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Tuesday, July 26, 2005

Taking the Commons, Ignoring Coase

Today's John Tierny's column makes for very interesting reading. Here's a quick synopsis:
  1. Ranchers in the west have had a lot of disputes with environmentalists. Ranchers want to use federal land to graze their cattle, while environmentalists want to limit grazing in order to preserve the land and undo/prevent damage to native plants.
  2. A Bureau of Land Management program allocates permits for land use and then allows these permits to be bought and sold on the open market.
  3. Tierney tells the story of a rancher named Dell LeFevre, who has had his share of trouble/run-ins with environmentalists. However, Mr. LeFevre recently sold some of his permits to the Grand Canyon Trust, whose Executive Director is Bill Hedden. Tierney writes that Mr. Hedden
    figures it was a good deal for the environment because native shrubs and grasses are reappearing, now that cows aren't eating and trampling the vegetation,
    while Mr. LeFevre
    likes the deal because it enabled him to buy grazing permits for higher ground that's easier for him and his cows to reach.
  4. State and local politicians are now trying to undo such deals, because (according to Tierney) "they say their communities and the ranching way of life will be destroyed" by them.
  5. The Interior Department -- headed by supposedly free-market oriented Sec. Gale Norton -- has agreed with these politicians, saying that since the land at issue already has been designated as "chiefly valuable for grazing", the BLM has the right to reopen the land for grazing.
What's wrong with this picture?

What's wrong is that the whole argument for using markets is that what's "chiefly valuable" is determined efficiently by allowing those most willing to pay to buy out those less willing to pay! When applied to environmental and similar issue, this principle is known as the Coase Theorem, and it's supposedly one of the bedrock principles of free-market -- as opposed to politically right-wing -- environmental policy. For reasons I will discuss another time, I think the Coase Theorem and similar arguments are over-used by its proponents, and I think the case for regulation is sometimes relatively strong.

But I can see only one possible argument that can be made to justify the position of Interior and the state and local politicians Tierney mentions: that "way of life" is a public good, whose promotion must trump the free market. These folks are entitled to believe that. But then they'd damn well take a look in the mirror, and they ought to be mocked mercilessly when they criticize opponents of free-trade agreements, Wal-Mart, and so on. I say this as a person who generally favors markets, subject to reasonable regulations.

The hypocrisy here is just breath-taking.

Update: Juan Non-Volokh -- nobody's pro-regulation poster-boy -- has a post up over at VC on this issue:
If the Bush folks wonder why they have such a bad environmental reputation, policies like this are part of the reason why. Here is an environmental policy that is wholly consistent with the conservative principles of property rights and voluntary market exchange. Yet the administration still opposes it. I think the Bush Administration's environmental policies are often subject to unwarranted criticisms, but cases likes this make the administration hard to defend.
Happily, JNV also provides a link to an earlier post of his about legal issues and grazing (I wonder if it includes the one that my conservative friend Peter comments on below?):
Bush's nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers' judicial nomination, the legal opinion had to be subsequently "clarified" because Myers' initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.) [Emphasis added.]
"Bias". "Poorly reasoned interpretation". ""Clarified"".

Interesting.

16 Comments:

Anonymous Redleg said...

Ah, but the "way of life" of the rugged individualist farmer/rancher must be preserved because it is part of the American myth of strong people striving against the forces of nature and the enemies of liberty. The way of life of the poor bastards who work 2 low paying jobs at the Walmarts and the McDonalds is not part of the great American saga so they have no standing among conservatives.

7/26/2005 10:37 AM  
Anonymous bu$h ate my baby said...

Jonah,

A fair argument as far as it goes. But when I look at your source article, it says the following:

"The Interior Department has decided that environmentalists can no longer simply buy grazing permits and retire them. Under its reading of the law - not wholly shared by predecessors in the Clinton administration - land currently being used by ranchers has already been determined to be 'chiefly valuable for grazing' and can be opened to herds at any time if the B.L.M.'s 'land use planning process' deems it necessary."

