Amicus Curiae Brief — Public Lands Council v. Babbitt

Supreme Court, U.S.

DEC 3 ") DB - FILED

4 NEL 5 - 1999

0. 98-1991

en | OFFICE OF THE CLERK

In The

Supreme Court of the United States

PUBLIC LANDS COUNCIL, et al.,

Petitioners,

BRUCE BABBITT, SECRETARY OF THE INTERIOR, et al.,

Respondents.

«

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

S

BRIEF OF AMICUS CURIAE

STATE OF WYOMING

IN SUPPORT OF PETITIONERS

¢

Gay WoopHouse

Wyoming Attorney General

THomas J. Davipson*

Deputy Attorney General

THeopore C. Preston

Assistant Attorney General

123 Capitol Building

Cheyenne, WY 82002

(307) 777-6946

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

onanes INTERESTS OF THE STATE OF WYOMING

3 SUMMARY OF ARGUMENT

I. THE 1995 RULES ARE A REVERSAL OF THE

HISTORIC TREATMENT OF THE GRAZING

PRIVILEGES PROTECTED BY THE TAYLOR

ee ree Lae A. Events leading to the passage of the Tay-

f | ; B. Historical treatment of the “Grazing Pref-

erence” under the Act

re ee a | . . THE TENTH CIRCUIT IMPROPERLY APPLIED

le Seeglioe tig 3 2 THE CHEVRON DEFERENCE STANDARD IN

bia ar ee UPHOLDING THE 1995 RULES’ EVISCERA-

Calas oe ee TION OF THE GRAZING PREFERENCE

fet ha cs | | . THE FEDERAL LAND POLICY AND MANAGE-

| TIONS MADE UNDER THE TAYLOR GRAZING

8

TABLE OF AUTHORITIES

Page

CASES

Amoco Production Co. v. Southern Ute Tribe, 526 U.S.

- Bt.) EEE EET eee 11, 12

Burke v. Southern Pac. R.R. Co, 234 U.S. 669 (1914) .... 11

Chevron U.S.A., Inc. v. Natural Resources Defense

Counsel, 467 US. G57 (IGBG. « osccaviccasans 10, 11, 12

Faulkner v. Watt, 661 F.2d 809 (9th Cir. 1981)......... 7

Leo Sheep Co. v. United States, 440 U.S. 668 (1979).... 11

McLean v. BLM, 133 IBLA 225 (1995)................ 14

Oman v. United States, 179 F.2d 738 (10th Cir. 1949) .... 13

Perrin v. United States, 444 U.S. 37 (1979)............ 11

Red Canyon Sheep Co. v. Ickes, 98 F.2d 308 (D.C. Cir.

