Who Owns the Range? Grazing Permits, Allotments and the Rancher's Real Rights

Imagine owning a restaurant where the dining room belongs to the government, the landlord can change the hours, and the kitchen you own is worth almost nothing without the dining room. Now replace the restaurant with a cattle ranch, the dining room with a few hundred thousand acres of sagebrush and grass, and the landlord with the federal government. Congratulations. You have just discovered the economics of Western ranching.

A great many ranchers in the West run cattle and sheep on land they do not own. In Nevada, most of the state is federal land. Across the Mountain West, the map is a patchwork of private ranches and federal ground. If you want to understand why range fights get so heated, you have to start with a plain question: what exactly does a rancher have when he holds a federal grazing permit? The answer is more complicated, and more interesting, than "he rents it."

Before the law: the open range

For much of the nineteenth century, the unclaimed public domain in the West was an open range. Anyone could run animals on it. The result was the problem economists call the tragedy of the commons: when a resource belongs to everyone, everyone has an incentive to use as much as possible before someone else does. Too many animals on too little grass led to overgrazed ranges, damaged watersheds and fights among ranchers. By the early 1930s, the drought and the Dust Bowl made the problem hard to ignore.

The answer was not to sell the land. It was to regulate its use. Which brings us to the law that created the modern system.

The Taylor Grazing Act of 1934

The Taylor Grazing Act, signed in June 1934, was named for Representative Edward T. Taylor of Colorado, a rancher's champion who had long pushed for it. It did several things.

• It authorized the Secretary of the Interior to create grazing districts on the public lands and to regulate their use, to stop injury to the range and to stabilize the livestock industry.
• It created a system of permits, issued for a period of up to ten years, to graze a set number of animals.
• It set priorities. Permits would go first to landowners and "bona fide settlers" who lived near the range and had developed nearby ranches, and to those who had used the range before. The law spoke of "dependent commensurate property" and prior use, which in plain English means: if you own a ranch next to the range, and you've used it, you get first claim.
• It put grazing under the Interior Department, in what became the Grazing Service. In 1946 that agency was merged with the General Land Office to form the Bureau of Land Management, which still manages most of the federal range today.

Now the sentence that causes half the arguments. The Taylor Grazing Act says that issuing a permit does not create any right, title, interest or estate in the land. A permit is a privilege to graze, granted by the government, and it is not ownership of the ground. That one sentence is the center of the whole debate, and I'm going to come back to it. It is a lease that the landlord insists is not a lease, the sort of legal distinction that only a lawyer or a philosopher could love, and a rancher at the bank could not.

The Forest Service runs a parallel system on the national forests. There the grazing authority dates back to the early days of the forest reserves, and today ranchers hold term grazing permits on national forest allotments. The details differ, but the idea is the same: a federal agency gives a rancher permission to graze a certain number of animals in a certain place for a certain period.

The vocabulary you need

Range talk has its own language, and a few terms carry the weight.

• Allotment. A defined area of federal land where grazing is authorized, usually fenced or bounded naturally, and often managed under a plan for rotating animals through the pastures.
• Permit. The authorization to graze on an allotment, typically for ten years, renewable. It specifies how many animals, what kind, and when.
• Animal unit month (AUM). The measure of forage. One AUM is the amount of forage needed to feed one cow, one horse, or five sheep or goats for one month. The permit is written in AUMs, so a permit for 1,200 AUMs, to take an invented example, could feed one hundred cows for twelve months, since 100 x 12 = 1,200.
• Grazing fee. What the rancher pays per AUM. It is set by a formula, and it is a fraction of what private landowners often charge for forage, a gap that critics say shows the public is subsidizing ranchers and that defenders answer with an argument about the rancher's costs. More on that in a moment.
• Base property. The privately owned ranch, with its land and water, that gives the permit its footing. The permit is tied to base property. This is the hinge of the system.

FLPMA 1976 and the Rangelands Act 1978

For forty years the system ran under the Taylor Grazing Act. Then, in the 1970s, Congress rewrote the rules.

The Federal Land Policy and Management Act of 1976, known as FLPMA and pronounced "flip-ma," was the Bureau of Land Management's organic act. Before it, the BLM had been working with a patchwork of laws. FLPMA did three things that matter here.

1. It declared that the public lands would generally be retained in federal ownership, ending the old policy of disposing of them. That was a sharp turn, and it helped touch off the Sagebrush Rebellion, the story of which is in The Sagebrush Rebellion and the Westerners Who Wanted Their Land Back.
2. It established the principle of multiple use and sustained yield: the land should serve many purposes, including grazing, recreation, wildlife and minerals, without wearing out the land.
3. It confirmed the permit system, set ten-year terms with priority for renewal when the terms are met, and included protections. For example, when the government cancels a permit so that the land can be put to another public use, the law requires prior notice to the permittee, generally two years, and compensation for the permittee's share of authorized permanent improvements such as fences and wells.

Two years later came the Public Rangelands Improvement Act of 1978. It declared that the range was in unsatisfactory condition in many places, directed the agencies to improve it, authorized money for range improvements, and set a formula for the grazing fee. A 1986 executive order later continued the formula. The fee still moves by the formula, and you can look up the current figure on the Bureau of Land Management's website, since I will not print one that may have changed.

