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 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 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 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, , 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 "."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 toms not be to federal for This new con- might subject adequate regulation in the older parts of the country. the sakeof conservation of the forage resource.12 cept is called the "doctrine of beneficialuse." No On March 3, 1934, the House Committee on he who Saturday, matter where the water may be situated, the Public Lands reported out H.R. 6462 with a "do pass" beneficially use[s] water can have the continued recommendation.The Scrugham amendment cited above so long as the beneficial use is contin- was approved by the Committee, and reproduced verbatim ued. This bill proposes to take absolute control in the March 10, 1934 Report No. 903 to the Committee of over grazing on the public domain,and admitted- the Whole House which subsequently approved H.R. 6462 ly the control of water is the governing factor. as amended. 188 RANGELANDS 18(5), October1996

Thus, as of March 3, 1934 the unambiguousintent of the If the language in the amendmentquoted above, House of Representativeswas to positively recognizegraz- referring to grazing preferences specifically as and ing permits grazing preferences as grazing rights. By grazing "rights" rather than leases or privileges, granting private property grazing interests or attenuated is not subject to construction as thereby consti- grazing use rights in the public domain—a granting of pri- tuting the grant of an in the vate in the federal rights estate opposed by both domain lands, it at least comes perilously near the of and the of the Secretary Agriculture Secretary it...lfanyone doubts that this is the ultimate pur- lnterior13—ranchers would be more secure in their pursuit of this his doubt will of the pose amendment, be highest and best use of the public domain, and their removed if his attention is called to the intimate industry would be stabilized in the interest of economic connection in the language used in confirmation development. of grazing rights and that of water rights. Hearings in the United States Senate on H.R. 6462. as Amended 73d. Congress 2d. Session:14 mhe amendment grants...whatcertain stockmen have been was The Senate consistently contending already (Committee on Public Lands and Surveys) the actual status of the Government's on the House-amended version of H.R. property— hearings 6462 in short, that the stockmenalready held the dom- began April 20 and reconvened on April 26, 1934. In testi- inant estate in the Government lands which on they mony April 26, Forest Service Chief F.A. Silcox strongly have grazed, and that there remains to the to the amendment. objected Scrugham Government only a servient estate...it opens the door to endless controversies, misunderstand- The real purpose of this language is, I fear, to ings, and footless litigation. grant to the stockmenwho are grazing lands on the public domain an estate or property interest If Congress wants to establish these vested In the particular lands which they have been rights, it is up to Congress. But we know from accustomedto use, and that the fee-simpletitle our experience in handling the question on the now possessed by the Federal Governmentwill western range that you get into all sorts of com- be terminated and the Government's interest plications and speculations with these thereafter grazing limited by a part interestgranted to the preferences on the assertion of a property inter- particular stockmen who chanced to be using est. If that is what is intended, then we ought to the lands at the present time, and confirmed to have it clearly understood...it is my opinion them as a property right. alleged vested rights are going to be asserted.15 In on [Many westerners] have been demanding that hearings April 27, Assistant Solicitor Poole such preferencesshould be recognized as con- expressed the same opposition to the Scrugham amend- stituting "rights" in and to the use of ment recognizinggrazing rights. Government property, but in some instances The dangerof this provision is obvious, It would, have gone so far as to contend that by reason of perhaps forever cloud the fee-simpletitle of the the preferences granted in the past a State of Federal Government, and, in turn, the title of the facts exists which results in already conferring transferee.Like other property it would be trans- upon the users legal rights in fact. In short, they ferable and inheritable. If this provision...oper- contend that the national forest permittee whose ates as a federal grant, the Department of the lands have been recognizedas depending upon interior cannot subscribe to it, and the Secretary national forest range holds his range not merely has instructed me to inform the committee that by license from the Government, but by reason he would prefer to have the bill defeated if this of an actual property Interest in the Government provision is not removed.16 land itself. They claim, in short that the stock- Senators on the Committee with man repeatedly disagreed has estate In the national forest range lands Chief Silcox and Assistant Solicitor Poole on this and sub- used by him and