Syllabus | Opinion [ Breyer ] | Concurrence [ O'Connor ] |
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PUBLIC LANDS COUNCIL, et al., PETITIONERS v. BRUCE BABBITT, SECRETARY OF
THE INTERIOR, et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[May 15, 2000]
Justice OConnor, with whom Justice Thomas joins, concurring.
I join the Courts opinion. I write separately to make the following observations concerning the Courts decision.
First, in Part IIA, the Court holds that the Secretary did not exceed his authority under the Taylor Grazing Act by promulgating the new grazing preference and permitted use rules. I agree with that holding but would place special emphasis on the Courts third reason for rejecting petitioners facial challenge to the regulations. Petitioners have not shown how the new regulations themselvesrather than specific actions the Secretary might take pursuant to those regulationsviolate the Taylor Grazing Acts requirement that grazing privileges recognized and acknowledged be adequately safeguarded. 43 U.S.C. § 315b. It is of particular importance, as the Court notes, ante, at 14, that the Secretary has assured us that the new regulations do not in actual practice alter the active use/suspended use formula in grazing permits and that present suspended use would continue to be recognized and have a priority for additional grazing use within the allotment. Brief for Respondents 22 (quoting Bureau of Land Management, Rangeland Reform 94: Final Environmental Impact Statement 144 (1994)). For these reasons, petitioners facial challenge to the regulations must fail. Should a permit holder find, however, that the Secretarys specific application of the new regulations deviates from the above assurances and in the process deprives the permit holder of grazing privileges to such an extent that the Secretarys conduct can be termed a failure to adequately safeguard such privileges, the permit holder may bring an as-applied challenge to the Secretarys action at that time. The Courts holding today in no way forecloses such a challenge. See ante, at 15 ([T]he affected permit holder remains free to challenge such an individual [denial of] grazing privileges, and the courts remain free to determine its lawfulness in context).
Second, it is important to note that the Courts decision today only rejects petitioners claim that the 1995 regulations exceed the Secretarys authority under the Taylor Grazing Act. We are not presented in this case with a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), that the Secretary acted arbitrarily and capriciously in promulgating the new regulations. Under our decision in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42 (1983), an agency that departs from its previous rules will be found to have acted arbitrarily and capriciously if it fails to supply a reasoned analysis for the change
. Although petitioners pressed precisely such an arbitrary and capricious challenge before the District Court, for whatever reason, they chose not to raise it before this Court. Regardless of whether the arbitrary and ca-
pricious claim remains open to these permit holders,
the Courts decision does not foreclose such an APA challenge generally by permit holders affected by the 1995 regulations.
With these understandings, I join the Courts opinion.