OCTOBER TERM, 1999
Syllabus
PUBLIC LANDS COUNCIL ET AL.
v. BABBITT, SECRETARY OF THE
INTERIOR, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No.98-1991. Argued March 1, 2000-Decided May 15,2000
The Taylor Grazing Act,
inter alia, grants the Secretary
of the Interior authority to divide the public rangelands into
grazing districts, to specify the amount of grazing permitted in
each district, and to issue grazing leases or permits to "settlers,
residents, and other stock owners," 43 U. S. C. §§ 315, 315a, 315b;
gives preference with respect to permits to "landowners engaged in
the livestock business, bona fide occupants or settlers, or owners
of water or water rights," § 315b; and specifies that grazing
privileges "shall be adequately safeguarded," but that the creation
of a grazing district or the issuance of a permit does not create
"any right, title, interest, or estate in or to the lands,"
ibid. Since 1938, conditions placed on grazing permits have
reflected the grazing privileges' leasehold nature, and the grazing
regulations in effect have preserved the Secretary's authority to
(1) cancel a permit under certain circumstances, (2) reclassify and
withdraw land from grazing to devote it to a more valuable or
suitable use, and (3) suspend animal unit months (AUMs) of grazing
privileges in the event of range depletion. Petitioners,
ranching-related organizations, challenged several 1995 amendments
to the regulations. The District Court found four of the new
regulations unlawful. The Tenth Circuit reversed as to three of
them, upholding regulations that (1) changed the definition of
"grazing preference," 43 CFR § 4100.0-5; (2) permitted those who
are not "engaged in the livestock business" to qualify for grazing
permits, § 4110.1(a); and (3) granted the United States title to
all future "permanent" range improvements, § 4120.3-2.
Held: The regulatory changes do not exceed the
Secretary's Taylor Grazing Act authority. Pp. 739-750.
(a) Section 4100.0-5's new definition of "grazing preference"
does not violate 43 U. S. C. § 315b's requirement that "grazing
privileges" "be adequately safeguarded." Before its amendment, §
4100.0-5 defined "grazing preference" as "the total number of
[AUMs] of livestock grazing on public lands apportioned and
attached to base property owned or controlled by a permittee or
lessee," but the 1995 version refers only to a priority, not to a
specific number of AUMs, and it adds a new term,
729
"permitted use," which refers to forage "allocated by, or under
the guidance of an applicable land use plan." The new definitions
do not exceed the Secretary's authority under § 315b. First, §
315b's words "so far as consistent with the purposes" of the Act
and "issuance of a permit" creates no "right, title, interest, or
estate" make clear that the ranchers' interest in permit stability
is not absolute and that the Secretary is free reasonably to
determine just how, and the extent to which, grazing privileges are
to be safeguarded. Moreover, since Congress itself has directed
development of land use plans, and their use in the allocation
process, it is difficult to see how a definitional change that
simply refers to using such plans could violate the Taylor Act by
itself, without more. Given the broad discretionary powers that the
Taylor Act grants the Secretary, the Act must be read as here
granting him at least ordinary administrative leeway to assess
"safeguard[ing]" in terms of the Act's other purposes and
provisions. Second, the pre-1995 ADM system that petitioners seek
to "safeguard" did not offer them anything like absolute security,
for the Secretary had well-established pre-1995 authority to
cancel, modify, or decline to review permits, including the power
to do so pursuant to a land use plan. Third, the new definitional
regulations by themselves do not automatically bring about a
self-executing change that would significantly diminish the
security of grazing privileges. The Interior Department represents
that the new definitions merely clarify terminology. The new
regulations do seem to tie grazing privileges to land use plans
more explicitly than did the old. However, all Bureau of Land
Management lands have been covered by land use plans for nearly 20
years, yet the ranchers have not provided a single example in which
interaction of plan and permit has jeopardized or might jeopardize
permit security. A particular land use plan might lead to a denial
of privileges that the pre-1995 regulations would have provided,
but the question here is whether the definition changes by
themselves violate the Act's requirement that grazing privileges be
"adequately safeguarded." They do not. Pp.739-744.
(b) The deletion of the phrase "engaged in the livestock
business" from § 4110.1(a) does not violate the statutory
limitation to "stock owners." Section 315b, just two sentences
after using "stock owners," gives preference to "landowners engaged
in the livestock business." This indicates that Congress did not
intend to make the phrases synonyms. Neither the Act's legislative
history nor its basic purpose suggests an absolute limit to those
engaged in the livestock business was intended by the term "stock
owner." The ranchers' underlying concern is that the amendment is
part of a scheme to end grazing on public lands
730
Syllabus
by allowing individuals to acquire a few livestock, obtain a
permit for conservation, and then effectively mothball the permit.
However, the remaining regulations, for livestock grazing use or
suspended use, do not encompass the situation that the ranchers
describe. Pp. 745-748.
(c) Section 4120.3-2, which specifies that title to permanent
range improvements, such as fences, wells, and pipelines, made
pursuant to cooperative agreements with the Government shall be in
the name of the United States, does not violate the Act. Nothing in
the statute denies the Secretary authority reasonably to decide
when or whether to grant title to those who make improvements. Any
such person remains free to negotiate the terms upon which he will
make those improvements, including how he might be compensated in
the future for his work, either by the Government or by those
granted a Government permit. Pp.748-750.
167 F.3d
1287, affirmed.
