Public Lands and Natural Resources Law: LACJR ..........................................last update: April 9, 1996





See Coggins, et al., Federal Public Land and Resources Law (3rd ed. 1993), Chapter 8, pp. 688 - 781.
See also: Coggins and Glicksman, Modern Pubic Land Law in a Nutshell (1995), Chapter 8, pp. 205-229.
See also: Coggins and Glicksman, Public Natural Resources Law (2d ed. 1995-96, supplemented), Chapter 19.

THE RANGE RESOURCE -- summary


Grazing as a land use:
  • Livestock supported by grazing is very small proportion of national meat production, but very important locally. Grazing plays a major role in the mythology of the American West....
  • It is one of the multiple uses mandated of BLM and FS in areas under the control of those agencies, which means for example nearly all of Nevada.
  • Competing and increasing recreational use is challenging traditional dominance of grazing on BLM lands; Congress may or may not respond.

    Before 1934 (Taylor Grazing Act enactment) Pre-FLPMA Grazing

    Under the Common Law ranchers had free access to the Public Domain -- no federal control on use of range, public lands.
    Base ranches at water sources -- Congressional acquiescence to practices noted by Supreme Court. Rancher's implied right of access to the public domain was recognized in Buford v. Houtz, (U.S. 1890) wherein the Court found an implied license growing out of almost a hundred years of custom.
    Homesteading Laws &Tragedy o/t Commons -- Congress's view of society favored farming at a scale that worked in New England, 160 acre per person; which was not sufficient for ranching in arid lands. Preconceptions re. appropriate life style embodied agrarian farms, community centers with schools and churches -- other forms, not so rooted, were not tolerated.

    Note that Kollmorgen's 1969 article: The Woodsman's Assaults on the Domain of the Cattleman provides an excellent summary of poorly conceived federal legislation and programs which did not respond to realities of climate and geography of the West. These laws would seem to be as much a cause of severe overgrazing as any cattleman's intention to "get what he could while the getting was good".

    National Forest Reserves, created in 1890, 1990's divided public range, brought some range under controls of FS, improved performance in those areas compared to BLM lands. State regulations provided the only controls on the use of public domain before 1934 TGA. Failure of state laws to protect the range, and drought led to passage of the Taylor Grazing Act. In 1934 DOI created FS Grazing Div. which became the Grazing Service; in 1946 it merged w/ the Land Office to become BLM.


    Taylor Grazing Act of 1934

    1. established grazing districts
    2. established permit requirement
      • AUM (animal unit per month) amount of forage consumed
      • no. of seasons of use
      • FS Grazing Div. estimated amount of grazing lands and issued permits to those already using it --
      • new system explicitly favors adjacent owners.
      • windfall for already wealthy ranchers (survivors of Depression)
    TGA effectively ended homesteading, but overgrazing did not abate (note that there is considerable debate as to what constitutes overgrazing).

    The Grazing Permit

    The nature of the private interest in public lands has changed over the years; Red Canyon Sheep Co. v. Ickes (D.C.Cir 1938) held that there was a protectable interest of the rancher, what ever the name, BUT the same circuit later ruled differently on a closely related issue in LaRue v. Udall (D.C.Cir. 1963) where it held that permits issued under TGA  315b did not create any right, title, interest or estate in the land. Quoting 43 U.S.C.A.  315b.

    United States v. Fuller (U.S. 1973)

    Nature of property rights in grazing permits, when fee lands are condemned by the gov't.
    Issue: should incremental value derived from adjacent "permit" lands be included in the calculus of fair market value (FMV) of fee lands for purposes of Just Compensation?
    Held: 5/4 No, b/c gov't creates the benefit and should not have to pay more for the enhanced value. Note the Navigation servitude reference. Dissent: Rule of location value not being paid is bad ... Where does this rule stop? There is no logical limit to the principal espoused by the majority. Seems to be a result oriented decision. After the Fuller case Congress addressed the issue in FLPMA  1752(h) and (g) ... value to be given for lease canceled.