|) MI 8

STATUTES AND RULES

Federal Land Policy and Management Act of 1976

(43 USC. § 1701 ot O88,)...coccescccceeneus 5, 13, 14

43 US.C. § 1712. .....sscseccuseuseehaneeeeeeee 13, 14

43 U.S.C. § 1782......veecccceseuneeenee henner 14

Taylor Grazing Act of 1934 (43 U.S.C. § 315

Ot BOG.) cccccccncccnsvesccesseseestenesenuen passim

43 U.S.C. § SESD. ...cesccsccccssuuusseeennnnenee 13

MIsceELLANEOUS

139 Cong. Rec. $15594-02 (1993) (statement by

Senator Matfield) .. ..:scccesebeueetsceaneneeae 12

TABLE OF AUTHORITIES — Continued

Page

Hearings on H.R. 6462 Before the Committee on Pub-

lic Lands and Surveys of the United States Senate,

73rd Cong., 2nd Sess. 10 (1934) (statement of

Harold Ickes, Secretary of the Interior)............ 10

Phillip O. Foss, Politics and Grass, The Administra-

tion of Grazing on the Public Domain, ch. 3 (1960) ...7, 9

T.A. Larson, History of Wyoming, Chs. 12 and 14

TE Cites dre esat anes beéseceeeseccecoes 3

—

INTERESTS OF THE STATE OF WYOMING

As an incentive to join the Union, Wyoming was

promised by the federal government, among other things,

specified sections in each township within the state to

provide for the support of schools. Many of those school

lands in Wyoming are directly affected by management

decisions on adjacent federal lands. Among its school

parcels, Wyoming has approximately one and one-half

million acres wholly contained within or immediately

adjoining Department of Interior, Bureau of Land Man-

agement (BLM) grazing districts. Because Wyoming's

schools are dependent on the income from the state-

managed school lands and because those school lands are

often managed together with the federal lands within a

grazing district, Wyoming has a unique interest in the

management of the adjacent or surrounding federal

lands.

Over the years since statehood, the western states,

their private landowner constituents and the federal gov-

ernment have developed mutually beneficial land man-

agement relationships. Key to those relationships is the

operation of practically-defined grazing districts which

provide for management of large areas of the lands as a

whole. Due to the mosaic ownership of grazing lands in

the arid west and the resultant inefficiency of manage-

ment of each parcel as a separate unit, custom, practice

and ultimately the law, developed to accommodate the

practical solution of grazing units which extended

beyond ownership boundaries. Many of Wyoming’s

school lands have historically been contained and man-

aged within such units in order to maximize their sus-

tained productivity. As a result, Wyoming has very real

and distinct interests in the revised federal land manage-

ment scheme advanced by Interior's new grazing rules

which could impact its schools by reducing the value of

the state school land leases. Wyoming also has a keen

interest in preserving the certainty its citizens have

enjoyed in the administration of federal and state grazing

leases since the enactment of the Taylor Grazing Act and

in protecting the stability of its local economies against

the impacts that would be felt if historic grazing practices

are changed.

At issue in this appeal are three provisions of the

new grazing rules adopted by the Department of Interior

in 1995 (the 1995 Rules) as part of Interior Secretary

Babbitt’s “rangeland reform” movement. Those provi-

sions are: the redefinition of the “grazing preference” to

exclude the permitted level of grazing use; the removal of

the previous requirement that a grazing permit holder be

engaged in the livestock business; and the new provision

that title to all range improvements must be solely in the

federal government. Wyoming supports petitioners’

appeal as it relates to all three of these provisions. How-

ever, this brief will focus on the issue of the grazing

preference as that provision has the greatest potential to

affect the value of Wyoming's school lands, and the secu-

rity of its citizens’ property interests, water rights and

grazing leases.

e

SUMMARY OF ARGUMENT

Although not often accurate in their rendition of the

facts, Hollywood tales of life in the arid western states

are not without some basis in history. Competition for the

“free range” of the west, those federal lands which had

not been acquired under any of the land entry acts (some-

times referred to as “homestead acts”), often led to strug-

gles between its users, and sometimes even led to their

premature demise. Thus, the famous range wars ensued,

where those grazing cattle were pitted against those

herding sheep; and each of them pitted against their own.

Accusations were rampant over improper fencing of fed-

eral lands, overgrazing, wholesale livestock slaughters

and other rangeland ills.

During these hard times, there was much discussion

in rangeland states over methods of controlling these

conflicts and restoring stability to the local environment.

Our then grazing-based economies had seen upswings

and downturns. But it was apparent to many that without

some control over the vast expanse of unregulated federal

lands no stability would result. Many proposals for gain-

ing control of those lands were introduced to protect the

range and provide certainty for stockmen and the econ-

omies built in reliance on the grazing. Those proposals

included enacting legislation mandating that the federal

government cede those lands to the arid western states,

increasing the homestead allotments to a size more con-

ducive to rangeland livestock operations, and some sort

of controlled leasing arrangements between the grazers

and the federal government.’

' For one interesting description of these and many other

historic events of the times, see T.A. Larson, History of Wyoming,

Chs. 12 and 14 (2d ed. 1978).