First, it's important to note that what they are apparently doing is trying to follow the law -- agencies after all can't promulgate rules contrary to law. Even more interesting is the observation that their reading is "not wholly shared by predecessors in the Clinton administration." So it was at least partly shared by the Clinton administration? Not wholly could even be mostly. What's the difference in interpretation, before asserting rank hypocrisy?

I took a quick spin on the BLM website and found the following in BLM's Q&A on the new grazing regulations. The rule will "eliminate, in compliance with Federal court rulings, existing regulatory provisions that allow the
BLM to issue long-term 'conservation use' permits. The need to eliminate such permits was
prompted by litigation in the case Public Lands Council v. Babbitt, which led to a 10th Circuit
Court of Appeals ruling in 1999 that the 1934 Taylor Grazing Act does not authorize such
permits."

I'm no land-use expert, but the point may be that the BLM feels it is forced into this position by a Clinton-era (1999) ruling in the Tenth Circuit, which does, coincidenally (or not) include Utah.

Which just goes to show that sometimes an administration can have to follow laws and legal precedent to the exclusion of free market motivations that they may harbor.

7/26/2005 11:49 AM  
Blogger Jonah B. Gelbach said...

Peter -

First, I don't really care what the Clinton Adm's position on this was. As I have grown weary telling you in private, I hold no brief for the Clinton Adm besides the fact that on some issues it did good and on most others it did much less worse than the Bushies have done. You seem to have a puzzling unwillingness to internalize that basic fact. So, I will say: the fact that the Clinton Adm may have taken a stupid policy position on this stuff (or other things) neither surprises me nor changes my view of what is good (or just consistent) policy.

Second, as I understand Tierney's column, Hedden's group didn't buy "long-term 'conservation use' permits" -- it bought "grazing permits" (Tierney's term, I think).

Perhaps the law says that no one can purchase a "grazing permit" and then not use it to graze. But unless that is true, I don't see the legal conflict, and it looks to me like your point about the 10th Circuit is simply a nonsequitur.

Moreover, the passage from Tierney's article you cite says

land currently being used by ranchers has already been determined to be 'chiefly valuable for grazing' and can be opened to herds at any time if the B.L.M.'s 'land use planning process' deems it necessary.

Exactly where is the necessity here? Perhaps there is a law or court decision that says that land that "has already been determined to be 'chiefly valuable for grazing'" must be used to graze. But you will have to show it to me if you want me to believe that Interior & Co. are doing anything other than shilling in the way that Tierney suggests.

7/26/2005 2:55 PM  
Anonymous bu$h ate my baby said...

Jonah,

You seem to misunderstand my point, maybe I wasn't clear enough, or maybe you're just jumping to conclusions.

I did not cite the Clinton Administration reference in order to claim that you are being inconsistent.

If the Bureau of Land Management was compelled to follow a federal court ruling, in a case that originated and was adjudicated even before the current administration, and if the interpretation of the law has been consistent among administrations, then that does not suggest breath-taking hypocrisy. Instead, it suggests an agency that has come to a conclusion that its actions are mandated by law. It has nothing to do with the agency being "headed by supposedly free-market oriented Sec. Gale Norton." There are times when an agency may have to do things even its own head doesn't like if the agency believes it must do so in order to comply with the authorizing statute. It's not a question of taking a stupid policy position -- it's rather a question of being compelled into a position. In order to reach that latter conclusion, I think it is of interest to note that prior administrations reached the same conclusion.

"Perhaps the law says that no one can purchase a 'grazing permit' and then not use it to graze." Exactly my point. And as I admitted, I don't know the answer to that. I'm not a land use expert, and I don't intend to become one now. But the litigation did seem to relate to conservation versus grazing, your source article did cite the agency's reading of law as being a factor, it also did state that that reading was at least partially consistent with the prior administration's reading, and the 10th Circuit case did appear to possibly tie all those loose ends together.

7/26/2005 4:00 PM  
Blogger Jonah B. Gelbach said...

Peter -

My bad on your inference. Sorry I jumped to conclusions (though I would point out that you have trained me well on this particular item) -- will try not to do it again.

Your point makes more sense to me now.

