William H. Rehnquist: We'll hear argument next in Number 98-1991, Public Lands Council v. Bruce Babbitt. Mr. Bishop.
Timothy S. Bishop: Mr. Chief Justice, and may it please the Court: The preference amount of forage adjudicated under the Taylor Grazing Act as necessary to the proper use of a permittee's base property must be adequately safeguarded by the Secretary. That's our contention.
William H. Rehnquist: Mr. Bishop, I think you've described, and I think perhaps your opponents have described, the proceeding you've brought here as a, quote, facial attack, end quote, on the Secretary's regulations that are challenged, and your opponents say, well, you... except in a First Amendment case you can't bring a facial challenge, and are you using the term, facial challenge, in the same sense we're use it in the First Amendment jurisprudence? That is, that you can challenge a law even though it doesn't affect you adversely if it affects someone else adversely?
Timothy S. Bishop: If, in all applications, the regulation is unlawful because it is not authorized by the statute, then it is facially invalid, and our position is--
John Paul Stevens: And it affects you adversely automatically.
Timothy S. Bishop: --And it affects you adversely automatically, that's right. Our position is that we are entitled to the protection, the adequate safeguarding of adjudicated forage, and that by eliminating adjudicated forage from the regulations it's no longer possible for the Secretary to safeguard it.
Sandra Day O'Connor: But--
Speaker: --In other words--
Sandra Day O'Connor: --counsel, I never saw the word adjudicated forage used in any regulation. It seems to be a term that you constantly use, but tell me what regulation refers to adjudicated forage.
Timothy S. Bishop: It doesn't appear in the statute. Let me start with the statute. It doesn't appear in the statute in terms, but the concept is clearly in the Taylor Grazing Act. Congress recognized that in designating grazing districts they would be oversubscribed. It contemplated a process in which the Secretary would determine who would be able to graze in those districts, and it set out some parameters, and the most important one, in section 3 of the grazing act, says preference shall be given in the issuance of grazing permits to persons who have base property--
William H. Rehnquist: Well, where do we--
Timothy S. Bishop: --Here's the--
William H. Rehnquist: --Mr. Bishop, where do we find section 3?
Timothy S. Bishop: --In the appendix to the petition, Your Honor, on page 103 to 104a. The language I'm reading from is 104... is--
William H. Rehnquist: Thank you, and whereabouts on page 104?
Timothy S. Bishop: --Preference shall be given in the issuance of grazing permits to people with base property as may be necessary to permit the proper use of that base property. There is no plausible way to read the as necessary clause except as a reference to an amount of forage, and the way that this worked was that the base ranch could support a certain number of livestock for part of the year.
Speaker: Oh, yes.
Timothy S. Bishop: To enable that property to be used, it was necessary for the rancher to have access to enough forage on the range to support the livestock for the rest of the year--
Antonin Scalia: You--
Timothy S. Bishop: --so our position is that the... I'm sorry, Justice Scalia.
Antonin Scalia: --What I don't understand is, you acknowledge that it's within the power of the Secretary to reduce you below that.
Timothy S. Bishop: Oh, absolutely, Justice Scalia.
Antonin Scalia: So then I don't understand what you're asking for.
Timothy S. Bishop: It--
Antonin Scalia: What is it the Secretary deprived you of that you want to be given? You don't assert any right to this--
Timothy S. Bishop: --We do assert rights to the adjudicated amount, preference amount of forage. Now, our argument is not about freezing actual grazing use at the levels that the Secretary adjudicated after 1934, but there are things that the preference amount does for us, and just let me mention those.
Antonin Scalia: --What does it do?
Timothy S. Bishop: The... first of all, the preference amount staked the permittee's claim to more forage if it became available. Now, we have no dispute that the active use can be reduced below the preference amount. In fact, when the preference was first adjudicated the active use was often below the preference amount, right from the beginning. We have no dispute that the preference itself can be readjudicated, and we have no dispute that the grazing district can be readjudicated and the use given over to something else, but as long as the land is designated as a grazing district, then my preference gives me a claim to more forage if it becomes available, so under the Range Code 4110.3-1, for example, which is at page 9a to 10a of the addendum to the blue brief, permanent--
William H. Rehnquist: Page what? Page what, Mr. Bishop?
Timothy S. Bishop: --9a to 10a of the blue brief.
William H. Rehnquist: Thank you.
Timothy S. Bishop: And this is reflected in earlier versions of the Range Code as well in different forms, but permanent increases in forage were first allocated to existing permittees up to the preference amount, and if you look back to the 1942 code, the language is that increases in carrying capacity will be participated in by existing permittees to the extent of their respective qualifications, but that idea has always been in there. Second, and these are all connected, the preference amount--
Antonin Scalia: Where was that language that you just quoted, additions to... I mean, I'm looking on 9a. I don't see it. I want to underline significant passages.
Sandra Day O'Connor: What section are you reading from?
Timothy S. Bishop: --Additional... the additional--
Sandra Day O'Connor: What section are you reading from?
Timothy S. Bishop: --This is 410.3-1(b), additional forage available on a sustained yield basis shall be first apportioned in satisfaction of grazing preferences.
Stephen G. Breyer: Well, if I understand what you're saying, you're saying, well, we had claims to these things, and you... I accept that. You did have a claim, and you had a procedure to try to perfect that claim, but there is no member of your association that I understand, as I understand it, who at this time can say, I had a ripe claim that was cut off.
Speaker: They're simply saying that if the old regs had been left in place, I might have had a claim to pursue if further forage had... land had become available, and that claim as such is gone, as I understand it.
David H. Souter: But I do not understand that any particular member of your association can show right now that he is going to be worse off in the sense of having left forage right at any given time under the new regulation as distinct from the old regulation.
Speaker: Am I wrong in that?
Timothy S. Bishop: Well, it's a facial challenge, Your Honor. You're right in the sense that we don't have in this record a history of the application of the 1995 regulations and, in fact, while the litigation has been pending, and particularly because we won in the district court, the agency really hasn't been doing anything under the 1995 regulations.
David H. Souter: But I thought your argument was that everyone in your association is worse off--
Timothy S. Bishop: Everyone is worse off.
Speaker: --and that I don't see.
