concurring in part and dissenting in part: Insofar as the opinion of the Court sustains the validity of the special rule, I concur. I would go further and affirm the judgment of the District Court dismissing the complaint.
The authority of the Secretary of the Interior to make rules and regulations consistent with the Taylor Grazing Act is amply established in §§ 2 and 3 of the Act. 48 Stat. 1270-1271, 43 U.S.C.A. §§ 315a and 315b. The Federal Range Code promulgated by the Secretary is an exercise of that authority. It expressly provides for the adoption of special rules for grazing districts where local conditions make them necessary “in order better to achieve an administration consistent with the purposes of the act * 43 CFR, 1959 Cum.Pocket Supp., § 161.16.
The special rule now before us was adopted in complete conformity with the procedure prescribed in the Code. It applies only to specifically described lands, including those in use by appellant, and it changes the basic period, by which it measures the prior use of lands, from the five-year period immediately preceding June 28, 1934 (43 CFR, 1959 Cum.Pocket Supp., § 161.2(k) (1)), to the five-year period immediately preced*938.ing January 1, 1953 (43 CFR, 1959 Cum. ■Pocket Supp., Note, § 161.2(k)). This procedure provides a way to dispose of . the many different kinds of problems the Range Code was established to solve. The rule does not deprive appellant of any vested right, nor is it beyond the scope of the Secretary’s rule-making power. It merely provides, in the interest of all concerned, a reasonable regulation of individual rights to the use of public land.
Neither the record nor the majority opinion provides an adequate basis for appellant’s claim that the Range Code, by establishing the 1929-1934 priority period, has established in effect a permanent right to use the public range exempt from any modification of those rights even by the rule-making authority by which they were established. The Taylor Grazing Act did not purport to establish a specific and inflexible test as the basis for the preference. Rather, it was a starting point announcing a congressional policy as to the use of the federal range, and delegating authority to the Secretary to make and modify general or special rules for carrying out that policy. If the expectations of appellant were thus aroused, they were aroused not by the statute, but by the Range Code’s amendable definition of “dependency by use” in terms of a specific priority period.
The present record does not establish the precise amount of appellant’s preference under the special rule and we cannot properly consider the application of the special rule to appellant until he has been assigned a preference under it and grazing privileges are allotted or denied to him by virtue of it. The record does not show that the application to him of the special rule will result in sufficient prejudice to him to qualify him to attack it.1
. The findings of the examiner in the administrative hearing, founded on substanial evidence, indicate that, based on the 1929-1934 preference period, McNeil has a Class I preference of 90 animal units. while based on the contested 1948-1952 base period, the testimony in the record indicates he has a Class I preference of more than twice that number of animal units.