Federal Grazing Regulations: Public Lands Council v. Babbitt

CRS Report for Congress
Federal Grazing Regulations:
Public Lands Council v. Babbitt
Pamela Baldwin
Legislative Attorney
American Law Division
New regulations on livestock grazing on lands managed by the Bureau of Land
Management became effective August 21, 1995. Many aspects of the new regulations
were challenged in Public Lands Council v. Babbitt, 529 U.S. 728 (2000). A federal
district court upheld many of the regulations, but struck down four of them and enjoined
their implementation. At the appellate level, only the new regulation allowing
“conservation use” of a grazing allotment to the exclusion of livestock grazing for the
full term of a permit was held invalid. In a unanimous opinion, the Supreme Court on
May 15, 2000, upheld the remaining regulations. This report will not be updated.
New regulations on livestock grazing on lands managed by the Bureau of Land
Management in the Department of the Interior1 became effective August 21, 1995.2 The
regulations were controversial in several respects. Supporters contended that the new
rules were a step forward toward sound resource and rangeland management, but that they
should have provided more protection. Many others opposed the new rules, believing
they reduced the scope and security of grazing rights and would result in increased
operating costs and ultimately reduce private livestock activity on federal lands. The new
regulations and litigation raised fundamental issues as to the proper interpretation of the
relevant statutes.

1 For background on federal livestock grazing see Archived CRS Issue Brief IB96006, Grazing
Fees and Rangeland Management, available from the authors, Pamela Baldwin and Betsy Cody.
2 60 Fed. Reg. 9894 (February 22, 1995).
Congressional Research Service ˜ The Library of Congress

District Court and Appellate Decisions
Many aspects of the new regulations were challenged in Public Lands Council v.
Babbitt, a case known as the “Brimmer decision” for Judge Brimmer who decided it.3
The case was a challenge to the regulations on their face, as opposed to as applied in a
particular instance, a procedural posture that imposed the burden on plaintiffs to show that
there were no circumstances in which the regulations would be valid. On June 12, 1996,
the federal district court upheld the new regulations relating to permittee and lessee
affiliates, 3-year temporary non-use, and non-exclusive use of water-related range
improvements, but struck down several others. The district court upheld the
constitutionality of the regulations in two respects, finding that: 1) the regulation on
suspension or cancellation of a grazing permit or lease if a permittee or lessee is convicted
of violating certain environmental laws does not violate the double jeopardy clause of the
Constitution; and 2) the regulation imposing a surcharge on a permittee if the permittee
allows livestock not owned by him or his children to graze on public lands does not
violate due process. The district court also upheld the government’s processing of
comments on, and its adoption of, the rangeland management standards called
“Fundamentals of Rangeland Health,” and determined that the Final Environmental
Impact Statement that accompanied the final regulations was adequate.
The district court struck down the new BLM regulations that: 1) separated “grazing
preference” (a priority to receive a permit) from “permitted use”(Animal Unit Months
(AUMs) allowed on an allotment); 2) required the titling of permanent structural range
improvements in the name of the United States; 3) eliminated the requirement that a
permittee be engaged in the livestock business; and 4) allowed “conservation use” that
excludes livestock grazing for the full term of a grazing permit.
The district court affirmed in part the Secretary’s decision to implement the 1995
regulations and reversed in part, enjoining the Secretary from enforcing the regulations
the court set aside.
The 10th Circuit Court of Appeals reviewed the district court’s decision de novo.4
Because the case was a facial challenge to the regulations, the court could not set aside
any agency action unless it was arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law, or was in excess of statutory jurisdiction, authority, or
limitations, or short of a statutory right.5 Using this standard, the Tenth Circuit upheld all
of the regulations, except the one allowing conservation use. The United States did not
appeal that part of the ruling; the Public Lands Council again appealed the other aspects.

3 929 F. Supp. 1436 (D. Wyo. 1996).
4 Public Lands Council v. Babbitt, 154 F. 3d 1160 (10th Cir. 1998); amended, on reh’g, 167 F. 3d

1287, (10th Cir. 1999); aff’d 529 U.S. 728 (2000).

5 167 F. 3d at 1293, citations omitted.

