Public Lands Council v. Babbitt

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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.

No. 96-8083
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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 95-CV-165-B)

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

ORDER ON REHEARING
Filed February 8, 1999

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". Slip op. at 56. In response, Public Lands

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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.

ENTERED FOR THE COURT

Patrick Fisher, Clerk of Court

By: _______________________________
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 8 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

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. No. 96-8083

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 95-CV-165-B)

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.

SEYMOUR, Chief Judge.

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 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

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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

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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

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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. R EP . N O . 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

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previously have been classified, withdrawn, or set aside, or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

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.

3. The Public Rangelands Improvement Act of 1978

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 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 productive as feasible

for all rangeland values.” 43 U.S.C. § 1901(b)(2). PRIA set forth Congressional

findings that vast segments of the public rangelands remained in an unsatisfactory

condition and that increased management and funding were needed to address the

problem. See id. § 1901(a)(1)-(3). One of PRIA’s primary effects was to

implement a new grazing fee formula for domestic livestock grazing on the public

rangelands. See id. § 1905; see also B UREAU OF L AND M ANAGEMENT , U.S. D EP ’ T

OF THE I NTERIOR , T HE T AYLOR G RAZING A CT : F IFTY Y EARS OF P ROGRESS , 1934-

1984, at 5 (noting Congress’ failure to appropriate millions of dollars authorized

by PRIA).

B. The 1995 Regulations

The 1995 grazing regulations made a number of changes to the

administration of the then-existing federal grazing program. 1
We address below

only those regulations held invalid by the district court.

1. Permitted Use Rule

As is customary with adminstrative regulations, the regulations implementing and
1

enforcing the TGA, FLPMA, and PRIA have been amended on several occasions since
1934, as we discuss infra.

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 As part of the scheme for issuing grazing permits and determining grazing

levels, the rangeland management rules in effect prior to 1995 employed the term

“grazing preference” to mean “the total number of animal unit months [AUMs] of

livestock grazing on public lands apportioned and attached to base property

owned or controlled by the permittee or lessee.” 43 C.F.R. § 4100.0-5 (1994).

One AUM represents the amount of forage necessary to sustain one cow or horse

or five sheep or goats for one month. Id. This “grazing preference” included

“active use,” defined as “the current authorized livestock grazing use,” id., which

was adjusted according to rangeland conditions and was “based upon the amount

of forage available for livestock grazing established in the land use plan,” id.

§ 4110.2-2(a), as well as “suspended use,” id. , which could be converted to active

use should the rangeland’s carrying capacity increase. The “grazing preference”

was specified in all grazing permits or leases issued by the Secretary, id.; was

attached to base property, id. § 4110.2-2(c); and was transferable with the base

property in whole or in part upon application and approval, id.

§ 4110.2-3.

The 1995 regulations redefined the term “grazing preference” to mean “a

superior or priority position against others for the purpose of receiving a grazing

permit or lease,” which is “attached to base property owned or controlled by the

permittee or lessee.” 43 C.F.R. § 4100.0-5 (1995). At the same time, BLM added

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the term “permitted use,” defined as “the forage [expressed in AUMs] allocated

by, or under the guidance of, an applicable land use plan for livestock grazing in

an allotment under a permit or lease.” Id. “Permitted use” encompasses both

active and suspended use. Id. § 4110.2-2(a). Like “grazing preference” in the

previous rules, “permitted use” is specified in permits as a designated amount of

forage expressed in AUMs, id.; is attached to base property, id. § 4110.2-2(c);

and is transferable with the base property in whole or in part upon application and

approval, id. § 4110.2-3.

2. Range Improvements Rule

Prior to 1995, BLM’s regulations provided that title to many range

improvements constructed under cooperative agreements upon application and

approval by the Secretary, including fences, wells and pipelines, was “shared by

the United States and cooperator(s) in proportion to the actual amount of the

respective contribution to the initial construction.” 43 C.F.R. § 4120.3-2 (1994).

Under the 1995 regulations, the government prospectively asserts title to

“permanent” range improvements, such as fences, wells, reservoirs, pipelines, and

stock tanks, and “non-structural” improvements such as seeding, spraying, and

chaining, authorized after August 21, 1995. 43 C.F.R. § 4120.3-2 (1995).

Specifically, the new regulations provide that all permanent improvements will be

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constructed under cooperative agreements between the permittees and BLM, and

that all improvements constructed under such cooperative agreements will be

titled in the government. Id. § 4120.3-2(b). As under the previous scheme, the

1995 regulations provide for compensation to permittees for existing or future

range improvements, requiring new permit applicants or transferees to pay the

prior occupants for their “interest in the authorized improvements within the

allotment as of the date of transfer.” Id. § 4120.3-5.

3. Qualifications Rule

Under the previous regulations, in addition to owning or controlling base

property used in a livestock operation, permit applicants were required to “be

engaged in the livestock business.” 43 C.F.R. § 4110.1 (1994). The new

qualifications rule eliminates this requirement. See 43 C.F.R. § 4110.1 (1995).

The new rule was devised to “clarify that mortgage insurers, natural resource

conservation organizations, and private parties whose primary source of income is

not the livestock business, but who meet the [other criteria], are qualified for a

grazing permit or lease.” Department Hearings and Appellate Procedures;

Cooperative Relations; Grazing Administration; Exclusive of Alaska; Final Rule,

60 Fed. Reg. 9894, 9901 (1995) (hereinafter Final Rule). The new regulations

also altered the definition of “base property,” see 43 C.F.R. § 4100.0-5 (1995), to

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“clarify that base property must be capable of serving as a base for livestock

operations but it need not actually be in use for livestock production,” 60 Fed.

Reg. at 9901.

4. Conservation Use Rule

The 1995 regulations added “conservation use” as a permissible use of a

grazing permit. See 43 C.F.R. § 4100.0-5 (1995) (defining “grazing permit” as a

document that specifies “all authorized use [of public lands within a grazing

district] including livestock grazing, suspended use, and conservation use”).

“Conservation use” means “an activity, excluding livestock grazing, on all or a

portion of an allotment” for the purpose of protecting the land and its resources,

improving rangeland conditions, or enhancing resource values. Id. Conservation

use may be approved for a period of up to ten years–i.e., for the entire duration of

the permit. See id. § 4130.2(g)(1). According to the Secretary, conservation use

will be initiated by request of the permittee and will not be forced on an unwilling

permittee. See Final Rule, 60 Fed. Reg. at 9898. Allotments in conservation use

will not be subject to grazing fees since no forage will be consumed by livestock.

See id. BLM will not consider allowing another operator to use any resulting

forage. See id.

As under the old rules, the 1995 regulations provide that BLM can

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temporarily suspend grazing for conservation reasons. See 43 C.F.R. §§ 4110.3-2

to -3 (1995) (describing procedures for reducing permitted use). In addition, the

new regulations add the term “temporary nonuse” to describe “the authorized

withholding, on an annual basis, of all or a portion of permitted livestock use” at

the request of a permittee. Id. § 4100.0-5. Temporary nonuse allows a permittee

to place all or part of his “permitted use” in nonuse for up to three years for

“reasons including but not limited to financial conditions or annual fluctuations of

livestock.” Id. § 4130.2(g)(2).

C. PLC’s Challenge

Soon after the Secretary’s proposed regulations took effect on August 21,

1995, PLC filed suit in the United States District Court for the District of

Wyoming, challenging the facial validity of several of the new regulations. PLC

later substituted a petition for review, seeking declaratory and injunctive relief on

the same grounds stated in its complaint. PLC challenged most of the regulations

on the grounds that the Secretary had exceeded his statutory authority, lacked a

reasoned basis for departing from previous rules, or had failed to provide

adequate responses to public comments. PLC also challenged two of the new

regulations on constitutional grounds and asserted that the Final Environmental

Impact Statement violated the National Environmental Policy Act, 42 U.S.C.

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§§ 4321 et seq .

On June 13, 1996, the district court entered an Order on Petition for

Review, holding in favor of PLC on four of the challenged regulations. See

Public Lands Council v. Department of the Interior , 929 F.Supp. 1436 (D. Wyo.

1996). The district court characterized the permitted use rule as ending

longstanding recognition of grazing preferences adjudicated following enactment

of the TGA, thereby depriving permittees of their statutory “right” to graze

predictable numbers of stock. As such, the court held the permitted use rule

violates the TGA’s mandate that “grazing privileges recognized and

acknowledged shall be adequately safeguarded.” Id. at 1440-41. In addition, the

district court interpreted the TGA to require that range improvements be owned

by the permittees who construct them, and held that the 1995 range improvements

regulation violates this requirement. See id. at 1442-43. Finally, the district

court held that eliminating the requirement that permit applicants be engaged in

the livestock business violates the TGA’s mandate that preference be given to

such persons, see id. at 1444-45; and that the Secretary exceeded his authority

under the TGA and FLPMA and lacked a reasoned basis in authorizing BLM to

issue “conservation use” permits, see id. at 1443-44. The district court held in

favor of the government on the remaining challenges to other parts of the new

regulations, and the PLC does not contest these rulings on appeal.

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D. Standard of Review

We review de novo a district court’s decision regarding an agency action.

See Santa Fe Energy Prod. Co. v. McCutcheon , 90 F.3d 409, 413 (10th Cir. 1996)

(standard of review of agency action identical in both district and appellate court;

“[o]nce appealed, the district court’s decision is afforded no particular

deference”).

Our role as a reviewing court addressing PLC’s facial challenge to the 1995

regulations is well established. Under section 706 of the Administrative

Procedures Act (APA), 5 U.S.C. § 706, we cannot set aside any agency action

unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law,” id. § 706(2)(A), or unless it is “in excess of statutory

jurisdiction, authority, or limitations, or short of a statutory right.” Id.

§ 706(2)(C). See Olenhouse v. Commodity Credit Corp. , 42 F.3d 1560, 1574

(10th Cir. 1994) (“[T]he essential function of judicial review is a determination of

(1) whether the agency acted within the scope of its authority, (2) whether the

agency complied with prescribed procedures, and (3) whether the action is

otherwise arbitrary, capricious or an abuse of discretion.”) (citations omitted).

Moreover, because PLC has challenged the 1995 regulations on their face and

seeks to enjoin their enforcement, our review is also governed by the standard

applicable to facial challenges. To prevail on a facial challenge, PLC “‘must

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establish that no set of circumstances exists under which the [regulation] would

be valid.’” Reno v. Flores , 507 U.S. 292, 301 (1993) (alteration in original)

(quoting United States v. Salerno , 481 U.S. 739, 745 (1987)).

Our review is also guided by the principles governing judicial review of

agency action set forth in Chevron U.S.A., Inc. v. Natural Resources Defense

Council , 467 U.S. 837, 842-43 (1984).

In determining whether an administrative regulation permissibly
construes the statute that an agency is charged with enforcing, our
inquiry is shaped by the specificity of the Congressional enactment:

“First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress has not
directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation. Rather,
if the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based on
a permissible construction of the statute.

Quivira Mining Co. v. Nuclear Regulatory Comm’n , 866 F.2d 1246, 1249 (10th

Cir. 1989) (quoting Chevron , 467 U.S. at 842-43).

Even under Chevron ’s second step, however, “an agency’s interpretation of

a statute is not entitled to deference when it goes beyond the meaning that the

statute can bear.” MCI Telecomm. Corp. v. AT&T , 512 U.S. 218, 229 (1994); see

Southern Ute Indian Tribe v. Amoco Prod. Co. , 119 F.3d 816, 835 (10th Cir.

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1997) (“Even under the deference mandated by Chevron , ‘legislative regulations

are [not] given controlling weight [if] they are arbitrary, capricious, or manifestly

contrary to the statute.’”) (alterations in original) (quoting Chevron , 467 U.S. at

844), aff’d en banc on other grounds , No. 94-1579, 1998 WL 404549 (10th Cir.

July 20, 1998). “[N]o deference is warranted if the interpretation is inconsistent

with the legislative intent reflected in the language and structure of the statute or

if there are other compelling indications that it is wrong.” Mountain Side Mobile

Estates Partnership v. Secretary of Housing & Urban Dev. , 56 F.3d 1243, 1248

(10th Cir. 1995) (citation omitted).