Ultimately, the latter of these approaches was

adopted. Named after the Colorado congressman who

sponsored the legislation, the Taylor Grazing Act was

adopted in 1934. The Taylor Grazing Act requires that

“|s]o far as is consistent with the purposes and provisions

of this subchapter, grazing privileges recognized and

acknowledged shall be adequately safeguarde@” After

passage of the Act, the Secretary undertook to adjudicate

the components of those recognized and acknowledged

privileges, including the amount of forage allotted to

each permittee. The result of those adjudications was to

define the federal grazing privileges commensurate with

particular private holdings of land and water rights. A

permittee’s private property interests, which often

included state school land leases, were recognized as the

permittee’s commensurable holdings, upon which those

adjudicated amounts of forage were based. The adjudica-

tions determined a permittee’s eligibility for a grazing

permit, identified the commensurable holdings to which

the grazing privileges would attach, and identified the

maximum amount of forage that a permittee’s livestock

could graze on the public lands. This set of privileges was

known collectively as the “grazing preference.” The term

encompasses much more than a simple preference for

renewal of the permit. However, Secretary Babbitt’s 1995

Rule changes eviscerated the “grazing preference,” leav-

ing no more than an empty preference for permit renewal

in its place.

Because the Secretary's 1995 Rules regarding changes

to the definitions of the terms “grazing preference” and

“permitted use” eliminate recognition of the levels of

grazing use adjudicated after the passage of the Taylor

ee eee OO eee «

Grazing Act, they fail to protect recognized and acknowl-

edged grazing privileges, as required by the Act. Wyo-

ming believes that the federal district court’s order was

consistent with a reasonable, practical interpretation of

both the Taylor Grazing Act and the Federal Land Policy

and Management Act (FLPMA). The Tenth Circuit's deci-

sion was not.

S

ARGUMENT

I. THE 1995 RULES ARE A REVERSAL OF THE HIS-

TORIC TREATMENT OF THE GRAZING PRIVI-

LEGES PROTECTED BY THE TAYLOR GRAZING

ACT

In order to understand the extent of the grazing

privileges recognized and protected by the Taylor Graz-

ing Act, familiarity with the history of public land live-

stock grazing in the arid west is critical. Judge Brimmer’s

opinion in the district court and Judge Tacha’s dissent in

the Tenth Circuit demonstrate that an understanding of

the history of the Taylor Grazing Act at the time of its

enactment, and of the way it has been implemented,

direct that the Tenth Circuit decision be reversed.

A. Events leading to the passage of the Taylor

Grazing Act

Prior to the passage of the Taylor Grazing Act, the

lands that the Act organized into grazing districts had

been largely open and unfenced tracts and had been in

use for many years by a collection of both large and small

livestock operators. Most of this land had been open to

homestead entry under the numerous land entry laws

which encouraged settlers to move west and take up

farming on small tracts. Because this land was so arid as

to be unsuitable for farming, little of it was settled under

those homestead acts. West of the 100th meridian, tracts

which had access to water for primitive irrigation were

homesteaded. Most of the remaining lands were unsuit-

able for cultivation.

The land which remained unappropriated was

treated as open range, available to any stockman who

could get livestock to the land and provide water for

them. No authority limited the amount of forage the

stock could graze or the seasons of use. The available

forage was consumed by those animals who reached the

land earliest in the year. The result was the classic “trag-

edy of the commons” predicted by economists when use

of a resource is unregulated. Each stockman and home-

steader had an incentive to place as many animals on this

land as he could, since any benefits to the range derived

from his stewardship would only be appropriated by

someone else.

This situation led many stockmen to seek some con-

trols over grazing on the open range. Although such

proposals were originally made before the turn of the

century, it took more than thirty years to get a grazing bill

through Congress. The delay resulted in part from the

reluctance of many congressmen to give up their dreams

of settling the west through the various land entry acts,

and in part from the difficulties involved in crafting a bill

that would satisfy enough of the various interests

=.” —

hae

involved to receive a passing vote.? Ultimately, it took the

drought of the 1930’s, the Dust Bowl Era, and the resul-

tant accusations of overgrazing and mismanagement of

federal grazing lands to provide Congress adequate

incentive to address the problems. Finally, in 1934, Con-

gressman Taylor was successful in getting a grazing bill

passed which gave the Secretary of the Interior respon-

sibility over the vast expanse of federal range lands.