Timothy S. Bishop: Everyone is worse off because prior to 1995 we had a... we had, in our permits... the preference amount was listed in the permit. Every single permit issued from 1934 until 1995 listed the adjudicated amount of forage, labeled--
David H. Souter: No, I... I don't mean to cut you off, but I think you have made that clear. But so far as the forage which you are entitled to enjoy at any given moment, now or a year from now, as I understand it, you can't say that any member of your association is going to be worse off a year from now under the new regs than he would have been under the old ones, is that correct?
Timothy S. Bishop: --Well, we can say that we have no... we will have no entitlement to having our--
David H. Souter: But that wasn't my question. My question is, what forage are you out there actually exercising, or being entitled to the benefit of, and as I understand it, you can't say that you will be worse off a year from now under the new regs than you were a year ago, or whatever, in... under the old ones.
Timothy S. Bishop: --Well, we can't say that--
Speaker: No, okay.
Timothy S. Bishop: --and that's not the nature of our challenge. The nature of our challenge is a facial challenge to the regulation.
Stephen G. Breyer: I thought you were a lot worse off if you can't get lending.
Timothy S. Bishop: We... well, we are--
Stephen G. Breyer: We have a whole brief here saying, there used to be a system, and the system was, you have 1,000 grazing acres, and what you do is, you give you 500 cows, him 300 cows, her 200 cows, and that's it, 500, 300, 200. Now, we have every right in the world to cut it to 500, but if we do, it's you 250, you 150, you 100, so you keep the same proportion. Is that right?
Timothy S. Bishop: --Yes.
Stephen G. Breyer: That's what it used to be.
Timothy S. Bishop: Lenders--
Stephen G. Breyer: Now they've changed it.
Timothy S. Bishop: --Right.
Stephen G. Breyer: Am I right?
Timothy S. Bishop: Lenders have taken into account the preference amount of forage, and they've taken--
Stephen G. Breyer: No, am I right as to how I described it?
William H. Rehnquist: Try to answer the question.
Timothy S. Bishop: --That's right.
Stephen G. Breyer: Okay. Then you're saying that the change from the new to the old one means lenders won't lend you as much money.
Timothy S. Bishop: Right.
Stephen G. Breyer: Okay. Now, my next question is this, and I have three here that were related. I've gotten two out. The third one is, I would have thought you might have a great claim on the ground that an agency has to stick to the system that it has unless it explains why it's changed, all right, and I looked for the explanation... a little hard for me to find it... but I take it you have not made that claim in this Court. Rather, you are arguing that the statute forbids them to do it, and so it seems to me you've waived your administrative law claim, you haven't raised it, and the statutory claim I cannot imagine why if, on day 1, they had adopted their new system, the statute would say you can't.
Timothy S. Bishop: Justice Breyer, I hope we haven't waived the administrative law claim.
Stephen G. Breyer: I don't see anywhere... you're talking... I looked at the question presented, and the question is whether the Secretary of the Interior exceeded his authority under the Taylor Grazing Act, the Federal Land Policy and Management Act, and the Public Rangelands Improvement Act--
Timothy S. Bishop: By the end of the--
Stephen G. Breyer: --when he promulgated the '94 regulations. That sounds to me like the issue you raise... and that's the one you state. You talk about it being on its face, et cetera... is, the statute prohibits the Secretary from issuing regulation set 2, and on that one--
Timothy S. Bishop: --This is a--
Stephen G. Breyer: --I'm puzzled. On the first one... that's what I'd like you to address.
Timothy S. Bishop: --This is a Chevron stage 1 challenge, Your Honor.
Stephen G. Breyer: I didn't see Chevron... I didn't see the relevant cases.
Timothy S. Bishop: Well, we do cite Chevron in the brief. It's a Chevron stage 1 analysis.
Ruth Bader Ginsburg: Mr. Bishop, I think it's not Chevron that Justice Breyer is raising. It's the State Farm question-- --Right. --which you don't raise until you get to this Court. I don't know... you didn't make this a State Farm case at all below.
Timothy S. Bishop: Well, we have always argued, Justice Ginsburg, that the Secretary lacks the authority under plain statutory language, and also because there has been a consistent administrative interpretation for 60 years, and because--
Ruth Bader Ginsburg: Did you argue that this State... that State Farm controls that the Secretary didn't give an adequate explanation of changing from one system to another?
Timothy S. Bishop: --We did argue that below. In our brief in this case, we decided that the argument to press is the, what we believe is the strongest argument, that there is no conceivable basis in the statute--
Sandra Day O'Connor: So you've left that other one out altogether.
Timothy S. Bishop: --We... well, we have cite... in what I would hope would preserve that issue, if someone is inclined to go that way, is that at the end of our brief we did say that on the Chevron stage 2 we don't think that there's an adequate justification.
Stephen G. Breyer: I don't see what Chevron stage 2 has to do with it. I see what State Farm has to do with it. That's the agency has to provide a good reason for changing its mind in an important matter, but I don't see what Chevron stage 2 has to do with it.
Timothy S. Bishop: Well, what we have... I mean, the... our argument, Your Honor, is that the statute requires this, the Secretary's been doing it for a long time, that Congress revisited this area without changing the Secretary's regulations, that Congress in 1993 specifically refused to enact these regulations when the affirmative defense asked them to, and that there has been no... and certainly there has been no explanation of... as to why the Secretary--
Speaker: Mr. Bishop, may--
Timothy S. Bishop: --has changed his mind after all of that.
Ruth Bader Ginsburg: --I'm very puzzled by your, Congress didn't enact specifically, when you are faced with something that... with the bill, the grazing rights bill that would have said specifically, these are rights that you preserve, but Congress didn't enact that--
Timothy S. Bishop: Well--
Ruth Bader Ginsburg: --and it seems to me that that... what Congress didn't do in 1946 and 1953 is much more relevant than what you're urging about a tack-on to an appropriations bill.
