[Congressional Record Volume 143, Number 156 (Saturday, November 8, 1997)]
[Extensions of Remarks]
[Pages E2256-E2257]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             H.R. 2493, THE FORAGE IMPROVEMENT ACT OF 1997

                                 ______
                                 

                               speech of

                           HON. ROBERT SMITH

                               of oregon

                    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:

  Mr. SMITH of Oregon. Mr. Chairman, allow me to provide a little 
historical reference and explain why we in the Congress should once and 
for all enact long-overdue legislative resolutions to management of 
livestock on public lands. This is not a new issue, but it is a 
delicate one, and the proposal that we have crafted and the method 
suggested to achieve this goal is different than prior efforts by 
Congress.
  The facts are clear. The family ranchers who rely on access to public 
lands in the West suffer from great insecurity. For a number of years 
now they have been subjected to a litany of confusing and often-
contradictory agency regulations. This fact was further exacerbated 
when Interior Secretary Bruce Babbitt implemented additional far-
reaching regulations known as ``Rangeland Reform.'' The vast majority 
of ranchers in the West are good stewards of public land, yet they are 
forced to comply with a host of counter-productive regulations that 
should be aimed for the occasional wayward rancher--the exception to 
the rule--and not applied across the board in punitive fashion as they 
are today.
  Many of you remember very well the efforts of the 104th Congress to 
enact reforms to the current regulatory structure for management of 
livestock on public lands. This well-intentioned goal failed to 
materialize in the closing days of last session, but the pressing needs 
of the West are still very present. Failed public policy deserves our 
attention, and that is why we are undertaking this effort.
  For the past four months I have met with numerous Senators and 
Representatives who represent both ends of the philosophical divide to 
determine if there is a will to address a short, focused list of issues 
that will provide the western rancher small measures of needed security 
and are achievable in this Congress. With few exceptions, I have 
received very positive feedback. We have the consensus to engage such 
an effort.
  After consultation with these Members of Congress and numerous 
interest groups, I developed a moderate list of issues that were 
addressed by the last Congress and would provide meaningful measures of 
security in the West while leaving the more contentious issues to be 
addressed another day. After meeting with key Senators and agreeing on 
this list of issues, in July I drafted them in legislative form, 
distributed them across the West, to environmental organizations, and 
throughout the Congress. I solicited input on this draft and, using 
these comments, recently drafted a new bill that reflects concerns 
raised by both ranchers and the environmental community. This bill has 
since passed both the House Committee on Agriculture and the House 
Committee on Resources with broad, bipartisan support.

[[Page E2257]]

  The reasons for and benefits of this legislation are pretty simple. 
Right now we have no clear direction from Congress regarding how 270+; 
million acres of rangeland and grassland in the western States are to 
be managed. This lack of clear direction and morass of conflicting 
agency regulations cries out to be resolved. There are still many 
rangeland and grassland management issues that deserve legislative 
resolve, but those addressed in this Act are a solid start and appeal 
to concerns of all interests.
  As I have said for a number of months now, I remain committed to 
bridging gaps between the ranching and environmental communities, as 
well as between Members of Congress from different parts of the 
country, to produce meaningful legislation that serves a handful of 
legitimate needs of the western family ranchers while at the same time 
encourages the continued health of the range.
  Although this issue remains one of the more controversial public 
policy matters before Congress, I believe we should be able to work 
together to make strides that achieve a very necessary goal. Until such 
time, the rural West will continue to wither with little security and 
flawed public policy will rule the day.
  The process of providing relief for western ranchers, however, is not 
a job for one man. It requires an abundance of legal, scientific, and 
practical expertise to craft a piece of legislation that meets the 
stringent substantive and political criteria required by the U.S. House 
of Representatives. Fortunately, I had the benefit of such expertise, 
and I would like to recognize those individuals for their hard work.
  Dr. John M. Fowler, a professor of agricultural economics at New 
Mexico State University, and Dr. Fred Obermiller, a professor of 
agricultural economics at Oregon State University, are two of the 
nation's leading experts on our public rangelands. The success of H.R. 
2493 is due in large part to their insight into the implications of 
proposed policy changes, their thorough understanding of the history of 
public lands, and their willingness to work on short, congressional 
timelines.
  Dr. Fowler is responsible for compiling extensive data and fine 
tuning the new simplified fee formula in H.R. 2493, a fee that will 
undoubtedly bring greater stability to western ranchers and provide a 
fair return to the Federal Treasury. Without his specific analysis and 
explanation of the economic effect of this new fee, it would have been 
impossible to show its many benefits. New Mexico State University, and 
the nation as a whole, should be proud to have Dr. Fowler working on 
their behalf.
  My fellow Oregonian, Dr. Obermiller has been a highly valued adviser 
of mine for a number of years. As has been the case on other 
legislative endeavors throughout my congressional career, his 
assistance on H.R. 2493 was critical to its development. Any newly-
introduced legislation in the U.S. House of Representatives must 
address the inconsistencies and unfairness of current law, but must do 
so with a proper deference to the history of such issues. When it comes 
to ensuring that current proposals are accurately framed in an 
historical context, Dr. Obermiller has few equals. Both of these 
gentlemen are to be commended for the excellence they have achieved in 
their field.