his estate is dominant and the sequent hearing dates. Government's estate servient. I am advised by On May 10, 1934 the Senate Committee on the Public our officers that not legal this position is legally Lands and Surveys reported out H.R. 6462 with a "do pass" sound; that such a property interest cannot be recommendation. The Scrugham amendment was establishedover lands which are the property of approved by the Committee, and reproduced verbatim in the Federal Government by prescription of the recommended "do pass" bill. In its Report No. 1182 adverse user and can only be established by (Calendar No. 1258) published May 26, 1934 the Senate actual grant; also the authority to grant public Committee stated that "...insofar as consistentwith the pur- lands or easementstherein rests exclusively in poses of this bill, grazing rights recognized by local cus- Congress. toms, laws, and decisions of the courts, are also to be acknowledged and safeguarded." The Senate Committee RANGELANDS 18(5), October 1996 189 on Public Lands and Surveys did not remove the grazing his homestead may have been the minor part, rights provisionprior to the bill'sfinal "mark-up." shall have the privilege of going to a loaning Thus, as Chief Silcox and Assistant Solicitor Poole had agency and asking permission to borrow, and requested, the public intent of the Senate Committee on having recognition of the fact that he has certain Public Lands and Surveys to recognizegrazing permits and rights upon the public domain which shall not be grazing preferences as private property interests in the fed- interferedwith during the term of that loan. eral lands was clearly stated by the Senate Public Lands Mr. O'MAHONEY. If I understand the Senator cor- Committee as of May 10. rectly, his purpose is merely to guarantee that But sometime between May 10 and June 12, 1934, the the to grazing privileges which are con- Assistant Solicitor Poole had rights Administration intervened. As veyed by the bill shall be so definite and so cer- threatened, if the grazing rights language were not tain that they may be recognized as security changed, the bill would be rejected by Secretary Ickes and whenthe holder seeks a loan. vetoed by the President. The the creation of Mr. McCarran. That is exactly correct...It is a language disavowing grazing rights which the was substituted for the in an executive question of crystallizing the security Scrugham language loan and will so session members of the Departmentof mortgagee or agent may accept, apparently involving that no or oth- the Interior, the Office of the Solicitor, and the Senate intervening agency, governmental take from the value of the I Public Lands and Surveys Committee. No published erwise, may security. I make clear. records of that meeting can be located. hope myself This on 11152-11153 of the Amendment on the Senate Floor Asserting Private Property exchange, appearing pages June 12, 1934 Record—Senateis illuminat- Interestsin Grazing Allotments Congressional Senator McCarran clearly attempted to formally recog- 1934 ing. The Congressional Record—Senate of June 12, nize the existence of limited "grazing rights" having real (pp. 11147-11162) clarifies what must have happened. estate value before the enactment of the Taylor Grazing threatened to fili- Senator Patrick McCarran of Nevada Act. That value was to be "recognized and acknowledged if he wrote to offset the new "no buster the bill language [and] adequately safeguarded" from diminishment through grazing rights" languagewere not accepted. "takings" by the government if pledged as security on a Mr. McCarran. I have tried for a month, and I was loan now, or at any future point in time.19 turned down cold...Mr. President, if the amend- The Senate, and the House of Representatives,accepted ment, drafted under the guidance and with the Senator McCarran's amendment. His language remains, full knowledge of the Department, is not to be today, part of Section 3 of the Taylor Grazing Act. accepted, then I am not going to yield to any- thing. Administrative Recognition of Grazing Rights as and still con- His new language, subsequently adopted Property Rights tained in Section 3 of the TGA states that: [N]o permitteecomplying with the rules and reg- In 1935 and subsequent years Interior Secretary Ickes ulations laid down by the Secretary of the unsuccessfullyattempted to have bills that had been draft- Interior shall be denied the renewal of such per- ed by his department approved as amendments to the mit, if such denial will impair the value of the Taylor Grazing Act. Among other things, these amend- grazing unit of the permittee, when such unit is ments would have deleted the permit renewal guarantee pledgedas security for any bona tide loan.17 inserted in the original bill in response to Senator McCarran's Short of a .rec- arguments. Congressionallyrecognized "grazing right.. To rationalize his Secretary Ickes wrote that and position, ognized acknowledged [and] adequately safeguarded", McCarran's Section 3 provision "is discriminatory and high- one based on "local customs, laws, and decisions of the who continue would have ly unfair as it, in effect, rewards permittees courts" as the Scrugham language done, on their units and those who dis- in liens grazing penalizes Senator McCarran thus introduced intentional ambiguity The need for such a in meant that