With this standard of review in mind, we turn to an examination of the

regulations invalidated by the district court. In doing so, we note at the outset

that Congress and the various Secretaries of the Interior have developed over the

last sixty years a somewhat complicated regulatory scheme governing the federal

lands. Yet this complicated scheme stems from a simple premise: the lands at

issue here belong to the United States government; the issuance of grazing

permits “shall not create any right, title, interest, or estate in or to the lands.” 43

U.S.C. § 315b. Congress passed the aforementioned statutes governing when and

how private individuals will be allowed to use those lands and charged the

Secretary of the Interior with enforcing its intentions. We must therefore ask and

answer the simple question whether the Secretary’s regulations are consistent with

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the authority Congress has given him, or whether they conflict with Congress’

unambiguous commands.

II.

THE PERMITTED USE RULE

Upon examining the relevant statutes, regulations, and the record, we are

persuaded the permitted use rule comports with the authority granted the

Secretary of the Interior under the TGA and FLPMA and demands our deference

under Chevron .

In invalidating the permitted use rule, the district court held that the

Secretary’s decision to change the definition of “grazing preference” and to add

the concept of “permitted use,” whereby the terms and conditions specified in all

grazing permits are determined in accordance with land use plans, ended the prior

practice of “recognizing” the grazing preferences allocated following the TGA’s

passage in 1934. According to the district court, this failure to recognize the

original grazing adjudications eliminated an important “right” granted by the TGA

– the right to graze predictable numbers of stock from permit to permit. In

eliminating this “right,” the Secretary necessarily failed to “adequately

safeguard[]” it as required by the TGA. The dissent adopts this characterization

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of the TGA and the existing regulations. An examination of the controlling

statutes in light of the relevant regulations developed over the years to implement

them, however, reveals that the permitted use rule neither conflicts with an

unambiguous statutory command nor eliminates any long-recognized right

accorded permittees to graze predictable numbers of stock.

To place the 1995 permitted use rule in context, and to respond to the

dissent’s erroneous characterization of the regulatory scheme that obtained under

the TGA and FLPMA prior to 1995, we begin with a discussion of earlier versions

of BLM’s regulations governing issuance of grazing permits. We follow with an

analysis of the changes posed by the permitted use rule. We then explain how a

close reading of the statutory language of the TGA and FLPMA mandates our

ultimate conclusion that the Secretary of the Interior acted within his authority in

issuing the permitted use rule.

A. The Regulatory Scheme

1. The Federal Range Code 2

After enactment of the TGA in 1934, the Secretary of the Interior began the

process of establishing grazing districts, issuing permits, and granting leases. At

2
The “Range Code” was a shorthand method of referring to the regulations
governing grazing activity under the TGA, and its use disappeared completely in the
1978 revisions. See generally Delmar & Jo McLean v. Bureau of Land Management,
133 IBLA 225, 241 n.8 (Aug. 3, 1995).

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the time of the TGA’s passage, the number of qualifying applicants far exceeded

the amount of grazing land available to accommodate them. Therefore, the

Department of the Interior (DOI) instituted a detailed adjudication process,

guided by a set of priorities articulated in section three of the TGA, to determine

which applicants would receive grazing permits. First priority in the issuance of

permits went to applicants who owned land or water, i.e. , “base property,” in or

near a grazing district, who were dependent on the public lands for grazing, who

had used their land or water for livestock operations in connection with the public

lands in the five years preceding the TGA’s enactment, and whose land or water

was situated so as to require the use of public rangeland for “economic” livestock

operations. See D IVISION OF G RAZING , U.S. D EP ’ T OF THE I NTERIOR , F EDERAL

R ANGE C ODE , §§ 2(g)-(h), 4(a), 6(b)(1) (1938). Once the Secretary issued a

favorable grazing decision regarding an individual applicant, the applicant

received a ten-year permit which specified the maximum number of livestock,

measured in AUMs, that the permittee was entitled to place in a grazing district.

2. The 1978 Regulations

As discussed above, Congress enacted FLPMA in 1976 to address the

continued deterioration of federal rangelands that was occurring in spite of the

Taylor Grazing Act. “The Federal Land Policy & Management Act of 1976 . . .

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was a comprehensive statement of the public policy of the United States,

declaring that public lands be systematically inventoried and subjected to a land

use planning process which would enable them to be managed by the Secretary of

the Interior . . . .” Natural Resources Defense Council, Inc. v. Hodel , 618 F.Supp.

845, 857 (E.D. Cal. 1985). In 1978, the Secretary issued new regulations under

FLPMA governing grazing administration, which effected significant changes in

the process for issuing grazing permits. See Bruce M. Pendery, Reforming

Livestock Grazing on the Public Domain: Ecosystem Management-Based

Standards & Guidelines Blaze a New Path for Range Management , 27 ENVTL . L .

513, 556 (1997) (“Over the years, the Range Code was ‘amended as the occasion

arose.’ But when FLPMA was enacted in 1976, sweeping revisions of the

regulations were made.”) (quoting George C. Coggins & Margaret Lindberg-

Johnson, The Law of Public Rangeland Management II: The Commons & The

Taylor Act , 13 ENVTL . L . 1, 69 (1982) (footnote omitted)). At the outset, and in

recognition of the gravity of the changes, the Secretary made provisions for the

livestock operators already authorized to use the federal lands:

Serious concern was expressed in several of the comments about how
these grazing regulations will affect the livestock operators now
authorized to graze on the public lands administered by the Bureau of
Land Management. Livestock operators with a grazing license,
permit, or lease will be recognized as having a preference for
continued grazing use on these lands. There [sic] adjudicated
grazing use, their base properties, and their areas of use (allotments)
will be recognized under these grazing regulations.

-21-
43 Fed. Reg. 29,058 (July 5, 1978).

While the previously adjudicated grazing uses were to be recognized for the

length of existing permits, “future adjudications of grazing use would be based on

criteria vastly different than those provided in the Federal Range Code.” Delmer

& Jo McLean v. Bureau of Land Management , 133 IBLA 225, 233 (Aug. 3,

1995). The 1978 regulations specified that “[l]ivestock grazing permits and

leases shall contain terms and conditions necessary to achieve the management

objectives for the public lands . . . identified in land use plans .” 43 C.F.R. §

4120.2 (1978) (emphasis added). Grazing permits or leases issued under the

regulations were subject to the following mandatory terms and conditions:

(a) The authorized officer shall specify the kind and number of
livestock, the period(s) of use, the allotment(s) to be used, and the
amount of use, in animal unit months, that can be made in every
grazing permit or lease . The authorized livestock grazing use shall
not exceed the livestock grazing capacity and shall be limited or
excluded to the extent necessary to achieve the objectives established
for the allotment .

(b) If it has been determined that allotment management plans are not
necessary, or if allotment management plans have not been
implemented where they are needed, the authorized officer shall
incorporate terms and conditions under this section in grazing
permits or leases . The authorized officer shall modify these terms
and conditions if the condition of the range requires modification of
grazing use and may cancel grazing permits or grazing leases and
grazing preferences as conditions warrant. These modifications and
cancellations may be made at any time and shall be put into full
force and effect on the date specified by the authorized officer.

-22-
Id. § 4120.2-1 (emphasis added). The regulations made cancellation of grazing

preferences mandatory when necessary to maintain compliance with land use

plans: “When authorized grazing use exceeds the amount of forage available . . .

or where reduced grazing is necessary to facilitate achieving the objectives in the

land use plans, grazing permits or grazing leases and grazing preferences shall be

canceled in whole or in part.” Id. § 4110.3-2(b) (emphasis added).

Grazing permits were offered “for a term not to exceed 10 years to

qualified applicants.” Id. § 4130.2(a). Permits were to “include appropriate

terms and conditions,” id. § 4130.2(b), were to be “modified or canceled in

accordance with land use planning decisions,” id. § 4130.2(d)(3), and were to be

subject to annual review “and modification of terms and conditions as

appropriate,” id. § 4130.2(d)(4). Most significant for purposes of this appeal, the

permit renewal process provided as follows: “Permittees or lessees holding

expiring grazing permits or leases shall be given first priority for receipt of new

permits or leases if : . . . [t]he permittee or lessee accepts the terms and

conditions to be included in the new permit or lease by the authorized officer . Id.

§ 4130.2(e)(3) (emphasis added).

According to the plain language of the regulation, the renewal of permits

was subject to a preference right in the sense that permit holders had priority to

renew their permits. However, it is equally clear that new terms and conditions --

-23-
including the numbers of stock permitted to graze -- could be specified by the

authorizing officer in such new permits and that any terms and conditions

specified were required to be in accord with applicable land use plans. Nowhere

in the 1978 regulations was there any requirement, or even the suggestion, that

the authorizing officer must recognize or refer to the original grazing

adjudications, or even the most recent adjudications, in issuing new permits.

3. The post-1978 regulations .

As the drafters of FLPMA envisioned, managing the federal lands through

land use planning is a dynamic process that has often led the various Secretaries

of Interior to alter the governing regulations. See H.R. R EP . N O . 94-1163, at 5

(1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6179 (the BLM and the Forest

Service “treat land use planning as dynamic and subject to change with changing

conditions and values”). By 1994, many aspects of the original 1978 regulations

had been altered, effectively softening the requirement that grazing preferences

must at all times be consistent with land use plans. The 1978 regulations

specified that terms and conditions should be modified or canceled “if the

condition of the range requires modification of grazing use . . . at any time.” 43

C.F.R. 4120.2-1(b) (1978). However, the regulations in effect in 1994 specified

that the authorized officer “ may make changes,” which were required to be

-24-
“supported by monitoring, as evidenced by rangeland studies conducted over time,

unless the change is either specified in an applicable land use plan or necessary

to manage, maintain or improve rangeland productivity .” 43 C.F.R. § 4110.3

(1994) (emphasis added). Whereas the 1978 regulations required livestock

grazing permits to contain terms and conditions “identified in land use plans,” 43

C.F.R. § 4120.2 (1978), the 1994 version merely stated: “Livestock grazing

permits and leases shall contain terms and conditions necessary to achieve the

management objectives for the public lands and other lands under Bureau of Land

Management administration,” 43 C.F.R. § 4130.6 (1994).

Yet despite the changes from 1978, the primacy of the land use plans

mandated by FLPMA remained apparent in the fact that changes specified in land

use plans did not require other justification. Most significantly, the provisions for

permit renewal remained exactly the same as they had been in 1978, that is,

permits were renewable so long as “the permittee or lessee accepts the terms and

conditions to be included by the authorized officer in the new permit or lease.”

Id. § 4130.2. Once again, the regulations effective in 1994 offer no hint that

recognition of or reference to the original grazing adjudications was in any way

required. The authorized officer was clearly empowered to specify the terms and

conditions -- including the numbers of stock and seasons of use -- upon the

renewal of grazing permits in accordance with land use plans.

-25-
 4. The 1995 regulations

As explained above, the 1995 regulations challenged here divided the

concept previously known as the “grazing preference” into two parts, defining

“preference” as a priority position against others for purposes of permit renewal

and defining “permitted use” 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 . . . expressed in AUMs.” 43 C.F.R. § 4100.0-5 (1995). It is

apparent that one of the Secretary’s purposes in promulgating the new regulations

was to return to the position taken in the 1978 regulations under which the terms

and conditions of a grazing permit must rather than may conform to land use

plans. Nevertheless, changes in “permitted use” under the 1995 regulations,

while mandatory if out of line with applicable land use plans, are in some respects

more difficult to effect than under the 1994 regulations. Under the 1995

regulations all changes, even those specified in a land use plan, “must be

supported by monitoring, field observations, ecological site inventory or other

data acceptable to the authorized officer.” Id. § 4110.3. Virtually all other

aspects of the regulations governing permit issuance are identical to those

-26-
obtaining in 1994. 3

The district court and the dissent believe the 1995 regulations somehow

“eliminated” all reference to the original grazing adjudications “recognized”

under the pre-1995 regulations. This assertion, of course, begs the question of

exactly where this prior recognition can be found. The dissent attempts to find it

in its own “historical understanding of grazing preferences and the importance

that they assumed in the operation of permittes’ livestock businesses.” Dissent at

7. Without citation to any authority, the dissent then describes at length a process

whereby the Secretary made permit renewal decisions by “reference to” or in

“recognition of” the original grazing adjudications. Dissent at 6-10.