That said, I think neither the phrase "deems necessary" nor the reference to "long-term 'conservation use' permits" support your argument. Occam's razor again, I guess.

7/26/2005 5:24 PM  
Anonymous Bu$h Ate My Baby said...

I'm confused by the update, which seems to just be someone else commenting on the same source article.

What I'm confused by is where he says this about Myers: "To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands." So if this guy in his interpretation undercut the administration's efforts to adopt market-based reforms on public lands, then why is the administration now being accused of hypocrisy.

Jonah, I appreciate your comment about Occam's Razor, I really do. I know you view me as an apologist for the administration. What I'm trying to do here, and in a few other posts, is something slightly different. The flip side of Occam's Razor is jumping to the easy, facile conclusion based on one's presuppositions when issues can sometimes be far more complex. I'm not saying that the simplest explanation is not ever the correct explanation, only that it sometimes is not, and one should be willing to accept that possibility before racing to a conclusion that happens to also mesh with one's beliefs. What I have tried to do in a few instances (including here) is not to argue that you are wrong, but that there may be an alternative explanation. You are reaching a conclusion based ultimately on one source, one guy who in his own article suggested to my mind at least that there may be more to it than what first meets the eye.

Also, I'm sorry I haven't had a chance yet to add more about the attorney-client privilege issue. Hope you found that article interesting in the meanwhile to the extent it presented one framework to analyze the issue.

7/27/2005 4:23 PM  
Anonymous james said...

To truly be a free market enterprise from the point of the seller (government) the resulting total income from retired grazing rights must be greater than the resulting income from used grazing rights. In the case of used grazing rights, the sale of the rights themselves is only a portion of the income. A viable ranch contributes taxes. Fallow land does not. The government is also in the unique position of losing money for any permanent job loss due to the retiring of grazing rights. The loss arising from decreased tax revenue and payouts in the form of unemployment and welfare.

7/27/2005 5:26 PM  
Blogger Jonah B. Gelbach said...

James--

Thanks for your comment, but I'm afraid
it demonstrates a misunderstanding of the underlying economic issues at stake. The free market point here has nothing to do with the govt as seller -- in fact, permit-and-trade systems generally (though not universally) involve the govt's giving away the permits.

The relevant market part has to do with the fact that any one who wants to can offer the initial permittee (as well as subsequent ones) enough to convince him/her to sell the permit. The govt has no particular role at all in this issue.

As for govt tax revenue, it too is beside the point if the goal is Pareto efficiency (no one can be made better off w/out someone else's being made worse off). This goal is the one that sincere advocates of market-based environmental policy always do (and should) have in mind. [I say sincere b/c I think there are plenty of people -- the sincere ones -- who advocate market-based env policy who really do think it's the best (cost-minimizing) way to achieve specified env aims, while there seem to be others who support these policies b/c they think (mistakenly sometimes, correctly others) that the policies themselves will undermine environmentalism.]

The issue of tax revenue is beside the point: if someone out there is willing to pay enough money to convince productive ranches not to produce, then -- given the existing tax system -- that use is the efficient one -- again, given the existing tax system.

If you don't believe that, imagine that there is a machine that can turn compact discs into food. We could imagine companies that purchase CDs for food production. We could also imagine people might purchase CDs so they can listen to them. If listeners are willing to outbid CD2Food producers, then that's the efficient result. It doesn't matter that the food producers would have hired workers and paid taxes if only the govt forced people not to listen to their CDs and instead sell them to CD2FoodInc. The workers who would have worked for CD2FoodInc are better used in another industry, and that industry will pay taxes and hire them, etc.

If you don't see the analogy to keeping land fallow, ask yourself why listening to a CD is fundamentally different from being happy that the land is being preserved.

7/27/2005 6:05 PM  
Blogger Jonah B. Gelbach said...

Peter--

if this guy in his interpretation undercut the administration's efforts to adopt market-based reforms on public lands, then why is the administration now being accused of hypocrisy.