BREYER, J., delivered the opinion for a unanimous Court.
O'CONNOR, J., filed a concurring opinion, in which THOMAS, J.,
joined,
post, p. 750.
Timothy S.
Bishop argued the cause for
petitioners.
With him on the briefs were Steffen N. Johnson and Constance E.
Brooks.
Deputy Solicitor General Kneedler argued the cause for
respondents. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Schiffer, David C. Frederick, William B.
Lazarus, and John D. Leshy.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Wyoming by
Gay Woodhouse, Attorney General,
Thomas J. Davidson, Deputy Attorney General,
and
Theodore C.
Preston, Assistant Attorney General;
for the Alameda Bookcliffs Ranch et al. by
Karen Budd-Falen
and
Jeffrey B. Teichert; for the Association of Rangeland
Consultants by
W Alan Schroeder; for the Farm Credit
Institutions by
William G.
Myers III and
Marcy
G.
Glenn; for the Northwest Mining Association by
William
Perry Pendley and
Steven J. Lechner; for
the Pacific Legal Foundation et al. by
M. Reed Hopper; and
for Congressman Don Young et al. by
William K. Kelley.
Briefs of
amici curiae urging affirmance were filed for
the Natural Resources Defense Council et al. by
Thomas D.
Lustig; and for the Nature Conservancy by
W Cullen
Battle and
Michael Dennis.
731
JUSTICE BREYER delivered the opinion of the Court.
This case requires us to interpret several provisions of the
1934 Taylor Grazing Act, 48 Stat. 1269, 43 U. S. C. § 315
et
seq. The petitioners claim that each of three grazing
regulations, 43 CFR §§ 4100.0-5, 4110.1(a), and 4120.3-2 (1998),
exceeds the authority that this statute grants the Secretary of the
Interior. We disagree and hold that the three regulations do not
violate the Act.
I
We begin with a brief description of the Act's background,
provisions, and related administrative practice.
A
The Taylor Grazing Act's enactment in 1934 marked a turning
point in the history of the western rangelands, the vast, dry
grasslands and desert that stretch from western Nebraska, Kansas,
and Texas to the Sierra Nevada. Ranchers once freely grazed
livestock on the publicly owned range as their herds moved from
place to place, searching for grass and water. But the population
growth that followed the Civil War eventually doomed that
unregulated economic freedom.
A new era began in 1867 with the first successful long drive of
cattle north from Texas. Cowboys began regularly driving large
herds of grazing cattle each year through thousands of miles of
federal lands to railheads like Abilene, Kansas. From there or
other towns along the rail line, trains carried live cattle to
newly opened eastern markets. The long drives initially brought
high profits, which attracted more ranchers and more cattle to the
land once home only to Indian tribes and buffalo. Indeed, an
early-1880's boom in the cattle market saw the number of cattle
grazing the Great Plains grow well beyond 7 million. See R. White,
"It's Your Misfortune and None of My Own": A History of the
American West 223 (1991); see generally E. Osgood, The Day of
the
732
Cattleman 83-113 (1929); w. Webb, The Great Plains 205268
(1931).
But more cattle meant more competition for ever-scarcer water
and grass. And that competition was intensified by the arrival of
sheep in the 1870's. Many believed that sheep were destroying the
range, killing fragile grass plants by cropping them too closely.
The increased competition for forage, along with droughts,
blizzards, and growth in homesteading, all aggravated natural
forage scarcity. This led, in turn, to overgrazing, diminished
profits, and hostility among forage competitors-to the point where
violence and "wars" broke out, between cattle and sheep ranchers,
between ranchers and homesteaders, and between those who fenced and
those who cut fences to protect an open range. See W. Gard,
Frontier Justice 81-149 (1949). These circumstances led to calls
for a law to regulate the land that once was free.
The calls began as early as 1878 when the legendary southwestern
explorer, Major John Wesley Powell, fearing water monopoly, wrote
that ordinary homesteading laws would not work and pressed Congress
to enact "a general law ... to provide for the organization of
pasturage districts." Report on the Lands of the Arid Region of the
United States, H. Exec. Doc. No. 73, 45th Cong., 2d Sess., 28
(1878). From the end of the 19th century on, Members of Congress
regularly introduced legislation of this kind, often with
Presidential support. In 1907, President Theodore Roosevelt
reiterated Powell's request and urged Congress to pass laws that
would "provide for Government control of the public pasture lands
of the West." S. Doc. No. 310, 59th Cong., 2d Sess., 5 (1907). But
political opposition to federal regulation was strong. President
Roosevelt attributed that opposition to "those who do not make
their homes on the land, but who own wandering bands of sheep that
are driven hither and thither to eat out the land and render it
worthless for the real home maker"; along with "the men who have
already
733
obtained control of great areas of the public land ... who
object ... because it will break the control that these few big men
now have over the lands which they do not actually own."
Ibid. Whatever the opposition's source, bills reflecting
Powell's approach did not become law until 1934.
By the 1930's, opposition to federal regulation of the federal
range had significantly diminished. Population growth, forage
competition, and inadequate range control all began to have
consequences both serious and apparent. With a horrifying drought
came 'dawns without day' as dust storms swept the range. The
devastating storms of the Dust Bowl were in the words of one
Senator "the most tragic, the most impressive lobbyist, that ha[s]
ever come to this Capitol." 79 Congo Rec. 6013 (1935). Congress
acted; and on June 28, 1934, President Franklin Roosevelt signed
the Taylor Grazing Act into law.
