Public Lands Council v. Babbitt, 96-8083

• Citation: 167 F.3d 1287
• Decision Date: 08 February 1999
• Docket Number: No. 96-8083,96-8083
• Parties: 1999 CJ C.A.R. 1313 PUBLIC LANDS COUNCIL, a non-profit membership organization on behalf of its members; National Cattleman's Association, a non-profit membership organization on behalf of its members; American Sheep Industry Association, a non-profit membership organization on behalf of its members; American Farm Bureau Federation, a non-profit membership organization on behalf of its members; Association of National Grasslands, a non-profit membership organization on behalf of its members, Plaintiffs-Appellees, v. Bruce BABBITT, United States Department of the Interior Secretary, in his official capacity; Michael Dombeck, Acting Director, U.S. Bureau of Land Management, in his official capacity; Interior Department; Bureau of Land Management, Defendants-Appellants. The Arizona and New Mexico Coalition of Counties for Stable Economic Growth; New Mexico Public Lands Council; Bert Smith-Ox Ranch; Desert Livestock Producers; Alameda Corporation and Oscar S. Wyatt, Jr., Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1287

167 F.3d 1287

1999 CJ C.A.R. 1313

PUBLIC LANDS COUNCIL, a non-profit membership organization on behalf of its members; National Cattleman's Association a non-profit membership organization on behalf of its members; American Sheep Industry Association, a non-profit membership organization on behalf of its members; American Farm Bureau Federation, a non-profit membership organization on behalf of its members; Association of National Grasslands, a non-profit membership organization on behalf of its members, Plaintiffs-Appellees, v. Bruce BABBITT, United States Department of the Interior Secretary, in his official capacity; Michael Dombeck Acting Director, U.S. Bureau of Land Management, in his official capacity; Interior Department; Bureau of Land Management, Defendants-Appellants The Arizona and New Mexico Coalition of Counties for Stable Economic Growth; New Mexico Public Lands Council; Bert Smith-Ox Ranch; Desert Livestock Producers; Alameda Corporation and Oscar S. Wyatt, Jr., Amici Curiae.

No. 96-8083.

United States Court of Appeals Tenth Circuit.

Feb. 8, 1999.

William B. Lazarus, Attorney, Department of Justice (Lois J. Schiffer, Assistant Attorney General, Gary B. Randall, Attorney, John W. Watts, Attorney, and Robert L. Klarquist, Attorney, Department of Justice, with him on the briefs), Washington, DC, appearing for Defendant-Appellant.

Constance E. Brooks, C.E. Brooks & Associates, P.C., Denver, Colorado (Diane Vaksdal Smith and Michael B. Marinovich, C.E. Brooks & Associates, P.C., Denver, Colorado, and Calvin E. Ragsdale, Marty & Ragsdale, Green River, Wyoming, with her on the brief), appearing for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, and TACHA, Circuit Judges.

ORDER ON REHEARING

The Secretary has petitioned the court for rehearing, requesting that it delete the highlighted portion of the following sentence as unnecessary to the court's holding and incorrect as a matter of law: "Congress intended that once the Secretary established a grazing district under the TGA, the primary use of that land should be grazing unless the Secretary withdraws the land from grazing use in accordance with the withdrawal provisions of FLPMA. See 43 U.S.C. § 1714". 154 F.3d at 1181. In response, Public Lands Council concedes that the statutory citation is incorrect but contends that we should cite a different statutory provision rather than remove the highlighted portion of the sentence.

Upon consideration, the court grants the limited petition for rehearing and orders the highlighted portion of the sentence removed from the court's opinion so that the sentence will read: "Congress intended that once the Secretary established a grazing district under the TGA, the primary use of that land should be grazing." An amended copy of the court's opinion is attached to this order.

SEYMOUR, Chief Judge.

The question before us on this appeal is whether the Secretary of the Interior acted within his authority under the Taylor Grazing Act of 1934(TGA), 43 U.S.C. §§ 315 et seq., the Federal Lands Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et seq., and the Public Rangelands Improvement Act of 1978 (PRIA), 43 U.S.C. §§ 1901 et seq., when he promulgated new regulations governing the administration of livestock grazing on public lands managed by the Bureau of Land Management (BLM). Following publication of the final rules in 1995, the Public Lands Council along with several livestock industry groups (collectively PLC) brought suit in the district court challenging the facial validity of ten of the new regulations. The district court held four of the regulations invalid and enjoined their enforcement. The four regulations concerned: (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 (conservation use rule).

