are cherished by our rural society .. . ” It is within place that the values of a region are cultivated. For the people of rural New Mexico, values are products of their history and their experiences with the land that are essen- tial to the continuation of their way of life. These values include the “meaning of heroism, the relation of the individual to family and community, the nature of patrio- tism, the value of freedom, the challenge of making a home” (Cronon 1992). Concept of Public Land Usage The core values of the people of rural New Mexico form the basis of their concept of their use on the public lands ~ lands that are so crucial to the security and stability of their rural way of live. * * * Range improvements are long term investments in the basic land resource that require years to yield a positive return to amortize the dollars invested. e * * Methodology With the identification of ranches affected by region, as shown in Figure 4-2 and an average budge for each ranch size within each region, impacts to the ranches needed to be identified. This was done with the help of industry representatives and the BLM. The BLM and ranchers cooperatively identified the improvements that were App. 56 most probable for an allotment in each region to achieve the standard. With this information the industry repre- sentatives estimated, as a percentage, the increased variable costs that would be associated with the improve- ments recommended. These percentages were then applied to the average budget for that particular region and ranch size. At this point there were two options applied to the analysis for all three alternatives: 1. That all of the allotments not meeting the standard could be improved without a reduction in AUMs. Ranches would attempt to feed their way out of the forage deficiency and that the allotment would improve. 2. That some of the allotments would require the removal of AUMs for that allotment to improve and meet the standard. For this option all allotments, not meeting the standard, were analyzed with the removal of 20% of the autho- rized AUMs. It should be recognized that both are unlikely and that the real impact would be some point between the two options. After implementing these two options into the analysis, three additional options for the previous 2 options for each alternative, were analyzed for each region, ranch size, and AUM reduction, they were: 1. That the BLM would provide all of the fund- ing for the establishment of the improvements to bring the allotment to standard. 2. That the BLM would provide the funding for the materials and the ranch would provide the labor of constructing the improvement. App. 57 3. That the ranch would provide all of the funding for the establishment of the improve- ments to bring the allotment to standard. These three options were considered because of the lim- ited funding available to the BLM for range improve- ments. Neither of the options are likely; but, some combination of all three is most probable to happen. Another possibility considered in the analysis was that with increased regulation and operating costs to the ranch, some of the ranches would sell the base property for development and no longer use the federal permit. For additional analysis it was assumed that 22%! of the ranches not meeting the standard would convert to real estate rather than shoulder the cost of additional improvements and regulation. These ranches, including the permit/lease, were assumed as permanent losses and no longer maintained in production. Although it is possi- ble that the federal permits/leases may be purchased by another ranch, it was not considered in this analysis due to the insecure tenure of federal permits. When 22% of the impacted ranches not meeting the standard were removed, the same assumptions that applied to the sce- nario that no ranches quit were applied to the remaining 78% of these ranches. 1 Percent of ranches identified in “Economic Characteristics of the Western Livestock Industry” as ranches in New Mexico that would convert to real estate with the loss of federal AUMs. App. 58 Cultural This alternative could have adverse impacts on ranches with public lands not meeting the standard. Most public land ranches in New Mexico are family run businesses. The effect of one person losing his or her connection to the land ripples throughout the communities. The com- munities of the arid southwest are made up of people who share beliefs and values which are, if not embodied by, closely linked to the culture of ranching. As the indi- viduals who ranch their lands because of increased eco- nomic pressures and/or the demand for changing uses, the values of the communities as a whole begin to unravel in the descent toward a less centered, less self- reliant, and more homogenous monoculture. The financial and social impacts could have adverse effects on ranch traditions, heritage, attitudes, beliefs and values. The culture of ranching depends on the interac- tion of the ranchers lives with the land and livestock. Any one of these components taken away dismantles the entire weave. To protect the irreplaceable cultures, the weave of people and land must remain intact in those traditional forms of interaction. Cultural values of self sufficiency, hard work, and other traits, such as commu- nity cohesion, collaboration and leadership associated with agrarian communities, could be altered. As dis- cussed in chapter three, the sense of place with its asso- ciation with a sense of well-being and community stability would be further eroded for some of the ranch- ing communities. App. 59 * * * The Range Reform ‘94 Draft EIS briefly raised the poten- tial effects on rural communities: Generally, small isolated communities are more vulnerable . . . due to weaker links to centers of political and economic influence . . . these smaller communities are more likely to experi- ence unemployment, increased poverty, and social disruption in the face of policy shifts in management policy. When ranchers go out of business, sell base property for housing development, and are not replaced, the loss of social mobility, erosion of the agrarian way of life, and out-migration would lead to reduced family spending and secondary effects on businesses, infrastructure and services (schools, medical care, emergency services, envi- ronmental services, etc.). Cultural This alternative could have adverse impacts on ranches with public lands not meeting the standard. Most public land ranches in New Mexico are family run businesses. The effect of one person losing his or her connection to the land rippl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0283%3A06. Public record. Not legal advice.