Summary of a Recent
Judicial Development in
Administrative Law

Bureau of Land Management's Decision to Deny Grazing Permits Upheld

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Stewart v. Kempthorne, 554 F.3d 1245 (10th Cir. 2009), the Tenth Circuit Court of Appeals held that the Bureau of Land Management (BLM) had properly denied plaintiffs' grazing permit applications, and that co-plaintiff counties lacked standing to challenge the agency's decision.

Background

After an administrative law judge upheld the BLM's denial of grazing permit applications, the applicants and two Utah counties appealed the decision to the district court. Id. at 1248. The district court held that the BLM had properly rejected the applications because a valid grazing permit for the allotment had already been issued to another party, Canyonlands Grazing Corp., and also held that the counties lacked standing to challenge the decision, and the plaintiffs appealed. Id.

Arguments

The individual plaintiffs argued that in addition to requiring ownership or control of base property and satisfaction of citizenship requirements or authorization to conduct business in the state, the Taylor Grazing Act (TGA) also required a grazing permit applicant to own livestock in order to qualify for a grazing preference and to possess an intent to graze; therefore, Canyonlands was not a qualified applicant under the TGA. Id. at 1251.

The counties argued that they had standing to challenge the administrative law judge's decision because they had a proprietary interest that was harmed by the BLM's grant of grazing permits to Canyonlands, and that the asserted injury was fairly traceable to the BLM's actions. Id. at 1254.

Analysis and Holdings

The court explained that to receive a grazing permit under the TGA, an applicant must "(1) own or control land or water base property, and (2) either meet United States citizenship requirements, or be an entity authorized to conduct business in the state in which grazing is intended." Id. at 1248 (citing 43 C.F.R. § 4110.1(a)). That Canyonlands met those requirements was undisputed; however, the parties also agreed that "stock ownership" was an additional requirement, as is indicated by the language of the TGA. Id. at 1252. The court found substantial evidence supporting the district court's finding that Canyonlands was a "stock owner" eligible to hold a grazing permit because Canyonlands had acquired four cattle prior to approval of its application. Id. The court also found no basis for the plaintiffs' claim that the TGA also required an "intent to graze" prior to issuance of a permit. Id. at 1253. Lastly, the court held that because the counties were named as plaintiffs rather than intervenors, they had to meet the requirements for standing, which they had failed to do. Id. at 1254. Therefore, the court affirmed the ruling of the district court on both issues. Id.

The case was decided on February 2, 2009.