Contrary to the implications in the Brief for the Respon-

dents in Opposition to certiorari, the legislation was not

introduced by a movement from within Congress for the

sole purpose of preserving the vast federal lands from

overgrazing. The Act was initiated by congressmen from

the affected western states for two purposes: to protect

those western lands from overgrazing in order to ensure

continued grazing in the future; and, no less importantly,

to provide certainty to the livestock industry and stability

to citizens of the communities that relied on those indus-

tries.

B. Historical treatment of the “Grazing Preference”

under the Act.

The history of the Taylor Grazing Act and the case

law developed under it demonstrate that the underlying

objectives of the Act were to stabilize the livestock indus-

try and to protect the rights of livestock growers from

interference. Faulkner v. Watt, 661 F.2d 809, 812 (9th Cir.

2 For a discussion of the competing proposals and the

political climate leading to passage of the Taylor Grazing Act,

see generally Phillip O. Foss, Politics and Grass, The Administration

of Grazing on the Public Domain, ch. 3 (1960).

1981), see also Red Canyon Sheep Co. v. Ickes, 98 F.2d 308,

314 (D.C. Cir. 1938) (reasoning that the purpose of the Act

was to provide for the most beneficial use possible of

public range in the interest of grazers and the public at

large, to define grazing rights and to protect those rights

by regulation against interference). More than a bare

preference for renewal of a permit, the “grazing prefer-

ence” was the vehicle by which a permittee’s grazing

privileges were defined and protected. Long before the

1995 Rules were proposed, historian Phillip Foss

described the purposes of the Act and the derivation of

the “grazing preference” in his 1960 study of the adminis-

tration of grazing on the public domain:

lands, water or water rights owned, occupied, or

leased by them.” This clause restricted grazing

rights to landowners or owners of water or

water rights; the propertyless nomad was elimi-

nated 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 com-

plement his private holdings. . . . The director,

after meetings with the stockmen, decided upon

an additional system of preferences based on

customary past use of the federal lands. This

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 on the public

range.” To carry out these purposes it was first

necessary to determine the grazing capacity of

the district — that is, the maximum number of

livestock that could be grazed without injury to

the range. After this figure had been decided

upon, it was necessary to work out a system to

allocate this grazing capacity to the various

claimants according to some orderly and consis-

tent criterion — to stabilize the use of 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

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 justifica-

tion for this concept in the language of the stat-

ute which stated “grazing privileges recognized

and acknowledged shall be adequately safe-

guarded.”

Phillip O. Foss, Politics and Grass, supra at 61-63. Clearly,

the director of the Grazing Service at the time of its

enactment interpreted the Taylor Grazing Act to require

that potential permittees’ prior use of the public land for

grazing be adequately protected in adjudicating their

grazing rights under the Act. The resultant adjudications

established the maximum levels of grazing use to which

the permittee would be entitled.

The Secretary of the Interior also recognized both the

prior privileges of stockmen grazing on the public lands

and the Taylor Grazing Act’s directive to safeguard those

claims. During the Senate hearings on the Act, Interior

Secretary Ickes recognized these same claims, stating:

10

“We have no intention to . . . drive stockmen off their

ranges or deprive them of rights to which they are enti-

tled either under state laws or by customary usage.” To

Provide for the Orderly Use, Improvement, and Development

of the Public Range: Hearings on H.R. 6462 Before the Com-

mittee on Public Lands and Surveys of the United States

Senate, 73rd Cong., 2nd Sess. 10 (1934) (statement of

Harold Ickes, Secretary of the Interior). Since the admin-

istrator charged with adjudicating grazing rights read the

Act to require that he safeguard the past grazing use of a

permittee, surely once they have been adjudicated those

rights are no less “recognized and acknowledged.” They

are entitled to the same protection under the Act.