B
The Taylor Act seeks to "promote the highest use of the public
lands." 43 U. S. C. § 315. Its specific goals are to "stop injury"
to the lands from "overgrazing and soil deterioration," to "provide
for their use, improvement and development," and "to stabilize the
livestock industry dependent on the public range." 48 Stat. 1269.
The Act grants the Secretary of the Interior authority to divide
the public rangelands into grazing districts, to specify the amount
of grazing permitted in each district, to issue leases or permits
"to graze livestock," and to charge "reasonable fees" for use of
the land. 43 U. S. C. §§ 315, 315a, 315b. It specifies that
preference in respect to grazing permits "shall be given ... to
those within or near" a grazing district "who are landowners
engaged in the livestock business, bona fide occupants or settlers,
or owners of water or water rights." § 315b. And, as particularly
relevant here, it adds:
"So far as consistent with the purposes and provisions of this
subchapter, grazing privileges recognized and ac-
734
knowledged shall be adequately safeguarded, but the creation of
a grazing district or the issuance of a permit ... shall not create
any right, title, interest, or estate in or to the lands."
Ibid.
C
The Taylor Act delegated to the Interior Department an enormous
administrative task. To administer the Act, the Department needed
to determine the bounds of the public range, create grazing
districts, determine their grazing capacity, and divide that
capacity among applicants. It soon set bounds encompassing more
than 140 million acres, and by 1936 the Department had created 37
grazing districts, see Department of Interior Ann. Rep. 15 (1935);
W. Calef, Private Grazing and Public Lands 58-59 (1960). The
Secretary then created district advisory boards made up of local
ranchers and called on them for further help. See 2 App. 809-811
(Rules for Administration of Grazing Districts (Mar. 2, 1936)).
Limited department resources and the enormity of the administrative
task made the boards "the effective governing and administrative
body of each grazing district." Calef,
supra, at 60; accord,
P. Foss, Politics and Grass 199200 (1960).
By 1937 the Department had set the basic rules for allocation of
grazing privileges. Those rules recognized that many ranchers had
long maintained herds on their own private lands during part of the
year, while allowing their herds to graze farther afield on public
land at other times. The rules consequently gave a first preference
to owners of stock who also owned "base property," i.
e.,
private land (or water rights) sufficient to support their herds,
and who had grazed the public range during the five years
just prior to the Taylor Act's enactment. See 2 App. 818-819 (Rules
for Administration of Grazing Districts (June 14, 1937)). They gave
a second preference to other owners of nearby "base" property
735
lacking prior use.
Ibid. And they gave a third preference
to stock owners without base property, like the nomadic sheep
herder.
Ibid. Since lower preference categories divided
capacity left over after satisfaction of all higher preference
claims, this system, in effect, awarded grazing privileges to
owners of land or water. See Foss,
supra, at 63 (quoting
Grazing Division Director F. R. Carpenter's remarks that grazing
privileges are given to ranchers "not as individuals, nor as owners
of livestock," but to "build up [the] lands and give them stability
and value").
As grazing allocations were determined, the Department would
issue a permit measuring grazing privileges in terms of "animal
unit months" (AUMs), i.
e., the right to obtain the forage
needed to sustain one cow (or five sheep) for one month. Permits
were valid for up to 10 years and usually renewed, as suggested by
the Act. See 43 U. S. C. § 315b; Public Land Law Review Commission,
One Third of the N ation's Land 109 (1970). But the conditions
placed on permits reflected the leasehold nature of grazing
privileges, consistent with the fact that Congress had made the
Secretary the landlord of the public range and basically made the
grant of grazing privileges discretionary. The grazing regulations
in effect from 1938 to the present day made clear that the
Department retained the power to modify, fail to renew, or cancel a
permit or lease for various reasons.
First, the Secretary could cancel permits if, for example, the
permit holder persistently overgrazed the public lands, lost
control of the base property, failed to use the permit, or failed
to comply with the Range Code. See,
e. g., 43 CFR §§
160.26(a)-(f) (1938); Department of Interior, Federal Range Code §§
6(c)(6), (7), (10) (1942) (hereinafter 1942 Range Code); 43 CFR §§
161.6(c)(6)-(7), (10)-(12) (1955); 43 CFR §§ 4115.2-1(d),
(e)(7)-(11) (1964); 43 CFR §§ 4115.2l(d) (e)(7)-(11) (1977); 43 CFR
§ 4170.1-2 (1994); 43 CFR § 4170.1-2 (1998). Second, the Secretary,
consistent first
736
with 43 U. S. C. § 315f, and later the land use planning
mandated by 43 U. S. C. § 1712 (discussed
infra, at
737-738), was authorized to reclassify and withdraw land from
grazing altogether and devote it to a more valuable or suitable
use. See,
e. g., 43 CFR § 160.22 (1938); 1942 Range
Code § 6(c)(4); 43 CFR § 161.6(c)(5) (1955); 43 CFR §§ 4111.4-2(f),
4115.21(e)(6) (1964); 43 CFR §§ 4111.4-3(f), 4115.2-1(e)(6) (1977);
43 CFR § 411004-2(a) (1994); 43 CFR § 411004-2(a) (1998). Third, in
the event of range depletion, the Secretary maintained a separate
authority, not to take areas of land out of grazing use altogether
as above, but to reduce the amount of grazing allowed on that land,
by suspending AUMs of grazing privileges "in whole or in part," and
"for such time as necessary." 43 CFR § 4115.2-1(e)(5) (1964); see
also 43 CFR § 160.30 (1938) (reservation (b)); 1942 Range Code §
6(c)(8); 43 CFR § 161.4(8) (1955); 43 CFR §§ 4111.4-3,
4115.2-1(e)(5) (1977); 43 CFR § 4110.3-2 (1994); 43 CFR § 4110.3-2
(1998).