First, my conclusion-avoiding friend, please tell me where in my original post (or the update) I said the Adm as a whole was being hypocritical. My exact phrase was

Interior and the state and local politicians Tierney mentions

You seem to have raced to the conclusion that I was denouncing the Adm as a whole. There certainly are cases where the Adm has ignored its touted adherence to the market, but that point was quite far from my point -- intended or obviously made.

the flip side of Occam's Razor is jumping to the easy, facile conclusion based on one's presuppositions when issues can sometimes be far more complex.

I couldn't agree more with the point that sometimes issues are complicated. But in your apologism, you hardly confine yourself to those cases. Over and over, you take the position that just because it is logically possible that X is false, X should be presumed false. And I have to say that I resent your description (implication?) of my supposed "jumping to the easy, facile conclusion based on one's presuppositions". Do me the honor of supposing that I think -- carefully, even! -- before I write.

If you find that I often come down hard on the Administration, perhaps you might reflect on the possibility that it is experience, rather than presupposition, that governs.

You are fond of suggesting to me that I should give the Adm the benefit of the doubt. The thing is, the more one needs to demand its benefit, the less that benefit is warranted. Kind of the way that people -- even Democrats! -- stopped believing anything Bill Clinton said about Monica Lewinsky when it became clear he'd lied so baldly.

At the end of the day, I am an empiricist: I watch and listen to what people say and do, and I compare those statements and deeds to the realities that ensue. And here's what I've observed:

This Adm and many of its key WH staff has a track record of lying, smearing, distorting, distracting, flipflopping, dissembling and denying and ignoring facts. They've done it on economic issues, they've done it on foreign policy issues, they've done it to start and badly mismanage a war, and they've done it to attack their critics. And the vast majority of Republicans -- elected or not -- have either kept quiet or piled on to the Pants-on-fire-mobile.

You may disagree, but I think this Administration's lies -- and the refusal of its allies to take a stand and say they should cut it out -- is far worse than is typical.

In addition to being an empiricist, I am also a Bayesian (if casually so). That is, I update my assessments in light of new evidence. So, in your zeal to pursue Occam's Flipside, you might keep in mind that every time you lodge one of these maybe-we-should-wait-for-all-the-facts -- including the ones that the Administration fights tooth and nail to suppress -- critiques of yours, I feel obliged to lower the probability I place on the event that your argument may have some merit, or on the event that you would conceed a substantive point damaging to your position unless faced with a blue dress. I still listen, but my degree of skepticism rises....

You'll note I don't hop on every Bush-ate-my-baby accusation. The reason is to avoid just this sort of diminishment in credibility.

7/27/2005 8:30 PM  
Blogger Jonah B. Gelbach said...

Let me add one thing to the concluding sentence of my last comment: Avoiding the nuttier -- and, more importantly, factually unsupported -- accusations is a goal primarily b/c honest debate requires reasons for what one says (credibility's important, but secondary).

7/28/2005 10:28 AM  
Anonymous james said...

Fair enough. My understanding of economics is admittedly limited. It still stands to reason that the greatest source of revenue for the land use is not guaranteed to be from selling the grazing rights to the highest bidder and allowing the land to lie fallow.

7/28/2005 10:40 AM  
Anonymous bu$h ate my baby said...

OK, let me add one thing. I am in full support of the principle that Jonah orignally put forth. Turning the way back machine 12 years to my college environmental econonics course, I fully agree that a great environmental-protection system can, and in fact in many instances should, be market-based. If someone wants to buy a government pollution or grazing permit and then retire it, great. If they want to do debt for land swaps as have occurred in some South American countries, wonderful.

That is the principle. We're all agreed on that. But I also recognize that an agency does not always have free reign. In fact, rarely does. My law school administrative law class was a little more recent, maybe nine years ago, but through the fog and haze I do recall that Congress can write some pretty messy laws and then an agency, not even in a position to clean up the mess, simply has to deal with the consequences. Therefore, it would be completely unsuprising to me that Congress passes a law with which an agency has to live with the consequences.