Timothy S. Bishop: --Well, now, Congress didn't need to do that, because it had already provided in the Taylor Grazing Act that adjudicated privileges that grazing privileges, including this adjudicated amount of forage, should be adequately safeguarded, and Congress was concerned that that not ripen into a right to the land, which is why the no right, title, or interest that the Court addressed in Fuller is in there. But Congress did, in saying that necessary, adjudicated necessary amounts of forage should be adequately safeguard, adequately safeguarded, intend that the Secretary continue to recognize and provide protection for those forage amounts. So--
Ruth Bader Ginsburg: But the amounts you conceded the actual amounts you can use the Secretary not only can but must... doesn't it have the Secretary must adjust--
Timothy S. Bishop: --The Secretary must adjust--
Ruth Bader Ginsburg: --based on other conditions of the land?
Timothy S. Bishop: --The Secretary must adjust that, and if I can just get back to Justice Scalia's initial question, I'd just like to finish my list of what it is that we think we do get from the preference. I mean, first of all we get the claim to additional permanent forage when it becomes available. The preference amount has always been the baseline for measuring suspended use, and the permit, every permit preference, a line for preference, a line for suspended use, a line for active use. The suspended amount is listed, and that's the difference between active use and the preference amount, and it becomes available under the regulations to the permittee--
William H. Rehnquist: Does this claim--
Timothy S. Bishop: --if the forage is increased.
William H. Rehnquist: --Does this claim stand independently of the adequately safeguard language in the statute?
Timothy S. Bishop: The... these are... I'm not sure I understand the--
William H. Rehnquist: Well, part of your argument, as I understand it, is that the statute requires the Secretary to adequately safeguard--
Timothy S. Bishop: --Right.
William H. Rehnquist: --these preferences, and now you've gone over all the things that you think a preference conveys to your clients. Is that a separate point, or is that just in--
Timothy S. Bishop: Well--
William H. Rehnquist: --Wait till I finish my question, will you. Is that a separate point, or is it just something that bears on the adequately safeguard?
Timothy S. Bishop: --I think that those are ways in which the Secretary has adequately safeguarded the preference in the past. Now, I'm not suggesting that all of those in their detailed ways as set out in the regulations necessary... necessarily have to continue. I think that adequately safeguarded doesn't have a determinate meaning, but it clearly does mean that the Secretary must continue to recognize and deal with the preference, so if I can give one other example, the preference amount establishes claims relative to the claims to forage of a permittee's neighbors on the allotment and to new applicants, so it prevents the BLM from shifting AUM's at will among permittees and applicants. In the McNeil v. Seaton case, which we cited in our briefs as an example of that, where the Secretary tried to give forage to a new applicant when there were people with adjudicated privileges already on the range who weren't raising up to the preference amount, and the court said you can't do that.
John Paul Stevens: But as I understand that, they couldn't do that under the present regulation, either, because they do say they protect their priority over other rival applicants, don't they?
Timothy S. Bishop: Well, the--
John Paul Stevens: Am I right about that?
Timothy S. Bishop: --You're right, but... you're right in part, Justice Stevens. You're right that once the permitted use is established, that there are restrictions on how it can be changed. You are wrong in the sense that there is no correlation between permitted use, which refers only to the land use plan, forage as permitted by the land use plan, and has no bearing whatsoever on the adjudicated preference amounts that were previously determined by the Secretary. A land use plan, which is a... permitted use now is the land use allocated by the Secretary under a land use plan. A land use plan operates at a high level of generality. It does not allocate forage to specific permittees, any more than the forest service land use plan that was considered in Ohio Forestry Association permitted the cutting down of trees. It's the BLM, operating under the grazing regulations, that actually allocates forage to individual permittees, and it's left a lot of leeway by the land use plan. Under the current rules, the permitted use rule will allow the Secretary to set the permitted use essentially in his discretion, without constraints.
Sandra Day O'Connor: Well, in a sense that's true already. The Secretary has felt free to lower the number of cattle, for instance, to be grazed on a particular piece of land for some time.
Timothy S. Bishop: Are you talking about active, active use, Justice O'Connor?
Sandra Day O'Connor: Yes.
Timothy S. Bishop: Through active use, that is true, and we have no objection to that. The land use plans clearly require that the... that on an individualized basis, in a site... using a site-specific analysis, that active use be varied according to the conditions. Our claim is that the preference itself, the preference amount that the Secretary has recognized for 60 years, which is always higher than the active use, and which gives us certain claims, has to be recognized.
Antonin Scalia: What claims would it give you? Give me an example, a concrete example of how you would be better off if you had this supplemental preference which he didn't always give you in the past anyway?
Timothy S. Bishop: McNeil is an example. A new applicant comes in--
Antonin Scalia: Okay.
Timothy S. Bishop: --and says, I want to... I've got a ranching operation. I'm just setting one up, bought some land, setting up a ranching operation. I want to get forage on the range here. That range is already fully allocated by adjudication. The preference amounts are established. No one is grazing up to their preference amount. Everyone's active use is below the preference amount. The requirements that the preference amounts establish a first choice, if you like, to obtain available forage on the range means that you can't keep inviting people in to reduce my active use to give it to somebody else. You can't give it to my neighbor. You can't give it to a new applicant. If there is a suspended... suspended use is another example. Suspended use, the difference between the preference amount and active use. The suspended use is available, held available for the permittee to use if conditions improve on the range and there is more forage.
Ruth Bader Ginsburg: How often is that reality, that the active use gets boosted up?
Timothy S. Bishop: You know, I don't have percentage figures, and I don't think we or the Government have any, but range improvements, for example, if you read the PRIA, the Public Rangelands Improvement Act, a lot of the legislative history there in the introductory purposes of the act explained how range improvements, water improvements can open up new parts of the range that weren't previously available for grazing because the livestock had no water there, or they can... and in addition seeding, chaining, things that can be done to the land to improve its condition, those sorts of improvements--
Sandra Day O'Connor: Well, even if it improved, do you... is it true that even under the old system the Secretary perhaps wouldn't have to go up to the full original adjudicated use. The Secretary could say, yes, things are better, and we're going to increase the active use by so many head?
Timothy S. Bishop: --That's right, Justice O'Connor. There's no... no one realistically thinks that the preference amounts will ever be maintained over a long period of time. In fact, the preferences were readjudicated in the 1950's and sixties to--
Sandra Day O'Connor: You know, I can picture lots of as-applied challenges under this new scheme, but what we're struggling with is how to deal with it on the facial basis and without regard to consideration of whether it was just arbitrary under an administrative analysis.