Indeed, the Department so often reduced individual permit AUM
allocations under this last authority that by 1964 the regulations
had introduced the notion of "active AUMs," i.
e., the AUMs
that a permit
initially granted
minus the AUMs that
the department had "suspended" due to diminished range capacity.
Thus, three ranchers who had initially received, say, 3,000, 2,000,
and 1,000 AUMs respectively, might find that they could use only
two-thirds of that number because a 33% reduction in the district's
grazing capacity had led the Department to "suspend" one-third of
each allocation. The "active/suspended" system assured each
rancher, however, that any capacity-related reduction would take
place proportionately among permit holders, see 43 CFR §
4111042(a)(3) (1964), and that the Department would try to
restore grazing privileges proportionately should the district's
capacity later increase, see § 4111.4-1.
In practice, active grazing on the public range declined
dramatically and steadily (from about 18 million to about
737
10 million AUMs between 1953 and 1998) as the following chart
shows:
Despite the reductions in grazing, and some improvements
following the passage of the Taylor Act, see App. 374-379
(Department of Interior, 50 Years of Public Land Management
1934-1984), the range remained in what many considered an
unsatisfactory condition. In 1962, a congressionally mandated
survey found only 16.6% of the range in excellent or good
condition, 53.1% in fair condition, and 30.3% in poor condition.
Department of Interior Ann. Rep. 62 (1962). And in 1978 Congress
itself determined that "vast segments of the public rangelands are
... in an unsatisfactory condition." 92 Stat. 1803 (codified as 43
U. S. C. § 1901(a)(1)).
D
In the 1960's, as the range failed to recover, the Secretary of
the Interior increased grazing fees by more than 50% (from 19 cents
to 30 cents per AUM/year), thereby helping to capture a little more
of the economic costs that grazing imposed upon the land.
Department of Interior Ann. Rep. 66 (1963). And in 1976, Congress
enacted a new law, the
738
Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat.
2744, 43 U. S. C. § 1701
et seq., which instructed the
Interior Department to develop districtwide land use plans based
upon concepts of "multiple use" (use for various purposes, such as
recreation, range, timber, minerals, watershed, wildlife and fish,
and natural and scenic, scientific, and historical usage), §
1702(c), and "sustained yield" (regular renewable resource output
maintained in perpetuity), § 1702(h). The FLPMA strengthened the
Department's existing authority to remove or add land from grazing
use, allowing such modification pursuant to a land use plan, §§
1712, 1714, while specifying that existing grazing permit holders
would retain a "first priority" for renewal so long as the land use
plan continued to make land "available for domestic livestock
grazing," § 1752(c).
In 1978, the Department's grazing regulations were, in turn,
substantially amended to comply with the new law. See 43 Fed. Reg.
29067. As relevant here, the 1978 regulations tied permit renewal
and validity to the land use planning process, giving the Secretary
the power to cancel, suspend, or modify grazing permits due to
increases or decreases in grazing forage or acreage made available
pursuant to land planning. See 43 CFR §§ 4110.3-2(b), 4110.4-2
(1978); see also 43 CFR § 4110.4-2 (1994); 43 CFR § 4110.4-2
(1998).
That same year Congress again increased grazing fees for the
period 1979 to 1986. See Public Rangelands Improvement Act of 1978,
43 U. S. C. § 1905. However neither of the two Acts from the 1970's
significantly modified the particular provisions of the Taylor Act
at issue in this case.
E
This case arises out of a 1995 set of Interior Department
amendments to the federal grazing regulations. 60 Fed. Reg. 9894
(1995) (Final Rule). The amendments represent a stated effort to
"accelerate restoration" of the rangeland,
739
make the rangeland management program "more compatible with
ecosystem management," "streamline certain administrative
functions," and "obtain for the public fair and reasonable
compensation for the grazing of livestock on public lands." 58 Fed.
Reg. 43208 (1993) (Proposed Rule). The amendments in final form
emphasize individual "stewardship" of the public land by increasing
the accountability of grazing permit holders; broaden membership on
the district advisory boards; change certain title rules; and
change administrative rules and practice of the Bureau of Land
Management to bring them into closer conformity with related Forest
Service management practices. See 60 Fed. Reg. 9900-9906
(1995).
Petitioners Public Lands Council and other nonprofit
ranching-related organizations with members who hold grazing
permits brought this lawsuit against the Secretary and other
defendants in Federal District Court, challenging 10 of the new
regulations. The court found 4 of 10 unlawful. 929 F. Supp. 1436,
1450-1451 (Wyo. 1996). The Court of Appeals reversed the District
Court in part, upholding three of the four.