We know of no principle of administrative law that allows us to substitute

our own unattributed assertions for the plain meaning of the regulations in

seeking to review a regulatory scheme. We must therefore focus on the language

of the regulations. As the preceding discussion demonstrates, since 1978 the

number of AUMs allowed to graze on public lands has been specified by the

Secretary upon the issuance of grazing permits in accordance with land use plans.

At the close of the ten-year permit period, permit holders have first priority of

3
The new regulations at several points mandate that all grazing permits and leases
are to contain such terms and conditions necessary to conform with the new Subpart
4180, entitled “Fundamentals of Rangeland Health and Standards and Guidelines for
Grazing Administration.” The district court upheld this portion of the new regulations
and its validity is not at issue in this appeal.

-27-
renewal subject to the terms and conditions specified by the Secretary in

accordance with land use plans. Although it may well be the case that there were

long periods in which the Secretary did not exercise his authority to change the

permitted number of AUMs in new permits, 4
this practice did not rise to the level

of a regulatory mandate.

Because the Secretary has long had the authority to specify permitted

grazing use upon the renewal of a grazing permit, the district court erred in

characterizing the permitted use rule as deviating from past regulations by

eliminating all recognition of the original grazing adjudications. To the extent

the original adjudications affected the substance of future grazing permits, they

were not “recognized” in the manner asserted by the dissent under any regulations

promulgated since the enactment of FLPMA.

B. The Controlling Statutes

We now assess whether the permitted use rule is consistent with the

statutory mandates set forth in the TGA and FLPMA.

1. TGA

Under the 1995 permitted use rule, “[p]ermitted use is granted to holders

4
For example, during the 1980s, the BLM adopted a moratorium on grazing
reductions unless a need for such reductions was indicated by certain data. See Pendery,
supra, at 557 & n.345.

-28-
of grazing preference and shall be specified in all grazing permits and leases.”

43 C.F.R. § 4110.2-2(a) (1995). Nothing in the TGA precludes the Secretary

from promulgating this regulation. The TGA provides in relevant part:

[Grazing permits] shall be for a period of not more than ten years,
subject to the preference right of the permittees to renewal in the
discretion of the Secretary of the Interior, who shall specify from
time to time numbers of stock and seasons of use. . . . 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 language of section 315b clearly does

not specify the “privileges” a grazing permit entails other than a general

authorization to graze livestock for a certain period of time not to exceed ten

years and a preferential right of renewal as a priority position against other permit

applicants, which is encompassed in the new definition of “grazing preference.”

Moreover, the statute 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 permitted use rule is also consistent with the underlying purposes of

the TGA. While stabilizing the livestock industry is one of several purposes of

-29-
the Act, PLC and the dissent place far too much weight on this point. 5 The Act

clearly states that the need for stability must be balanced against the need to

protect the rangeland. See id. § 315a. The lack of mandatory terms in the statute,

together with the discretion vested in the Secretary of Interior, make clear that it

is the Secretary who is charged with striking that balance as he sees fit. See 43

U.S.C. § 315a (Secretary empowered to do “any and all things necessary to

accomplish the purposes of this subchapter”); Natural Resources Defense Council,

Inc. v. Hodel, 624 F. Supp. 1045, 1058 (D. Nev. 1985) (general clauses and

phrases in statute are not concrete limits on agency authority).

5
Indeed, the Act treats stabilizing the livestock industry as a secondary goal.
While this purpose is the third of several set out in the Act’s uncodified preamble, the
actual text of the statute references only safeguarding the rangeland and providing for its
orderly use as primary objectives. See 43 U.S.C. § 315a (“The Secretary of the Interior
shall . . . do any and all things necessary to accomplish the purposes of this subchapter,
and to insure the objects of such grazing districts, namely, to regulate their occupancy
and use, to preserve the land and its resources from destruction or unnecessary injury,
[and] to provide for the orderly use, improvement, and development of the range.”)
(emphasis added). Authorities in environmental law have observed that “[t]he one
explicit theme recurring throughout the statute is the need for improvement of range
conditions.” Coggins & Lindberg-Johnson, supra, at 50-51.
Moreover, it is significant that BLM lands support only a small portion of the
livestock industry. “[L]ivestock producers with Forest Service or BLM grazing permits
constitute a small percentage of all livestock producers, even in the West. Only twenty-
two percent of western beef cattle producers have federal grazing permits. Similarly,
only nineteen percent of western sheep producers hold federal grazing permits. Thus,
even in the West only about one in five livestock producers holds a federal grazing
permit.” Pendery, supra, at 523 (footnotes omitted). The Secretary is free to consider
this fact in balancing the need for industry stability against the need to protect the federal
lands from deterioration.

-30-
 We are not persuaded by the assertion that the TGA unambiguously

precludes the permitted use rule by requiring recognition of the original grazing

adjudications and thus the right to graze predictable numbers of stock. The TGA

gives no hint, much less the unambiguous direction required by Chevron, that the

issuance of a grazing permit by the Secretary requires permanent “recognition” of

the numbers of stock authorized to graze in that permit. The dissent’s attempt to

find such a mandate in the command that “grazing privileges recognized and

acknowledged shall be adequately safeguarded” is unavailing. In the dissent’s

view, the number of AUMs assigned to permits in the original grazing decisions

results in “recognized and acknowledged” grazing privileges. Even if this were

true, the statute does not provide unconditionally that grazing privileges shall

always be “adequately safeguarded.” Rather, such privileges will be adequately

safeguarded as long as they are consistent with the purposes and provisions of the

TGA, namely protecting the federal rangelands and ensuring their orderly use. 43

U.S.C. § 315b. 6

In this regard, the notion that the statute recognizes rights to graze set

The dissent says that we “do[] not accord the statutory language much, if any,
6

importance.” Dissent at 1. To the contrary, we find the statutory language to be of
primary importance and note that the dissent here fails to explain how its interpretation of
the TGA as requiring permanent recognition of the original grazing adjudications can be
reconciled with the clear statement that any privileges the Secretary recognizes are to be
so recognized only so far as consistent with the purposes and provisions of the Act.

-31-
numbers of stock is itself in direct conflict with the statutory mandate that the

Secretary shall specify the numbers and stock and seasons of use from time to

time. See id. Perpetuating grazing decisions handed down in the 1940s may well

be inconsistent with the ongoing statutory command that the Secretary protect the

federal lands, especially where the grazing decisions were largely made by the

ranchers themselves. 7 In addition, the dissent’s suggestion that Congress meant

the numbers of stock set by the original grazing decisions to become an ongoing

“grazing preference” appears to conflict with the statute’s provision of permit

periods not to exceed ten years. The mandatory renewal process contemplates

that the substance of the grazing privilege, as opposed to the preference right of

renewal, is to be periodically adjusted in accordance with the condition of the

rangeland.

2. FLPMA

The Secretary’s power to regulate grazing under the TGA must be read in

conjunction with FLPMA, which represents Congress’ recognition that previously

enacted laws governing use of the federal lands had failed to provide adequately

for their protection and enhancement. FLPMA provides that “goals and

7
"Between 1934 and 1976, grazing regulation was limited, and the early
regulations were actually the creation of the ranchers themselves.” Pendery, supra, at
521 (citing Coggins & Lindeberg-Johnson, supra, at 55-60).

-32-
objectives be established by law as guidelines for public land use planning, and

that management be on the basis of multiple use and sustained yield unless

otherwise specified by law.” 43 U.S.C. § 1701(a)(7); see also id. § 1732(a) (“The

Secretary shall manage the public lands under principles of multiple use and

sustained yield. . . .”). In addition,

the public lands [must] be managed in a manner that will protect the
quality of scientific, scenic, historical, ecological, environmental, air
and atmospheric, water resource, and archaeological values; that,
where appropriate, will preserve and protect certain public lands in
their natural condition; that will provide food and habitat for fish and
wildlife and domestic animals; that will provide for outdoor
recreation and human occupancy and use. . . .

Id. § 1701(a)(8). In other words, FLPMA requires that the public lands be

managed for many purposes in addition to grazing and for many members of the

public in addition to the livestock industry.

As noted above, in order to manage the lands in accordance with principles

of multiple use and sustained yield, FLPMA mandates that “[l]and use plans shall

be developed for the public lands regardless of whether such lands previously

have been classified, withdrawn, set aside, or otherwise designated for one or

more uses.” Id. § 1712(a) (emphasis added). As part of the land use planning

process, FLPMA sets forth a detailed set of requirements governing the issuance

by the Secretary of livestock grazing permits. All livestock grazing permits are

issued subject to terms and conditions consistent with statutory purposes. Id.

-33-
§ 1752. FLPMA also requires the Secretary to specify the numbers of animals to

be grazed and seasons of use in all permits issued, either directly or by reference

to an appropriate allotment management plan (AMP). See Natural Resources

Defense Council, Inc., 618 F.Supp. at 858-59 (holding permit issuance

requirements are “very specific” and describing AMPs as “‘basically land use

plans tailored to specific grazing permits.’”) (quoting George C. Coggins, The

Law of the Public Rangeland IV: FLPMA, PRIA, and the Multiple Use Mandate,

14 E NVTL . L. 1, 24 (1983)). 8 The statute thus provides in relevant part:

(a) Terms and conditions

Except as provided in subsection (b) of this section, permits and
leases for domestic livestock grazing on public lands issued by the
Secretary . . . shall be for a term of ten years subject to such terms
and conditions the Secretary concerned deems appropriate and
consistent with the governing law, including, but not limited to, the
authority of the Secretary concerned to cancel, suspend, or modify a
grazing permit or lease, in whole or in part, pursuant to the terms and
conditions thereof, or to cancel or suspend a grazing permit or lease
for any violation of a grazing regulation or of any term or condition
of such grazing permit or lease.

....

(d) Allotment management plan requirements

All permits and leases for domestic livestock grazing issued

8
FLPMA defines an AMP as a document which “prescribes the manner in, and
extent to, which livestock operations will be conducted in order to meet the multiple-use,
sustained-yield, economic and other needs and objectives as determined for the lands by
the Secretary concerned.” 43 U.S.C. § 1702(k)(1).

-34-
 pursuant to this section may incorporate an allotment management
plan developed by the Secretary concerned. . . . Allotment
management plans shall be tailored to the specific range condition of
the area to be covered by such plan, and shall be reviewed on a
periodic basis to determine whether they have been effective in
improving the range condition of the lands involved or whether such
lands can be better managed under the provisions of subsection (e) of
this section. . . .

(e) Omission of allotment management plan requirements and
incorporation of appropriate terms and conditions; reexamination of
range conditions

In all cases where the Secretary concerned has not completed
an allotment management plan or determines that an allotment
management plan is not necessary for management of livestock
operations and will not be prepared, the Secretary concerned shall
incorporate in grazing permits and leases such terms and conditions
as he deems appropriate for management of the permitted or leased
lands pursuant to applicable law. The Secretary concerned shall also
specify therein the numbers of animals to be grazed and the seasons
of use and that he may reexamine the condition of the range at any
time and, if he finds on re-examination that the condition of the
range requires adjustment in the amount or other aspect of grazing
use, that the permittee or lessee shall adjust his use to the extent the
Secretary concerned deems necessary. Such readjustment shall be
put into full force and effect on the date specified by the Secretary
concerned.

Id. § 1752 (emphasis added).

As the statutory language makes clear, FLPMA unambiguously authorizes

the Secretary to specify terms and conditions in livestock grazing permits in

accordance with land use plans. Indeed, all livestock grazing permits are

required either to incorporate an AMP or directly to specify the numbers of

animals that may be grazed and the seasons of use. The overarching goal of the

-35-
statute is to ensure that the Secretary’s management of the lands is consistent with

the principles of multiple use and sustained yield as developed in land use plans.