Timothy S. Bishop: --Well, I mean, my argument is this, that the statute, and a look at the history since the statute was passed, mandates that preference amounts of forage be adequately safeguarded. The word adequately safeguarded ceases to mean anything at all if the preference amounts are abolished, and that is what the 1995 rules do.
Stephen G. Breyer: Why do they do that?
Timothy S. Bishop: I'm sorry.
Antonin Scalia: Do you say that that theoretical amount gave you an absolute right, if you had five, five livestock owners whose total preference amount adds up to 100 percent of a particular grazing area, it in effect, even though they weren't using the whole 100 percent, even though they were only using 80 percent... that was the active preference, okay... nonetheless the inactive preference... what's the--
Timothy S. Bishop: Suspended use.
Antonin Scalia: --Suspended preference would give them an absolute right to exclude a sixth livestock owner from coming in, or not? If not, then I don't know what the preference means.
Timothy S. Bishop: The preference has to be adequately safeguarded. Up to this point, the Secretary has interpreted that to mean that you have to take account of that preference and on a site-specific basis there may be a particular reason, on a site-specific, individualized basis, to think that you shouldn't get the increased preference amount.
Speaker: I'm not talking about giving you an increased preference amount.
Timothy S. Bishop: And--
Antonin Scalia: I'm talking about an area where, when you take the total preference amount, its 100 percent use--
Timothy S. Bishop: --You--
Antonin Scalia: --you do have an absolute right to exclude a live... a new grazer.
Timothy S. Bishop: --You have a... an absolute right to exclude a new grazer. You may not have an absolute right to get all of that--
Antonin Scalia: 100--
Timothy S. Bishop: --that forage.
Antonin Scalia: --To graze 100--
Timothy S. Bishop: That 100 percent.
Antonin Scalia: --But he can't give it to somebody else.
Timothy S. Bishop: He can't give it to someone else while... now, he can't give it to someone else without doing certain other things. There are other things that could be done. Always on an individualized basis the Secretary can reduce the... can reduce the preference--
Antonin Scalia: The preference amount, right.
Timothy S. Bishop: --can reduce active use, can even take the land out of the grazing district altogether.
John Paul Stevens: But do we know that under the new regulation that the Secretary would not be able to do precisely the same thing and say, I've got five people in this--
Timothy S. Bishop: Yes, Your Honor.
John Paul Stevens: --and a sixth coming in, and given the history, I'm not going to let the sixth one in?
Timothy S. Bishop: Yes, Your Honor. There's no such thing as an adjudicated preference amount of forage any more. If I can reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. Bishop. Mr. Kneedler, we'll hear from you.
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: Petitioners, as has been pointed out, have chosen to bring a facial challenge to these regulations, and they may succeed on a facial challenge only if they can show that there is no set of circumstances in which the regulations would be valid. They have fallen far short of doing that. In fact, the regulations reflect a reasonable interpretation of the Taylor Grazing Act, FLPMA, the Federal Land Policy Management Act, and the Public Rangelands Improvements Act, and they fall well within the broad discretion that Congress necessarily conferred on the Secretary to manage the vast public domain for multiple use and sustained use--
William H. Rehnquist: If you're right on the first clause of your sentence that if it can be shown that this is permissible in any conceivable situation, then you don't even have to get to the other parts of your sentence. It was permissible under the statute, broad discretion, that sort of thing.
Edwin S. Kneedler: --Right.
William H. Rehnquist: So do you take the position that all you have to show is that perhaps in at least one or two instances, that this does not respond to the challenge, therefore that's good enough?
Edwin S. Kneedler: Yes. In a facial challenge, we think that's right, but I would like to respond, because we think these regulations are valid across the board. There may be individual situations in which a particular permittee may have his active use cut back, or may... during the term of the permit may--
William H. Rehnquist: If you're right on your first point, a Court opinion would never get to the others.
Edwin S. Kneedler: --No, that... of course, the Court could write the opinion as it chose, and I suppose--
William H. Rehnquist: It could put it in Roman numerals.
Edwin S. Kneedler: --Right. [Laughter]
Anthony M. Kennedy: Could I just ask about your first point? I take it the validity in any circumstances doctrine is drawn from what, our Salerno case--
Edwin S. Kneedler: Right.
Anthony M. Kennedy: --which involves facial attacks on statutes, often under the Constitution. Isn't this an APA statute, that the regulation just doesn't implement the statutory design?
Edwin S. Kneedler: Yes, but I think that is essentially--
Anthony M. Kennedy: Have we said that the Salerno rule applies to APA challenges to the regulations that do not properly implement a statute?
Edwin S. Kneedler: --No. If the claim is that the regulation is completely beyond the statutory authority, no, that is true. But--
Anthony M. Kennedy: Have we said that in a decision of this Court?
Edwin S. Kneedler: --No. No, I'm agreeing with you, as far as I know, if the claim is that the regulation is that the regulation would be beyond the Secretary's authority in all of its applications. But as I understand petitioner's fundamental point, it is that in the land use planning process, which is based on principles of multiple use, that the grazing that they have previously been permitted to engage in will not be adequately respected, or taken into account, or weighed into the balance. That is essentially a challenge to the broad land use planning that FLPMA itself mandates for grazing.
Stephen G. Breyer: No, I though his challenge was very, very specific. I thought, as I understood it, that there was an old system, and the old system said if there are three ranchers and 1,000 acres, the division 500, 300, 200 means the following. You cut it back to 500 acres, okay. We divide it 250, 150, 100. That's definite. You increase it by 50 acres. Those new 50 acres have to be apportioned in precisely the same proportion, and if a third or fourth rancher comes in, he must get zero, must in all circumstances, and if one of those existing ranchers tries to take 1 acre more than his proportionate share, he cannot get it, in no circumstance. That's the old system, and on that system they can get financing. Then there is a new system which more or less agrees you have total right to control the amount of grazing, but as to apportionment and new ranchers, it's up for grabs, and that, it seems to me, is what they're challenging.
Edwin S. Kneedler: Right, and that is simply not true, and I would like to refer the Court--
Sandra Day O'Connor: What is not true?