Supreme Court Decision6
Grazing preference. The most fundamental issues related to the redefinition in
the new regulations of “grazing preference.” The regulations separated the concepts of
1) priority of preference and 2) amount of permitted grazing use. The district court had
found that the Secretary’s action in changing the regulations failed to “adequately
safeguard adjudicated grazing preferences” and that the 1995 regulations lacked a
reasoned basis in this regard. The appellate court reversed, and the Supreme Court
affirmed the appellate court.
The Supreme Court reviewed the history of the use of the federal rangelands and the7
purposes, intent, and language of the Taylor Grazing Act (TGA) and subsequent
enactments. The enactment of the TGA in 1934 was a turning point for the federal
rangelands, which went from being grazed as commons areas to a system of allotments
grazed by particular permittees. The Court noted that the TGA was enacted in response
to the deterioration of the rangelands and the goals of the Act were to “stop injury” to the
lands, “to provide for their use, improvement and development,” and “to stabilize the8
livestock industry dependent on the public range.” After enactment of the TGA, the
Department prioritized the many applications for grazing authorizations based on9
statutory and other factors related to base property, giving highest priority to applicants
who both had base property and had grazed the public range during the five years before
the enactment of the TGA. The carrying capacity for areas of the federal rangelands was
established and allocated among the top priority applicants. The two concepts of priority
of preference and amount of allocated permitted use became known as the “grazing
preference” afforded individual ranchers. The pre-1995 regulations defined the term
“grazing preference” to mean the total number of animal unit months (AUMs) of
livestock grazing on the federal lands allocated to qualifying base property owned or10
controlled by the permittee or lessee. This number of AUMs could include “active use”
— the total number of animals authorized to graze — and “suspended use” — which were11

potential AUMs not currently being grazed.
6 Public Lands Council v. Babbitt, 529 U.S. 728 (2000).
7 Act of June 28, 1934, ch. 865, 48 Stat. 1269, codified at 43 U.S.C. §§ 315 et seq. The TGA also
authorizes grazing under leases on some lands, but to simplify matters, this report will speak only
of permits.
8 48 Stat 1269, quoted by the Court at 733.
9 Base property is land or water owned or controlled by an applicant that can serve as a base for
a livestock operation that uses public lands.
10 43 C.F.R. § 4100.0-5 (1994).
11 See, 43 C.F.R. §§ 4110.2-1 through 2-3 (1994). 43 C.F.R. § 4110.2-2 stated that grazing
preference shall be specified in all grazing permits or grazing leases and include both active use
and suspended use. Active use was to be based on the amount of forage available as established
in the land use plan. The grazing preference was attached to the base property supporting the
grazing permit.

The new regulations define “grazing preference” as the priority position vis a vis
others for the purpose of receiving a grazing permit or lease.12 The authorized number of
AUMs is now provided by the term “permitted use,” which is defined as the forage
[expressed in AUMs] allocated by, or under the guidance of, an applicable land use plan
for livestock grazing in an allotment under a permit or lease.13 As before, permitted use
could encompass active and suspended use, is specified in permits, is attached to base
property, and is basically transferable with the base property. As before, an existing
permittee is given first priority for a new permit upon acceptance of any new terms and
Plaintiffs saw the changes as significant, claiming that the security of their “historical
adjudicated” preferences in terms of numbers of AUMs was lost. Although the granting
of grazing privileges was discretionary, the TGA directed that privileges be “adequately
safeguarded.” The district court found that the new regulations on permitted use
eliminated a “right” of permittees to graze predictable numbers of stock from permit to
permit, and that by eliminating this right, the Secretary necessarily failed to “adequately
safeguard” grazing rights.15 The dissent at the appellate level agreed, emphasizing that,
in practice, the original adjudicated amounts were essentially renewed from permit to
permit and gave more stability to the ranchers than is true under the new regulations, and
that this change would destabilize the livestock industry, a result contrary to a purpose of
the TGA.
However, the majority at the appellate level, and the Supreme Court held to the
contrary. The Supreme Court noted that under the TGA, grazing was to be allowed only
to the extent consistent with the purposes of the TGA, and that grazing regulations had
consistently provided since 1937 that permits could be modified or cancelled.16 In
addition, the Court noted that Congress had enacted several statutes since the TGA,

12 43 C.F.R. § 4100.0-5 (1996).
13 Id.
14 43 C.F. R. § 4130.2(e)(3).
15 43 U.S.C. § 315b requires that: “So far as consistent with the purposes and provisions of this
subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded,
but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this
subchapter shall not create any right, title, interest, or estate in or to the lands.” Although not
quoted by the court, the 1938 regulations discuss the elements of preference in the sense of
priority among applicants, the rating and classification of base property, and also address the
rating and classification of the available federal range. 43 C.F.R. § 501.5(a) (1939) states:
“Carrying capacity; seasons and maximum annual period of use. For the purpose of determining
what use of the Federal range will be most consistent with conservation purposes, the carrying
capacity of each administrative unit or area in a grazing district will be rated, and each will be
classified for the proper season or seasons, if necessary, of its use and for the maximum period
of time for which any licensee or permittee will be allowed to use the Federal range lying therein
during any 1 year.” (Emphasis added.) This carrying capacity then was allocated among the top
priority applicants, as far as was available.
16 Slip opinion at 6-7.

