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Public Lands Council v. Babbitt

ELR Citation: 29 ELR 20116
Nos. 96-8083, 154 F.3d 1160/(10th Cir., 09/01/1998, 02/08/1999) Aff'd in part & rev'd in part

The court reverses in part and affirms in part a district court decision invalidating four 1995 U.S. Department of the Interior (DOI) regulations that govern livestock grazing on Bureau of Land Management-managed public lands. The court first holds that the permitted use regulation, which requires grazing permits to specify permit conditions according to applicable land use plans, comports with the authority granted the Secretary of the Interior under the Taylor Grazing Act (TGA) and the Federal Land Policy and Management Act (FLPMA). The TGA specifically provides that part of the Secretary's authority in issuing permits is to specify from time to time the numbers of stock and seasons of use, which is exactly what the permitted use rule does. The rule is also consistent with the TGA's underlying purpose of balancing the need for stability with the need to protect the rangeland. Further, the TGA gives no hint that the issuance of a grazing permit by the Secretary requires permanent recognition of the numbers of stock originally authorized to graze in that permit. In addition, FLPMA unambiguously authorizes the Secretary to specify terms and conditions in livestock grazing permits in accordance with land use plans, explicitly states that permits are subject to the terms and conditions the Secretary deems appropriate, and expressly provides the Secretary with authority at any time to adjust animal numbers upon reexamination of range conditions. Moreover, the 1995 permitted use regulation adequately safeguards grazing privileges as required by the TGA.

The court then holds that provisions of the TGA and FLPMA permit the Secretary to promulgate the 1995 regulation under which the United States takes title to all future permanent range improvements constructed under cooperative agreements. Nothing in the statutory language directs where such title must lie. Further, the regulation is based on a permissible interpretation of the TGA because under the plain language of TGA §315c, the Secretary has discretionary authority to decide whether to allow necessary improvements. Moreover, the Secretary provided a reasoned basis for the regulation. The court next holds that a regulation eliminating the requirement that a grazing permit applicant be in the livestock business is also permissible. The TGA only requires that the Secretary give preference to landowners engaged in the livestock business. There is not even a colorable argument that this language requires the Secretary to issue grazing permits only to those engaged in the livestock business. In fact, landowners engaged in the livestock business are not the only group entitled to the preference. The court then holds, however, that the conservation use rule, which allows the issuance of 10-year permits to use public lands for conservation purposes to the exclusion of livestock grazing, is invalid on its face. The TGA, FLPMA, and the Public Rangelands Improvement Act each unambiguously reflect Congress' intent that the Secretary's authority to issue grazing permits be limited to permits issued for the purpose of grazing domestic livestock.

A dissenting judge would hold that the Secretary exceeded his statutory authority under the TGA by promulgating the new permitted use regulation. The dissent would also set aside the title to range improvements regulation.

[The district court decision in this litigation is published at 27 ELR 20040.]

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

Counsel for Defendants
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Porfilio and Tacha, JJ.