[Congressional Record Volume 143, Number 150 (Friday, October 31, 1997)]
[Extensions of Remarks]
[Pages E2164-E2165]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     FORAGE IMPROVEMENT ACT OF 1997

                                 ______
                                 

                               speech of

                          HON. HELEN CHENOWETH

                                of idaho

                    in the house of representatives

                       Thursday, October 30, 1997

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 2493) to 
     establish a mechanism by which the Secretary of Agriculture 
     and the Secretary of the Interior can provide for uniform 
     management of livestock grazing on Federal lands.

  Mrs. CHENOWETH. Mr. Chairman, I rise in support of H.R. 2493, as 
amended by the manager's amendment and its second degree amendment. As 
originally written, I had grave concern over H.R. 2493's impact to the 
private property use and preference rights that spring from the Taylor 
Grazing Act. But after extensive discussions with Agriculture Chairman 
Bob Smith and Ranking Member Stenholm, my concerns have been addressed 
and I am pleased to support the measure. I wish to thank Chairman Smith 
for his stalwart leadership. It is not easy to bring so many divergent 
views together and reach agreement. No one worked harder than he, and I 
appreciate him.
  Mr. Chairman, the second degree amendment to the manager's amendment 
that I worked out with Chairman Smith was quite simple. It merely 
deleted the definitions of ``allotment'' and ``base property,'' and 
deleted a paragraph about lease transfers. It was my concern that these 
definitions threatened the rights found in the Taylor Grazing Act, and 
that the lease transfer language could allow the Secretary concerned to 
separate the Taylor's preference right from the base property. I wanted 
to ensure that when an individual sells or leases his or her ranch, 
that the grazing preference for the allotments go with it. The 
amendment merely leaves the current law in place, and I am unaware of 
anyone having concerns with the current definitions. However, I do 
realize that the current lease transfer regulations on Forest Service 
land cause problems. But I was concerned that we were agreeing to bad 
language. I would rather pass no law than bad law.
  To understand my position, one must understand the history of how the 
Western United States was settled and the history of the development of 
the use right inherent in the grazing preference.
  The arid grazing lands of the Western States were settled by hardy 
persons who endured severe hardships in developing ranching operations 
where there was water to support those operations. You must understand, 
much of this country gets less than 10 inches of rain fall per year. 
There is less forage, and it therefore takes a whole lot more land to 
raise cattle. These individuals established base properties, but had to 
depend upon the massive Federal lands for forage to support a viable 
livestock herd. They developed use rights, such as rights of way across 
the Federal lands, which were recognized by Congress in 1866 when it 
passed R.S. 2477.
  Major John Wesley Powell, Chief of the U.S. Geological Survey issued 
a report entitled `Report on the Arid Lands of the United States,'' 
which led to the passage of the act for the Relief of Settlers on the 
Public Lands, May 14, 1880. That act recognized the act of settlement 
itself as initiating and maintaining the settler's property rights. The 
report pointed out that nearly all the land in the West was primarily 
suited to livestock grazing and had been settled on as ranches. After 
passage of that act, settlement itself was sufficient to put other 
settlers on notice that the land had already been appropriated to 
private forage use.
  The rights of the settlers to use of these Western grazing lands were 
confirmed and ratified by a series of congressional actions such as the 
act of August 30, 1890 as amended by the act of March 3, 1891, the act 
of January 13, 1897, the act of June 4, 1897, the act of June 11, 1906, 
the acts of March 4 and September 30, 1913, the Stock-Raising Homestead 
Act of 1916, which authorized homesteading of those lands designated as 
``chiefly valuable for grazing and raising forage crops,'' and several 
other acts leading up to passage of the Taylor Grazing Act in 1934. 
Each of the

