Generally, use of public land for grazing or pasturing comes under the absolute authority of Congress. Congress can prohibit or regulate such use by fixing terms and conditions.
Congress permits grazing on public land for the following reasons[i]:
- to promote the highest use of the public lands pending their final disposal; and
- to stabilize the livestock industry.
In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized[ii]:
- to establish grazing districts or make additions to existing grazing districts;
- to provide for the protection, administration, regulation, and improvement of grazing districts by necessary rules and regulations;
- to permit free grazing of livestock kept for domestic purposes within grazing districts;
- to cooperate with local associations of stock owners, state land officials, and official state agencies engaged in the conservation of wildlife and interested in the use of grazing districts;
- to cooperate with a government department in carrying out the law relating to grazing districts and in coordinating range administration;
- to issue permits for the grazing of livestock in grazing districts upon the annual payment of reasonable fees;
- to lease public lands for grazing purposes; and
- to permit the construction of fences, wells, reservoirs, and other improvements necessary to the care and management of permitted livestock on public lands within a grazing district.
Normally, livestock grazing on national forests is administered by the Secretary of Agriculture. Accordingly the Secretary of Agriculture can make regulations with respect to grazing on national forests and other lands administered by the Department of Agriculture.
However, the administration of state grazing lands lies within the discretion of a state. A state shall enact reasonable statutes and regulations governing grazing that are consistent with federal enactments and regulations. In case of a conflict between a federal statute and a state statute governing grazing rights and privileges, the former shall supersede.
A state usually exercises the administration of state grazing land through a state land board or commission. The state land board or commission shall make its decision either in the party’s presence or in the form of a written record that is available to the public.
Upon violation of grazing regulations, both the Secretary of the Interior and Secretary of Agriculture can cancel, suspend, or modify a grazing permit either in whole or in part. Since the issuance of a grazing permit does not create a right, title, interest, or estate in the land, the grazing permit can be withdrawn at any time without compensation. But in cases where a permit or lease is cancelled to devote the land to another public purpose, the permittee or lessee is entitled to a reasonable compensation[iii]. Where such withdrawal is for war or national defense purposes, the permittee or lessee will be paid a reasonable sum for the losses suffered due to the use.
Generally, the Secretary of the Interior need not arrange for a formal hearing upon committing grazing land to another purpose. Therefore, witnesses need not testify or be cross-examined. But, in cases where an agency’s decision partly rests upon the applicant’s failure to establish certain facts, a reasonable opportunity to be heard should be afforded to the applicant.
[i] Fallini v. Hodel, 963 F.2d 275 (9th Cir. Nev. 1992).
[ii] 43 USCS § 315.
[iii] 43 USCS § 1752.