  In addition, it is essential that a legal analysis of any legislative 
proposal be performed so that the intent of the author is attained. 
This analysis must be completed by an attorney who is broadly 
respected, imparts prudent interpretations based on actual statute and 
case law, and reads with a critical eye for the needs of the western 
rancher. Bill Myers, who I heavily relied upon to serve this function, 
is such a person. Bill, who has served as an Administration official, 
counsel in the United States Senate, and as the Executive Director of 
the Public Lands Council, is now in private practice in the State of 
Idaho. Nevertheless, he took time out of his own workload to provide 
his advice about the language in the bill and review criticisms that 
were being levied against it. Without his assistance, it would have 
been difficult to move forward with any degree of certainty as 
amendments were being offered to broaden support for the bill.
  When all is said and done, and the opinions of the scientists, 
economists, and attorneys are stripped away, H.R. 2493 is nothing more 
than a law under which men must live. Therefore, without the wisdom of 
ranchers themselves, this bill would be little more than a collection 
of legal terms and scientific formulas. As a life-long resident of 
Oregon, it should be a surprise to no one that when I need opinions 
about rangeland policy, I consult with old friends who I trust--friends 
like Bob Skinner of Jordan Valley, OR. Bob is a steady and thoughtful 
voice for a community that experiences too much instability. Although 
this instability is caused mainly by external forces, too often it 
comes from the ranchers themselves. Through all the disagreements and 
disputes, however, Bob has demonstrated a unique quality: an ability to 
see the big picture. This has served him well over the years and is a 
big reason why I value his opinion.
  Finally, I would like to thank my good friend Rep. Don Young, 
Chairman of the House Resources Committee, for his leadership on this 
issue. He and his staffer, Tod Hull, provided a much-needed push for 
the bill when we needed to get it through his Committee and on to the 
floor. The momentum that the bill enjoyed as it proceeded along the 
legislative process is in large part due to their hard work.
  The extraordinary efforts of these gentlemen were extremely helpful 
in taking H.R. 2493 from a bill that faced little chance of passage in 
the U.S. House of Representatives to one that enjoyed broad, bi-
partisan support. I look forward to working with all of them as we 
continue to address the important issue of stability for western 
ranchers in the next session of Congress.

                     [Memorandum--October 29, 1997]

     Re: Status of Property Rights on Federal Lands.
     To: Congressman Bob Smith.
     From: William G. Myers III, Esq.
       I am informed that H.R. 2493, the Forage Improvement Act of 
     1997, as reported by the House Resources Committee, may be 
     subject to several amendments during floor consideration 
     today. Specifically, I understand that the definition of 
     ``base property'' will be changed so that it means private or 
     other non-federal land, water, or water rights owned or 
     controlled by a permittee or lessee to which a federal 
     allotment is associated. The question is whether substitution 
     of the word ``associated'' for the word ``appurtenant,'' as 
     contained in the bill as reported by the House Resources 
     Committee, is of legal significance.
       In essence, the question is whether it is preferable that a 
     federal allotment is appurtenant to base property or 
     associated with base property. Proponents of the word 
     ``appurtenant'' prefer that term over ``associated'' on the 
     basis that it may provide greater leverage in asserting that 
     ranchers have a property right in their federal grazing 
     permits.
       Federal statutes and case law are consistent in their 
     discussion of the status of grazing permits. The Taylor 
     Grazing Act (43 U.S.C. Sec. 315b) states tndat ``the issuance 
     of a permit pursuant to the provisions of this Act shall not 
     create any right, title, interest, or estate in or to the 
     lands.'' The Supreme Court has interpreted this provision and 
     held that Congress did not intend that an compensable 
     property right be created in permit lands themselves as the 
     result of the issuance of a permit. See United States v. 
     Fuller, (409 U.S. 488 (1073)). Additionally, the Federal Land 
     Policy and Management Act (42 U.S.C. Sec. 1752(h)) states 
     that ``nothing in this Act shall be construed as modifying in 
     any way law existing on the date of approval of this Act with 
     respect to the creation of right, title, interest or estate 
     in or to public lands or land in National Forests by issuance 
     of grazing permits or leases.''
       Several recent decisions have added to the jurisprudence on 
     this issue. The federal court in Public Lands Council, et al. 
     v. Babbitt, (929 F. Supp. 1436, 1440 (D. Wyo. 1996)) provided 
     a valuable historical review and held that a ``grazing 
     preference'' represents ``an adjudicated right to place 
     livestock on public lands.'' The court also held that ``the 
     grazing preference attached to the base property, and 
     followed the base property if it was transferred.'' It is the 
     grazing preference which permits the permittee to place 
     livestock on the federal land in the case of Bureau of Land 
     Management lands. As noted above, the preference ``attaches'' 
     to the base property. The use of the word ``associated'' in 
     the definition of base property in H.R. 2493 is consistent 
     with the notion of attachment. If there is any question, this 
     should be clarified during debate on the House floor. I 
     recommend that an amendment be offered to delete the word 
     ``appurtenant,'' and that the word ``attached'' be inserted 
     in its place.
       This would be consistent as well with the court's ruling in 
     Hage v. United States (35 Fed. Cl. 147 (1996)). The court 
     held that a ``grazing permit has the traditional 
     characteristics and language of a revocable license, not a 
     contract.'' The court went on to state that ``[A] license 
     creates a personal or revocable privilege allowing a specific 
     party to utilize the land of another for specific purpose but 
     does not vest any title or interest in such property in the 
     licensee.''
       In conclusion, if Congress wishes to make a grazing permit 
     a property right, it should do so explicitly. An attempt to 
     establish a property right by the use of the word 
     ``appurtenant'' in the definition of base property, without 
     more, is unlikely to overcome existing statutes and case law 
     cited above.

     

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