Because the Secretary’s 1995 “permitted use” rule

eliminates the adjudicated maximum forage levels which

were recognized and acknowledged under the Taylor

Grazing Act through the adjudications, the adoption of

that rule exceeds the Secretary’s statutory authority.

Il. THE TENTH CIRCUIT IMPROPERLY APPLIED

THE CHEVRON DEFERENCE STANDARD IN

UPHOLDING THE 1995 RULES’ EVISCERATION

OF THE GRAZING PREFERENCE.

The two member majority on the Tenth Circuit

applied the Chevron? deference test to hold that the

agency’s interpretation of the Taylor Grazing Act should

be accorded deference and, therefore reversed the district

court and upheld the 1995 Rules. The court’s reliance on

3 Chevron U.S.A., Inc. v. Natural Resources Defense Counsel,

467 U.S. 837 (1984).

11

Chevron, however, is misplaced. Without even finding

ambiguity in the Taylor Grazing Act, the court applied

the Chevron standard to the Secretary’s current-day inter-

pretation of his authority under the Act. Given the plain

language of the Act, requiring the Secretary’s protection

of grazing privileges and the contemporaneous under-

standing of the terms of that Act, described above, resort

to a Chevron analysis was inappropriate. This is a practi-

cal statute, subject to practical construction based upon

what the words of the statute meant in their ordinary and

popular sense at the time it was enacted. See Burke v.

Southern Pac. R.R. Co., 234 U.S. 669, 679 (1914). Unlike the

Clean Air Act Amendments involved in Chevron, the Tay-

lor Grazing Act is not “lengthy, detailed, technical [or]

complex,” Chevron at 848, nor does its comprehension

depend upon “more than ordinary knowledge respecting

the matters subjected to agency regulations.”Jd. at 844.

Regardless of how laudable the Secretary may

believe his goals to be in 1999, in interpreting congres-

sional intent, the words used in the statute “ ‘will be

interpreted as taking their ordinary, contemporary, com-

mon meaning’ at the time Congress enacted the statutes.”

Amoco Production Co. v. Southern Ute Tribe, 526 U.S. 865

(1999), quoting from Perrin v. United States, 444 U.S. 37, 42

(1979). Such interpretation must control over one devel-

oped later based on changed scientific understandings or

societal values. See Amoco, 526 U.S. 865; Leo Sheep Co. v.

United States, 440 U.S. 668 (1979). The Secretary’s failure

to recognize the adjudicated grazing levels as privileges

subject to continued protection under the Act violates

clear congressional intent and requires that the 1995

12

Rules regarding the new category of “permitted use” be

set aside.

There can be no doubt that the intention of the Taylor

Grazing Act at enactment was to control grazing on fed-

eral lands and to provide the livestock industry stability

through the establishment of the grazing preference. The

Secretary's evisceration of that preference “with a mere

stroke of his pen” (District Court Order, Pet. App. at 79a),

is a blatant violation of the mandates of that Act, espe-

cially in light of his previous failed attempt to get similar

changes to the historic grazing laws passed through Con-

gress by stealth. See generally 139 Cong. Rec. $15594-02

(1993) (statement by Senator Hatfield discussing the

impropriety of the attempt by Senator Reid and Secretary

Babbitt to enact substantive changes to grazing laws in a

rider on an appropriations bill without review, consulta-

tion or hearings). It is no coincidence that the Reid/

Babbitt “compromise” was not enacted: neither that bill

nor the 1995 Rules are a reflection of congressional intent.

There is no ambiguity in the requirements of the

Taylor Grazing Act, as understood in 1934. Rather, any

claim of ambiguity has only arisen due to the Secretary’s

interpretation of his authority to meet perceived 1995

societal values. That being the case, there is no reason to

resort to canons of construction, such as the Chevron

deference principle, because no ambiguity exists. See

Amoco, 526 U.S. 865. The Court should not accord the

Secretary Chevron-type deference in any event where, as

here, over 60 years of Interior’s actions, both contempora-

neous to the Act and in all the years subsequent, demon-

strate the understanding that the Taylor Grazing Act

requires the recognition and protection of all aspects of

13

grazing preferences. 43 U.S.C. § 315b; Cf. Oman v. United

States, 179 F.2d 738, 742 (10th Cir. 1949). No canon per-

mits Secretary Babbitt to demand deference to his current

interpretation in place of that of all his predecessors since

passage of the Act. The Secretary’s elimination of the

substance of the statutory grazing preference is contrary

to the Taylor Grazing Act on its face and is thus an

unlawful exercise of the Secretary's regulatory authority.