What a permit is and what it is not

Here is the center of it, in numbered form.

1. A permit is not title to the land. The statute says so, in the Taylor Grazing Act and again in the way FLPMA frames it.
2. A permit is not a one-year handout either. It has a ten-year term, a preference for the holder of the base property, and priority for renewal when the rancher meets the terms. It's a durable privilege, more like a long lease with strings than like a license to stand on a street corner.
3. A permit is tied to base property. When the ranch sells, the permit is transferred to the buyer through an application to the agency. A buyer without the permit gets a ranch with no summer range.
4. A permit can be reduced or canceled for cause, such as failing to follow its terms, or for reasons of range condition, drought, wildfire or the needs of a different public use.

The Supreme Court has agreed with the statute. In United States v. Fuller (1973), the Court held that when the government condemns private ranch land, the owner is not entitled to compensation for the added value that the federal grazing permit gives the land. The permit, the Court said, is a privilege and not a property interest that the Fifth Amendment protects in that way. And in Public Lands Council v. Babbitt (2000), the Court upheld the Interior Secretary's authority to rewrite part of the grazing rules in 1995, including how a grazing preference is defined. If you read the cases, you will see a pattern: the courts treat the grazing permit as a revocable privilege.

Now think about what that means. If a permit is a privilege, but the ranch cannot survive without it, then the government holds a lot of power over a rancher who holds none over the government. That is the heart of the range fight.

Why the permit is the ranch's value

Ask a banker what a Western ranch is worth, and the answer is not about the deeded acres. A ranch might own a few thousand acres of private land along a river, with the water rights and the buildings, and it might depend on tens of thousands of acres of federal range for grazing from spring through fall. The private land supplies hay and winter feed. The federal permit supplies summer grass. Without the permit, the hay ground can feed far fewer animals than the ranch was built to carry. Lenders know this. Buyers know this. Appraisers account for it. So the price of a ranch with a permit includes the value of that permission, even though the permit is not property.

You will notice the contradiction. The market treats the permit as an asset, the law treats it as a privilege, and the gap between those two views is where a rancher's risk lives. A cut in AUMs, a delay in renewal, or a closure for a season can lower the value of a ranch that a family spent generations building, with no compensation. That is why ranchers push for predictability, and it is why the same cut that looks like a minor administrative step in Washington looks like a threat to the whole operation on the ground.

The best case for the other side

Fairness requires the strongest version of the opposing view, and it is a good one. The land belongs to all Americans, and not just to the neighbor who happens to have a ranch next door. Washington thinks in fiscal years and grass thinks in seasons, and the two seldom agree on a calendar. Overgrazing is real, and it damages streams, soils and wildlife habitat. The grazing fee is a fraction of what private forage costs, and critics say that makes the public a silent partner who is not getting a fair return. Some range was degraded in the past, and agencies are right to manage it. And for those who see the West as a place for recreation and wildlife, grazing is one use among many, not a prior claim.

I take those points seriously. Here is my answer, in three parts. First, the fee comparison leaves out the fact that a federal permittee often provides the fences, water developments and labor that a private lease includes from the landowner, and a federal permit generally comes with obligations and risks that a private lease does not. Second, the history shows that grazing and good range condition can coexist, and ranchers have a strong interest in the long-term health of grass they depend on. Third, the right response to range damage is to fix the specific problem, with data and a process, and not to treat every permit as an obstacle.

What conservatives should ask for

If the permit is a privilege, make it a dependable one.

• Stable terms. Full ten-year permits, renewed on schedule. Congress has sometimes used appropriations riders to keep permits in force while environmental reviews catch up, which is a patch and not a fix. The deeper problem is the paperwork backlog described in NEPA Explained, the 1970 Law Where Paperwork Outlasts the Project.
• Fair treatment for improvements and water. The rancher who built the well and the fence with his own money should be compensated if the permit is withdrawn for another public use. Water rights are a separate question, governed by state law, and the principle in First in Time, First in Right, and How Western Water Law Really Works still applies.
• Local voice. Counties, state agencies and ranchers should have a real seat in planning, not just a comment period.
• Science and adjustment, not blanket cuts. Management should respond to actual range conditions and allow flexibility in drought.

For related questions about what government can take from landowners and what it must pay, read The Takings Clause in Four Cases Every Landowner Should Know and Kelo v. New London and the Backlash That Rewrote State Law. For the other half of the mineral and land story, see Who Owns the Oil Under Your Farm, and Why America Answers Differently and How a Backyard Lot and a Farm Pond Became Federal Waters, Then Didn't.

The bottom line

• A federal grazing permit is a revocable privilege, not title to the land. The Taylor Grazing Act of 1934 says so, and the Supreme Court has followed it.
• Even so, the permit is tied to the rancher's base property, runs ten years, carries a preference for the holder, and is the main reason a Western ranch is worth what it is.
• FLPMA in 1976 and the Public Rangelands Improvement Act of 1978 reaffirmed the system, kept the land in federal hands, set the fee formula and gave ranchers notice and compensation for improvements in some cases.
• If you hold or want to buy a ranch with permits, read the permit terms, the allotment management plan and the renewal history before you sign, and ask your state and federal representatives to fight for stable, ten-year terms and a fair process.