Edwin S. Kneedler: --That the--
Sandra Day O'Connor: That they're not challenging--
Edwin S. Kneedler: --No, no, excuse me... that the new regulations do not provide for an apportionment if there is an increase in grazing, and that's the example the petitioner--
Stephen G. Breyer: --No, he doesn't say it doesn't provide for an apportionment. What he says is, it isn't clear that the fourth rancher who comes in gets zero--
Edwin S. Kneedler: --It--
Stephen G. Breyer: --and it isn't clear that the old apportionment... the new apportionment is done in precisely the same proportions.
Edwin S. Kneedler: --Okay. If I may respond, and two points. First, what they are describing is a prior regulatory regime, not something that the statute requires.
Stephen G. Breyer: That's correct.
Edwin S. Kneedler: So to the extent that they are claiming some inconsistency with the statute, that's not this claim.
Stephen G. Breyer: That's correct.
Edwin S. Kneedler: This... and with respect to the new grazer coming in, those regulations are, as were pointed, out in regulation 4110.3-1.
William H. Rehnquist: These are the '94 regulations?
Edwin S. Kneedler: They are essentially unchanged, and that's the point I wanted to make. The prior regulations appear at 9a of the appendix to the brief, addendum to the brief. 4110... excuse me....3-1, increasing active use, the... excuse me. Those are the prior regulations. The 1995 regulations appear on page 123 of the petition appendix, and the title has just been changed to Increasing Permitted Use, rather than Increasing Active Use, but the force of the regulations is the same.
William H. Rehnquist: We're on 125a?
Edwin S. Kneedler: 123a of the petition appendix.
William H. Rehnquist: 123, thank you.
Edwin S. Kneedler: And if you put them side-by-side, there is actually essentially no change in the allocation of additional forage as it becomes available, and the same is correspondingly true with respect to a decrease in forage. Those regulations say, for example, if you look at the petition appendix under the current regulation, on 123a, additional forage may be apportioned to qualified applicants. Paragraph (a) is essentially irrelevant. That's temporarily available livestock grazing. (b) is additional forage available on a sustained yield basis.
William H. Rehnquist: I understood the basic argument was that none of this need to come about because the land use program that the Secretary provided for could negate it, and I thought I read the Tenth Circuit opinion which upheld the program as reading that way, too. The... I thought the Tenth Circuit said we just... nothing is ripe here, not that this is just the same old regime.
Edwin S. Kneedler: Well, with... I think the Tenth Circuit may have had that sense, but I think it is important to look at the fact that existing... people holding existing permits under the priorities for apportioning this, they will first be... if additional forage becomes available, any historical suspended use that was referred to here will be given to the ranchers who already have suspended use.
Sandra Day O'Connor: But not former adjudicated use.
Edwin S. Kneedler: No, it is... that is essentially what it is, because the current permits carry forward the amount of, the number of AUM's that a person has been able to graze under a permit, and the new permitted use regulation requires that the number of AUM's be specified in the permit. That has not changed.
Sandra Day O'Connor: And you insist that henceforth the permits that are given will still reflect the original adjudicated [= AUM's]?
Edwin S. Kneedler: Yes, unless they are changed, because what... and this comes about as... essentially as a matter of the way the administrative process works. If somebody has an existing permit for, let's say, 100 AUM's on a particular parcel of land, and it comes time to renew the permit, and BLM is going to say no, it should only be 80, well, the challenge will arise by comparing what it used to be with what it now is, and therefore under the APA essentially require the BLM local officer to explain why the conditions on the range require a lessening of the grazing that will be allowed, and in fact the regulations at 4116, the procedural regulations, require the regional official to give a decision, to explain why there will be a reduction.
Antonin Scalia: You can also reduce the suspended use, you can't you, if you want to?
Edwin S. Kneedler: Yes.
Antonin Scalia: Only on renewal?
Edwin S. Kneedler: No. Suspended use, suspended use could be reduced under the land use plan, for example, if there was... if the land use plan was revised during the course of the--
Antonin Scalia: No, but I mean under the old system, never mind under the current--
Edwin S. Kneedler: --No. Suspended use was not reduced. What would happen is, active use would be put into a suspended category if the range could accommodate less grazing than had previously been true. Now, the statute, if your question is whether the statute would have allowed the Secretary to reduce suspended use the answer is, absolutely.
Antonin Scalia: --But the regulations would not?
Edwin S. Kneedler: No. The regulations essentially worked out an accounting system to regulate... to ascertain how much grazing would be permitted year-to-year, and over time, as the amount of active grazing went down, AUM's were put into suspended use. But as petitioners have acknowledged, it's not realistic to think that those historical uses are going to get up to what they had been, and one of the purposes of the Secretary's new approach here not to allow new suspended... the next time there's a permanent, more or less long-term reduction to put that into the suspended use category is that it doesn't reflect reality.
Antonin Scalia: Well--
Edwin S. Kneedler: And it's better to have the system reflect the present-day reality of what the active grazing... and lenders will know what the active... the permitted use under the permit is, the rancher will know what the permitted use under the permit is, those involved in the land use planning and BLM and the public will know, not paper cows put into a suspended use account, but what is actually going on on the range.
Stephen G. Breyer: --Well, but that's their objection. I think that's their objection, and they say that the... and when I read the comments in the, you know, the rule-making, they raised the objection and they said that the change is going to be that this suspended use will disappear and instead their potential future right, which may never come about, will depend on the land use plan, and the response to that I think was, the land use plan allows adjustment of the AUM amount.
Edwin S. Kneedler: Yes, it does.
Stephen G. Breyer: Which I took it as saying they're right about that change. And then you said... or you didn't, but the Interior Department, where changes in the situation are major, it may be necessary to amend the land use plan, thus reinitiating the process, and I wasn't quite sure what that meant, but what they say, the problem is that the financiers aren't quite sure either--
Edwin S. Kneedler: Well--
Stephen G. Breyer: --and therefore they won't give us... you may say this is all going to work out fine, but we go to the bank, and we discover that we can't borrow the money, and the reason we can't borrow the money is that whereas previously we had certainty about what would happen to me if, suddenly, for some reason the amount that was going to be foraged went up, there's no longer that certainty. It depends upon some future land use plan, and some future testimony, and we can't get a hold of it. Now, what's... am I right about what they're saying? If I am, is that what is true?