167
F.3d 1287, 1289 (CAlO 1999). Those three (which we shall
describe further below) (1) change the definition of "grazing
preference"; (2) permit those who are not "engaged in the livestock
business" to qualify for grazing permits; and (3) grant the United
States title to all future "permanent" range improvements. One
judge on the Court of Appeals dissented in respect to the
Secretary's authority to promulgate the first and the third
regulations. See
id., at 13091318. We granted certiorari to
consider the ranchers' claim that these three regulatory changes
exceed the authority that the Taylor Act grants the Secretary. 528
U. S. 926 (1999).
II A
The ranchers attack the new "grazing preference" regulations
first and foremost. Their attack relies upon the
740
provision in the Taylor Act stating that "grazing prIVIleges
recognized and acknowledged shall be adequately safeguarded .... "
43 U. S. C. § 315b. Before 1995 the regulations defined the term
"grazing preference" in terms of the
AUM-denominated amount
of grazing privileges that a permit granted. The regulations then
defined "grazing preference" as
"the total number of animal unit months of livestock grazing on
public lands apportioned and attached to base property owned or
controlled by a permittee or lessee." 43 CFR § 4100.0-5 (1994).
The 1995 regulations changed this definition, however, so that
it now no longer refers to grazing privileges "apportioned," nor
does it speak in terms of AUMs. The new definition defines "grazing
preference" as
"a superior or priority position against others for the purpose
of receiving a grazing permit or lease. This priority is attached
to base property owned or controlled by the permittee or lessee."
43 CFR § 4100.0-5 (1995).
The new definition "omits reference to a specified quantity of
forage." 60 Fed. Reg. 9921 (1995). It refers only to a priority,
not to a specific number of AUMs attached to a base property. But
at the same time the new regulations add a new term, "permitted
use," which the Secretary defines as
"the forage allocated by, or under the guidance of, an
applicable land use plan for livestock grazing in an allotment
under a permit or lease and is expressed in AUMs." 43 CFR §
4100.0-5 (1995).
This new "permitted use," like the old "grazing preference," is
defined in terms of allocated rights, and it refers to AUMs. But
this new term as defined refers, not to a rancher's forage
priority, but to forage "allocated by, or under the guidance
741
of
an applicable land use plan." Ibid. (emphasis added).
And therein lies the ranchers' concern.
The ranchers refer us to the administrative history of Taylor
Act regulations, much of which we set forth in Part I. In the
ranchers' view, history has created expectations in respect to the
security of "grazing privileges"; they have relied upon those
expectations; and the statute requires the Secretary to
"safeguar[d]" that reliance. Supported by various farm credit
associations, they argue that defining their privileges in relation
to land use plans will undermine that security. They say that the
content of land use plans is difficult to predict and easily
changed. Fearing that the resulting uncertainty will discourage
lenders from taking mortgages on ranches as security for their
loans, they conclude that the new regulations threaten the
stability, and possibly the economic viability, of their ranches,
and thus fail to "safeguard" the "grazing privileges" that
Department regulations previously "recognized and acknowledged."
Brief for Petitioners 22-23.
We are not persuaded by the ranchers' argument for three basic
reasons. First, the statute qualifies the duty to "safeguard" by
referring directly to the Act's various goals and the Secretary's
efforts to implement them. The full subsection says:
"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." 43 U. S. C. § 315b
(emphasis added).
The words "so far as consistent with the purposes ... of this
subchapter" and the warning that "issuance of a permit" creates no
"right, title, interest or estate" make clear that the ranchers'
interest in permit stability cannot be absolute;
742
and that the Secretary is free reasonably to determine just how,
and the extent to which, "grazing privileges" shall be safeguarded,
in light of the Act's basic purposes. Of course, those purposes
include "stabiliz[ing] the livestock industry," but they also
include "stop[ping] injury to the public grazing lands by
preventing overgrazing and soil deterioration," and "provid[ing]
for thee] orderly use, improvement, and development" of the public
range. 48 Stat. 1269; see
supra, at 733.
Moreover, Congress itself has directed development of land use
plans, and their use in the allocation process, in order to
preserve, improve, and develop the public rangelands. See 43 U. S.
C. §§ 1701(a)(2), 1712. That being so, it is difficult to see how a
definitional change that simply refers to the use of such plans
could violate the Taylor Act by itself, without more. Given the
broad discretionary powers that the Taylor Act grants the
Secretary, we must read that Act as here granting the Secretary at
least ordinary administrative leeway to assess "safeguard[ing]" in
terms of the Act's other purposes and provisions. Cf. §§ 315, 315a
(authorizing Secretary to establish grazing districts
"in his
discretion" (emphasis added), and to "make provision for
protection, administration, regulation, and improvement of such
grazing districts").
Second, the pre-1995 AUM system that the ranchers seek to
"safeguard" did not offer them anything like absolute security-not
even in respect to the proportionate shares of grazing land
privileges that the "active/suspended" system suggested. As
discussed above, the Secretary has long had the power to reduce an
individual permit's AUMs or cancel the permit if the permit holder
did not use the grazing privileges, did not use the base property,
or violated the Range Code. See
supra, at 735 (collecting
CFR citations 19381998). And the Secretary has always had the
statutory authority under the Taylor Act and later FLPMA to
reclassify and withdraw rangeland from grazing use, see 43 U. S.
C.