[[Page E2165]]

confirming and ratifying acts provided that all preexisting rights be 
protected.
  As we all know, when Congress passes a validating or confirmatory 
statute, the legal title passes as completely as if a patent were 
issued, and the power left to the United States is the power to survey 
and define the boundaries of the tracts validated, as determined by the 
U.S. Supreme Court in U.S. v. State Inv. Co., 264 U.S. 206 (1924).
  When the Taylor Grazing Act was enacted, the Congress emphasized 
protection of the prior existing rights, and called for establishment 
of the grazing preferences. Following passage of the act, the 
Department of Interior surveyed existing allotments throughout the West 
and issued adjudications establishing the grazing preference right 
attached to that adjudicated allotment.
  Secretary of Interior Babbitt issued his regulations of grazing in 
the so-called Rangeland Reform, and one of those regulations replaced 
the term ``grazing preference'' used by the Congress in the Taylor 
Grazing Act with the term ``permitted use,'' and made that grazing use 
dependent upon the discretion of the Secretary. In PLC versus Babbitt, 
United States district judge Brimmer enjoined the Secretary from 
replacing the ``grazing preference'' with a discretionary permitted 
use. In his decision, Judge Brimmer traced the development of a grazing 
preference right:

       Congress enacted the Taylor Grazing Act in 1934. Pursuant 
     to the Act, the Secretary identified public lands ``chiefly 
     valuable for grazing and raising forage crops and placed 
     these lands in grazing districts. Thus, the Department of 
     Interior engaged in a lengthy adjudication process to 
     determine who was eligible for a grazing preference. This 
     process began in the 1930's and took nearly 20 years to 
     complete. The Department issued adjudication decisions 
     awarding grazing preferences to qualified applicants. The 
     term ``grazing preference'' thus came to represent an 
     adjudicated right to place livestock on public lands.

  Judge Brimmer continued: ``The grazing preference attached to the 
base property and followed the base property if it was transferred.''
  Mr. Chairman, the bill without the second degree amendment could have 
allowed the Secretary concerned to separate that adjudicated right from 
the base property. No longer would the adjudicated right to place 
cattle on an ``allotment'' be ``appurtenant'' to a base property. This 
bill would have downgraded that legal connection to ``associate with.'' 
Additionally, the lease transfer section of this bill would have left 
the transfer of the adjudicated right to the sole discretion of the 
Secretary, with absolutely no qualifications. This is wrong. The Taylor 
Grazing Act already has adequate qualification requirements, and this 
bill will supersede Taylor.
  Judge Brimmer's decision is critical to the ranchers who are 
dependent upon forage rights on Federal lands. It acknowledges grazing 
preference as a ``use right.''. It is a decision which specifically 
states that the Secretary has ``an affirmative duty to protect'' the 
``grazing preference.'' We must not extinguish that right, and with the 
amendments, it does not.
  The lawyer who argued PLC versus Babbitt to the Tenth Circuit Court 
of Appeals is very concerned about the way the manager's amendment was 
written. I quote from an October 29, 1997 letter from Connie Brooks:

       The term appurtenant was originally described in the first 
     rules under the Taylor Grazing Act. The appurtenance issue is 
     very significant with respect to transferability of the 
     grazing preference. Once a preference or grazing use was 
     ``appurtenant'' or ``attached'' to a base property, it meant 
     that the transfer of the base property included the transfer 
     of the grazing preference or grazing use. Based on this 
     fundamental premise, ranches to this day can be mortgaged, 
     inherited, and bought and sold with the assurance that the 
     grazing rights on Federal land will also be transferred.

  Again, the second degree erased the bill's entire attempt to define 
the base property and allotment, and I thank Chairman Smith for 
agreeing to this.
  Regarding the lease transfer language, Connie Brooks, again, the 
lawyer who argued BRIMMER, wrote:

       ``This may well spill over into the long-standing 
     interpretation of the Taylor Grazing Act, which requires the 
     Secretary to recognize any transfer of the base property and 
     grazing preference. The Forest Service will require the 
     waiver of the permit back to the agency and re-issuance to a 
     purchaser. The concern is that if there is an issue of 
     discretion then we will see the BLM seeking to cancel a 
     grazing preference and permit rather than transfer it. The 
     cancellation and issuance of a new permit will trigger a host 
     of environmental and permitting issues, which would make 
     ranches difficult to sell as cattle ranches and increase the 
     likelihood that they will be developed as subdivisions, 
     reduce the value of the ranch and collateral.

  Mr. Chairman, this is a quote from the woman who argued the Brimmer 
decision. This is a property rights, 5th amendment issue. We cannot 
allow these ranches that have been passed down from generation to 
generation to have their adjudicated preferences separated from them. 
The ranches will become useless, and families will be destroyed.
  The second degree amendment addressed my concerns. Again, I thank the 
Chairman and all those who worked so very hard on this bill.
  I urge adoption of the bill.

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