See Natural Resources Defense Council, 618 F.Supp. at 875 (noting the

“legislature’s emphasis on the importance of land use planning caused the leading

commentator to observe that Congress ‘intended planning to be the centerpiece of

future rangeland management’ and ‘binding on all subsequent multiple use

decisions.’”) (quoting Coggins, supra, at 15)). The statute itself simply does not

support the notion that once a grazing adjudication has been handed down it must

be recognized for all time. To the contrary, the statute explicitly states that

permits will in most cases be issued for ten years subject to the terms and

conditions the Secretary concerned deems appropriate, and expressly provides the

Secretary with authority at any time to adjust animal numbers upon reexamination

of range conditions. PLC’s and the dissent’s position is without support in the

language of the TGA, fails to acknowledge the Congressional purpose and plain

language of FLPMA, and runs contrary to the elemental proposition that “an

agency is not required to ‘establish rules of conduct to last forever,’ but rather

‘must be given ample latitude to adapt [its] rules and policies to the demands of

changing circumstances’.” Rust v. Sullivan, 500 U.S. 173, 186-87 (1991)

(internal quotation marks and citations omitted) (quoting Motor Vehicle Mfrs.

Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42

-36-
(1983)). 9

In sum, since the permitted use rule provides that grazing permits shall

specify the numbers of stock and seasons of use according to the dictates of

applicable land use plans, the rule is easily within the scope of the Secretary’s

authority under FLPMA so long as it does not conflict with the TGA’s

requirement that recognized and acknowledged grazing privileges be adequately

safeguarded, the question to which we now turn.

C. Adequate Safeguards

In determining whether the 1995 regulations “adequately safeguard”

grazing privileges as required by the TGA, see 43 U.S.C. § 315b, we must take

particular note of the fact that to succeed on a facial challenge, PLC must

demonstrate “that no set of circumstances exists under which the [regulation]

would be valid.” Reno v. Flores, 507 U.S. at 301 (alteration in original) (quoting

Salerno, 481 U.S. at 745). Such a challenge “is, of course, the most difficult

challenge to mount successfully,” Rust, 500 U.S. at 183 (quoting Salerno, 481

9
In its discussion of whether the permitted use rule is consistent with the
governing statutes, the dissent does not mention FLPMA. Dissent at 17-21. The dissent
thus fails to explain how permanent recognition of grazing adjudications dating back
more than a half century could possibly be consistent with FLPMA’s mandate that the
Secretary must specify terms and conditions consistent with land use plans in every
grazing permit.

-37-
U.S. at 745), and the PLC has not done so here.

First, the 1995 regulations provide exactly the same procedural safeguards

that obtained under the previous regulations. The TGA requires the Secretary to

“provide by appropriate rules and regulations for local hearings on appeals from

the decisions of the administrative officer in charge in a manner similar to the

procedure in the land department.” 43 U.S.C. § 315h. As the Secretary points

out, section 315h applies as much to the “permitted use” rule as it did to the

previous “grazing preference.” The new regulations similarly provide that “[a]ny

person whose interest is adversely affected by a final decision of the authorized

officer may appeal the decision for the purpose of a hearing before an

administrative law judge.” 43 C.F.R. § 4160.4 (1995). As such, any change in a

privilege assigned through the permit process is safeguarded to the extent that

parties aggrieved by the Secretary’s decisions have the right to challenge them.

Second, while PLC argues that the permitted use rule will undermine the

stability of the livestock industry, protection of which is a stated goal of the TGA,

and that this represents a failure by the Secretary to adequately safeguard grazing

privileges, this question is not ripe for consideration on a facial challenge. The

Secretary argues and the record confirms that DOI believes the new regulation

will actually increase stability, both because DOI does not envision yearly

changes in land use plans and because elimination of the distinction between

-38-
“active” and “maximum” use provides a more accurate account of the actual

grazing capacity of a given allotment from year to year. See Final Rule, 60 Fed.

Reg. at 9922-23; id. at 9928, 9931. 10 In any event, both sides’ positions are

necessarily speculative until the permitted use rule is actually applied.

Because this record provides no basis for the claim that there is no set of

circumstances under which the 1995 regulations as they pertain to enforcement of

10
The Secretary has stated the following with respect to the effect of the permitted
use rule on the predictability of grazing use:

In the absence of a major change in the overall situation and where [land
use plan] objectives are being met, changes in permitted use through BLM
initiative are unlikely. This provides a high level of security, stability and
predictability from year to year.

60 Fed. Reg. 9894, 9922-23 (Feb. 22, 1995).

Permitted use is not subject to yearly change. Permitted use will be
established through the land use planning process, a process which requires
data collection and detailed analysis, the completion of appropriate NEPA
documentation, and multiple opportunities for public input. Establishing
permitted use through this planning process will increase, not decrease, the
stability of grazing operations.

Id. at 9928.

Although in some cases reductions made under this section of the
rule may be carried in temporary suspension, the Department does not
believe that it serves the best interest of either the rangeland or the operator
to continue to carry suspended numbers on a permit, unless there is a
realistic expectation that the AUMs can be returned to active livestock use
in the foreseeable future.

Id. at 9931.

-39-
the permitted use rule can be said to safeguard grazing privileges adequately,

Chevron requires us to defer to the Secretary. We therefore hold the permitted

use rule is fully within the Secretary’s authority under the TGA and FLPMA and

reverse the district court’s holding to the contrary.

III.

TITLE TO PERMANENT RANGE IMPROVEMENTS

In our judgment, the relevant 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. Contrary to the dissent’s assertion, nothing in the statutory language

directs where such title must lie. “If a statute is ‘silent or ambiguous with respect

to the specific issue, the question for the court is whether the agency’s answer is

based on a permissible construction of the statute.’” Rust, 500 U.S. at 184

(quoting Chevron, 467 U.S. at 842-43). Moreover, although the new rule

represents a departure from prior practice, we are convinced the Secretary

provided a reasoned basis for the change. See State Farm Mut. Auto. Ins. Co.,

463 U.S. at 42.

In evaluating whether the TGA permits the government to assert title to all

-40-
permanent improvements, we must once again place the statutory language in the

foreground, keeping in mind our duty to defer to the Secretary’s interpretation

unless it conflicts with an unambiguous statutory mandate. See Chevron, 467

U.S. at 843-44. Here, the Secretary’s broad discretion to implement the Act is

immediately clear not only from silences in the statute but from its explicit

discretionary language. The TGA mandates that the Secretary

shall make provision for the protection, administration, regulation,
and improvement of such grazing districts as may be created under
the authority of section 315 of this title, and he shall 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 this subchapter and to insure the objects
of such grazing districts . . . .

43 U.S.C. § 315a. It is apparent from the phrases “such rules and regulations,”

“such cooperative agreements,” and “any and all things necessary,” that the

means the Secretary may employ to accomplish the purposes of the Act are nearly

completely at his discretion.

Most significant for purposes of analyzing the validity of the range

improvements rule is section 315c of the TGA, which provides:

Fences, wells, reservoirs, and other improvements necessary to the
care and management of the permitted livestock may be constructed
on the public lands within such grazing districts under permit issued
by the authority of the Secretary, or under such cooperative
arrangements as the Secretary may approve. . . . No permit shall be
issued which shall entitle the permittee to the use of such
improvements constructed and owned by a prior occupant until the
applicant has paid to such prior occupant the reasonable value of

-41-
 such improvements to be determined under rules and regulations of
the Secretary of the Interior.

43 U.S.C. § 315c (emphasis added). Under the plain language of section 315c,

the Secretary has discretionary authority to decide whether to allow necessary

range improvements (e.g., he “may” allow construction). He may issue permits or

he may authorize construction under “such cooperative agreement” as he “may

approve.”

With this discretionary statutory language apparently in mind, the Secretary

issued the challenged regulation making all permanent range improvements

subject to cooperative agreements and providing prospectively that title to these

improvements would be in the United States. The regulation provides in relevant

part:

(a) The Bureau of Land Management may enter into a cooperative
range improvement agreement with a person, organization, or other
government entity for the installation, use, maintenance, and/or
modification of permanent range improvements or rangeland
developments to achieve management or resource condition
objectives. The cooperative range improvement agreement shall
specify how the costs or labor, or both, shall be divided between the
United States and cooperator(s).

43 C.F.R. § 4120.3-2(a) (1995) (emphasis added).

(b) Subject to valid existing rights, title to permanent range
improvements such as fences, wells, and pipelines where
authorization is granted after August 21, 1995 shall be in the name of
the United States. The authorization for all new permanent water
developments such as spring developments, wells, reservoirs, stock
tanks, and pipelines shall be through cooperative range improvement

-42-
 agreements.

Id. § 4120.3-2(b). These regulations are fully consistent with the discretionary

authority to issue range improvement permits accorded the Secretary under the

TGA.

The position advanced by the dissent that permittees must be allowed to

own improvements they wholly or partially construct because the TGA

unambiguously requires it is simply incorrect. The dissent begins its analysis of

the statutory language by asserting the TGA unambiguously requires that title to

structural improvements constructed and paid for by permittees must be held by

the permittees. Dissent at 24. The language upon which the dissent relies states

that “[n]o permit shall be issued which shall entitle the permittee to the use of

such improvements [fences, wells, reservoirs, and other improvements]

constructed and owned by a prior occupant until the applicant has paid to such

prior occupant the reasonable value of such improvements.” 43 U.S.C. § 315c

(emphasis added). According to the dissent, “[t]he phrase ‘such improvements

constructed and owned by a prior occupant’ plainly indicates . . . that when a

permittee constructs an authorized improvement, he or she holds title to that

improvement.” Dissent at 24.

We do not agree that the quoted language unambiguously requires the

meaning the dissent attributes to it. The dissent takes the words “such

-43-
improvements constructed and owned” to unambiguously mean “constructed and

[therefore] owned.” The statutory language, however, does not mandate this

reading, as evidenced by the need to add the word “therefore” to achieve the

result the dissent desires. The statute can just as plausibly be construed to say no

more than if the Secretary allows a permittee both to construct and own an

improvement, the permittee shall be entitled to compensation for its reasonable

value upon transfer. Nothing in the unadorned statutory language requires the

Secretary to allow a permittee to own an improvement he has constructed,

although if the Secretary in his discretion allows ownership, the statute requires

compensation. While the language at issue may allow the dissent’s reading of it,

the entire payment provision can also equally be viewed as purely conditional,

operative only if the Secretary allows both construction and ownership.

Moreover, an examination of section 1752(g) of FLPMA gives a clear

indication that Congress did not view section 315c as necessarily vesting title to

improvements constructed by permittees. Section 1752(g) provides:

Whenever a permit or lease for grazing domestic livestock is
canceled in whole or in part, in order to devote the lands covered by
the permit or lease to another public purpose, including disposal, the
permittee or lessee shall receive from the United States a reasonable
compensation for the adjusted value, to be determined by the
Secretary concerned, of his interest in authorized permanent
improvements placed or constructed by the permittee or lessee on
lands covered by such permit or lease . . . .

43 U.S.C. § 1752(g) (emphasis added). Here the permittee has an “interest” in,

-44-
rather than ownership of, permanent improvements he constructs. That this

provision was even considered necessary in order to ensure that permittees who

construct permanent improvements would be compensated upon cancellation of

their permits by the United States belies the suggestion that a permittee is

considered to own title to an improvement merely because he constructs it.

