Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

A Federal Public Lands Grazing “Right”: No Such Animal

One of my obsessions in life is to disabuse any and all that holders of permits (or leases) to graze livestock of the federal public lands have a “right” to do so. In fact, I have a Google News Alert for that allows me to properly clarify for any reporter that writes a story about a federal “grazing right” (alas, it also alerts me to boxing stories as in “he took a grazing right hook”).

Comes now the Range Allotment Owners Association, a creature of the Land Air Water USA Foundation, a platform for Dr. Angus McIntosh, who is billed as “a foremost expert on Private Property Rights on Federal Land” (capitalization in the original).

McIntosh offers a breathtaking, mind-numbing and self-deluded analysis that concludes that federal grazing permittees do have grazing “rights.” To reach such a conclusion McIntosh cherry-picks inapplicable, if not just downright irrelevant, court cases to connect the dots in his picture.

McIntosh is developing a following among federal grazing permittees in that he is telling them precisely what they want to hear.  Unfortunately for them, McIntosh’s analysis is wrong on essentially every count, being fatally flawed by motivated reasoning and confirmation bias. (All people are susceptible to both, but the best of us actively try to resist by being skeptical, researching opposing viewpoints, and submitting our research and/or actions to public scrutiny, peer review and/or judicial review.)

What follows is my summary of the law as it applies to “rights” to graze federal public lands. (I am indebted to Mark Salvo, Vice President, Landscape Conservation, Defenders of Wildlife, who contributed immensely to the research in and language.)

Federal grazing permits/leases do not convey “grazing rights” on federal public lands.

Grazing permits issued by the Bureau of Land Management (BLM) and Forest Service allow the permit/lease holder the privilege to use publicly owned forage on federal public lands. The permits do not confer a right to permittees/lessees to graze public lands.

This distinction was:

• intended by Congress in the Taylor Grazing Act of 1934 (43 U.S.C. § 315b) for the BLM and the Granger-Thye Act of 1950 (16 U.S.C. 580(l)) for the Forest Service)

• articulated in agency regulations (43 C.F.R. § 4130.2(c) (BLM regulation); 36 C.F.R. § 222.3(b) (Forest Service regulation));

• restated in federal grazing studies (e.g., USDI-BLM, USDA-Forest Service. 1995. Rangeland Reform ’94 Final Environmental Impact Statement. USDI-BLM. Washington, D.C.: 125.);

• affirmed by scholars (e.g., D. Donahue. 1999. The Western Range Revisited: Removing Livestock from Public Lands to Conserve Native Biodiversity. Univ. Oklahoma Press. Norman, OK: 38.); and

• upheld by the Supreme Court as recently as 2000 (Public Lands Council v. Babbitt, 529 U.S. 728, 741 (2000). See also U.S. v. Fuller, 409 U.S. 488 (1973) (holding that the federal government is not required by the Fifth Amendment to compensate a property owner in a condemnation action for the extra value of his private property attributed to his federal grazing permit).

Federal grazing permits and leases are revocable, amendable, non-assignable ten-year licenses to graze federal public lands that do not convey property rights to grazing permittees/lessees.

The misnomer of “grazing rights” can leave one with the impression that livestock grazing on federal public lands has a superior position to other uses of those lands, which is untrue. Our public lands are habitat for wildlife, sources of drinking water, and valued by Americans for myriad recreation opportunities.

More accurate terms would be “grazing permit” (Forest Service and most Bureau of Land Management) or “grazing lease” (remainder of Bureau of Land Management) or the generic and always correct “grazing license.”

While federal public land grazing permittees don’t have a property right associated with such grazing, they do have a property interest. Federal grazing permits have monetary value in that they are associated with particular ranches (“base properties”). The IRS taxes capital gains in the value of permits attached to ranch properties when they are sold.  Banks loan money partially based on the permit value of a base property. Permittees sell their permits to another qualifying rancher and the land management agencies transfer the permit without question.

But a property interest that can be bought and sold in the market is not automatically a property right. The takings clause in the 5th Amendment to the U.S. Constitution requires just compensation where private property is taken by the federal government.

If the Forest Service or Bureau of Land Management revokes or does not renew a federal grazing permit or lease, it is not a “taking.” The withdrawal of a giving is not a taking.