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Did Congress Intend to Recognize Grazing Rights? an Alternative Perspective on the Taylor Grazing Act

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Did Congress Intend to Recognize Grazing Rights? an Alternative Perspective on the Taylor Grazing Act 186 RANGELANDS 18(5), October 1996 Did congress intend to recognize grazing rights? An alternative perspective on the Taylor Grazing Act Frederick W. Obermiller Overview based on local customs, state laws, and state court deci- sions—includingassignment of exclusive use rights to spa- 1 he federal government long has maintained that the lan- tially defined areas (subsequently called allotments) cus- in Section of the guage 3 TaylorGrazing Act (TGA) of June tomarily grazed during a certain period of time by a specific 28, 1934 (ch 865, 43 USGS 315 et seq) related to the number of livestockowned or controlledby local stockmen. nature of grazing privileges makes it clear that those privi- Representing the Department of the Interior in rewriting leges are merely revocable sufferances or licenses, not this portion of the bill was the Interior Department's property interests or rights. In most (but not all) cases, the Assistant Solicitor (Rufus G. Poole) who suggested the federal courts have been persuaded that the government's probability of a Presidential veto in the absence of lan- position, predicated on the TGA Section 3 language, is cor- guage disavowing the existence of private property inter- rect—grazing privileges are not compensable property ests in federal grazing lands. Poole secured acquiescence rights (e.g., Acton v. U.S., C.A. Ariz., 1968, 401 F.2d 896, by the Chairman or the Senator in charge of the bill, thus certiorari denied 89 S.Ct. 1003, 393 U.S. 1121, 22 L.Ed.2d succeeding in substituting language denying that grazing 652, Bowman v. Udall, D.C.D.C. 1965, 243 F.Supp. 672, permits representedprivate property use rights. affirmed 364 F.2d 676, 124 U.S. App. D.C. 283. Holland Subsequently, Senator Patrick A. McCarran of Nevada Livestock Ranch v. U.S., C.A. Nev., 1981, 655 F.2d 1002, insisted on further amendments the clear intent of which McNeil v. Seafon, 1960,281 F.2d 931m 108 U.S. App. D.C. was to implicitly recognize grazing permits and preferences 296, Oman v. U.S., C.A. Utah, 1949, 179 F.2d. 738).1 as property rights. Senator McCarran's efforts succeeded The government's position is based on the following and the relevant language remains a part of Section 3 of Section 3 language. the Taylor Grazing Act, creating a clear ambiguity in the [T]he creation of a grazing district or the constructionof Section 3 of the Act. Apparently this alterna- Issuanceof a permit pursuant to the provisions tive expression of congressional intent has not heretofore of this Act shall not create any right, title, inter- been made public. est, or estate in or to the lands.[emphasis added] As the following summary of the hearing records, floor Legislative History debate, and correspondence on what was to become the Taylor Grazing Act illustrates, there is evidence that In the first session of the 72d Congress, Congressman Congress did intend to cause previously existing public Don B. Colton of Utah introduced H.R. 11816.2 The pur- domain grazing patterns and forage use quantities to be pose of the bill, sponsored by the Hoover Administration, recognized as grazing use (usufructuary) rights subject to was to promote conservation and improvement of range- Fifth Amendment protection from "takings." It appears that land resources and to stabilize the public domain depen- these records of debate, discussion, and testimony have dent livestock industrythrough the regulation of grazing on not previously been published; nor have they been called to the public "commons."The bill passed the House, but died the attention of the federal courts. in the Senate.3 The facts are that only through an unrecorded "mark-up" The bill, without any changes, was reintroduced in the amendment not subject to public debate was the Senate first session of the 73d Congress by Representative Committee on Public Lands and Surveys persuaded to Edward 1. Taylor of Colorado as HR. 2835 but it died in amend a key portion of the bill. Apparently involved in Committee. Under the threat of unilateral action by insertion of the amendmentwere the chairman of the Secretary of the Interior Harold Ickes to regulate grazing on Senate Committee on Public Lands and Surveys (Robert F. the public domain if Congress failed to take action, Taylor Wagner of New York) and/or the Senator in charge of the reintroducedart amended version of the bill as H.R. 6462 in bill (Alva B. Adams of Colorado) and the Franklin D. the second session of the 73d Congress. Roosevelt Administration. The amended of the bill portion Hearings in the House of on H.R. (H.R. 6462) would have established Representatives explicitly grazing rights 2835 73d. Congress 1st. Session (1933) and H.R. 6462 73d. Conaress 2d. Session (1934) Footnotesare compiled together starting on page 190. RANGELANDS 18(5), October1996 187 The first hearing on what was to become the Taylor The water is legally controlled in the State of Grazing Act took place June 7—9, 1933 during the first ses- Nevada by what are known as the stock-watering sion of the 73rd Congress. Section 3 contained no lan- acts. He who has used the water beneficially is guage describing grazing permits as either privileges or entitled under the police powers of the State, to rights; although language in Section 3 did give ". ..the pref- continue the beneficial use and be protected erence right of the permittees to renewal [of their term graz- from the transient newcomer. Federal grazing ing permits] in the discretion of the Secretary of the control might be in direct conflict with State con- Interior." trol of stockwater. The preamble or stated public policy goal of H.R. 2835 Forage on the public domain...isnot worth any- was identical to that of the earlier Cotton bill, H.R. 11816: thing whatever unless related to other existing "to stop injury to the public grazing lands by preventing factors in State or private control...Nowthe falla- overgrazingand soil deterioration,to provide for their order- cy is wide-spread that the western range user is ly use, improvement,and development,to stabilize the live- getting something for nothing, that he is obtain- stock industry dependent upon the public range, and for ing the free use of something for which he is not other purposes."That preamble was unchangedin the final paying, something that belongs to all of the peo- version of the bill (H.R. 6462), enacted into law as the ple. This idea is utterly erroneous. The present Taylor GrazingAct.5 system is based on the customs and use devel- who The author of H.R. 6462, RepresentativeTaylor, argued oped by a hardy, self-reliant, pioneer people that other provisions of the bill implicitly would give ranch- are wrestling a living from land which would to its adver- ers vested rights to the use of a given range;6 although the deny existenceto farmers untrained Associate Forester of the Forest Service (E.A. Sherman) sities...[T]hecontrolling factor in grazing is not the maintained that grazing permits were privileges which, the numberof stockallowed on the range but the rain that falls while recognizing the preference rights of prior users, were beneficent Deity who brings this and out subject to revocationin the general public interest.7 over the surface of ground brings The second hearing on the Taylor Grazing bill was held the grass.9 February 19-March 3, 1934 during the second session of Representative Scrugham then proposed the following the 73rd Congress. Section 3 still contained no language amendment: otherthan related to permits as rights vs. privileges prefer- And provided further, That in such orders, and in ence rights to renewal of term permits. On February 21, administeringthis Act, rightsto the use of water President Roosevelt wrote Interior Secretary Ickes favoring for mining, agricultural, manufacturing,or other the bill and empoweringthe Interior Secretary to administer purposes, vested and accrued and which are the regulated public domain.8 On the same day recognized and acknowledged by the local RepresentativeJ.D. Scrugham of Nevada offered a Section toms, laws, and decisions of the courts, shall be 3 amendment linking grazing rights to water rights with the maintainedand protected in the possessorsand following statement: owners thereof, and, so far as is consistent with that controls its the purposes of this Act, grazing rights similarly It is not the grass on the range and shall be ade: it is the water. The control of the water is recognized acknowledged use, guately safeguarded.1° in the of the State. This absolutely jurisdiction former Nevada point should be clearly understood because it Representative (and Governor) under went on to state that "we has a very important bearing on matters of range Scrugham, questioning In the arid western States the law wantthe grazing rights to be acknowledged and admitted in control. sepa- the same conditions" rates water use and land use in a manner differ- exactly the same manner and under water that both water and ent from the custom in areas of ample rainfall. (as rights), meaning rights graz- The old doctrine of water was ing rights would represent compensable private property riparian rights lands and their resources.11 Mr. Rufus unsuitable to the needs of the interests in federal found absolutely G. Assistant Solicitor, of the Interior, of the arid west. Therefore,there Poole, Department people grew up then to the grazing rights languageon the grounds a new doctrine different from that which objected entirely that grazing rights vested under State law and local cus- is accepted under the old English common law toms not be to federal for This new con- might subject adequate regulation in the older parts of the country.
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