Previous versions of the regulations refute the claim that “constructed and

owned” vests obvious and automatic title. The 1978 regulatons provided that the

United States would hold title to all improvements constructed according to

cooperative agreements, whereas permittees would hold title to all improvements

constructed according to range improvement permits. See 43 C.F.R. §§ 4120.6-2

to -3 (1978). The dissent’s construction is, quite simply, not the only one the

language supports. 11

11
The dissent’s citation of the district court’s order is revealing in this regard. The
district court asserted that section four of the Taylor Act “strongly suggests that the
individual who constructed the improvement should own it.” Dissent at 23 (emphasis
added). However, even if this were true, a “strong suggestion” is not the same as a
statutory mandate that has one, and only one, possible meaning. Furthermore, although
the dissent says that we have “insert[ed]” an ambiguity into the statute where none exists,
we note that the dissent has made absolutely no effort to explain why the incorporation of
the phrase “constructed and owned” necessarily required that permittees have automatic
title to improvements placed on federally owned lands that can be constructed in the first
instance only if the Secretary chooses to allow it. We do not disagree with the dissent
that “Congress expressed its will on the issue at hand.” Dissent at 25. However, we are
convinced that Congress intended for the Secretary to decide when range improvements
should be allowed and that he can decide that the United States should own title to
permanent range improvements under his mandate to do “any and all things necessary” to
accomplish the TGA’s purposes.

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 In our view, therefore, nothing in the Act precludes the Secretary from

requiring that all permanent improvements be constructed under cooperative

arrangements and all removable improvements be constructed under permits. The

language in section 315c requiring payment for improvements “constructed and

owned” by a prior occupant is not rendered meaningless, as the dissent argues,

under this regulatory scheme because the provision will still apply to temporary

improvements and require a transferee to pay the transferor for such

improvements before using them. See Dissent at 24. As such, the dissent’s

interpretation is just that, its own interpretation. 12

Since the 1995 range improvements rule is based on a permissible

interpretation of the TGA, we must defer to the rule unless the government failed

to provide a reasoned basis for modifying the previous regulations.

[A]n agency rule would be arbitrary and capricious if the agency has

12
It is worth noting that the regulatory scheme ensures compensation to permittees
for their interest in permanent range improvements regardless of who holds title. Section
4120.3-2(b) provides “[a] permittee’s or lessee’s interest in contributed funds, labor, and
materials [to permanent range improvements] will be documented by the Bureau of Land
Management to ensure proper credit for the purposes of §§ 4120.3-5 and 4120.3-6(c).”
43 C.F.R. § 4120.3-2(b). Section 4120.3-5 in turn provides that a grazing preference
transfer will not be approved “unless the transferee has agreed to compensate the
transferor for his/her interest in the authorized improvements within the allotment.” Id. §
4120.3-5. Section 4120.3-6(c) likewise provides that when a grazing permit is canceled,
“the permittee or lessee shall receive from the United States reasonable compensation for
the adjusted value of their interest in authorized permanent improvements placed or
constructed by the permittee or lessee on the public lands covered by the concealed permit
or lease.” Id. § 4120.3-6(c).

-46-
 relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.

State Farm Mut. Auto. Ins. Co., 463 U.S. at 43.

The government provided several explanations for the changes, 13 any one of

which would be sufficient to meet this narrow standard of review. The Secretary

first asserts that management of permanent improvements according to FLPMA’s

multiple-use and sustained-yield mandate would be simplified if BLM could avoid

having to negotiate with permittees as titleholders to permanent improvements.

Given the fact that multiple-use and sustained-yield management is central to

FLPMA and requires that the Secretary have considerable administrative

flexibility, the Secretary’s basis for the change is reasonable. Equally reasonable

is BLM’s assertion that the change would unify procedures for authorizing

13
Although the 1995 range improvements regulations are a departure from the
rules previously in effect, the Secretary is not, as PLC suggests, departing from 61 years
of uniform policy with regard to designation of title. As noted above, the 1978
regulations provided that the United States would hold title to all improvements
constructed according to cooperative agreements, whereas permittees would hold title to
all improvements constructed according to range improvement permits. See C.F.R. §§
4120.6-2 to -3 (1978). These regulations did not designate which improvements would
be constructed under which authorization scheme. Id. Moreover, the 1981 regulations
provided that permittees under a range improvement permit “shall have title to removable
range improvements,” not permanent ones. 43 C.F.R. § 4120.6-3(b)(1981). Thus, PLC
cannot credibly assert that permittees have always held title to structural improvements
which they built and paid for, at least not by way of regulatory mandate.

-47-
improvements between BLM and the Forest Service given that many permittees

use land administered by both agencies and both agencies have the same goals

with respect to ecosystem management so far as consistent with the specific terms

of their respective governing statutes. Finally, the new regulation clarifies a

confusing overlap in the prior rule, under which certain improvements could fall

under the category providing for shared title as well as the category granting full

title to the United States.

In view of these justifications and in light of the fact that permittees will

continue to receive the identical compensation they received under the prior rule

upon cancellation or transfer of a permit, we hold the 1995 range improvements

rule valid. See Rust, 500 U.S. at 187.

IV.

THE QUALIFICATIONS RULE

We now turn to the Secretary’s new qualifications rule. Under the pre-1995

regulations, in order to qualify for a grazing permit, an applicant had to “be

engaged in the livestock business,” in addition to other requirements. 43 C.F.R. §

4110.1 (1994). The 1995 version of section 4110.1 eliminates that requirement.

The district court set this regulation aside, concluding that “Congress intended for

-48-
the Taylor Grazing Act to benefit people actually engaged in the livestock

business,” 929 F. Supp. at 1445 (citing legislative history), and that “[f]rom the

beginning the Department of Interior consistently granted grazing permits and

leases only to applicants engaged in the livestock business,” id. (citing agency

decisions). Because the TGA does not require applicants to be engaged in the

livestock business to qualify for a grazing permit, however, we reverse the district

court’s invalidation of this regulation.

Section three of the TGA authorizes the Secretary–

to issue or cause to be issued permits to graze livestock on such
grazing districts to such bona fide settlers, residents, and other stock
owners as under his rules and regulations are entitled to participate in
the use of the range . . . . Preference shall be given in the issuance
of grazing permits to those within or near a district who are
landowners engaged in the livestock business, bona fide occupants or
settlers, or owners of water or water rights, as may be necessary to
permit the proper use of lands, water or water rights owned,
occupied, or leased by them . . . .

43 U.S.C. § 315b. Where possible, we will give effect to the plain meaning of the

words chosen by Congress. See Bartlett v. Martin Marietta Operations Support,

Inc., 38 F.3d 514, 518 (10th Cir. 1994) (“The court is obliged to give terms their

plain meaning whenever possible.”). The language here is absolutely clear.

Contrary to PLC’s argument, the statute only requires that the Secretary give

“preference” to “landowners engaged in the livestock business,” among others.

While this preference does require the Secretary to consider the applications of

-49-
“landowners engaged in the livestock business” before most other applications,

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 even the only group entitled

to this preferential treatment. As quoted above, the TGA also includes “bona fide

occupants and settlers, and owners of water or water rights” as other groups

entitled to the preference. We refuse to read into the language of the TGA a

requirement that does not exist.

PLC asks us to examine the legislative history of the TGA in deciding this

issue. PLC spends several pages in its brief expounding on this history to support

its argument that “Congress intended and assumed that only persons in the

livestock business, whether local settlers or outsiders, would be able to graze the

public lands.” Appellees’ Br. at 41. If Congress intended that only persons in the

livestock business should be able to graze the public lands, in the statute itself

Congress would have required the Secretary to limit the issuance of permits to

that class of applicants. Courts should not resort to legislative history in order to

ascertain Congress’s intent when the plain language of the statute is

unambiguous. See United States v. Gonzales, 117 S. Ct. 1032, 1035 (1997)

(“Given [a] straightforward statutory command, there is no reason to resort to

legislative history.”); see also Bank One Chicago v. Midwest Bank & Trust Co.,

-50-
116 S. Ct. 637, 645 (1996) (Scalia, J., concurring) (“The law is what the law says,

and we should content ourselves with reading it rather than psychoanalyzing those

who enacted it.”). We therefore do not consider the legislative history of the

TGA on this issue.

PLC also asserts that the Secretary’s removal of the “engaged in the

livestock business” requirement must be supported by a “reasoned analysis”

because it rejects 61 years of DOI interpretation of the TGA. When an agency

departs from a prior interpretation of a statute that it is charged with

implementing, the agency must justify the change of interpretation with a

“‘reasoned analysis.’” See Rust, 500 U.S. at 187 (quoting Motor Vehicle Mfrs.

Assoc. v. State Farm, 463 U.S. 29, 42 (1983)). However, we need not decide

whether reasoned analysis supports the agency’s change where, as in this case, we

determine that the statutory language at issue is unambiguous and that it

suppports the new regulation. See Chevron, 467 U.S. at 842 (“If the intent of

Congress is clear, that is the end of the matter . . . .”); cf. Rust, 500 U.S. at 184,

187 (engaging in reasoned analysis discussion only after concluding that the plain

language of the statute at issue was ambiguous). In such a case, the agency is

simply “giv[ing] effect to the unambiguously expressed intent of Congress,”

Chevron, 467 U.S. at 843, and we do not reach the second step of Chevron (i.e.,

determining whether the regulation is based on a permissible construction of the

-51-
statute). In the TGA, Congress only gives “landowners engaged in the livestock

business” a preference in the issuance of permits. 43 U.S.C. § 315b. It does not

require the Secretary to issue permits exclusively to such applicants. The

Secretary’s revised qualifications rule gives proper effect to this unambiguous

statutory language and is not contrary to any statutory requirement.

V.

THE CONSERVATION USE RULE

Next, we examine whether the Secretary exceeded statutory authority by

allowing the issuance of ten-year permits to use public lands for conservation

purposes to the exclusion of livestock grazing. If no set of circumstances exists

under which the regulation would be a valid exercise of the Secretary’s authority,

we must strike down the regulation as invalid on its face. See 5 U.S.C.

§ 706(2)(C); Salerno, 481 U.S. at 745.

Section three of the TGA authorizes the Secretary “to issue or cause to be

issued permits to graze livestock” on the public lands. 43 U.S.C. § 315b. In the

1995 regulations, the Secretary has authorized the issuance of grazing permits or

leases for “livestock grazing, suspended use, and conservation use.” 43 C.F.R. §

4130.2(a) (1995). Conservation use, in turn, is defined as “an activity, excluding

-52-
livestock grazing, on all or a portion of an allotment” for conservation purposes.

43 C.F.R. § 4100.0-5 (1995) (emphasis added). Thus, the Secretary has

authorized the issuance of a grazing permit to an individual or group who will not

graze livestock for the entire duration of a permit.

The Secretary makes several arguments in support of the new regulation

allowing “conservation use” permits. First, he points out (and PLC agrees) that

resting land is a perfectly acceptable practice on the public range and is done with

regularity in order to prevent permanent destruction of the lands. Indeed, under

the pre-1995 regulations, active use could “be suspended in whole or in part on a

temporary basis due to drought, fire, or other natural causes, or to facilitate

installation, maintenance, or modification of range improvements.” 43 C.F.R. §

4110.3-2(a) (1994). The Secretary asserts that the issuance of grazing permits for

conservation use merely reflects “a longstanding grazing management practice

consistent with the resumption of grazing.”

The Secretary further argues that the issuance of permits for conservation

use is authorized by the TGA, FLPMA, and PRIA. The Secretary points to

section two of the TGA, which provides, “The Secretary shall . . . do any and all

things necessary to accomplish the purposes of this [Act].” 43 U.S.C.

§ 315a. One of the purposes of the TGA is “to preserve the land and its resources

from destruction or unnecesary injury.” Id. The Secretary asserts that issuance of

-53-
permits authorizing conservation use is fully consistent with this mandate.

Moreover, FLPMA charges the Secretary with “manag[ing] the public lands under

principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). Multiple

use requires that the Secretary consider, among other things, “the long-term needs

of future generations for renewable and non-renewable resources.” 43 U.S.C. §

1702(c). The Secretary argues that the issuance of conservation use permits helps

achieve the goal of multiple use. Similarly, the Secretary contends that

conservation use is a mechanism to achieving PRIA’s goal of “manag[ing],

maintain[ing], and improv[ing] the condition of the public rangelands so they

become as feasible as possible for all rangeland values.” 43 U.S.C. § 1901(b)(2).

