Monday, June 1, 2020

The environment in Dan Ernst's legal history exam

Dan Ernst (Georgetown Law) regularly posts a long exam question from his legal history course at Legal History Blog. This year's question was on federal grazing policy in the US. Some excerpts:
One of the Forest Service’s first projects was to subject stockmen used to roaming the mountains at will to the principles of forestry.  To develop and defend the new regulations, Pinchot hired, as chief legal officer of the Forest Service, an able and imaginative lawyer, who was personally indebted to him for, among other things, lending him money in the past.  The chief legal officer, who reported directly to Pinchot rather that the more politically connected Solicitor of USDA, soon worked out an ingenious constitutional justification for criminal enforcement of the grazing regulation, turning in part on the claim that the use of the public domain was not a private right but merely a privilege.  In 1908, Pinchot’s lawyer convinced the Department of Justice to bring a test case against a sheepherder named Pierre Grimaud.  A federal district judge ruled that the prosecution violated the nondelegation doctrine.  On direct appeal to the U.S. Supreme Court, the justices at first deadlocked, 4-4.  Pinchot was unfazed.  “I hold it to be the first duty of the public officer to obey the law,” he explained, “but I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good.”  After Charles Evans Hughes and another justice joined the Court, Grimaud was reargued, and, in 1911, the Court upheld the prosecution.  The Forestry Service immediately brought scores of criminal prosecutions, and, by 1912, USDA could report that overgrazing in the forest reserves had ended.
In 1934, the Colorado Cattleman’s Association sent [Farrington] Carpenter to Washington, DC, to lobby Congress to add beef cattle to the Agricultural Adjustment Act’s list of “basic agricultural commodities” and permit them to enter into marketing agreements controlling cattle prices.  Having succeeded, Carpenter stopped by his Congressman Taylor’s office to say his goodbyes, just as the grazing act was having a hearing.  Realizing that Carpenter would be an effective witness and learning that he did not think the public domain should be turned over to the states, Taylor asked him to testify.  (Carpenter was no fan of national power, but he believed that once the land was devolved to the states, different grazing interests would capture different state legislatures and produce an unworkable patchwork of regulation.)  Before the House committee, Carpenter spoke for small-scale cattle stockmen such as himself, plagued by nomadic sheep herds and pushed off public domain by larger cattle outfits.  Federal control was the small stockman’s only chance to avoid being “completely wiped out of existence,” he testified.
When, a few months later, [Secretary of the Interior] Ickes’s undersecretary offered Carpenter the directorship of the new Grazing Division created within the department to enforce the Taylor Grazing Act, Carpenter warned that sheep herders would object to his appointment because he was known as a champion of cattlemen in his corner of Colorado.  He claimed also to have said that he did not intend to create “a great centralized bureau” like the Forest Service, “run by Eastern people who know little about the public domain.”  After consulting a government official who once represented sheep herders, Ickes decided Carpenter would treat them fairly.  Whether Carpenter’s other warning registered with the Interior Secretary Ickes is not known. 
Carpenter announced public meetings of stockmen in the principal towns within each projected grazing district.  Just getting the cow and sheep men in the same room was a challenge, which he met by hosting banquets and seating members of the rival groups next to each other.  After each decided the other was not the devil incarnate, Carpenter made his pitch.  “Well, boys,” he said, “the good old days are over and there’s no use crying about it.  Congress is going to set these grazing districts up.  You’re going to have to get a permit to use them.  You’re going to have to pay for it.  Now the question is, how are we going to do it?’  Did they really want “a college fellow from east of the Appalachians” come in and “run it and write all your rules and regulations, like Mr. Pinchot did on the forest”?  To avoid that terrible fate, the stockmen voted to establish a grazing district in their locale.  Next, Carpenter placed a large map of their locale before them and said, “I want you fellows who know the natural grazing boundaries to come up here with a piece of chalk and mark out these grazing districts.”  Sheep and cows were then assigned their own districts.  By September 1935, Carpenter’s Grazing Division had created 30 grazing districts covering 75.5 million acres of the public domain and issued permits to over 14,000 stockmen who grazed almost 500,000 cattle and over 6 million sheep.
The Taylor Grazing Act did not expressly grant stockmen a significant role in administering the grazing districts.  It simply directed Interior to “provide, by suitable rules and regulations, for cooperation with local associations of stockmen.”  But Carpenter took Taylor’s boast that his statute would create “home rule on the range” to heart.  He held elections for advisory boards for each grazing district.  Each permit holder had only one vote, regardless of the size of his or her herd.  On most boards, cattle and sheep owners had the same number of seats.  Each member of an advisory board (“advisor”) swore an oath of office and received a $5 per diem.  In theory, their decisions were merely advisory to the Grazing Division’s local officials, called “graziers,” all of whom were Westerners with practical, firsthand experience of ranching.  In practice, the advisory boards decided most policy, as Carpenter instructed his graziers to accept their decisions unless the advisors had obviously gone “wild.” 
Because more stockmen wanted to use the public range than it could support, preferences in granting permits were crucial.  One preference was “prior use.”  The Taylor Grazing Act simply directed Interior to prefer “such use of the public range before [the passage of the act] as local custom recognized and acknowledged.”  Carpenter let each district advisory board decided how long a stockman had to be using the range to acquire priority.  The time period varied from six months to ten years, often, it was charged, to the benefit of the most established ranchers in a district.  Another factor was “carrying capacity,’ the estimates of how many animals the grassland could support.
Carpenter’s advisory boards ended overgrazing, stabilized the livestock industry, and kept the largest stockmen operators from ruling the range.  Still, the advisory boards and graziers ignored other conservationist concerns, such as the migration of elk and other wild animals.  Moreover, losers in the competition for permits complained of arbitrariness and the favoring of insiders.
 Let's hope Ernst publishes on the subject!

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