An Oregon family has lost their legal battle over “grazing preference,” following the U.S. Supreme Court’s (SCOTUS) denial to hear the case.
The court let stand the ruling by the 9th Circuit Court of Appeals in September 2021 that ranchers Michael and Linda Hanley were unable to transfer their grazing preference to their daughter and son-in-law, Martha and John Corrigan. The 9th Circuit upheld previous rulings by the Interior Board of Land Appeals (IBLA) and the U.S. District Court for the District of Idaho, which stated that the Hanleys lost their grazing preference when they lost their grazing permit.
W. Alan Schroeder, the lawyer for the Hanleys and Corrigans, told WLJ he was disappointed SCOTUS decided not to hear the case, and it’s “remarkable that a single word, i.e., ‘denial,’ has so much simultaneous significance and sadness.”
Schroeder said it is difficult to speculate the rationale for the decision because “nothing was shared or required to be shared by the Supreme Court.” Schroeder surmised two points that could be gleaned from the situation. The first is SCOTUS receives numerous petitions to consider, and the court picks to hear around 100-150 cases a year, so there is a good chance SCOTUS would not hear the case.
Second, Schroeder said the current makeup of the court “has significant reservations” applying the Chevron standard based on previous rulings. The Chevron standard is the review standard by which a federal court will determine the validity of an agency’s interpretation of statutes.
Schroder speculates that the court will address the Chevron standard in a case argued before the justices in November, which is pending a decision. The case, American Hospital Association v. Xavier Becerra, addresses whether deference under the Chevron case permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost.
In the Corrigan case, the 9th Circuit applied the Chevron standard to affirm the Bureau of Land Management’s (BLM) interpretation of the Taylor Grazing Act and the Federal Land Policy and Management Act: a grazing preference is canceled when a grazing permit is not renewed.
“All of this leads to the potential that the court may have denied the petition filed by Corrigan/Hanley because the court intends to deal with the Chevron standard in the American Hospital case, though I guess we will see in due course,” Schroeder said in an email.
Schroeder said he, the Corrigans and the Hanleys would welcome clarification by SCOTUS of the Chevron standard “since its current form goes too far in allowing lower federal courts to defer to an agency’s interpretation of statutes, allowing lower courts to de facto assume the role of Congress.”
Talasi Brooks, staff attorney for Western Watersheds Project (WWP), told WLJ,“The SCOTUS’ denial of the petition supports the result reached by every single tribunal that has reviewed this matter: Grazing on public lands is a privilege, not a right, and grazing privileges can be lost if they are abused. This is an important victory for the Bureau of Land Management that preserves the federal agency’s ability to protect the public lands when permittees abuse their grazing privileges.”
While the Hanleys or Corrigans could not be reached for comment, Michael Hanley wrote his side of the story in a previous letter to WLJ, describing how WWP threatened to take his grazing rights away and their sabotage to the allotment over the years. Hanley detailed his troubles with BLM regarding water issues, beneficial use and actual use records. Hanley purported he never had the opportunity to defend himself to the IBLA and wondered if he should have given whatever WWP wanted.
Hanley wrote, “What bothers me is that I believe my family was unfairly charged. The Taylor Grazing Act is the key to the public range cattle industry in the West. Critics have long stressed that our preference is a privilege and not a right. I’m not going to argue the point, but the stated purpose of the Taylor Grazing Act is to bring conservation to public lands and stabilize the livestock industry and communities dependent upon it.”
As for the next step, Schroeder said there is no more legal action they can take, but whether there remains “other practical means” to obtain a permit on the grazing allotments “remains a potential.”
The Hanley FFR allotment is located at Cliffs, ID, approximately 2 miles north of the Trout Springs allotment, and consists of 63 acres of federal land and 598 acres of private land controlled by Corrigan. “Based thereon, it seems logical that Corrigan has a preferred status of the permitted use in such allotment,” Schroeder wrote.
The Trout Springs allotment consists of six different pastures in southwestern Owyhee County, ID, approximately 30 miles south of Jordan Valley, OR. The allotment includes 27,961 acres of federally owned land, 67 acres of state owned land and 1,447 acres of privately owned land. Schroeder believes that the Fairylawn pasture has 247 acres of federal land and 1,280 acres of private land controlled by Corrigan.
While most of the Trout Springs allotment was granted to Payne Family Grazing Association LLC, Schroeder said the BLM found additional forage available within its previous environmental assessment. Schroeder said it seems logical the Corrigans would have a preferred status to some of the allotment.
“However, whether Corrigan will pursue such a course to pursue an application for permitted use in such allotments without the benefit of any preference remains a consideration and a work in progress,” Schroeder said. — Charles Wallace, WLJ editor