Notwithstanding the reasonable arguments that the Secretary presents, we

are not persuaded. The question before us is not whether the Secretary possesses

general authority to take conservation measures–which clearly he does–but rather,

whether he has authority to take the specific measure in question, i.e., issuing a

“grazing permit” that excludes livestock grazing for the entire term of the permit.

We conclude at the first step of the Chevron analysis that Congress has spoken

directly to this precise question and answered it in the negative.

Our decision rests on the plain language of the relevant statutes. The TGA

provides the Secretary with authority to issue “permits to graze livestock on . . .

grazing districts.” 43 U.S.C. § 315b. That statute does not authorize permits for

-54-
any other type of use of the lands in the grazing districts. FLPMA and PRIA

confirm that grazing permits are intended for grazing purposes only. Both those

statutes define “grazing permit and lease” as “any document authorizing use of

public lands . . . for the purpose of grazing domestic livestock.” 43 U.S.C. §§

1702(p), 1902(c) (emphasis added). Thus, the TGA, FLPMA, and PRIA each

unambiguously reflect Congress’s intent that the Secretary’s authority to issue

“grazing permits” be limited to permits issued “for the purpose of grazing

domestic livestock.” None of these statutes authorizes permits intended

exclusively for “conservation use.” The Secretary’s assertion that “grazing

permits” for use of land in “grazing districts” need not involve an intent to graze

is simply untenable.

The TGA authorizes the Secretary to establish grazing districts comprised

of public lands “which in his opinion are chiefly valuable for grazing and raising

forage crops.” 43 U.S.C. § 315. When range conditions are such that reductions

in grazing are necessary, temporary non-use is appropriate and furthers the

preservation goals of the TGA, FLPMA, and PRIA, even when that temporary

non-use happens to last the entire duration of the permit. BLM may impose

temporary reductions, see 43 C.F.R. § 4110.3-2 (1994), or permittees may

voluntarily reduce their grazing levels. The presumption is, however, that if and

when range conditions improve and more forage becomes available, permissible

-55-
grazing levels will rise. See, e.g., 43 C.F.R. § 4110.3-1(a) (1994) (“Additional

forage temporarily available for livestock grazing use . . . may be apportioned on

a nonrenewable basis.”); id. § 4110.3-1(b) (providing that additional forage would

first be apportioned “in satisfaction of grazing preferences” to permittees

authorized to graze in the allotment containing the forage). The Secretary’s new

conservation use rule reverses that presumption. Rather than annually evaluating

range conditions to determine whether grazing levels should increase or decrease,

as is done with temporary non-use, the Secretary’s conservation use rule

authorizes placement of land in non-use for the entire duration of a permit. This

is an impermissible exercise of the Secretary’s authority under section three of the

TGA because land that he has designated as “chiefly valuable for grazing

livestock” will be completely excluded from grazing use even though range

conditions could be good enough to support grazing. Congress intended that once

the Secretary established a grazing district under the TGA, the primary use of that

land should be grazing.

Thus, when the Secretary issues a permit under section three of the TGA,

the primary purpose of the permit must be grazing. If range conditions indicate

that some land needs to be rested, the Secretary may place that land in non-use on

a temporary basis, in accordance with Congress’s grants of authority that the

Secretary manage the public lands “in a manner that will protect the quality of

-56-
scientific, scenic, historical, ecological, environmental, [and other] values,” 43

U.S.C. § 1701(a)(8), or he may reduce grazing on that land, see 43 C.F.R. §

4110.3-2 (1994) (providing that active use may be temporarily suspended in

whole or in part for various reasons); id. § 4110.3-3 (describing procedures for

implementing changes in active use). The Secretary may also employ other means

to ensure that the resources of the public range are preserved. See, e.g., 43

U.S.C. § 1752(d) (stating that grazing permits may incorporate an allotment

management plan); id. § 1702(k) (defining allotment management plan as a

document which “prescribes the manner in, and extent to, which livestock

operations will be conducted in order to meet the multiple-use, sustained-yield,

and other needs and objectives” of the land).

In short, it is true that the TGA, FLPMA, and PRIA, give the Secretary very

broad authority to manage the public lands, including the authority to ensure that

range resources are preserved. Permissible ends such as conservation, however,

do not justify unauthorized means. We hold that the Secretary lacks the statutory

authority to issue grazing permits intended exclusively for conservation use.

Because there is no set of circumstances under which the Secretary could issue

such a permit, the new conservation use regulation is invalid on its face. See 5

U.S.C. § 726(2)(c); Salerno, 481 U.S. at 745.

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 VI.

CONCLUSION

An examination of the statutes Congress has enacted to guide

administration of the range land at issue in this case makes it abundantly clear

that Congress intended the federal lands to be managed in such a way as to

maximize their use for many purposes. There can be no doubt that Congress has

vested the Secretary of the Interior with broad authority to decide entitlement to

the grazing rights on the range as long as he does not exercise it contrary to clear

Congressional mandates. Having considered Congressional intent as expressed in

the TGA, FLPMA and PRIA and our deferential role as a reviewing court, we

REVERSE the district court’s invalidation of the permitted use rule, the range

improvements rule, and the qualifications rule, and we AFFIRM the district

court’s invalidation of the conservation use rule.

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96-8083 , Public Lands Council, et al., v. Babbitt

TACHA , Circuit Judge, dissenting.

I dissent from parts II and III of the majority opinion.

I. Permitted Use Rule

With respect to the new permitted use rule, I fundamentally disagree with

the majority on the meaning and importance of the statutory command that “[s]o

far as consistent with the purposes and provisions of [the Taylor Grazing Act],

grazing privileges recognized and acknowledged shall be adequately safeguarded

. . . .” 43 U.S.C. § 315b (emphasis added). In my judgment, this statutory

command requires the Secretary to continue to recognize permittees’ adjudicated

grazing levels, called the “grazing preference” in the pre-1995 regulations. The

majority does not accord the statutory language much, if any, importance, and

finds it to be ambiguous at best, meaningless at worst. The majority also

concludes, I think erroneously, that adjudicated grazing levels have not been

“‘recognized’ under any regulations promulgated since the enactment of

FLPMA” in 1977. Maj. op. at 28.

This issue is a highly complicated issue to review because it is virtually

impossible to adequately understand the mechanics of grazing on the public range

and how it is administered from a reading of the relevant regulations. Even upon

reading the briefs, cited authorities, BLM decisions, and scholarly commentaries

on the public lands, one is left with a rather incomplete comprehension of the
system. Nevertheless, as thorough an understanding as possible of how the

grazing preference system has worked since its inception in 1934 is essential for

our proper review.

A. Historical Role of the Grazing Preference

At the time the TGA was passed in 1934, there were many more applicants

for grazing privileges than could be accommodated, a fact that Congress knew.

See H.R. R EP . N O . 73-903, at 1 (1934) (stating that the public lands “are now

being used without supervision or regulation, and there is constant competition

among the various users who desire to obtain exclusive benefit of the forage

growth.”). Congress charged the Secretary with fairly and orderly allocating

grazing privileges on the public lands. It was clear that whatever system the

Secretary installed would result in recognizing privileges for certain applicants to

graze on the public lands while denying privileges to other applicants. To guide

the Secretary in this process, Congress articulated which groups were to receive

first priority in the distribution of permits. See 43 U.S.C. § 315b (“Preference

shall be given in the issuance of grazing permits to those within or near a district

who are landowners engaged in the livestock business, bona fide occupants or

settlers, or owners of water or water rights . . . .”). The Secretary must engage in

that process even today when new lands become open for grazing. See, e.g.,

Webster v. BLM, 97 I.B.L.A. 1 (1987) (reviewing grazing application regarding

-2-
lands that came under BLM control in 1984).

Following the TGA’s passage in 1934, the Secretary began the lengthy

adjudicatory process of allocating grazing privileges. That process took many

years to complete. When the Secretary made a favorable decision on a grazing

application, he (1) issued a permit to the applicant, (2) identified the property

owned by the permittee that was to serve as the base for the livestock operation

and to which the grazing privileges attached, and (3) identified the maximum

amount of forage, expressed in AUMs, that the permittee could graze on the

public lands. Cf. Federal Range Code, § 6(b) (1938) (describing priority of

issuance of grazing permits to qualified applicants). That maximum amount of

forage eventually became known as the grazing preference, although that term

was not added to the grazing regulations until 1978. See 43 C.F.R. § 4100.0-5(o)

(1978).

The grazing preference, or the historically adjudicated grazing level, was

distinct from the permit to graze. The permit was the ten-year license granted to

the applicant, giving him the right to graze livestock on the public range up to the

amount of forage allocated by the Secretary. The grazing preference was the

Secretary’s maximum allocation of forage to the individual permittee and was in

most cases, if established prior to 1978 (as most preferences were), based on

either the permittee’s historical use of public range or the historically available

-3-
forage on the permittee’s private lands, whichever was lower. See McLean v.

BLM, 133 IBLA 225, 231-32 & nn. 9-10 (1995). There is no question that

FLPMA and the 1978 regulations altered the criteria for awarding new

preferences and increasing already-existing preferences, see id. at 235, but there

is also no question, contrary to the majority’s assertion, that the 1978 regulations

continued to recognize already-existing grazing preferences, see 43 Fed. Reg.

29,058 (July 5, 1978) (stating that permittees’ “adjudicated grazing use, their base

properties, and their areas of use (allotments) will be recognized under these

grazing regulations.”).

The grazing preference never guaranteed a permittee the right to graze that

amount of forage every year. Rather, the grazing preference represented the

upper limit of forage that the permittee could graze if enough forage were

available. Under the 1978 regulations, a permittee’s grazing preference included

both “active use” and “suspended use.” 43 C.F.R. § 4110.2-2(a) (1994). A

permittee’s active use could fluctuate over time based on available forage and the

carrying capacity of the land. Active use could be reduced if grazing was causing

an “unacceptable level or pattern of utilization or exceed[ed] the livestock

carrying capacity,” id. § 4110.3-2(b), and could be suspended in whole or in part

on a temporary basis due to drought, fire, or other natural causes, or to facilitate

range improvements, see id. § 4110.3-2(a). Similarly, should additional forage

-4-
become available, a permittee’s active use could increase up to the amount of the

grazing preference. Id. § 4110.3-1(a),(b). In short, the grazing preference

represented the upper limit that a permittee could graze if optimal conditions

prevailed, all relevant land could be placed in active use, and the Secretary

allowed him or her to graze up to that upper limit.

Under the 1978 regulations, the Secretary could change the maximum

amount of forage represented by the grazing preference on a case-by-case basis.

See 43 C.F.R. § 4110.3 (1994); Gordon v. BLM, 140 IBLA 112 (1997)

(addressing BLM’s 1992 decision to reduce grazing preference of permittee who,

according to BLM, had lost control of his base property). A decision by the

authorized officer to change a permittee’s grazing preference had to be supported

by rangeland studies conducted over time, unless the change was “either specified

in an applicable land use plan or necessary to manage, maintain or improve

rangeland productivity.” 43 C.F.R. § 4110.3 (1994); see also id. § 4110.4-2

(providing for cancellation or suspension of grazing preference upon decrease in

public land acreage available for grazing). Thus, under the prior regulations,

changes in a grazing preference were based either on the individual circumstances

of a particular permittee—e.g., in response to a change in the permittee’s control

over the base property—or on the condition of particular grazing allotments—e.g.,

if a reduction in grazing was necessary to improve rangeland productivity.

-5-
 The grazing preference served as a stabilizing force for the livestock

industry and promoted orderly use of the range by guaranteeing permittees the

right to graze a predictable number of stock on the public lands and by allowing

them to gauge how large or small their livestock operations could be.

Stabilization of the livestock industry and promoting orderly use of the range

were two of the primary purposes of the TGA. See TGA preamble, 48 Stat. 1269

(uncodified). Possession of a grazing preference attached to qualified base

property guaranteed a rancher in possession of a permit the right to graze forage

up to the amount specified by the preference so long as forage was available. The

fact that a permittee’s authorized active use might differ from the total forage in

the grazing preference did not remove the certainty that accompanied the

preference. Permittees knew and understood that there would be year-to-year

fluctuations in available forage and changes in the overall conditions of the range,

and the Secretary had full authority under the TGA to make individual

adjustments in active use. See 43 U.S.C. § 315b (providing that the Secretary

“shall specify from time to time numbers of stock and seasons of use.”).

