Supreme Court upholds Babbitt's grazing reforms

Putting livestock on public land is a privilege, not a right

 

Grazing-reform advocates say they're thrilled that the U.S. Supreme Court has upheld three major components of Interior Secretary Bruce Babbitt's 1995 range-reform regulations.

"This is a truly great day for the recovery and restoration of damaged public lands across the West and for the people of the United States," said Jon Marvel, president of the Idaho Watersheds Project in Hailey, Idaho.

Public-lands ranchers, meanwhile, were not as dejected as one might expect, after losing the case and spending $500,000 on legal fees.

"The court didn't rule in our favor, but the decision most definitely clarified some things we've been asking to be clarified for the last seven years," said Jason Campbell, executive director of the Public Lands Council. The Washington, D.C.-based group represents 24,000 federal grazing permittees in 11 Western states.

In a unanimous decision May 15, the High Court rejected all claims by the Public Lands Council, which asserted that Babbitt had overstepped his authority in three particular areas.

In a nutshell, the court upheld Babbitt's authority to:

  • Change the definition of "grazing preference" to remove any references to a quantity of forage, expressed in animal unit months (AUMs), to which a rancher's livestock is entitled. The court found that the secretary of Interior has broad authority under the Taylor Grazing Act to reduce grazing levels or cancel grazing permits. "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," the court ruled.
  • Permit those who are not "engaged in the livestock business' to qualify for grazing permits. But there is a caveat: The court said federal law requires anyone who seeks a grazing permit on federal lands to own base property adjacent to public lands. And permits can be awarded only to "bona fide settlers, residents and other stock owners."
  • Take federal ownership of range improvements such as water wells, stock tanks, pipelines and fences. Up to 1995, ownership in those improvements was often shared by ranching permittees and the government. Now, all future improvements will be owned by the federal government.

Secretary Babbitt called the ruling welcome news. "We set out at the beginning of this administration to put in place a reform package that would modernize grazing regulations ... and help restore the health of Western rangelands."

The most significant aspect of the decision, Babbitt said, was that the law does not guarantee a particular level of grazing use.

Laird Lucas, a Boise-based attorney with the Land and Water Fund of the Rockies, agreed. He urged Babbitt and the Bureau of Land Management to be more aggressive about protecting public lands.

"The court unanimously held that the BLM has broad discretion to control grazing or even eliminate grazing on public lands to protect the environment," Lucas said. "That provision of the law clearly hasn't been applied, and it should be."

John Horning, a spokesman for Forest Guardians, a Santa Fe-based environmental group, pointed out that the court held that livestock grazing on public lands is a privilege, not a "property right."

Some questions remain

This part of the decision "will completely undermine ranchers' use of grazing permits as collateral for bank loans," Horning said.

Marvel agrees, but Campbell of the Public Lands Council disagrees.

"The permits will continue to be used as collateral for loans," Campbell said.

Joe Guild, president of the Nevada Cattlemen's Association, said it's too early to tell for sure. "I think the banks will continue to issue loans based on the entire ranch entity and AUMs as collateral."

But Guild notes that farm credit institutions filed an amicus brief expressing concern that a change in the definition of preference would "threaten" their "lending policies."

The court rejected that concern, the ruling stated, because the banks did not explain why, or suggest that the new definition "will, in fact, lead them to stop lending to ranchers."

As for the second issue, on who can apply for a grazing permit, Marvel and Horning agreed that the BLM, in practice, already awards grazing permits to nonranching entities, such as The Nature Conservancy, state fish and game agencies, and in Idaho, Envirosafe Services, Inc., a hazardous waste burial site.

It's still essential to own base property to get a grazing permit, but Marvel, who owns some base property, vows to test the new provision. "We'll give it a shot," he said. "If the BLM can give Envirosafe a grazing permit, then they can give one to Jon Marvel."

On the third issue, related to ownership of range improvements, Idaho rancher Brad Little said the decision makes it clear that "we have no incentive to spend our money on improvements if we get no ownership."

Guild added that the ruling does open the door for paying back ranchers for improvements if a grazing permit is canceled, and the government will still allow ranchers to own temporary improvements, such as solar fencing.

"The way I read the decision, I think the door is still open on the title issue," he said. "It may be a negotiable item, depending on who is secretary of Interior at the time."

The court shied away from making a blanket statement on the issue of who owns the water rights related to water improvements, Lucas pointed out.

At this point, nearly every Western state has a different policy on who owns the water rights tied to water improvements.

While ranchers and environmentalists agree very little on the substance of the case, both parties seem to believe that the decision will improve stewardship in the future.

"All in all, I'm optimistic we can go on from here with several issues clarified and get some things done for the land," Guild said.

The writer lives in Boise, Idaho.

YOU CAN CONTACT ...

  • Jason Campbell, Public Lands Council, 202/347-5355;
  • John Horning, Forest Guardians, 505/988-9126, [email protected];
  • Laird Lucas, Land and Water Fund of the Rockies, 208/342-7024.

Copyright © 2000 HCN and Steve Stuebner

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