Similarly, agencies get sued very often by interest groups complaining that an agency has overstepped is statutory authority, or is not implementing governing statute correctly. In fact, there seemed to be a case that, without having done extensive legal research, seemed if not directly on point with the subject of the instant article, was pretty close. If there are prohibitions against long-term "conservation permits," it is not a stretch to think that it is not permissable to have grazing permits and then retire them for conservation purposes. The reason I think that is that it is highly unlikely that there is something called a "conservation permit." Instead, there is probably a grazing permit that, depending on its use, could be called a "conservation permit" as short-hand. Speculation? Yes. But I don't think it's a huge stretch.

Which brings me back to the original post. When I see something that suggests that final agency rules have been promulgated as a result of litigation that deals with "conservation permits," litigation that the 10th Circuit reached a decision on in 1999, then to me that (a) sounds a lot like the issue at hand, (b) is entirely consistent with a common situation where an agency's hands are tied, (c) explains why the agency's action would be as a result of its interpretation of the law, as suggested by the source article, and (d) explains why the source article would reference the previous administration even having to have had a position on the subject (since the previous administration may in fact have been embroiled in litigation on the same subject).

If you think that is an apologist argument, that's fine. But to me, all it is is an acknowledgment that in this area, you can't just take Fact A (the agency has promulgated a rule that is not market-based) and derive from that Hypothesis B (they're a bunch of hypocrites). To me, the article glossed over a big issue with its one-sentence reference to these other potential issues, but did so in a way that left more questions than answers after having read the article.

7/28/2005 11:26 AM  
Anonymous bu$h ate my baby said...

Here's something interesting from the web:

United States Department of the Interior

OFFICE OF THE SOLICITOR
Washington, D.C. 20240

IN REPLY REFER TO: M-37008 OCT - 4, 2002

Memorandum

To: Secretary

From: Solicitor

Subject: Authority for the Bureau of Land Management to Consider Requests for Retiring Grazing Permits and Leases on Public Lands

Question Presented and Summary Conclusion

I have reviewed a memorandum from my predecessor to the Director of Bureau of Land Management (BLM) dated January 19, 2001, regarding BLM's authority to terminate or "retire" grazing on particular public lands at the request of a rancher who holds a permit or lease (hereafter, "permit") to graze livestock on those lands. I conclude that BLM has such authority but only after compliance with statutory requirements and BLM decides the public lands associated with the permit should be used for purposes other than grazing. A decision by BLM to retire livestock grazing is not permanent. It is subject to reconsideration, modification and reversal in subsequent land use plan decisions.

Introduction

This opinion examines the specific situation in which a grazing permittee volunteers to relinquish all or part of a permit to graze livestock upon the condition that BLM will permanently retire grazing on the public lands subject to the permit. This situation arises in the context of resource or land use conflicts and may involve an arrangement between a third party, such as a conservation organization , and a permittee. In such a situation, a third party generally offers to purchase the base property on the condition that the associated grazing permit is permanently retired.1 This arrangement meets the goals of the two private parties only where BLM, after a public land use planning process, makes an independent decision regarding the use of the public lands and decides to accept relinquishment of the grazing permit and terminate or "retire" the authorized grazing. However, this "retirement" cannot be considered permanent in nature absent congressional action.2

Solicitor Leshy addressed grazing retirement in his January 19, 2001 memorandum. He concluded that BLM could accept relinquished grazing permits through its land use planning process regardless of whether the relinquishment was voluntary or involuntary, although he suggested that voluntary relinquishments should have priority over involuntary relinquishments. He made no distinction between lands within grazing districts and those outside of grazing districts established under the Taylor Grazing Act (TGA). One additional and very important factor concerning grazing relinquishment, whether voluntary or involuntary, must be considered. This factor is that lands within grazing districts have been found to be "chiefly valuable for grazing and the raising of forage crops." There must be a proper finding that lands are no longer chiefly valuable for grazing in order to cease livestock grazing within grazing districts. Moreover, cessation of grazing may implicate congressional reporting requirements and grazing relinquishment decisions are not permanent.

Statutory Framework

Congressional direction regarding livestock grazing on the public lands is found in the Taylor Grazing Act of 1934, 43 U.S.C.§§315-315o-1; the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§1701-1782, and the Public Rangelands Improvement Act of 1978 (PRIA), 43 U.S.C.§§1901-1908.