Edwin S. Kneedler: --I think you're right about what they're saying, but they're wrong, and I'd like to respond in two points. One is, they're wrong about the prior regime, and they're also wrong about the change that happened. In 1978, which was the same year that this definition of grazing preference was put into the regulations, which is the first time preference was in the regulations that had the number of AUM's in the concept of preference, in that very same year, the regulations implementing FLPMA, which had just been enacted and required land use plans on all... on all grazing lands as well as other lands administered by BLM, specifically provided, for example, that forage will not even be made available for livestock grazing, and when you talk about forage becoming available, it means for livestock grazing. If there's additional forage it might be for wildlife. It might be for something else. Those regulations in 1978 said that they were dealing only with the use of forage that is available after forage is allocated to other uses under the land use plan. They also made clear that the amount of... that the plan could be amended, that the amount of active use could be reduced.
Sandra Day O'Connor: Well, of course, you can understand how that explanation causes concern, because the Taylor Grazing Act did contemplate that the original adjudication would allocate grazing permits based on the land base and the water rights of the applicants for grazing, and that that would be adequately safeguarded, that privilege would be adequately safeguarded. Now we come along with land use plans for multiple purposes, and there is nothing in that to indicate that the grazing preferences will be adequately safeguarded.
Edwin S. Kneedler: Okay. If I... if--
Sandra Day O'Connor: I mean, they can be just, you know, off for other purposes.
Edwin S. Kneedler: --Okay. First of all, the... FLPMA requires that the land use plans be done, so if petitioners have a quarrel with that aspect of the sensible use of the domain, that is something that Congress has required.
Sandra Day O'Connor: Well, it does, but it also contained a clause that indicated that the Taylor Grazing Act was not to be superseded.
Edwin S. Kneedler: Right, but the essential point about the land use planning under FLPMA is that it is a way of carrying out authority that the Secretary had under the Taylor Grazing Act to begin with. The Taylor Grazing Act was not a livestock maximization statute itself. The Taylor Grazing Act was passed at a time when the public domain, the public rangelands were in very bad shape because of overgrazing, because of drought, and a principal purpose of the Taylor Grazing Act itself... in fact, if you look at the purposes of grazing districts that are set forth in section 2 of the Taylor Grazing Act on page 103, the maintenance of the livestock industry is not... I'm sorry, on 103a of the petition appendix... it refers to such things as to regulate the occupancy and use, to preserve the land and its resources from destruction, and to provide for orderly use, improvement, and development of the range. This was a range restoration act as well as a regulation of grazing land.
Sandra Day O'Connor: Yes, but section 3 did say preference shall be given in the issuance of grazing permits to those who are landowners engaged in the livestock business, necessary to permit the proper use of lands, water rights owned--
Edwin S. Kneedler: Right--
Sandra Day O'Connor: --occupied and used by them, and that that will be adequately safeguarded. Now, that's the heart of their claim, as I understand it.
Edwin S. Kneedler: --Yes, and--
Sandra Day O'Connor: And this subsequent Federal Land Policy and Management Act, in its contemplation and requirement of land use plans, may not be in accord with that Taylor Grazing Act provision.
Edwin S. Kneedler: --Well, petitioners have said that they understand that the Secretary can alter preference rights.
Sandra Day O'Connor: Yes.
Edwin S. Kneedler: So whatever the initial adjudication was... and even in the early years it changed from year to year, so the initial preference rights that were established are an implementation of very broad language. The Secretary didn't even have to do that in the way in which he did. But the more fundamental point is the preference, as used in sentence 3 of section 3 of the Taylor Grazing Act on page 104a, it talks about who among qualified applicants for grazing permits will be given a preference.
Sandra Day O'Connor: Yes.
Edwin S. Kneedler: It's in terms of whatever grazing is made available, how does it get apportioned among people based... and there were complicated questions of somebody who was using the public rangeland before 1934, and how much grazing were they doing. It was essentially a way to make an equitable apportion of the land in 1934. But what this sentence does not answer is how much grazing will be made available in the first place. This only tells you what to... how to apportion, and even that is in broad discretion, but how to apportion what grazing is made available, and that is made clear if you look at the next sentence, which begins in the middle of page 104a. It says, such permit shall be for a period of not less than 10 years, subject to the preference right of the permittees to renewal in the discretion of the Secretary. Even the renewal, whether to renew a permit was in the discretion of the Secretary. If the Secretary chose to renew the permit, then the prior holder would have--
Stephen G. Breyer: Your response is that they should go talk to their banks and they should say, look, these paper cows never meant that much. I mean, after all, they could have changed the forage, they could have brought in new people, cut the... they could have done all kinds of things.
Edwin S. Kneedler: --And--
Stephen G. Breyer: And today they promised in this commentary that if there's a major change in reality they're going to try to do something about it. I mean, so they've said it isn't going to make that much change in--
Edwin S. Kneedler: --If it's a major change for improvement in increased grazing or decreased grazing, but--
Stephen G. Breyer: --But am I right in thinking about how to look at this?
Edwin S. Kneedler: --Well, yes, because the regulations do provide for changes according to the land use plan and, of course, lenders are on notice of that. But if I could just respond to this point about the land use plans, the Secretary determined and explained in the rule-making process that it was his judgment that the use of land use plans and other requirements of these 1995 regulations that require changes to be based on increased scientific knowledge will, in fact, enhance the stability of the livestock industry because people will know what they can depend upon in the plan, and that there won't be a change--
William H. Rehnquist: Mr. Kneedler, about a sentence after the language that you quoted to us about the discretion of the Secretary, in fact it's the next sentence, it says during periods of range depletion due to severe drought or other national... natural causes, or in case of a general epidemic of disease during the life of the permit, the Secretary of the Interior is hereby authorized in his discretion to remit, reduce, or refund in whole or in part or authorize postponement of payment of grazing fees. Now, do you think that the Secretary's discretion is just general in the part you read?