charge their obligations. provision Section 3 of the TGA. McCarran's language order to ease the credit of livestock on the and authorized use levels would exist operators public grazing preferences as a to within a district unit as a whole was domain is doubtful, privilege graze in perpetuity so long as the ranch under the established the act in most cases inconsis- preferences by pledged security on a loan, a position seemingly attaches to ranch and enhances that no of the TGA specific property thereby tent with the new language provisions the value of such Its removal, there- ".. .create or estate in or to the borrowing property. would any right, title, interest, fore, is believed desirable".2° lands."18 The House Committee on the Public Lands recommend- Mr. McCarran. [O]ne holding a farm or a home- ed that the proposed Ickes amendment be eliminated; and stead who has heretofore depended upon the the Senate Committee on Public Lands and Surveys noted public rangeas a part of an integral unit of which that "after hearing testimony on the subject [we] concluded 190 RANGELANDS 18(5), October1996 that it would be advantageous to permit this section to Footnotes remain".21 President Roosevelt apparently recognized that the una- 1For a markedly different constructionand interpretationof Section see mended McCarran language established very nearly per- 3, Red Canyon Sheep Co. v. Ickes, 1938, 98 F.2d 308, 69 at 315. petual grazing leasehold estates. In a December 9, 1939 App.D.C. 27, page Interestingly, while it is not widely letter Senator Pittman known the courts have recognized that public domain grazing to Key of Nevada, the President leases interests" in wrote as follows. represent "compensable condemnation pro- ceedings.The lead case is U.S. v. Certain Parcels ofLand in San At the outset of the administration of the act it BernardinoCounty, D.C. Cal. 1969, 296 F. Supp. 774, as acknowl- was realized that its be com- edged in U.S.C. Ch. BA (Grazing Lands) 43 315m Notes of purposes would Decisions 1. defeated the immediate Issuance of Nature and scope of leases. See also Sproul v. pletely by 226 Or. 359 P.2d 543. what might in effect be nonrevocable term Gilbert, 392, per- on Public mits, since It would be impossible immediately 2Grazing Domain, Hearings before the Committee on Public Lands of the Houseof Representatives,May 3, 19, 24, and to accomplish the range survey program essen- 31 and June 1, 2, 21, and 22, 1932. U.S. Government Printing tial to the determination of the persons entitled 1932 to Office,Washington: (155 pp.). preferences under the act, and most appli- 3A of these cants good summary grazing bills appears in Peffer, E. for grazing privileges presumably either Louise, The Closing of the Public Domain: and had or would have Disposal occasion to pledge their graz- Reservation Policies, 1900-50. Stanford, CA: Stanford University ing units as security for loans.22 Press, 1951, pp. 181-224. 4To Provide for the Orderly Use Improvement,and Development ofthe Public Range,Hearings before the Committeeon the Public The Unresolved Ambiguity Lands of the House of Representatives,June 7, 8, and 9, 1933 and February19,20, 21,23, 29 and March 1, 2, and 3, 1934. U.S. When judicial interpretationof the at hand is GovernmentPrinting Office,Washington: 1934 (210 pp.). ambiguous, the intent of Congress, revealed through the 5The federal courts have interpretedthe preamble as a statement legislative history of the statute, controls. There is no doubt of three related public purposes (42 ALR Fed 353): (1) to provide for the most beneficialuse of the in that the Roosevelt Administration found the in possible public range the inter- language est of ranchers themselves but also the at Section 3 to be ambiguous and, from a bureaucratic view- public large (Red Canyon Sheep Co. v. Ickes, 193869 App DC 27, 98 F2d 308); (2) point, constitutionallythreatening. in the interest of ranchers, to define grazing rights and to protect In urging President Roosevelt to veto the Taylor Grazing those rights, by regulation, against interference United States v. bill, one week before the President signed the bill into law, Archabal, 1940 DC Nev, 34 F Supp 1; Red Canyon Sheep Co. v. Chief Forester Silcox argued in the strongest of terms. lcke and (3) to stabilize and develop the western livestock indus- on the use The bill try dependent grazing of federal lands (United States v. grants permanent and inalienable Fuller, 1971 CA9 Ariz, 442 F2d 504 revd on other grounds 409 US rights to the present users of the range, con- 488, 35 L Ed 16, 93 5 Ct 801; Chournos v. United States, 1951 ferring upon them substantial property rights CA1O Utah, 193 F2d 321 cwer den 343 US 977, 96 L Ed 1369, 72 which the Secretary of the Interior could nei- S Ct 1074). ther diminish, restrict, nor impair, 6House hearingrecord, p. 30. of irrespective public necessity. In its original form, as 7The Forest Service reversed this argument, as subsequently approved by the Department, the lands were noted, when HR. 6462 was amended first in responseto a pro- not burdened by any such servitude...This is posal made by Representative J.D. Scrugham of Nevada, and made clear in the formal opinion of the subsequentlyby Senator Patrick McCarran,also of Nevada. Solicitor of the Department of Agriculturesub- 8House hearingrecord, p. 77. mifted to you June 14, 1934...New will 