In the TGA, Congress authorized the Secretary to identify lands as "chiefly valuable for grazing and raising forage crops," to place these lands in grazing districts, and to issue permits to qualified applicants. 43 U.S.C.§315. Lands outside of grazing districts may be leased for livestock grazing. 43 U.S.C.§315m. The TGA also gives the Secretary the authority to make adjustments to grazing use based on range conditions and to regulate the occupancy and use of the public rangelands in order to preserve the land and its resources from destruction or unnecessary injury and to provide for the orderly use, improvement, and development of the range. 43 U.S.C.§315a. Under FLPMA, Congress authorized the Secretary to manage public lands on a multiple use and sustained yield basis through land use plans developed with public involvement. 43 U.S.C.§1712. FLPMA also defines domestic livestock grazing as a "principal or major use." 43 U.S.C.§1702(l). Lastly, in PRIA Congress recognized the need to manage public rangelands to be as productive as feasible for all rangeland values. 43 U.S.C.§§1901(b)(2), 1903 (b).

Discussion and Analysis

When considering a proposal to cease livestock grazing on public rangelands, BLM must address a number of important land use planning factors. Some of these factors are set forth in the Leshy memorandum and apply whether the lands are within a grazing district or not. When the lands are within a grazing district, as the vast majority of grazing lands are, BLM must also analyze whether the lands are still "chiefly valuable for grazing and raising other forage crops." 43 U.S.C.§315. If BLM concludes that the lands still remain chiefly valuable for these purposes, the lands must remain in the grazing district. As such, they would remain subject to applications from other permittees for the forage on the allotment that is relinquished to BLM.

In Public Lands Council v. Babbitt, .67 F.3d 1287 (10th Cir. 1999) aff'd on other grounds, 529 U.S. 728 (2000), the Tenth Circuit struck down a BLM regulation authorizing conservation use permits. These permits authorized permittees not to graze during the entire term of a ten-year grazing permit. The court found a presumption of grazing use within grazing districts and struck down the regulation because it reversed this presumption:

The TGA authorizes the Secretary to establish grazing districts comprised of public lands 'which in his opinion are chiefly valuable for grazing and raising forage crops.' 43 U.S.C.§315. When range conditions are such that reductions in grazing are necessary, temporary non-use is appropriate.... The presumption is, however, that if and when range conditions improve and more forage becomes available, permissible grazing levels will rise.... The Secretary's new conservation use rule reverses that presumption. Rather than annually evaluating range conditions to determine whether grazing levels should increase or decrease, as is done with temporary non-use, the Secretary's conservation use rule authorizes placement of land in non-use for the entire duration of a permit. This is an impermissible exercise of the Secretary's authority under section three of the TGA because land that he has designated as 'chiefly valuable for grazing livestock' will be completely excluded from grazing even though range conditions could be good enough to support grazing. Congress intended that once the Secretary established a grazing district under the TGA, the primary use of that land should be grazing.

Id. at 1308. The foregoing language clearly applies in the grazing retirement context. If the Secretary cannot foreclose grazing within a grazing district for a ten year period, the Secretary certainly cannot indefinitely retire grazing within a district.

If BLM determines that lands are no longer chiefly valuable for grazing, BLM must express this determination and support it by proper findings in the record of decision that concludes the land use planning process. For lands outside of grazing districts, this analysis is not necessary because BLM has not made a chiefly valuable determination for these lands.

Another factor is that Congress has recognized livestock grazing as one of the principal or major uses of the public lands. The land use planning process should consider whether discontinuing livestock grazing would implicate congressional reporting requirements. See 43 U.S.C.§1712(e)(2).

Finally, land use planning is a dynamic process. In the future, BLM, through the land use planning process, may designate lands where livestock grazing has ceased as once again available for grazing, as circumstances warrant. A decision to foreclose livestock grazing is not permanent. It is subject to reconsideration, modification and reversal in subsequent land use plan decisions. Only Congress may permanently exclude lands from grazing use.