Edwin S. Kneedler: --Right, I do, because this has to do with the reduction of fees, not the direction to reduce grazing, and if you look at the preceding sentence, I only got to the clause that talked about renewal of permits in the discretion of the Secretary. The latter part of that sentence says, who shall specify from time to time numbers of stock and seasons of use. It says from time to time, not once and for all time. The idea was that this is a dynamic situation, and the Secretary could change the amount of livestock permitted. Suspended use was an administrative measure.
William H. Rehnquist: But do you think it suggests that the Secretary could simply suspend in gross, rather than case-by-case?
Edwin S. Kneedler: I think it did. I mean, for example, section 7 of the Taylor Grazing Act, which is not reproduced in the appendix but was enacted or revised in 1936, allowed the Secretary to determine that lands that were put in the grazing district were in fact more suitable for any other purpose besides grazing, and to remove them from grazing. If those lands happened to be on an allotment that an individual had a permit for, the act itself contemplates that those lands could be removed from grazing, and if I could please respond to Justice O'Connor's point about the adequately safeguard, because that sentence, there are a number of words in that sentence that are I think important to focus on. The first thing is, it does not say grazing preferences shall be adequately safeguarded. It says, grazing privileges shall be adequately safeguarded. The grazing privilege is what the permit gives you. It isn't some antecedent interest. It's... the privilege to graze on the public lands is what the permit gives you, so what this means is, during the term of the permit, the privilege that the permit gives you will be adequately safeguard. Most fundamentally you have... and this was the central purpose of the Taylor Grazing Act. If you get a permit, you have a right to graze there and to exclude others. The privileges that you get to graze on the public domain are an important right, and cattle ranchers have grown up on that, but it is primarily a privilege to exclude others, and the Secretary. The Secretary can no more oust--
Sandra Day O'Connor: Well, there also are limitations on the denial of renewal of a permit--
Edwin S. Kneedler: --Yes.
Sandra Day O'Connor: --to a permittee who's obeying the rules of the Secretary.
Edwin S. Kneedler: Right, and this sentence, by the way, it's not clear that it was intended to do anything more than to suggest to the Secretary that in the initial apportionment of the domain in 1934 the Secretary should give weight to what had gone before, but to the extent it has any continuing force it has the one I mentioned. And it also has the effect that the Secretary, as you pointed out, Justice O'Connor, cannot simply go on the land or revoke a permit without following the process, so the permittee is protected... I don't know that this comes from the adequately safeguard--
Sandra Day O'Connor: Would you explain to me what section 302 of the Federal Land Policy and Management Act means when it says the Secretary shall manage the public lands under principles of multiple use and sustained yield in accordance with the land use plans, except that where a tract of such public land has been dedicated to specific uses, according to any other provisions of law, it will be managed in accordance with such law? What are those dedications to other specific uses?
Edwin S. Kneedler: --There could be... there could be--
Sandra Day O'Connor: Could that be for grazing?
Edwin S. Kneedler: --No, I think it could not be. there could be specific stat--
Sandra Day O'Connor: Why not?
Edwin S. Kneedler: --I think the principal reason is, for example, the provision of FLPMA that deals with permits. There's a whole section of FLPMA that deals with grazing permits, 1752, and if one looks at... if you look at page 114a of the petition appendix--
Sandra Day O'Connor: Well, then, that... is grazing a specific use in another law, specifically Taylor Grazing Act? I didn't understand how to interpret that.
Edwin S. Kneedler: --Well, it is clear that Congress intended to bring grazing under the multiple use requirements of FLPMA, and the regulations promulgated by the Secretary of the Interior in 1978, right after FLPMA, the same set of regulations that petitioners wish we would go back to, made clear the Secretary's understanding that FLPMA required grazing to be regulated. And if you look on subsection (c) on page 114a, where it talks about first priority for the renewal of an existing permit, so it is talking about grazing that is already occurring, it says, so long as the lands for which the permit is issued remain available for domestic livestock grazing in accordance with land use plans prepared pursuant to section 1712. So it's clear that... if it wasn't clear before that the Taylor Grazing Act wasn't just a grazing statute but also a multiple use statute, these provisions of FLPMA make clear, and in fact this section also makes clear that there is certainly no statutory right to a permanent entitlement to the amount of grazing that may have been adjudicated many years ago when the range was originally being apportioned under very different circumstances. Because it says even the right of renewal of a permit, something that a person has a preference to, is present after FLPMA only if the Secretary chooses to make the lands available for grazing, the permittee is in compliance with the rules and regulations and terms and conditions, and he accepts the new terms and conditions of the new permit, thereby once again making clear that the Secretary of the Interior has the authority to prescribe the terms an/d conditions for grazing on the public lands.
William H. Rehnquist: Mr. Kneedler, what has the Secretary actually done with respect to land use plans following the enactment of this law, or has it been in suspense because of the litigation?
Edwin S. Kneedler: No. As we... the land use plan requirement came into effect in 1978, and as we point out in our brief, all grazing covered by the Taylor Grazing Act is now covered by land use plans, either prior, what were called framework plans, or the new resource management plans, and petitioners have still not shown anything to this Court that suggests that that land use management process, which was designed to instill stability in the areas covered by those plans, has failed to take into account existing grazing. And as we also point out in our brief, the Taylor Grazing Act... excuse me, FLPMA and implementing regulations refer to existing uses of the range, the dependence of local properties and private property and local communities on the range, so the land use planning process, which also has broad public participation and allows for grazing permittees to participate in the planning process and to appeal, affords ranchers, as others who have a stake in the use of the public domain, it assures them protection for their interests. If I could also point out that in the rule-making, in response to your question, Justice Breyer, I realize it hasn't been challenge on a failure to articulate, but pages 9921 to 9923 of 60 Federal Register and the proposed notice at 59 Federal Register at 9928 explain the Secretary's reasons for what he explained was essentially a change in terminology between the permitted... the new definition of permitted use, which corresponds to sentence 4 of the Taylor Grazing Act dealing with the numbers of livestock from time to time, separating that from preference, which is governed by sentence 3 of section 3 of the Taylor Grazing Act, which talks about who among potential grazers would have a priority. That doesn't give grazers, either individually or as a class, a preference over nongrazing use of the forage and, as I say, increases and decreases in new forage that becomes available for grazing are handled in essentially the same way. Essentially the same priorities--
Sandra Day O'Connor: Is there anything in the new regulations, though, that links permitted use by grazers to either the grazing preference or any other measure of numbers needed by the permit-holders to support an economically viable grazing unit in combination with their own base properties and water, which is what the Taylor Grazing Act contemplated?