Nonetheless, the grazing preference guaranteed permittees a right to graze from

year to year those amounts of forage that the Secretary actually authorized and

provided them with the certainty that if forage were abundant, grazing up to their

preference limit would be authorized.

-6-
 Despite annual fluctuations in active use, the preference level generally

remained the same from year-to-year, through transfers of the base property, and

from permit-to-permit, though there is no question that the Secretary could also

effect changes in preference levels as described above. Such authority to change

preference levels was in accord with section three of the TGA, which gives the

Secretary the authority to “specify from time to time numbers of stock and

seasons of use.” 43 U.S.C. §315b. At the end of the permit’s term, if the

Secretary renewed the permit, the permittee again had the right to graze on the

public lands in accordance with the grazing preference. Thus, the grazing

preference remained in place not just from year-to-year within the ten-year term

of the permit, but also from permit-to-permit. Grazing preferences could be

transferred from one qualified permittee to another qualified permittee, and they

were often pledged as security for loans taken out by permittees.

Based on my historical understanding of grazing preferences and the

importance that they assumed in the operation of permittees’ livestock businesses,

I can only conclude that these adjudicated grazing levels, whether referred to by

the label “grazing preference” or by any other name, were an essential part of the

permittees’ grazing privileges. Section three of the TGA gives permittees a

preferential right of renewal of their permits; in my judgment, the adjudicated

grazing levels are part and parcel of that preferential renewal right. In making the

-7-
grazing decisions, the Secretary determined that certain permittees were entitled

to priority in the issuance of permits and that, based on their historic use of the

range, they were entitled to graze up to a quantifiable level of forage. When the

Secretary reviewed grazing permits for renewal, he was guided by the original

adjudications in which he had determined that the permittee was a preferred

applicant and in which he identified the maximum forage level that the permittee

was entitled to graze.

The Secretary issued those individualized adjudications after engaging in a

long process of collecting data, reviewing applications, accepting the

recommendations of local grazing advisory boards, and determining whether the

applicant was entitled to priority in the issuance of a permit. In issuing grazing

decisions, the specific allocation of forage was recorded in the Secretary’s logs.

The Secretary undertook that process to satisfy its statutory obligation to issue

grazing permits according to the priorities articulated by Congress in section three

of the statute. The Secretary particularized each grazing decision to the

individual permittee. Since the issuance of those original grazing decisions,

changes to the grazing preferences have occurred on a case-by-case basis, subject

to the Secretary’s detailed regulatory requirements. See 43 C.F.R. § 4110.3

(1994) (describing process for making changes in grazing preference status);

Miller v. BLM, 118 IBLA 354 (affirming Secretary’s denial of increases in

-8-
permittees’ grazing preferences). I conclude that those grazing adjudications are

an integral part of permittees’ grazing privileges.

B. Grazing Adjudications Continued in 1978 Regulations

At least two statements from the majority’s opinion demonstrate that we

clearly do not share the same understanding of the issue before us today,

particularly regarding the nature and role of the grazing adjudications. In

discussing FLPMA and the 1978 regulations promulgated thereafter, the majority

states that “[w]hile the previously adjudicated grazing uses were to be recognized

for the length of existing permits, ‘future adjudications of grazing use would be

based on criteria vastly different than those provided in the Federal Range

Code.’” Maj. Op. at 22 (quoting Interior Board of Land Appeals decision,

McLean v. BLM, 133 IBLA 225 (1995)). The majority also states that

“[n]owhere in the 1978 regulations was there any requirement, or even the

suggestion, that the authorizing officer must recognize or refer to the original

grazing adjudications, or even the most recent adjudications, in issuing new

permits.” Maj. Op. at 24 (emphasis added). The italicized portions, in particular,

demonstrate that the majority thinks that under the new regulations, each time a

ten-year permit is renewed, the Secretary somehow engages in a new

“adjudication.”

As I understand it, this has never been the case, as the discussion above

-9-
indicates. Rather, a grazing adjudication was a one-time decision of the

Secretary, made when he first allocated grazing privileges on a particular

allotment of the public range. Historically, there were many more applicants for

use of the range than could be accommodated, so the Secretary had to grant

grazing privileges to some and deny privileges to others. The adjudicatory

process of allocating those privileges took nearly two decades. Thereafter, the

Secretary engaged in that same type of adjudicatory process only when new public

lands became available for grazing. In determining which applicants were to

receive grazing privileges, the Secretary determined whether the applicant was a

member of a preferred group listed in section three of the TGA, and evaluated the

amount of forage on the public lands the applicant had typically used. Then, the

Secretary issued a decision, issuing a grazing permit and also declaring the

maximum level of forage the permittee could graze (i.e., the grazing preference).

When a permit came up for renewal, the Secretary either renewed the permit in

accordance with the grazing preference, or he denied the permit. Based on my

understanding of this system, I can only conclude that the historically adjudicated

grazing preference is an integral aspect of a permittee’s grazing privileges, and in

particular the “preference right of the permittees to renewal” of their permits,

referred to in section three of the TGA.

I agree with the majority that passage of FLPMA and the 1978 regulations

-10-
drastically changed the criteria that were to guide the Secretary in future

adjudications. Indeed, the majority cites an Interior Board of Land Appeals

decision that makes that point convincingly. See Maj. Op. at 22 (quoting

McLean,133 IBLA at 233). The majority, however, simply does not understand

what that means. A “future adjudication,” as that phrase was used in the McLean

decision, does not refer to the renewal of a grazing permit, as the majority asserts,

nor to future decisions by the Secretary respecting allotments on public lands

already under BLM control and with respect to which an adjudication has already

occurred. Rather, a “future adjudication” is a post-1978 decision made by the

Secretary to allocate permanent grazing privileges to various applicants when new

lands come under BLM control and become available for grazing. McLean v.

BLM illustrates well my point. There, the appellants had applied for a substantial

increase in their active use in an allotment in which additional forage had become

available for grazing. See McLean, 133 IBLA at 226. That allotment was under

BLM control and was already open to grazing. Thus, the Secretary had already

allocated grazing privileges on that land and adjudicated maximum grazing levels.

Because the appellants were already making full use of their grazing preference in

the allotment, their request was denied. In accordance with the 1978 regulations,

the BLM Area Manager then allocated the newly available forage in the allotment

to other permittees who were not making full use of their grazing preferences.

-11-
The Area Manager’s decision to increase those permittees’ active use was not an

“adjudication.” Rather, the Area Manager increased the other permittees’ active

use up to their fully authorized and previously adjudicated grazing levels (i.e.,

their grazing preferences). Those grazing preferences had been determined in a

prior grazing adjudication. Indeed, the McLean case makes clear that the

appellants’ grazing preference dated from an adjudication that occurred at least no

later than 1970, and more likely well before that. See id. at 227. The McLean

case also makes clear that a “future adjudication” (i.e., a post-1978 adjudication)

only occurs when completely new land comes within BLM control, and numerous

applicants vie for the right to graze that land. In McLean, new land had not

become available; rather, land already under BLM control and open to grazing

saw increased levels of forage. The Secretary did not engage in a new

adjudication to allocate that forage, but instead increased the active use of those

permittees already with grazing privileges in that allotment in proportion to the

preference levels previously adjudicated.

The McLean decision makes clear that most permittees’ grazing preferences

arose in pre-1978 grazing adjudications since most BLM land was opened to

grazing immediately following the TGA’s passage in 1934. Some grazing

preferences derived from post-1978 adjudications, when new land became

available for grazing. In either case, however, the only difference is the criteria

-12-
that guided the Secretary in allocating the grazing privileges. Both sets of

grazing preferences derived from grazing adjudications and were individualized

to particular permittees. An original grazing decision awarded forage use

according to a particular permittee’s application for a grazing permit. If a

permittee’s grazing permit were renewed at the end of the life of the permit, the

adjudicated grazing preference generally continued unchanged in that new permit.

In most cases, recognition of the results of the original grazing decisions

continued up to the 1995 revisions. See, e.g., Ortiz v. BLM, 126 I.B.L.A. 8, 9

(1993) (discussing permittee’s grazing preference which, despite numerous

transfers, “dates from the early 1930s,” when it was issued to the original

applicant). In the time since BLM issued an original grazing decision, changes in

grazing preferences have been individualized, based on the circumstances of

particular permittees and the condition of particular grazing allotments. Thus,

until the 1995 regulations, the Secretary had safeguarded the results of the

original grazing adjudications through continued recognition of the original

grazing preference.

C. Effect of the Secretary’s New “Permitted Use” Regulation

The Secretary’s new permitted use rule ends the long-standing DOI

recognition of the adjudicated levels of grazing known as the grazing preference.

The Secretary argues that “AUMs are protected and not eliminated under the new

-13-
rules, and the language in the new term ‘permitted use’ . . . does not effect a

substantive change from the previous regulation.” Appellant’s Br. at 20

(emphasis in original). The Secretary does not acknowledge that the new

regulations end recognition of the adjudicated grazing preference. Rather, the

Secretary asserts that the new permitted use “encompasses all of the essential

elements of the prior term [i.e., grazing preference].” Id.

The pre-1995 “grazing preference” was defined 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.” 43 C.F.R. § 4100.0-5

(1994). Under this regulation, the number of AUMs “apportioned and attached”

to the permittee’s base property was the number of AUMs allocated to the

permittee (or her predecessor) by an individual grazing adjudication. See McLean

v. BLM, 133 I.B.L.A. 225, 232-33 & n.12 (1995) (noting that while 1978

regulations drastically changed grazing preference system, new system continued

to recognize individual adjudications made prior to 1978); see also 43 Fed. Reg.

29,058 (July 5, 1978) (addressing permittees’ concerns about post-1978 regulatory

scheme and stating that permittees’ “adjudicated grazing use . . . will be

recognized under these grazing regulations”) (quoted in McLean, 133 I.B.L.A. at

233).

The “permitted use” introduced in the 1995 regulations is defined as “the

-14-
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 . . . expressed in

AUMs.” 43 C.F.R. § 4100.0-5 (1995). Unlike the old “grazing preference,” the

“permitted use” no longer refers to the number of AUMs determined by individual

grazing adjudications. The Secretary’s own interpretation of the permitted use

rule makes this clear.

Grazing preference is redefined to mean the priority to have a
Federal permit or lease for a public land grazing allotment that is
attached to base property owned or controlled by a permittee . . . .
The definition omits reference to a specified quantity of forage, a
practice that was adopted . . . during the adjudication of grazing
privileges. . . . BLM will identify the amount of grazing use
(AUMs), consistent with land use plans, in grazing use authorizations
to be issued under a . . . permit.
....
A definition of Permitted use is added to define the amount of
forage in an allotment that is allocated for livestock grazing and
authorized for use . . . under a grazing permit. . . . The term replaces
the AUMs of forage use previously associated with grazing
preference.

60 Fed. Reg. at 9921 (emphasis added); see also id. at 9922-23 (“The objectives

set in the [land use] plan are refined in the permit . . . , and permitted use is then

expressed in AUMs of active use . . . , as well as suspended use and temporary

nonuse during a particular time period.”). The majority never squarely addresses

whether the new regulations end recognition of the original adjudications because

it concludes that the adjudications have not been recognized under any regulations

since the enactment of FLPMA in 1977. See Maj. Op. at 28. I refer to my above

-15-
discussion in section I.B of this dissent to make the point that the adjudications

were indeed recognized until the 1995 regulations.

Under the permitted use rule, the maximum amount of forage that a

permittee can graze is established solely by a land use plan adopted by the BLM,

with no reference to the results of the grazing adjudications. By contrast with the

old system, the new permitted use approach ends recognition of the grazing

preference across the board, for all permittees, without reference either to their

individual circumstances or to the condition of the land covered by their permits.