The Secretary appeals the district court's order enjoining enforcement of the aforementioned regulations, asserting that the new rules do not conflict with the governing statutes and that the reviewing courts must therefore defer to the Secretary's rulemaking authority. For the reasons stated below, we reverse the district court's order holding invalid the permitted use rule, the range improvements rule, and the mandatory qualifications rule, and we affirm the district court's order holding invalid the conservation use rule.

I BACKGROUND

A. The Controlling Statutes

Our review of the challenged 1995 grazing regulations is set against the backdrop of Congress' enacted policy regarding administration of the public lands. The Secretary of the Interior, through the BLM, manages approximately 170 million acres of public rangelands

throughout the western United States as guided and constrained by the TGA, FLPMA, and PRIA. We therefore begin with an overview of those statutes.

1. The Taylor Grazing Act

Until 1934, the federal government left unregulated the administration of millions of acres of unappropriated public lands in the western states, including Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. In response to damage to the public rangelands caused by decades of unregulated livestock grazing, Congress enacted the Taylor Grazing Act, establishing a threefold legislative goal: to regulate the occupancy and use of the federal lands, to preserve the land and its resources from injury due to overgrazing, and "to provide for the orderly use, improvement, and development of the range." 43 U.S.C. § 315a. One of the key issues the Act was intended to address was the need to stabilize the livestock industry by preserving ranchers' access to the federal lands in a manner that would guard the land against destruction. See Taylor Grazing Act, ch. 865, 48 Stat. 1269 (June 28, 1934).

In order to accomplish these purposes, Congress provided for the issuance of grazing permits under the supervision of the Secretary of the Interior, authorizing the Secretary to identify lands "chiefly valuable for grazing and raising forage crops," 43 U.S.C. § 315, to place these lands in "grazing districts," id., and to issue permits within the districts or grant leases outside the districts to "settlers, residents, and other stock owners" to graze livestock, id. §§ 315, 315b, 315m. The TGA also authorizes the Secretary to allow permittees to install range improvements on their grazing allotments and provides that new permittees must pay reasonable value as determined by the Secretary for range improvements "constructed and owned" by a prior occupant. Id. § 315c.

In addition, Congress granted the Secretary broad discretionary authority to balance the interests of those who wish to use the government's land against the need to protect the land from injury. The TGA commands the Secretary to "make such rules and regulations and establish such service, enter into such cooperative agreements, and do any and all things necessary to accomplish the purposes" of the Act. Id. § 315a. The TGA further directs the Secretary to give renewal preference to those already holding permits, and to "adequately safeguard[ ]" the grazing privileges he recognizes, "[s]o far as consistent with the purposes and provisions" of the Act. Id. § 315b.

2. The Federal Land Policy and Management Act

Enacted in 1976, FLPMA represents Congress' express recognition that in over forty years of land management under the TGA, the BLM had failed adequately to protect and enhance the federal lands. See 43 U.S.C. § 1751(b)(1) ("Congress finds that a substantial amount of the Federal range lands is deteriorating in quality...."); H.R.REP. NO. 94-1163, at 1 (1976), reprinted in 1976 U.S.C.C.A.N. 6175 ("[I]n many instances [public land laws] are obsolete and, in total, do not add up to a coherent expression of Congressional policies adequate for today's national goals."). Owing to the TGA's apparent deficiencies, FLPMA instructs the Secretary to "manage [through BLM] the public lands under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). "Multiple use" requires management of the public lands and their numerous natural resources so that they can be used for economic, recreational, and scientific purposes without the infliction of permanent damage. Id. § 1702(c). "Sustained yield" is defined as "the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use." Id. § 1702(h).

In order to manage the lands in accordance with the principles of multiple use and sustained yield, FLPMA requires land use planning:

The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands Id. § 1712(a) (emphasis added). In keeping with this mandate, FLPMA contains several provisions specific to livestock grazing which chiefly provide that all grazing permits must be issued subject to terms and conditions consistent with FLPMA. Id. § 1752.

previously have been classified, withdrawn, or set aside, or otherwise designated for one or more uses.

3. The Public Rangelands Improvement Act of 1978

Congress enacted PRIA in 1978. Among its purposes was to reaffirm "a national policy and commitment to: ... manage, maintain, and improve the condition of the public rangelands so that they become as...