743
§ 315f (authorizing Secretary, "in his discretion, to examine
and classify any lands ... which are more valuable or suitable for
the production of agricultural crops ... or any other use than
[grazing]"); §§ 1712, 1752(c) (authorizing renewal of permits "so
long as the lands ... remain available for domestic livestock
grazing
in accordance with land use plans" (emphasis
added)). The Secretary has consistently reserved the authority to
cancel or modify grazing permits accordingly. See
supra, at
735-736 (collecting CFR citations). Given these well-established
pre-1995 Secretarial powers to cancel, modify, or decline to renew
individual permits,
including the power to do so pursuant to the
adoption of a land use plan, the ranchers'
diminishment-of-security point is at best a matter of degree.
Third, the new definitional regulations by themselves do not
automatically bring about a self-executing change that would
significantly diminish the security of granted grazing privileges.
The Department has said that the new definitions do "not cancel
preference," and that any change is "merely a clarification of
terminology." 60 Fed. Reg. 9922 (1995). It now assures us through
the Solicitor General that the definitional changes "preserve all
elements of preference" and "merely clarify the regulations within
the statutory framework." See Brief in Opposition 13, 14.
The Secretary did consider making a more sweeping change by
eliminating the concept of "suspended use"; a change that might
have more reasonably prompted the ranchers' concerns. But after
receiving comments, he changed his mind. See 59 Fed. Reg. 14323
(1994). The Department has instead said that "suspended" AUMs
will
"continue to be recognized and have a priority for additional
grazing use within the allotment. Suspended use provides an
important accounting of past grazing use for the ranching community
and is an insignificant administrative workload to the agency."
Bureau of Land Man-
744
agement, Rangeland Reform '94: Final Environmental Impact
Statement 144 (1994).
Of course, the new definitions seem to tie grazing privileges to
land use plans more explicitly than did the old. But, as we have
pointed out, the Secretary has since 1976 had the authority to use
land use plans to determine the amount of permissible grazing, 43
U. S. C. § 1712. The Secretary also points out that since
development of land use plans began nearly 20 years ago, "all BLM
lands in the lower 48 States are covered by land use plans," and
"all grazing permits in those States have now been issued or
renewed in accordance with such plans, or must now conform to
them." Brief for Respondents 26. Yet the ranchers have not provided
us with a single example in which interaction of plan and permit
has jeopardized or might yet jeopardize permit security. An
amicus brief filed by a group of Farm Credit Institutions
says that the definitional change will "threate[nJ" their "lending
policies." Brief for Farm Credit Institutions as
Amicus
Curiae 3. But they do not explain
why that is so, nor do
they state that the new definitions will, in fact, lead them to
stop lending to ranchers.
We recognize that a particular land use plan could change
pre-existing grazing allocation in a particular district. And that
change might arguably lead to a denial of grazing privileges that
the pre-1995 regulations would have provided. But the affected
permit holder remains free to challenge such an individual effect
on grazing privileges, and the courts remain free to determine its
lawfulness in context. We here consider only whether the changes in
the definitions by themselves violate the Taylor Act's requirement
that recognized grazing privileges be "adequately safeguarded."
Given the leeway that the statute confers upon the Secretary, the
less-than-absolute pre-1995 security that permit holders enjoyed,
and the relatively small differences that the new definitions
create, we conclude that the new definitions do not violate that
law.
745
B
The ranchers' second challenge focuses upon a provision of the
Taylor Act that limits issuance of permits to "settlers, residents,
and other
stock owners .... " 43 U. S. C. § 315b (emphasis
added). In 1936, the Secretary, following this requirement, issued
a regulation that limited eligibility to those who "ow[n]
livestock." 2 App. 808 (Rules for Administration of Grazing
Districts (Mar. 2, 1936)). But in 1942, the Secretary changed the
regulation's wording to limit eligibility to those "engaged in the
livestock business," 1942 Range Code § 3(a), and so it remained
until 1994. The new regulation eliminates the words "engaged in the
livestock business," thereby seeming to make eligible otherwise
qualified applicants even if they do not engage in the livestock
business. See 43 CFR § 4110.1(a) (1995).
The new change is not as radical as the text of the new
regulation suggests. The new rule deletes the entire phrase
"engaged in the livestock business" from § 4110.1, and seems to
require only that an applicant "own or control land or water base
property .... "
Ibid. But the omission, standing alone, does
not render the regulation facially invalid, for the regulation
cannot change the statute, and a regulation promulgated to guide
the Secretary's discretion in exercising his authority under the
Act need not also restate all related statutory language.
Ultimately it is
both the Taylor Act and the regulations
promulgated thereunder that constrain the Secretary's discretion in
issuing permits. The statute continues to limit the Secretary's
authorization to issue permits to "bona fide settlers, residents,
and
other stock owners." 43 U. S. C. § 315b (emphasis
added).
Nor will the change necessarily lead to widespread issuance of
grazing permits to "stock owners" who are not in the livestock
business. Those in the business continue to enjoy a preference in
the issuance of grazing permits. The same section of the Taylor Act
mandates that the Secretary accord a preference to "landowners
engaged in the livestock busi-
746
ness, bona fide occupants or settlers."
Ibid. And this
statutory language has been extremely important in practice. See
supra, at 734-735.
The ranchers nonetheless contend that the deletion of the term
"engaged in the livestock business" violates the statutory
limitation to "stock owners" in § 315b. The words "stock owner,"
they say, meant "commercial stock owner" in 1934, and a commercial
stock owner is not simply one who owns livestock, but one who
engages in the business. Hence, they argue, the Secretary lacks the
authority to allow those who are not engaged in the business to
apply for permits.