Under the new regulations, a permittee’s grazing privileges consist of the right to

use the AUMs specified in the grazing permit for a ten-year term and a bald right

to preference at renewal time. Gone is recognition of the underlying adjudication

in which the Secretary made a determination that, vis-a-vis other applicants, the

permittee was a member of a priority group entitled to graze up to a maximum

amount of forage on a particular allotment, and to which the Secretary previously

always referred in renewing grazing permits.

There is no guarantee that the permittee will be allowed to graze

predictable amounts of forage upon renewal, nor that the permittee’s priority

position is secure. I think this difference is significant, for it erases the certainty

and predictability that existed under the pre-1995 regulatory scheme and that I am

certain was required by Congress under the TGA. The result is that the agency

-16-
has nearly unfettered discretion to collectively increase or decrease permittees’

maximum allowed forage use without reference to the individual grazing

decisions laboriously adjudicated by the Secretary following passage of the TGA.

D. Statutory Mandate

The dispositive question at issue regarding the new permitted use rule is

whether the Secretary’s elimination of adjudicated grazing preferences conflicts

with Congress’s mandate that “grazing privileges recognized and acknowledged

shall be adequately safeguarded.” To answer this question, Chevron requires us

to ask whether that mandate is an unambiguous expression of Congressional

policy, for if it is, the courts, “as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843 (1984).

In examining this language, we assume that the words chosen by Congress

are employed in their ordinary sense and accurately express Congress’s legislative

purpose. See FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990). The words

“grazing privileges” are straightforward. In the context of the TGA, a grazing

privilege is the legislatively authorized right to use an allotment of the public

lands for grazing livestock under terms set by the Secretary. See 43 U.S.C.

§ 315b. What then, is a “recognized and acknowledged” grazing privilege? In

the context of the TGA, it seems to me, the answer to that question is also

-17-
straightforward. With its delineations of groups that are to receive first priority in

the distribution of permits, section three of the TGA envisions the Secretary’s

undertaking an adjudicatory process in order to fairly and orderly allocate grazing

privileges on the public lands. See 43 U.S.C. § 315b (“Preference shall be given

in the issuance of grazing permits to those within or near a district who are

landowners engaged in the livestock business, bona fide occupants or settlers, or

owners of water or water rights . . . .”).

I would hold that the phrase “grazing privileges recognized and

acknowledged” unambiguously refers to the grazing privileges that Congress

charged the Secretary with allocating in section three of the TGA, including the

adjudicated grazing levels. The Secretary allocated these privileges to qualified

applicants through a detailed adjudication process that took many years to

complete. Although Congress did not specify the exact system to be used beyond

the initial preferences set forth in section three of the Act, it knew that such an

adjudicatory process was necessary in order to identify those livestock operators

who should be able to use the public range for grazing.

Similarly, I would conclude that use of the term “adequately safeguarded”

is an unambiguous expression of Congress’s intent that the Secretary protect the

grazing privileges that are recognized and acknowledged by the adjudication

process undertaken following passage of the TGA. To safeguard means to protect

-18-
or defend. See W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1981).

Even though the modifier “adequately” is necessarily ambiguous, and what

constitutes an adequate safeguard rests with the discretion of Secretary, the

Secretary cannot altogether abandon his obligation to safeguard recognized

grazing privileges. I do not question the authority of the Secretary to revoke a

grazing permit because of a permittee’s failure to comply with the terms and

conditions of the permit or the grazing regulations. See 43 U.S.C. § 1752(a). So

long as grazing privileges are unrevoked, however, the Secretary may not

interfere with their exercise. See, e.g., Oman, 179 F.2d at 742 (noting that

Secretary has “affirmative obligation” to safeguard grazing privileges).

There are at least two well-settled aspects to the Secretary’s obligation to

safeguard grazing privileges. First, the Secretary “must observe statutory

preferences and priorities in granting and renewing permits.” G EORGE C.

C OGGINS & R OBERT L. G LICKSMAN , P UBLIC N ATURAL R ESOURCES L AW

§ 19.02[1][c] (1997). Second, the Secretary must protect a permittee’s allotment

from trespasses by competing livestock operators. See id.; Oman v. United

States, 179 F.2d 738, 739-742 (10th Cir. 1948) (allowing permittee with exclusive

grazing privileges to bring Federal Tort Claims Act against government for failing

to prevent other livestock operators from using land covered by permit and noting

that Secretary had duty, under TGA, to safeguard plaintiff’s grazing privileges

-19-
against such trespass). The question before this Court today is whether the

Secretary’s duty to safeguard also includes an obligation to continue to recognize

the adjudicated grazing levels, embodied in the pre-1995 regulations in the term

“grazing preference.” The majority does not answer this question because it

concludes that even under the prior regulations, the historical grazing

adjudications were not recognized. The majority is mistaken on this latter point,

however. In failing to even address this question, the majority reveals a lack of

understanding of the preference system that had been in place since 1934 and the

regulatory scheme that implemented that system.

Congress requires the Secretary to safeguard permittees’ recognized and

acknowledged grazing privileges. In the permitted use rule, the Secretary has

failed to safeguard the results of the grazing adjudications in which permittees’

privileges were first recognized and acknowledged. The new permitted use rule,

in effect, wipes the slate clean. That permittees will not immediately lose their

right to graze on the public lands seems, to me, irrelevant. When the Secretary

undertook to allocate privileges to various applicants to graze a particular

allotment on of the public range, he made a series of determinations. He

determined that the applicant either was or was not a member of a priority group.

He determined whether the applicant had made historic use of the range. He

determined what level of forage the applicant had used and whether, vis-a-vis all

-20-
other applicants, that applicant should be entitled to continue that level of use.

Then, he awarded a successful applicant a grazing preference to graze up to a

certain amount of forage, not just for the life of the permit, but for as long as the

Secretary allowed the permittee to graze on the public lands. The majority’s

decision upholding the permitted use rule, in my judgment, reads out the central

statutory mandate of section three of the Taylor Grazing Act.

I do not deny that the Secretary has full authority to control permittees’ use

of the range. See 43 U.S.C. § 315b (“[The Secretary] shall specify from time to

time numbers of stock and seasons of use.”). The Secretary, however, lacks the

authority to eliminate recognition of the underlying adjudications upon which

permittees’ grazing privileges are based and upon which they rely in running their

livestock operations. Because the Secretary exceeded his statutory authority

under the Taylor Grazing Act by promulgating the new permitted use regulations,

I would set aside the regulations that define permitted use without reference to the

original grazing adjudications.

II Title to Range Improvements

I also disagree with the majority’s conclusion that section four of the TGA

is ambiguous with respect to ownership of rangeland improvements constructed

by a permittee on the public lands. The majority concludes that the TGA is

ambiguous as to whether permittees who construct improvements should hold

-21-
title to those improvements, and therefore the Secretary was within his authority

promulgating new 43 C.F.R. § 4120.3-2(b) (1995). That new regulation states

that title to all permanent range improvements authorized under cooperative

agreements after August 21, 1995 shall be in the United States. A cooperative

agreement is an agreement between a permittee and the Secretary whereby both

parties jointly pay for the construction of a rangeland improvement.

I agree with the PLC that the TGA grants permittees ownership rights in

improvements constructed either in whole or in part by the permittee. The

following language from section four of the TGA is relevant:

Fences, wells, reservoirs, and other improvements; construction;
permits; partition fences.
Fences, wells, reservoirs, and other improvements necessary to
the care and management of the permitted livestock may be
constructed on the public lands within such grazing districts under
permit issued by the Secretary or under such cooperative arrangement
as the Secretary may approve. . . . . No permit shall be issued which
shall entitle the permittee to the use of such improvements
constructed and owned by a prior occupant until the applicant has
paid to such prior occupant the reasonable value of such
improvements to be determined under rules and regulations of the
Secretary of the Interior.

43 U.S.C. § 315c (emphasis added). Under this provision, a permittee who

“construct[s] and own[s]” an improvement on the public lands is entitled to

compensation for its value from a subsequent permittee before the subsequent

permittee may use the improvement. Id.; cf. 43 U.S.C. § 1752(g) (stating that a

permittee is entitled to reasonable compensation from the government for his

-22-
interest in authorized permanent improvements he has constructed if the

government cancels his grazing permit). Thus, new 43 C.F.R. 4120.3-2(b), which

gives the federal government title to improvements built by a permittee, has

significant consequences for permittees: since title to improvements is not in the

hands of the permittees who construct them, permittees are not statutorily entitled

to any compensation from later users.

The district court determined that section four of the Taylor Act “strongly

suggests that the individual who constructed the improvement should own it” and,

therefore, struck down the Secretary’s range improvements rule as “exceed[ing]

statutory authority.” Public Lands Council v. Babbitt, 929 F. Supp. 1436, 1442-

43 (D. Wyo. 1996). The majority disagrees with the district court, concluding

that this statutory section gives the government unlimited discretion to determine

what improvements, if any, may be both “constructed and owned” by a permittee.

I cannot agree with the assertion that Congress wanted the Secretary to

decide whether a permittee should hold title to improvements paid for and

constructed by the permittee. In my judgment, the statute is not ambiguous on

this point. It is a well-accepted principle that the first step in interpreting a

statute is to determine whether the relevant language has a plain meaning with

respect to the particular dispute in the case. See Robinson v. Shell Oil Co., 117

-23-
S. Ct. 843, 846 (1997). The plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole. See id. The

phrase “such improvements constructed and owned by a prior occupant” plainly

indicates to me that when a permittee constructs an authorized improvement, he or

she holds title to that improvement. In my judgment, the previous version of

section 4120.3-2, which shared title between the United States and permittee “in

proportion to the actual amount of the respective contribution to the initial

construction,” was an accurate and appropriate articulation of an unambiguous

statutory mandate. 43 C.F.R. § 4120.3-2 (1994). Permittees acquired title for that

portion of any improvement that they were responsible for constructing.

The provision for compensation in section four of the statute supports my

reading. The majority’s reading of the statute, together with the Secretary’s new

regulation, renders that compensation provision meaningless; without title, a

permittee is not be entitled to the compensation for which the statute provides. It

is true, as the majority points out, that other regulations still guarantee permittees

full compensation for their investments in improvements, even when they do not

own those improvements. See 43 C.F.R. §§ 4120.3-5, 4120.3-6(c) (1995). The

existence of such regulations does not change the analysis, however. It cannot be

doubted that section four of the TGA only guarantees compensation if the

-24-
permittee owns the improvement. Under the Secretary’s approach—where the

permittee does not own improvements—compensation to the permittee is a

discretionary decision by the Secretary; so long as he wishes, by regulation, to

compensate permittees, he may do so. Under this approach, however, there would

also be no violation of law if the Secretary were later to end the regulatory

entitlement to compensation. The majority’s equating a statutory entitlement to a

discretionary entitlement embodied in a regulation reveals a misunderstanding of

administrative law.

My conclusion that the statutory language is unambiguous on who holds

title to improvements constructed on the public lands also reveals a great divide

between the majority and me on the role that courts have in interpreting statutory

language. We ought not examine statutory language so as to needlessly create

ambiguities where no such ambiguity exists. Rather, in interpreting a statute, we

should begin with a strong presumption that Congress expressed its will on the

issue at hand. I disagree with the majority that one must add the word “therefore”

to the phrase “constructed and owned” to reach the conclusion that I do. Clearly,

one may deconstruct the statutory language as the majority does and insert an

ambiguity into it. My common understanding of the statutory language, however,

leads me to conclude that Congress thought about the question before us, and

unambiguously spoke to it.

-25-
 Nor do I agree with the majority that “nothing in the statutory language

directs where such title must lie.” Maj. Op. at 40. That Congress specifically

discusses ownership of improvements demonstrates to me that it thoroughly

considered that question. The TGA is a statute replete with discretionary

language and congressional grants of rulemaking authority. Such discretionary

language or rulemaking authority is conspicuously absent on the question of who

should hold title to range improvements. That is for good reason. Congress

considered the question and spoke precisely to the issue. As I understand the role

of the courts, I do not think Chevron gives us license to ignore the plain meaning

Congress employed.

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