9House hearingrecord, 124-125. be equities pp. establlshed...Senator McCarran insisted 10House hearingrecord, p. 126. Its amendment.. Once upon vested in either 11Househearing record,p. 128. individual or corporate such rights 12House record, 129. become private property which, under our hearing p. can be taken 13This line of reasoning had been detailed by Colonel W.B. Constitution, for public purposes Chief or condemnation and Greeley, Forester, United State Forest Service, in testimony only by purchase upon before the Senate Committeeon Public Lands and Bill payment of Surveys (A adequate compensation...The very toPromote the Development, Protection,and Utilizationof Grazing fact that the legal staff of two great Facilities on Public Lands, to Stabilize the Range Stock-Raising Departments [Agriculture and Interior] place Industry, and for otherpurposes, Hearings before the Committee upon It totally differentand contradictory con- on Public Lands and Surveys of the United States Senate, structions Is of itself incontestably proof of February 15-March 11, 1926. U.S. Government Printing Office, the ambiguityof its terms.23 Washington: 1926 (632 pp.). Col. Greeley opposed legislation establishing contractual grazing leases on the that such Are grounds grazing rights a type of private property right? Draw leases would create "[a] vested right, .. an easement, a right of your own conclusion. I believe they are usufructuaryprivate use, that runs against the owner of the land [the United States] property interests in the servient federal estate. until such time as it is terminated by law or by purchase...1 think RANGELANDS 18(5), October 1996 191 that in...providinga definite legal status for grazing on the national 19The courts have not realized the intent or the significanceof the forests we should be extremelycautious to safeguard the possible McCarran amendment. For example, 42 ALR Fed 353, Taylor developmentof grazing in the future or the possiblecontinuation of Grazing Act, relies on one case, La Rue v. Udall (1963) 116 App the preferencesfor grazing privileges, as here defined, against at DC 396, 324 F2d 428, cert den 376 US 907, 11 L Ed 606, 84 5 Ct any time in the future maturing into a vested right that is going to 660 in concluding that the McCarran amendment applies only in run as a form of adverse possession against the power of the consideration of conflicting applications for grazing permits; and Government to use these lands for the best public interest" (p. that the provision should not be construed as establishing and 355). As is seen, the Forest Service continued to argue that writ- maintaininga vested privateproperty interest in the permitsand its ten grazing permits or leases created a dominant estate (the pri- preference AUMs. However, a reading of La Rue clearly shows vately owned based property) and a servient estate (the national that the court's ruling was pure dicta based on no prior legal forest or public domain grazing allotment) in opposing the precedent and, further, displays no comprehension of intent as Scrughamamendment to H.R. 6462some eight yearslater. expressedon the Senate floor (324 F2d 428, p. 431). The La Rue "To Provide for the Orderly Use Improvement,and Development dicta is not explained in any subsequent cases citing La Rue as of the Public Range, Hearings before the Committee on Public precedent. Lands and Surveys of the United States Senate, April 20, 26, 27, 20Report No. 479 to accompany H.R. 3019, Amend Sections 1, 3, and 30 and May 1 and 2, 1934. U.S. GovernmentPrinting Office, and 15, and to Add Section 17, to the Act ofJune 28, 1934 (48 Washington: 1934 (218 pp.). Stat. 1269), Taylor GrazingAct, March 25, 1935, p. 4. 15Senate hearing record, pp. 56-59. 21Report No. 1005, Calendar No. 1051, AmendSections 1, 3, and "Senatehearing record, p. 70. 15, and to Add Section 17, to the Act of June 28, 1934 (48 Stat. Act, 13, 1935, 3. t7This phrase definesthe grazing unit as propertyconsisting of two 1269), TaylorGrazing May p. parts: fee land and the appurtenant public domain grazing allot- 22Nixon, Edgar B. (ed.), 1957, Franklin D. Roosevelt and ment. The "value of the grazing unit" therefore is the joint value of Conservation, Volume 2. Hyde Park, N.Y.: General Services the fee land and the grazing allotment and this joint value cannot Administration,National Archives and Records Service, p. 392). be diminished if offered as collateral security on a loan. The term 23Nixon op. cit., Volume 1, pp. 309-31 2. "collateral security" as defined in Black's Law Dictionaiy (6th ed., 1991) is "[p]roperty which has been pledged or mortgaged to secure a loan or a sale" and therefore the grazing allotment is val- ued property. "The operationalword in this passage is "create." The language disavowing private property interests in federal grazing allotments was no doubt, as with all other linguistic aspects of the statute, subject to debate and compromise. Black's Law Dictionaiy (6th ed., 1991), defines "create" as "to bring into being" or "to cause to exist." Neither definition of "create" precludes, to use Author is Professorof Agriculturaland Resource Economics,Oregon RepresentativeScrugham's language, recognition and protection State University,Corvallis, Oregon. of pre-existing property (grazing use or usufructuary) rights based on "local customs,laws, and decisions of the courts."