Edwin S. Kneedler: --Well, the current... I'm sorry, the... was there anything in the current regulations that ties it to preference?
Speaker: Yes, that links the--
Edwin S. Kneedler: The permitted use, the regulations provide that permitted use must be stated and the number of AUM's must be stated in the permit, and it's attached to the base property, just as in the prior situation preference and the AUM's as they were stated under preference were attached to the base property. The... your reference to sentence 3 of the Taylor Grazing Act, as may be necessary, again was a way of apportioning up the land at the time the act went into effect, but it's important to notice that the renewal permit provision of FLPMA makes it clear that there is not an ongoing entitlement to a certain amount of public rangeland in order to satisfy whatever the base properties ranching requirements are, because all there is is a preference to renewal of the permit for a particular allotment, but the land use planning process or other ecological determinations may conclude that that particular allotment can only sustain 50 percent of the grazing that it previously allowed. That may be less public land than would be necessary to sustain the full ranch on the base property, but nothing in the Taylor Grazing Act, and certainly nothing after FLPMA, would allow a rancher to say, I have a right to oust other uses of the land, or a right to allow grazing in a way that might damage the land in order to be able to support my base property. Again, this is just an apportionment among ranchers to the extent the Secretary allows grazing to occur on the public domain. With respect to the adequately safeguarded, I wanted to make two other points about that. It says to the extent consistent with the purposes of the act, which as I mentioned elsewhere talk about orderly use and prevent destruction of range resources, so that is an important limitation. It also says, grazing privileges recognized and acknowledged. Whatever grazing privileges a rancher gets under a permit are automatically conditioned by the provisions of the Taylor Grazing Act itself and regulations that allow the Secretary to reduce grazing to modify the use of the land and to protect the environment. There have not been any questions about the other two regulations that are at issue here. On the range improvements, we think that there the Secretary is just exercising the authority that any landlord or any landowner would have to work out by agreement in advance what would be the disposition of improvements that are added to the land. That simplifies it. There is no reason to refer to arcane rules of fixtures under property law. The Secretary has simply specified in advance what the ownership of improvements will be, which greatly simplifies the administration of what are after all public lands, so that there will not be private stakeholdings, private fixtures on public lands, and after all, if they were fixtures, the only right would be to remove them and you certainly couldn't remove a well, probably, that had been constructed by a prior owner. It wouldn't make sense to renew fences. So what has happened is, there's provisions for compensation rather than the removal of the fixtures.
William H. Rehnquist: --Thank you, Mr. Kneedler. Mr. Bishop, you have 4 minutes remaining.
Timothy S. Bishop: I just don't see the broad discretion in the TGA that Mr. Kneedler does. Preference was adjudicated according to what was necessary for the proper use of the base property and the statute says that the privileges, including that adjudicated amount of forage, have to be adequately safeguarded. The reason that this is a facial challenge is that the 1995 regulations define permitted use by reference to a land use plan, and without any reference whatsoever to the preference amount adjudicated as necessary. The needs of the base property have entirely disappeared. The Secretary can set the permitted use without any reference to those needs. Land--
Ruth Bader Ginsburg: But I thought you conceded that, as far as the active use is concerned, there's no different situation today than there was under the prior regulations that--
Timothy S. Bishop: --Well, I don't really concede that. It may be that we have the same active use today as tomorrow, the day before, and the day after the regulations. What we don't have is that if the next day there is an increase in the amount of forage available on the range, we have no claim whatsoever to that, based on the preference. The permitted use now controls, and because the land use plan--
Ruth Bader Ginsburg: --But you... do I understand correctly that the... that what you're complaining about is the absence of this suspended use, but you're not complaining about what the Secretary did as far as active use is concerned?
Timothy S. Bishop: --That's right. I mean, active use is varied according to the condition of the range. What we are complaining about is the loss of a claim to more active use, based on our preference, and it's not the land use plan. The land use plan referred to in the permit... Mr. Kneedler suggests that that has changed everything. Land use planning for sustained yield and multiple use started in 1964, and for years land use planning and the preference amount continued side-by-side.
Stephen G. Breyer: But they say in their... they concede that this land use plan in principle might interfere sometimes with your suspended paper rights, but then they say, where it's major you're going to have to go back and redo the whole plan. They obviously foresee it won't happen very often, if at all, so why isn't it satisfactory to you that if there's some big major change in some particular land use plan, which they don't foresee, you challenge that?
Timothy S. Bishop: Because the change isn't taking place at the land use planning level. Land use planning occurs at a general level. It does not allocate the privileges to individuals on the allotment. It's the grazing preference... it's the grazing regulations that do that. It used to be that the grazing regulations had a substantive basis to them. The amount of forage necessary to the proper use of the land as adjudicated. That's gone. There is no standard now in the regulations required by the TGA, and there is no standard in the land use plan. There are no standards at all. There are no claims that we have to additional forage based on the needs of our property. And for the Solicitor General to say that we'll be okay, that our suspended use will be recognized, is frankly ridiculous, because in the explanation of the finer rules he says that the Secretary will not allow permittees to continue to carry suspended use because that suggests that they'll be able to get that suspended use back as active use. That is exactly what the adequately safeguard language of the TGA requires, and what we have now been deprived of. It's also anachronistic to have the Secretary suggest that the TGA was a multiple use statute. It was not a multiple use statute. It was all about grazing. It was passed at the behest of the livestock industry because they were in such deep trouble, and each of the purposes stated in the statute for improving the condition of the range is intended to improve the financial condition of the livestock industry in the long term, and all of that has now been lost. All of our protections, all of our safeguards reflected in the regulations prior to 1995 have now completely disappeared, and it's not the land use plan that's responsible for that. It's a permitted use definition that now writes adjudicated forage completely out of existence. Thank you.
William H. Rehnquist: Thank you, Mr. Bishop. The case is submitted.