Ill. THE FEDERAL LAND POLICY AND MANAGE-

MENT ACT DID NOT NULLIFY THE ADJUDICA-

TIONS MADE UNDER THE TAYLOR GRAZING

ACT.

Both the Tenth Circuit majority and the Respondents

suggest that the multiple use provisions of the Federal

Land Policy and Management Act (FLPMA), in effect,

nullified the Taylor Grazing Act’s grazing adjudications.

However, since nothing in FLPMA supports that inter-

pretation, they again resort to principles of deference to

the Secretary's interpretation. As discussed above, such

interpretative deference only arises if the statute is

ambiguous. Here, FLPMA is not ambiguous; indeed it

contains no language which can legitimately be inter-

preted as nullifying those adjudications. Once again, the

Interior Department's practices and interpretations, con-

temporaneous with the passage of FLPMA in 1976 and in

the following 19 years, belie Secretary Babbitt’s 1995

assertion that FLPMA nullified such adjudications.

It has been contended that FLPMA contains two pro-

visions which may support the Secretary's interpretation

of his statutory authority to promulgate the 1995 Rules.

The first, 43 U.S.C. § 1712, provides: “Land use plans

14

shall be developed for the public lands regardless of

whether such lands previously have been classified, with-

drawn, set aside, or otherwise designated for one or more

uses.” The second, 43 U.S.C. § 1752, addressing grazing

permits issued under the Taylor Grazing Act, provides

that permits shall be issued for a period of ten years and

will be subject to conditions imposed by the Secretary,

including his ability to cancel, suspend or modify the

permit pursuant to those conditions. Neither provision

can legitimately be read to eliminate the grazing prefer-

ence or to otherwise alter the protections afforded the

livestock industry under the Taylor Grazing Act.

Section 1712 merely articulates congressional intent

to include all the public lands under appropriate land use

planning. However, it no more nullifies grazing adjudica-

tions than it restores withdrawn wilderness areas to

acquisition under the land entry laws. Instead, § 1712's

obvious purpose is to insure that the Secretary consider

the grazing, wilderness or other characteristics of such

lands in the development and implementation of his land

use plans. Section 1752, on the other hand, merely

rewords the provisions of the Taylor Grazing Act that

require adherence to conditions imposed on permittees

by the Secretary. Nothing in either section even alludes to

the cancellation of previously adjudicated preferences. As

pointed out in Judge Tacha’s dissent, when new regula-

tions were adopted in 1978 revising the grazing prefer-

ence system, those regulations continued to recognize

pre-1978 grazing adjudications. (Pet. App. at 59a) (citing

McLeen ¢. BLM, 133 IBLA 225 (1995)). In sum, nothing in

FLPMA authorized the Secretary to adopt regulations

contrary to the language and intent of the Taylor Grazing

15

Act and his statutory authority. Nothing in FLPMA justi-

fies his otherw’ se unlawful action.

°

CONCLUSION

The district court was correct in setting the unlawful

provisions of the 1995 Rules aside. In adopting the 1995

Rules, the Secretary acted outside of his authority and

contrary to law. As a result, the Tenth Circuit’s decision

regarding the issues on appeal should be reversed and

the district court’s order reinstated.

Respectfully submitted,

Gay WoopHouse

Wyoming Attorney General

THomas J. Davipson*

Deputy Attorney General

THEoporE C. PRESTON

Assistant Attorney General

123 Capitol Building

Cheyenne, WY 82002

(307) 777-6946

*Counsel of Record