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Public Lands Council v. Department of the Interior

ELR Citation: 27 ELR 20040
Nos. No. 95-CV-165-B, 929 F. Supp. 1436/(D. Wyo., 06/12/1996)

The court holds that provisions of the U.S. Department of the Interior's (DOI's) 1995 grazing regulations that replace the concept of grazing preferences with that of permitted uses, assert government title to structural range improvements, include conservation use as an "active use," and confer permit eligibility on applicants not in the livestock business violate the Taylor Grazing Act. The court first holds that the 1995 regulations violate the Act by failing to adequately safeguard adjudicated grazing preferences. The Act establishes grazing preferences that confer an adjudicated right to place livestock on public land. The challenged regulations replace "grazing preferences" with "permitted use" and as a result, a permittee no longer has an adjudicated right to graze a predictable number oflivestock on public lands. The Act's grant of authority to the Secretary of the Interior to do "any and all things necessary" to protect the rangeland is not so broad that it allows the Secretary to violate the Act's specific mandate to adequately safeguard grazing preferences. The Secretary's expressed desire to make grazing regulations similar to Forest Service rules is not a reasoned explanation because the Act does not apply to national forests and the Forest Service has broad discretion to deny or refuse to renew permits.

The court next holds that a regulation dictating that an applicant seeking a new permit not receive it if the applicant or any affiliate of the applicant has had a grazing permit or lease canceled in the preceding 36 months for violating that permit's terms and conditions does not exceed the Secretary's broad rulemaking power. The court next holds that a regulation providing that the United States asserts title to all structural range improvements violates the Act and lacks a reasoned basis. Both the Taylor Grazing Act and the Federal Land Policy Management Act (FLPMA) clearly indicate that Congress intended to grant title to range improvements to those who constructed them. Even if the common law applied, as the DOI desires, improvements would not be considered fixtures because the range improvements usually could be severed from the land without adversely affecting the land. The permittee would thus still hold title to the improvements. Also, the new regulation does not facilitate multiple-use management; such management was already the rule. The court further holds that the inclusion of conservation use as an active use for the purpose of issuing grazing permits exceeds statutory authority and contradicts congressional intent. The Act authorizes the Secretary to issue permits to graze public lands best suited for this purpose, but it does not authorize the Secretary to issue permits allowing permittees to remove public lands from grazing. The court holds that the conservation use permits also violate FLPMA. The court next holds that the DOI had a rational basis for implementing a regulation that limits the authorization of temporary non-use of permits to three years. The court further holds that a regulation conferring permit eligibility on an applicant who merely owns or controls base property capable of being used in the livestock business, although the applicant may not actually be engaged in the business, violates the Act and lacks a reasoned basis. The court also holds that a regulation providing that range improvement work performed by a permittee on public or Bureau of Land Management (BLM) land does not confer an exclusive right to use the improvement or land affected does not reverse an earlier DOI practice.

Turning to constitutional questions, the court holds that a regulation allowing BLM officials to suspend or cancel a grazing permit or lease if the permittee or lessee is convicted of violating certain environmental laws does not violate the Double Jeopardy Clause. The clause does not prohibit different sovereigns from pursuing successive prosecutions based on the same conduct or the imposition of a civil sanction after a criminal conviction if the civil sanction is remedial and rationally related to a legitimate governmental objective. The court further holds that regulations imposing a surcharge on a permittee who allows livestock that neither the permittee nor the permittee's children own to graze on public lands does not violate the Fifth Amendment's Due Process Clause.The court also holds that BLM did not act arbitrarily or capriciously in adopting the Fundamentals of Rangeland Health management standards. The BLM provided public notice of the proposed rule adopting the standards and the opportunity to comment on it. BLM responded to these comments in a final environmental impact statement. Finally, the court holds that BLM adequately prepared the required EIS: it sufficiently addressed areas of scientific controversy, responded to public concerns, and considered the environmental effects of the 1995 regulations.

[Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66415.]

Counsel for Petitioners
Constance E. Brooks
C.E. Brooks & Associates
1776 Lincoln St., Ste. 1010, Denver CO 80203
(303) 863-0836

Counsel for Respondents
John W. Watts
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000