The words "stock owner" and "stock owner engaged in the
livestock business," however, are not obvious synonyms. And we have
found no convincing indication that Congress intended that we treat
them as such. Just two sentences after using the words "stock
owner," Congress said that, among those eligible for permits (i.
e., stock owners), preference should be given to "landowners
engaged in the livestock business, bona fide occupants or
settlers, or owners of water or water rights." § 315b (emphasis
added). Why would Congress add the words "engaged in the livestock
business" if (as the ranchers' argument implies) they add nothing?
Cf.
United States v.
Nordic Village, Inc., 503 U. S. 30, 36 (1992)
("[A] statute must, if possible, be construed in such fashion that
every word has some operative effect"). The legislative history to
which the ranchers point shows that Congress expected that
ordinarily permit holders would be ranchers, who do engage in the
livestock business, but does not show any such absolute
requirement. See,
e. g., H. R. Rep. No. 903, 73d
Cong., 2d Sess., 2 (1934); Hearings on H. R. 2835 and H. R. 6462
before the House Committee on the Public Lands, 73d Cong., 1st and
2d Sess., 96 (1933-1934); Hearings on H. R. 6462 before the Senate
Committee on Public Lands and Surveys, 73d Cong., 2d Sess., 40
(1934). Nor does the statute's basic purpose require that the two
sets of different
747
words mean the same thing. Congress could reasonably have
written the statute to mandate a preference in the granting of
permits to those actively involved in the livestock business, while
not absolutely excluding the possibility of granting permits to
others. The Secretary has not exceeded his powers under the
statute.
The ranchers' underlying concern is that the qualifications
amendment is part of a scheme to end livestock grazing on the
public lands. They say that "individuals or organizations owning
small quantities of stock [will] acquire grazing permits, even
though they intend not to graze at all or to graze only a nominal
number of livestock-all the while excluding others from using the
public range for grazing." Brief for Petitioners 47-48. The new
regulations, they charge, will allow individuals to "acquire a few
livestock, ... obtain a permit for what amounts to a conservation
purpose and then effectively mothball the permit."
Id., at
48.
But the regulations do not allow this. The regulations specify
that regular grazing permits will be issued for livestock grazing
or suspended use. See 43 CFR §§ 4130.2(a), 4130.2(g) (1998). New
regulations allowing issuance of permits for conservation use were
held unlawful by the Court of Appeals, see 167 F. 3d, at 1307-1308,
and the Secretary did not seek review of that decision.
Neither livestock grazing use nor suspended use encompasses the
situation that the ranchers describe. With regard to the former,
the regulations state that permitted livestock grazing
"shall be
based upon the amount of forage available for livestock grazing
as established in the land use plan .... " 43 CFR § 4110.2-2(a)
(1998) (emphasis added). Permitted livestock use is not simply a
symbolic upper limit. Under the regulations, a permit holder is
expected to make substantial use of the permitted use set forth in
the grazing permit. For example, the regulations prohibit a permit
holder from "[f]ailing to make substantial grazing use as
authorized for 2 consecutive fee years." § 4140.1(a)(2). If a
748
permit holder does fail to make substantial use as authorized in
his permit for two consecutive years, the Secretary is authorized
to cancel from the grazing permit that portion of permitted use
that the permit holder has failed to use. See § 4170.1-2. On the
basis of these regulations, the Secretary has represented to the
Court that "[aJ longstanding rule requires that a grazing permit be
used for grazing." Brief for Respondents 43, n. 25. Suspended use,
in turn, is generally imposed by the Secretary in response to
changing range conditions. See
supra, at 736. Permittees may
also apply to place forage in "[tJemporary nonuse" for financial
reasons, but the Secretary must approve such nonuse on an annual
basis and may not grant it for more than three consecutive years.
43 CFR § 4130.2(g)(2) (1998). A successful temporary nonuse
application, moreover, does not necessarily take the land out of
grazing use-the Secretary may allocate to others the forage
temporarily made available via nonrenewable permit. See §§
4130.2(h), 4130.6-2. In short, nothing in the change to § 4110.1(a)
undermines the Taylor Act's requirement that the Secretary grant
permits "to graze livestock." 43 U. S. C. § 315b.
C
The ranchers' final challenge focuses upon a change in the way
the new rules allocate ownership of range improvements, such as
fencing, well drilling, or spraying for weeds on the public lands.
The Taylor Act provides that permit holders may undertake range
improvements pursuant to (1) a cooperative agreement with the
United States, or (2) a range improvement permit. 43 U. S. C. §
315c; see 43 CFR §§ 4120.3-2, 4120.3-3 (1998). The pre-1995
regulations applicable to cooperative agreements gave the United
States full title to "nonstructural" improvements, such as spraying
for weeds, and to "non-removable improvements," such as wells. 43
CFR § 4120.3-2 (1994). But for "structural or removable
improvements," such as fencing, stock tanks, or
749
pipelines, the regulations shared title between the permit
holder and the United States "in proportion to the actual amount of
the respective contribution to the initial construction."
Ibid. And for range improvements made pursuant to permit,
the pre-1995 regulations gave the permittee "title to removable
range improvements." § 4120.3-3(b).
The 1995 regulations change the title rules for range
improvements made pursuant to a cooperative agreement, but not the
rules for improvements made pursuant to permit. For cooperative
agreements, they specify that "title to permanent range
improvements" (authorized in the future) "such as fences, wells,
and pipelines ... shall be in the name of the United States." 43
CFR § 4120.3-2(b) (1995).