notably the Federal Land Policy and Management Act of 1976 (FLPMA),17 which left the
TGA in effect but also expanded the other recognized uses of the public lands, provided
for land use planning, and provided new management authorities and duties to further
protect the lands.
More specifically, the new regulation refers to forage allocated under the guidance
of an “applicable land use plan.” Ranchers were concerned that this language reduced the
security of their privileges because such plans were easily changed. The Court found the
ranchers’ position unpersuasive for three reasons. First, the TGA qualifies the duty of the
Secretary to safeguard grazing privileges by requiring that duty to be exercised consistent
with the goals of the Act. Therefore, the ranchers’ interest in permit stability cannot be
absolute and the Secretary may reasonably determine how and the extent to which,
grazing privileges shall be safeguarded. Furthermore, Congress itself directed the
development of land use plans and their use in the allocation process in order to preserve,
improve, and develop the public rangelands.18
Second, the pre-1995 system did not offer ranchers anything like absolute security
because the Secretary had long had the discretion to cancel or modify permits or to
remove lands from grazing in accordance with land use plans, and to direct the use of the
lands for purposes other than grazing. Lastly, the new regulations do not automatically
bring about a self-executing change that would significantly diminish the security of
granted grazing privileges. Although the new definitions seem to tie grazing more
explicitly to land-use plans, the Secretary has had that authority since 1976, yet, the Court
noted, not a “single example” was provided in which interaction of a plan and a grazing
permit jeopardized security. Also, the Court noted, affected permit holders remain free
to challenge effects on particular grazing privileges as the regulations are applied. Justice
O’Connor, in a concurring opinion joined in by J. Thomas, reiterated this point.
Requiring permittees to be engaged in the livestock business. The
district court had found that a new regulation19 eliminating the requirement that a
permittee be engaged in the livestock business lacked a reasoned basis, violated the
Taylor Grazing Act, and frustrated its purposes. The appellate court disagreed,
concluding that even non-livestock owners could qualify for permits. However, the
language of 43 U.S.C. § 315b mentions settlers, residents and “other” stock owners in
authorizing the Secretary to:
issue or cause to be issued permits to graze livestock on such grazing districts to such
bona fide settlers, residents, and other stock owners as under his rules and regulations
are entitled to participate in the use of the range .... Preference shall be given in the
issuance of grazing permits to those within or near a district who are landowners
engaged in the livestock business, bona fide occupants or settlers, or owners of water
or water rights, as may be necessary to permit the proper use of lands, water or water
rights owned, occupied, or leased by them ....

17 Pub. L. No. 94-579, 90 Stat. 2744.
18 43 U.S.C. §§ 1701(a)(2), 1712.
19 43 C.F.R. § 4110.1 (1994).

The Supreme Court upheld the new regulation since in the Court’s view the
regulation merely failed to repeat statutory language that nonetheless pertains. The Court
noted that the statutory language limits the Secretary’s authority to issue permits to “bona
fide settlers, residents, and other stock owners,”20 with persons in the livestock business
continuing to enjoy a preference in the issuance of grazing permits. Therefore, even if
some “stock owners” who might own only a few head of stock might apply for a permit,
applicants who are in the livestock business would have a preferred status. The Court
also noted that the regulations prohibit failure to make substantial grazing use as
authorized for 2 consecutive fee years, with cancellation of the permit as a possible
remedy.21 Under other regulations, even if temporary nonuse is approved for one
permittee, the Secretary may allocate the forage to the use of another permittee.
Therefore, the Court concluded that the new regulations do not undermine the TGA’s
requirement that permits be “to graze livestock.”22
Titling of permanent range improvements. The last challenge was to the new
regulations that require that title to all new permanent range improvements developed
under a cooperative agreement be in the name of the United States, a change from
previous regulations. The ranchers argued that this change violated TGA language in 43
U.S.C. § 315c that provides for compensation of a permittee for improvements “owned”
by the permittee when a new occupant grazes an allotment. The Secretary argued that
because the TGA gives him the power to authorize improvement, he also has the lesser
power to set the terms of ownership and the statutory language refers to payment of
compensation if ownership is allowed. The Court held that nothing in the statute
prevented the Secretary from setting the terms of title to range improvements, and that
nothing in the statute or regulations prevents a permittee from negotiating compensation
for work done on improvements, either from the Government or from subsequent23

20 The Court emphasized this phrase at 745.
21 43 C.F.R. § 4110.1 (1994).
22 529 U.S. at 747-748.
23 529 U.S. at 750.