Monday, May 18, 2020

Federal Grazing Policy, 1891-1950

Harold Ickes (center); Edward Taylor (left) LC
[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some regulatory regime I did not cover in class and ask students to compare it with the ones we did.  The topics of previous essays include motor carrier regulation, meat inspection, and the US Commerce Court.  This year’s essay, on federal grazing policy, follows.  Dan Ernst.]

The federal government once owned all the land in the continental United States, except for the original thirteen colonies and Texas. It disposed of most of the land in the East and Midwest through land sales, overseen by the General Land Office (GLO), an agency within the Department of the Interior.  After the passage of the Homestead Act of 1862, Americans could obtain title to 160 acres by paying a small fee, making some improvements, and residing on the “homestead” for five years.  By the 1890s, most fertile land was in private hands, but most of the land west of the 100th meridian, a line running from North Dakota through Texas, had too little rainfall for crops without irrigation and remained in the public domain.  The land was chiefly valuable for grazing, principally beef cattle, run by stockmen in specific ranges, and sheep, herded over great distances.  Aside from scattered homesteads (ultimately expanded to 640 acres for ranches), use of the public domain was unregulated, as the GLO’s mission was to distribute land and not to plan its wise use.  Range wars between large and small cattle operators and between cattle stockmen and sheep herders abounded.  The latter conflicts were particularly intense, because sheep left grass too short for cattle to graze upon, and cattle refused to graze where sheep were pasturing.  Cattlemen referred to sheep as “hoofed locusts,” yet, as Farrington Carpenter, a Colorado stockman who will play a large role in our story, once complained, “We had no way of keeping a sheep man off a cow range.”

The first, partial regulation of grazing in the West came as part of a more general phenomenon, the rise of forestry at the end of the nineteenth century.  “Forest reserves” were first removed from the public domain in 1891.  In 1897, legislation broadly granted the Secretary of the Interior the power to make rules and regulations for the use of these 137 million acres.  Although the statute did not mention grazing by name, the Interior Department established a permit system for grazing in the forest reserves.   When civil enforcement proved ineffective, foresters within Interior wanted to criminalize violations of grazing regulations, because they could not convince GLO lawyers that such “administrative crimes” would not be an unconstitutional delegation of legislative power from Congress to the executive branch. 

The person most responsible for regulating grazing in the forest reserves was Gifford Pinchot.  Born into a wealthy family, Pinchot had studied forest conservation in Europe and brought the new science back to the United States.  In 1897, he became a special forest agent for the Interior department, but, the following year, left to head the Forest Division of the US Department of Agriculture (“USDA”).  He expanded the division’s staff from 60 in 1898 to 500 in 1905.  In 1900, he established the Society of American Foresters to promote the profession of forestry.  In that same year, his family endowed a first-in-the-nation School of Forestry at Yale.  Cornell, and some other universities also established forestry schools.
Because of Pinchot’s relentless lobbying and the support of his friend, President Theodore Roosevelt, in 1905 Congress transferred the regulation of the forest reserves from Interior to USDA.  USDA’s “Forest Division” became the “Forest Service,” with Pinchot at its head and a further expansion of its staff.  “The new men are not politicians, but foresters,” a newspaper editorialized.  “Some of them are scientifically educated young men, who know, from books, all about what has been done for forests in other countries….  The whole force is divorced from politics or ‘pull,’ and has no purpose except to make the forests as useful as possible, as long as possible, to as many people as possible.”  Pinchot’s credo, that “all land is to be devoted to its most productive use for the permanent good of the whole people,” provoked fierce opposition from the sheep herders and cattlemen, but he was undaunted.  “It is the honorable distinction of the Forest Service that it has been more constantly, more violently and more bitterly attacked by the representatives of the special interests in recent years than any other Government Bureau,” he declared.  “These attacks have increased in violence and bitterness just in proportion as the Service has offered effective opposition to predatory wealth.” 

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.

