"...grazing privileges recognized and acknowledged shall be adequately safeguarded...," Justice Stephen Breyer in PLC vs. Babbitt
It was apparent five minutes into oral arguments in March that the Public Lands Council (PLC) was going to lose PLC vs. Babbitt. On May 15, the U.S. Supreme Court made it official, and it wasn't even close - 9-0.
Now, after dissecting the court's decision to uphold the 10th Circuit Court of Appeals' rulings on the Bureau of Land Management's 1995 Rangeland Reform regulations, the livestock industry realizes not all was lost by taking the Interior Department to the mat.
In ruling that Interior Secretary Bruce Babbitt's reforms did not violate the Taylor Grazing Act, the court cleared the way for, and even encouraged, ranchers suffering injury through denial of grazing privileges to seek their own injury claims. It told ranchers to keep holding the feet of government to the fire.
At issue in the case were three areas of the range reform regulations: grazing preference, mandatory qualifications to hold a grazing permit and ownership of range improvements.
Under the regulations, livestock producers felt grazing preference, which historically has ensured the protection of grazing privileges, had been removed completely. The court ruled the reform language does not cancel preference based on the agency's definition of preference.
The court also clarified mandatory qualifications for holding a grazing permit. Livestock producers were concerned the ambiguous definition of mandatory qualifications would allow those not in the livestock business to obtain grazing permits. Ranchers could have been forced to compete with someone who had no intention of using a permit for grazing. The industry felt this was a backdoor attempt to achieve conservation use of grazing permits.
With regard to range improvements, the court will allow permit holders to negotiate with the government over ownership of range improvements. It has no problem with a permittee seeking title to and compensation for range improvements. There's no doubt the court's ruling upholds Babbitt's Rangeland Reform regulations. But, it does not allow radical changes to the federal rangeland grazing system.
Back on March 1, the Justices spent much of PLC attorney Tim Bishop's 30 minutes at the podium informing him the PLC was barking up the wrong legal tree - that the case should have been brought based on "injury" as opposed to a "facial" challenge.
Should the PLC have tried to sue under an injury determination - a fight that might have been winnable, as opposed to arguing on the facial evidence or basis of the law - a fight they knew would be fought uphill? Of course not. The industry could not risk having grazing privileges tied up in court for years. Today, that injury option is still open and even encouraged by the Supreme Court.
Was it worth it? Yes. While this case was working its way through the courts, the Babbitt-prescribed Rangeland Reform regulations were not applied to BLM permittees. By taking Interior through the courts, some terribly ambiguous terms were clarified and, a portion of Babbitt's overall environmental agenda was checked.
This case only cost the industry a few hundred thousand dollars. That's not much when you put it into perspective and calculate what the livestock industry and the rural West had to lose - and gain.
The key, even though the tally was 9-zip, was that the Western livestock industry united under a common cause that will help preserve a way of life - and did so in a manner we can all look to with pride.
As Congress prepares to add more land to the federal estate for conservation purposes, the condition of lands already under federal control continues to be scrutinized.
"If we are to protect America's most valued lands, federal land management policies must be reformed and private conservation efforts encouraged," says Holly Lippke Fretwell, a Bozeman, MT, researcher with the Political Economy Research Center (PERC), which provides market solutions to environmental problems.
In her new report - "Federal Estate: Is Bigger Better?" - Fretwell points out that one-third of the land area of the U.S. is under federal control. More than 800,000 acres are added each year and will rapidly increase if proposed legislation specifically for land acquisition is passed by Congress.
While federal land ownership expands, funds for managing the new lands aren't provided. For example, President Clinton's Land Legacy Initiative provides $1 billion a year for land acquisitions, but has no funds for addressing critical resource management problems.
Merely placing land into federal ownership without addressing its management needs in no way ensures conservation and can actually lead to greater degradation, Fretwell says.
Recreational lands should pay their own way. Lands without wildlife habitat or scenic value should be sold and the proceeds used to manage lands with higher conservation value.
"And private efforts should be encouraged by expanding the flexibility of conservation easements and easing the estate tax burden," she says.
Fretwell's report is available from PERC at 406/587-9591 or at www. perc.org.