    Grazing Fees

    1970 PLLRC recommended FMV;
    FLPMA endorses FMV, 43 U.S.C.A. § 1701(a)(9), but called for a study. Study also recommends FMV.
    Public Rangelands Improvement Act of 1978 adopts formula that results in below FMV grazing fees.
    Clinton administration Rangeland Reform program has suggested changes, but reform will take time. Legislative reform was abandoned after the 1994 election.
    But see, e.g. Sec. Bruce Babbitt's press releases for the DOI.


    Regulation under the Taylor Act

    Advisory boards control policy and management. Permits give a privilege - not a right, but ranching interests have effectively controlled BLM decision making over the years through advisory boards and other means. Some ranchers believe permits give them rights.

    Permit system looks like public government activity, but its really private government; Permit allocations under TGA explicitly prefer base ranch owners for initial allocation and renewals. Permit system is embodied in the Range Code; federal regs found at 43 C.F.R.  4110-4170 (1991).

     1752 (a) of FLPMA 1976 does give Secs of Int. and Ag. authority to cancel, suspend or revoke a permit for violations. The Diamond Ring Ranch case (10th Cir. '76) is one of few instances since 1934 in which the BLM suspended a permit for violation of rules (spraying herbicide on adjacent federal lands). DR Ranch did lose the permit for 2 years.

    Holland III D.Ct. upheld revocation of permit for numerous and substantial trespasses on federal lands.

    Modern, Post-FLPMA Public Rangeland Management

    Three key laws:
    1. NEPA '69
    2. FLPMA '76
    3. WFRHBA '71
    NRDC v. Morton (D.C. Cir. 1976, cert. denied) Court finds impacts, m.f.a.; BLM not diligent for years, overgrazing not a question.
    HELD BLM's programmatic EIS was insufficient to show on the ground impacts of grazing permits in each grazing district. BLM must decide on approp. no. and scale of EIS's to address intent of NEPA. This is a major EIS requirement -- that each grazing district analyze the effects of grazing before issuing new permits -- for the BLM (BLM could not meet the court order - revised schedule of 212 site specific EIS's to 144, then more litigation in NRDC v. Andrus (D.D.C.1978). EISs now substantally complete. BLM EIS's have cost as much as buying out all the ranchers.


    Allotment Management Plans

    Defined in FLPMA: document prepared in consultation, prescribes management practices, in order to meet MUSY mandate. Case study shows that when BLM recognizes severe overgrazing and rewrites AMP to reduce numbers, ranchers complain of economic ruination, Sierra Club acquieses to plan, and politians make threats to BLM managers. ... regulating livestock grazing and particularly forage allocation remain a very sensitive issue. Government employees have been killed and offices bombed in recent months.

    FLPMA '76 (Federal Land Policy and Mgmt Act) as amended and supplemented by the Public Rangelands Improvement Act of '78 Through it BLM obtained new authority permanently, duties, constraints, LUP responsibilities; but BLM regulation has had mixed results FLPMA  1751-53 are the pertinent sections:

    1.) dealing w/ grazing fees (1751)

    The authority of the grazing advisory boards expired in 1985 under the language of  1753, but the BLM still operates as though the advisory boards are perfectly valid...

    2.)  1712 LUP provision:


    Judicial Review of BLM decisions

    (re changing authorized grazing levels):

    Perkins v. Bergland (9th Cir. 1979)
    Ranchers were suing over reduction in permitted numbers. APA  702 suggests not reviewable, b/c committed to agency discretion by law ad no law to apply rule. But , FLPMA specifically addresses judicial review of Sec's decisions. (HELD) that the agency decisions are reviewable in federal court, but that the D.Ct. must use the limited standard of review - Arbitrary & Capricious - and only overturn an agency decision if on the facts it is clear that the administrator acted in an arbitrary and capricious manner - a very low std. of review (protecting the discretion of the BLM in managing the public range lands) (low threshold to be met by BLM).

