The 9th Circuit Court of Appeals heard earlier this month arguments on the first-of-its-kind denial of a “grazing preference” by the Bureau of Land Management (BLM) to an Oregon family.
The case could set precedence regarding Congress’ intent when it passed the Taylor Grazing Act (TGA) in 1934 and the Federal Land Policy and Management Act (FLPMA) in 1976. Both give an existing permit holder the right to stand first in line when it comes time to renew that permit—commonly referred to as a “preference” by the TGA and a “first priority” by FLPMA—or when passing the permit to a family member.
In 2009, Mike and Linda Hanley applied for a grazing permit renewal for the Trout Springs and Hanley FFR Allotments located in southwestern Owyhee County, ID.
The BLM denied the permit renewal, citing an interdisciplinary team of management specialists found several conditions of the Idaho Standards for Rangeland Health (Standards) and Guidelines for Livestock Management were not met. The BLM cited livestock grazing as “the significant causal factor for all Standards not met while the expansion of western juniper was identified as an additional significant causal factor for non-attainment.”
Hanley Ranch appealed that decision. In 2011, an administrative law judge granted BLM’s motion for summary judgment affirming the BLM’s decision not to renew the grazing permit. That decision was upheld by the Interior Board of Land Appeals (IBLA) in a split decision on March 12, 2013.
To address the issues found by the team, the BLM issued a draft environmental assessment using juniper removal and livestock grazing alternatives in 2012. Loretta V. Chandler, field manager of the BLM Owyhee Field Office, issued a grazing decision in November 2013 consisting of fall grazing with rest rotation and lower animal unit months (AUMs) to Payne Family Grazing Association, LLC. Ted and Dorothy Payne also applied for a permit on the Trout Spring allotment at the same time as the Hanleys.
The decision was appealed and a petition to stay was filed by Western Watersheds Project (WWP). The decision to stay was denied in 2014 by Harvey C. Sweitzer, administrative law judge of the Office of Hearings and Appeals.
Shortly after the decision to deny the Hanleys the permit, Mike Hanley, in the fall of 2013, leased his base property in Jordan Valley, OR, to their daughter and son-in-law, Martha and John Corrigan. Hanley transferred the grazing preferences to Corrigan, wherein Corrigan submitted the preference transfer application and a grazing permit application. In November 2013, Chandler denied the application citing “Hanley Ranch Partnership no longer possesses grazing preference for the Trout Springs or Hanley FFR grazing allotments. Accordingly, BLM cannot approve your request for preference transfer.”
Additionally, Chandler stated no additional AUMs could be authorized beyond those issued to Payne Family Grazing due to impacts from fires in 2012 and 2013, “along with past unauthorized use.”
The Corrigans appealed that decision, but it was affirmed by the IBLA, which stated under BLM regulations, “grazing preference” does not constitute any kind of “indefinite entitlement” or “property-based right,” and agreed with BLM that a “grazing preference” does not exist independently of a grazing permit.
The Hanleys and Corrigans filed suit in U.S. District Court for the District of Idaho against the BLM, former Secretary of the Interior David Bernhardt and WWP. W. Alan Schroeder, the lawyer for the Hanleys and Corrigans, argued BLM never provided a decision regarding the preference and never allowed them to protest the cancellation of the preference. Schroeder also argued that the priority cannot be automatically forfeited but must be canceled by the formal process outlined in the statutes covering violations and remedies for grazing permits.
Schroeder asserted the grazing preference is separate from the permit and continues to exist even after the permit is not renewed. U.S. District Court Judge Lynn Winmill ruled under FLPMA statutes, “a permittee has a preference only so long as he complies with the terms of his permit.”
Winmill further wrote in the opinion, “The court holds that under the TGA, FLPMA, and the BLM regulations, the preference ceases to exist when the agency denies the application for renewal due to noncompliance, and no separate notice and opportunity to protest regarding the priority is required. Consequently, the court cannot find that the IBLA’s decision was arbitrary and capricious under the APA [Administrative Procedure Act].”
Schroeder told WLJ the argument before the 9th Circuit Court involving “the non-renewal of a grazing permit does not speak to preference and does not de facto cancel the preference (as the agency and District Court decided); and the grazing regulations includes a separate means to cancel a preference...which undisputedly BLM did not elect to exercise.”
Christine England, attorney for the government, argued when a permit is canceled for non-compliance, the grazing preference is relinquished as well.
Schroeder said, “It was apparent to me that they [the judges] read the briefing, they were prepared, and they understood the issue.” A decision is expected in the next 30-90 days. — Charles Wallace, WLJ editor