The ranchers argue that this change violates 43 U. S. C.
§ 315c, which says:
"No permit shall be issued which shall entitle the permittee to
the use of such [range] improvements constructed and owned
by a prior occupant until the applicant has paid to such prior
occupant the reasonable value of such improvements .... " (Emphasis
added.)
In their view, the word "owned" foresees ownership by a "prior
occupant" of at least some such improvements, a possibility they
say is denied by the new rule mandating blanket Government
ownership of permanent range improvements.
The Secretary responds that, since the statute gives him the
power to
authorize range improvements pursuant to a
cooperative agreement-a greater power, § 315c-he also has the power
to set the terms of title ownership to such improvements-a lesser
power-just like any landlord. See R. Schoshinski, American Law of
Landlord and Tenant § 5:31 (1980) (ownership of tenant improvements
is a matter open to negotiation with landlord); H. Bronson, A
Treatise on the Law of Fixtures § 40 (1904); 2 J. Taylor, A
Treatise on the American Law of Landlord and Tenant § 554, pp.
164-166 (1887). Under this reading, the subsequent statutory
provi-
750
sion relating to "ownership" simply provides for compensation by
some future permit holder
in the event that the Secretary
decides to grant title.
As detailed above, the Secretary did grant ownership rights to
range improvements under certain circumstances prior to 1995. We
see nothing in the statute that prevents him from changing his mind
in respect to the future. And the Secretary has now changed his
mind for reasons of administrative convenience and because what he
takes as the original purpose of this provision (assuring that, in
1934, ranchers would pay compensation to nomadic sheep herders) is
no longer important. In any event, the provision retains even the
"contemplation of ownership" meaning stressed by the ranchers, for
permit holders may still "own" removable range improvements, such
as "corrals, creep feeders, and loading chutes, and temporary
structural improvements such as troughs for hauled water," 43 CFR §
4120.3-3(b) (1995), which could be transferred to a new permit
holder and thus compel compensation under § 315f.
In short, we find nothing in the statute that denies the
Secretary authority reasonably to decide when or whether to grant
title to those who make improvements. And any such person remains
free to negotiate the terms upon which he will make those
improvements irrespective of where title formally lies, including
how he might be compensated in the future for the work he had done,
either by the Government directly or by those to whom the
Government later grants a permit. Cf. 43 U. S. C. § 1752(g)
(requiring the United States to pay compensation to a permittee for
his "interest" in range improvements if it cancels a permit).
The judgment of the Court of Appeals is
Affirmed.
JUSTICE O'CONNOR, with whom JUSTICE THOMAS joins,
concurring.
I join the Court's opinion. I write separately to make the
following observations concerning the Court's decision.
751
First, in Part II-A, the Court holds that the Secretary did not
exceed his authority under the Taylor Grazing Act by promulgating
the new "grazing preference" and "permitted use" rules. I agree
with that holding but would place special emphasis on the Court's
third reason for rejecting petitioners' facial challenge to the
regulations. Petitioners have not shown how the new regulations
themselves-rather than specific actions the Secretary might take
pursuant to those regulations-violate the Taylor Grazing Act's
requirement that "grazing privileges recognized and acknowledged
... be adequately safeguarded." 43 U. S. C. § 315b. It is of
particular importance, as the Court notes,
ante, at 743,
that the Secretary has assured us that the new regulations do not
in actual practice "alter the active use/suspended use formula in
grazing permits" and that" 'present suspended use would continue to
be recognized and have a priority for additional grazing use within
the allotment.'" Brief for Respondents 22 (quoting Bureau of Land
Management, Rangeland Reform '94: Final Environmental Impact
Statement 144 (1994)). For these reasons, petitioners' facial
challenge to the regulations must fail. Should a permit holder
find, however, that the Secretary's specific application of the new
regulations deviates from the above assurances and in the process
deprives the permit holder of grazing privileges to such an extent
that the Secretary's conduct can be termed a failure to adequately
safeguard such privileges, the permit holder may bring an
as-applied challenge to the Secretary's action at that time. The
Court's holding today in no way forecloses such a challenge. See
ante, at 744 ("[T]he affected permit holder remains free to
challenge such an individual [denial of] grazing privileges, and
the courts remain free to determine its lawfulness in
context").
Second, it is important to note that the Court's decision today
only rejects petitioners' claim that the 1995 regulations exceed
the Secretary's authority under the Taylor Grazing Act. We are not
presented in this case with a claim under the Administrative
Procedure Act (AP A), 5 U. S. C.
752
§ 706(2)(A), that the Secretary acted arbitrarily and
capriciously in promulgating the new regulations. Under our
decision in
Motor Vehicle Mfrs. Assn. of United States, Inc.
v.
State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 42 (1983),
an agency that departs from its previous rules will be found to
have acted arbitrarily and capriciously if it fails "to supply a
reasoned analysis for the change .... " Although petitioners
pressed precisely such an "arbitrary and capricious" challenge
before the District Court, for whatever reason, they chose not to
raise it before this Court. Regardless of whether the "arbitrary
and capricious" claim remains open to these permit holders, the
Court's decision does not foreclose such an AP A challenge
generally by permit holders affected by the 1995 regulations.
With these understandings, I join the Court's opinion.
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