Conclusion

A permittee cannot force BLM to permanently retire a grazing allotment from grazing use. BLM has the authority to consider, through the land use planning process, a permittee's proposal to relinquish a grazing permit in order to end grazing on the permitted lands and to assign them for another multiple use. If the lands are within an established grazing district, BLM must analyze whether the lands are no longer "chiefly valuable for grazing and raising forage crops" and express its rationale in a record of decision. BLM must also consider whether the elimination of livestock grazing as a principal or major use of the public lands triggers congressional reporting requirements. A decision to cease livestock grazing is not permanent. It is subject to reconsideration, modification and reversal in subsequent land use plan decisions. This memorandum supercedes contrary Solicitor's Office memoranda or opinions.

__________

1 This general description is not meant to characterize the only way private parties can reach agreement. A variety of financial arrangements and sale contracts can be used by private parties to acquire private ranches and transfer associated grazing permits. BLM is not a party to these private agreements. While BLM may acknowledge an agreement in the planning process, BLM does its own analysis and makes its own independent decision about devoting public rangelands to a use other than livestock grazing.

2 To avoid confusion, the voluntary relinquishment of a grazing permit is best referred to as just that -- "relinquishment," not "retirement."



William G. Myers III

7/28/2005 4:30 PM  
Blogger Jonah B. Gelbach said...

Peter --

That is interesting. It's also the very memo referred to by Juan Non-Volokh, as quoted in the update. Since you appear to have missed that fact, here is JNV's text again:

In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers' judicial nomination, the legal opinion had to be subsequently "clarified" because Myers' initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.)

Let me reiterate that JNV is generally an avid supporter of Bush's judicial nominees.

Let me also point out that nothing in the case Tierney discusses appears to involve a "voluntary relinquishment" of any permits.

Rather, permits were purchased, and the grazing level has been set to zero by their owner.

If you want to argue that setting a grazing level to zero constitutes a legal relinquishment, I will be happy to listen -- once you give me a reason to think so.

Moreover, even if you do successfully make an argument suggesting that setting the grazing level to zero constitutes relinquishment, there is no reason that the Secretary or the BLM couldn't re-evaluate the "chiefly-valuable-for-grazing" designation. On this issue, I think this text from the memo is telling:

A variety of financial arrangements and sale contracts can be used by private parties to acquire private ranches and transfer associated grazing permits. BLM is not a party to these private agreements. While BLM may acknowledge an agreement in the planning process, BLM does its own analysis and makes its own independent decision about devoting public rangelands to a use other than livestock grazing.

That last sentence hardly provides any basis for an interpretation that BLM's hands are somehow legally or administratively tied when it comes to respecting market transactions.

Furthermore, any economist worth even a bachelor's degree (hell, worth a passing grade in principles class) would tell you that the fact that someone who wishes not to graze has paid at least the reservation price held by a grazing former-owner is prima faciae evidence that the land is not "chiefly valuable for grazing". There is no evidence to the contrary unless some other grazer pays the enviros enough to convince them to sell the permits to the grazer....in which case no redetermination would be needed. (See? The Market can work here, if only big government will let it!)

To argue otherwise would require a market-failure argument. The obvious market-failure argument -- environmental damage -- goes in precisely the opposite direction. And the alternative argument is the "way of life" I noted in my original post.

So, to recap:

1. You've provided me with the very memo that has been deemed by an avid and legally credentialed observer to be deficient, and that was apparently subsequently clarified by its author because of its deficiencies.

2. The deficient memo apparently says nothing to back up your administrative/legal argument regarding the permits and transactions involved here.

3. What the memo does say regarding private transactions involving permits suggests strongly that there is substantial discretion for BLM to respect those transactions.

Occam's Flipside indeed.

7/28/2005 5:49 PM  
Anonymous bu$h ate my baby said...

What I find most interesting is that you assumed I was making an argument by providing the memo. I simply found it and posted it.

7/29/2005 9:13 AM  
Blogger Jonah B. Gelbach said...

Oh, ok. I thought you had a reason for posting it. In the future, I will not race to the conclusion that you do such things for reasons.

j

7/29/2005 10:01 AM  

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