    Hinsdale Livestock Co. v. U.S. (D.Mont. 1980) BLM ordered cattle off of permitted land due to drought. Findings of fact do not support decision, suggest arbitrary and capricious action on part of BLM. Evince faith in knowledge of ranchers. Injunction to issue ... Questionable decision. ...

    Reagan administration policies did not assist BLM in effective stewardship of the range resources. James Watt (DOI Secretary - early '80's) reversed progress being made by BLM in conducting EIS reviews, livestock reductions and grazing land improvements by calling for more research and instituting Cooperative Management Agreements whereby private ranching interests became the managers of range lands. This was an unlawful delegation of power to private individuals and was held illegal in NRDC v. Hodel (Ramirez decision; E.D. Cal. '85).

    NRDC v. Hodel (Ramirez decision, E.D.Cal. 1985)
    FLPMA mandates two methods of issuing permits; 1) AMPs and 2) permits w/o AMPs, but permits would be specific. per  1752(e). CMA is not within scope of act's plain language --it is a new form of regulation not contemplated by Congress. Does not follow clear intent of control for purposes of improving the range -- no specifics, etc. Experimental Stewardship Program arg. is clever but is a post hoc rationalization. Not owed customary deference due agency actions. CMA is a blatent violation of federal grazing statutes:

    1. violates duty to prescribe practices;
    2. violates duty to reserve revision and cancellation authority
    No EIS consitutes a violation of NEPA; Inadequate promulgation under APA. Congress is the proper body to revise the grazing statutes.


    Land Use Planning on the BLM Lands

    BLM began LUP in 1969; NEPA requirements have shaped the efforts since the NRDC v. Morton case decided in 1974.

    Variety and extent of user demand for BLM lands has increased dramatically in recent years -- well beyond mining and grazing interests. Conflicting user interests include: backpacking and camping, off road vehicles, grazing - BLM regulations are not protecting sensitive areas adequately. MUSYA of 1960 did not include BLM in its mandate; FLPMA was passed by Congress partially to address that oversight, and due to its frustration with BLM's management of the range resource. Compared to F/S planning under NFMA '76, BLM planning is almost nonexistent and unenforceable due to the vague and general language of FLPMA  1712 and the low std. of review afforded the federal courts.

    Problems in LUP within BLM continued, and decline in quality of public range continues. Most glaring failures of BLM regs is that:

    1. they do not indicate standards for plans, nor do they
    2. indicate the binding effect of LUPs on later land management decisions.
    In another portion of the Ramirez opinion cited above, found at 753 - 754 in the casebook, he held on procedural grounds that the BLM regulations at issue unlawfully diluted LUP requirements of FLPMA. The binding effect of LUPs is a crucial question that has not been finally resolved. FLPMA says managers are bound by the plans using mandatory language.

    First post-FLPMA planning effort undertaken by BLM was in southeastern California desert; 25 million acres; relatively accessible to LA and used by many. FLPMA has a section creating the California Desert Conservation Area (CDCA) and mandates creation of a long range comprehensive plan to protect and guide use of the area with a statutory deadline of Sept. 30, 1980. Twelve million acres covered in the BLM plan.

    American Motorcyclist Ass. v. Watt (C.D. Cal. 1981)
    CDCA protects large areas; AMA plaintiff wants access to more; challenges plan; wants preliminary injunction to stop implementation. Plan has four classes of use; low/no to intensive; Each class has guidelines; Twelve plan elements identify major uses; 75 Areas of Critical Envtl. Concern. Desert Advisory Committee created plan over three years with significant public participation. Plaintiff claims violations of FLPMA, NEPA, BLM planning regs. ISSUE : should injunction issue?
    Apparently BLM did not follow all regs properly; so proof on the merits looks likely.

    At trial plaintiffs may have prevailed BUT this was an equitable action; all requirements for an injunction had to be met: Plaintiffs did not make sufficient showing of all equitable elements for injunction to issue. Public interst outweighed AMA interest. The 9th Circuit affirmed the denial of injunctive relief on appeal. Note that this is an unusual case.

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