Summary of a Recent
Judicial Development in
Administrative Law

Hearing Not Required Prior to Modifying Grazing Permits

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Smithfork Grazing Association v. Salazar, 564 F.3d 1210 (10th Cir. 2009), the Tenth Circuit Court of Appeals held that the plaintiff ranching association was not entitled to a stay of agency action pending resolution of administrative appeals concerning the Bureau of Land Management's decision to modify its federal grazing permits.

Background

After the United States Bureau of Land Management (BLM) issued decisions modifying certain federal grazing permits, an association of ranchers holding such permits petitioned for a stay pending administrative appeal. Id. at 1212-13. The Department of the Interior's Office of Hearings and Appeals (OHA) denied its motion for stay, and the plaintiff appealed that decision to the Wyoming district court. Id. at 1213. The district court likewise denied the petition, and the plaintiff appealed to the Tenth Circuit. Id.

Arguments

The plaintiff argued that the BLM violated the Administrative Procedure Act (APA) because "under the APA, the BLM must afford grazing permittees a hearing on the record before implementing a decision that modifies the terms and conditions of their livestock grazing permits," and also argued that 43 C.F.R. § 4.21 and 43 C.F.R. § 4.471 violated the APA because they placed the burden on grazing permittees to justify a stay. Id. at 1213-14. It also argued that grazing permits were "licenses" under 5 U.S.C. § 558(c), and the APA provides that licenses must be renewed without modification pending an administrative hearing. Id. at 1215. Lastly, it argued that a provision contained in a series of congressional bills enacted from 1979 to 1992 required an automatic stay of the BLM's decision pending appeal and permanently amended the Taylor Grazing Act, 43 U.S.C. § 315 et seq. Id.

Analysis and Holdings

"[A] sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence." Id. at 1214 (quoting 5 U.S.C. § 556(d)). The court explained, however, that 5 U.S.C. § 556(d) does not apply to every government order or sanction, and further clarified that the Taylor Grazing Act does not require the Secretary to provide a hearing each time the BLM decides to modify the terms and conditions of a grazing permit. Id. at 1214-15. The court therefore found that it was permissible for the BLM's final decision regarding the permits to take effect before a hearing on the record. Id. at 1215. The court further held that even if grazing permits were "licenses" under § 558(c), the BLM's final decision constituted "an application [that] has been finally determined by the agency" and was therefore appealable after the fact. Id. Finally, the court held that specific provisions in annual appropriations bills are not permanent unless they expressly provide that they are available after the fiscal year covered by the laws in which they appear. Id. at 1216. Therefore, the court affirmed the Wyoming district court's denial of the plaintiff's petition for review. Id. at 1217.

The case was decided on May 5, 2009.