BLM’s New Regulations Must Resurrect Grazing Preferences
Ranching as we know it in the American West is at risk. Following decades of criticisms, the Bureau of Land Management (BLM) is revising its regulations concerning livestock grazing on federal lands. These new regulations promise less bureaucracy, more stakeholder input, and even include improvements like recognizing grazing as a means for reducing wildfire risk. However, one vital reform should be given greater attention — grazing preferences.
Currently, the BLM is “revising definitions” in order to make their regulations clearer. The BLM is also looking to improve permit administration, including how grazing preferences are handled. It’s hard to exaggerate the importance of this proposal. Unfortunately, most people don’t even know what a grazing preference is.
Under federal grazing statutes, two distinct rights are created: grazing permits and grazing preferences. The grazing permit is what authorizes someone to graze federal land, but the grazing preference determines who gets a permit and in what order. Permits are issued to individuals, whereas preferences are “attached” to private property and run with the land. Permits are for a set term of years, while preferences exist indefinitely. Most importantly, while permits are revocable licenses, grazing preferences are permanent. Taken together, grazing permits and grazing preferences provide a system that balances federal oversight with private property interests.
Sadly, this balance no longer exists. One Oregon ranching family found this out the hard way when the BLM denied them a permit to graze lands they had utilized for over a generation. In 2013, John and Martha Corrigan applied for a grazing permit based on the grazing preference that their parents transferred to them. But BLM denied the Corrigans’ application. Although the agency stated that the Corrigans were fully qualified to receive a grazing permit, BLM denied their application in favor of another applicant.
The BLM justified its denial by arguing that the grazing preference held by the Corrigans somehow automatically terminated without notice when their parents’ grazing permit was not renewed in 2009. But never before, in the history of livestock grazing, has BLM declared a grazing preference terminated this way.
The family is suing the BLM. Their case, Corrigan v. Bernhardt, demonstrates that a long-simmering issue in public rangeland management has finally come to a boil. In 1995, the Clinton administration made sweeping changes to the BLM’s grazing regulations. A number of key terms – including grazing preferences – were redefined in a way that fundamentally altered public lands grazing. This change risked turning grazing preferences into a meaningless appendage of grazing permits rather than the stand-alone property interest Congress intended. Families like the Corrigans are now paying the price.
The U.S. Supreme Court decided that the Clinton administration’s regulations were valid in a landmark 2000 decision, Public Lands Council v. Babbitt. But the Court’s holding was premised on the condition that Department of Interior was sincere in its statements that “the new definitions do ‘not cancel preference,’ and that any change is ‘merely a clarification of terminology.’” The Court made clear that a legal challenge to the regulations could be brought if the Interior failed to live up to its promise.
Years later, the Corrigan case has called BLM’s bluff. Because the agency failed to live up to its promise to the Supreme Court to protect grazing preferences, the ill-conceived Clinton-era regulations must now be replaced.
I wish I could assure other ranchers that these new regulations will prevent them from experiencing the same injustice that the Corrigans have. Unfortunately, a similar attempt to revise the BLM regulations was tried in 2005, but anti-grazing groups succeeded in having those regulations declared unlawful in a 2007 court case. A similar lawsuit will no doubt be filed this time around.
Still, the battle over the new regulations is as necessary as it is inevitable.
The future of family ranching in the American West is at stake. If the BLM’s interpretation of its 1995 regulations is allowed to stand, what happened to the Corrigans could happen to any public lands rancher in America. If preferences automatically disappear in the absence of a grazing permit, then most of the private ranch land in the American West will be significantly devalued and jeopardize the stability of the livestock industry.
If a rancher’s permit lapses for any reason (even innocently), there is the threat that his grazing preference will disappear, creating a penalty without an offense. Multi-generational transfers may become largely impossible, and the security intended by Congress in creating federal grazing statutes will disappear in a morass of red tape and incessant legal warfare. Congress never intended this result, and the BLM must be held accountable to correct its error.
Brian Gregg is an attorney for Mountain States Legal Foundation and is lead counsel in the case Corrigan v. Bernhardt. MSLF filed an amicus curiae brief on behalf of the Owyhee Cattlemen’s Association and the Idaho Cattle Association. This article was first published in Range Magazine.