But overgrazing remained a severe problem on the 173 million acres of the public domain outside the forest reserves.  For years, Congress was deadlocked, because Westerners wanted the public domain transferred to their states and others clung to the dream that homesteaders might somehow settle the arid soil.  It took a natural calamity to break the stalemate, the appearance, during the sustained drought of 1933-1934, of vast “dust storms” that scooping up topsoil in the and rained dirt down on cities as far away as the East Coast.  Pinchot’s successor as Chief Forester declared that this “pall of dust” was “Nature’s signal that something is happening to its lands.”

Much to the Chief Forester’s dismay, when Congress finally acted in June 1934, it gave the regulation of grazing not to USDA but Interior.  Sponsored by in the House of Representatives by Edward Taylor, a lawyer and cattle stockman from Colorado, the Taylor Grazing Act was intended, as its title announced, “to stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.”  It authorized the Secretary of the Interior “to create grazing districts from any part of the vacant and unappropriated public domain,” to make rules and regulations “to promote the highest use of the public lands pending its final disposal.”   (The reference to “final disposal” was a concession to die-hard believers in homesteading.)  The regulations were to provide for, among other things, the issuance, at a reasonable fee, of permits to use the public domain.

President Franklin D. Roosevelt’s Secretary of the Interior was Harold Ickes, a Chicago lawyer who, while devoted to progressive causes, was ready to assume the worst of all around him.  Roosevelt gave the curmudgeonly Ickes the job of administering the New Deal’s first public works program because he knew “Honest Harold” would keep it from becoming a cesspool of graft.  (Ickes scrutinized grants so carefully that in time FDR had to create other jobs programs, including the Works Progress Administration (WPA).)  After the Taylor Grazing Act passed, Ickes knew he needed a Westerner to direct the new Grazing Division, but he wanted someone who would not simply do the cattlemen’s bidding.  On Congressman Taylor’s recommendation and, after reviewing his congressional testimony, Ickes chose Farrington Carpenter.

Carpenter had been born to a successful businessman and his wife in a Chicago suburb in 1886.  Because of a childhood illness, he was sent West as a teenager to work for a big cattle company.  His parents insisted he have an elite education back East, but he remained a Westerner at heart.  During a summer vacation, he took out a homestead claim in northwestern Colorado.  When he graduated in 1909, he wanted to start raising his own herd at once, but his father persuaded him that a legal training could give him an advantage in any career, so he went to the Harvard Law School.  He graduated in 1912, before Roscoe Pound or Felix Frankfurter joined its faculty, and started practicing law in the town nearest to his homestead, Hayden, Colorado (population 314 in 1910).  His office was once a one-lane bowling alley; use of the landlord’s outhouse came with the rent.  Over half of his monthly $125 income came from notarizing documents for the town’s sole bank.  He augmented that sum with his salary as county and district attorney.  As a Republican, he ran for county commissioner in 1932, losing to a butcher.  He raised cattle throughout his legal career, starting with 25 head and increasing his herd to several hundred.  “He was tall, lanky, and spoke with the cowboy’s drawl,” an observer noted.  Ickes thought that, despite his Ivy league education, Carpenter “looks like a typical cow man.”

In 1934, the Colorado Cattleman’s Association sent 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, 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. 

Although Carpenter realized that the GLO had never supported grazing, he assumed it at least would have a map of the public domain and was shocked to discover it did not.  Rather than hire legions of map makers, he carefully recruited a staff who thought as he did about bureaucracy and the west.  With only seventeen subordinates and a budget of $250,000 to organize 80 million acres (subsequently increased to 142 million), Carpenter, as he later explained, intended to administer the Taylor Grazing Act with a “tiny” contingent of federal officials and “tremendous” support from stockmen.

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.  One, a sheepherder named Joseph Livingston, denied permission to graze 9,000 head in a Colorado grazing district, protested his advisory board’s requirement that a stockman had to use the range for two years before the passage of the Taylor Grazing Act to acquire a priority.  Carpenter offered a compromise of 2,000, but Livingston appealed to Secretary Ickes.  In April 1936, Ickes, relying on his Solicitor Nathan Margold (a Felix Frankfurter protégé), ruled that the record was incomplete and remanded.  On remand, the advisory board again rejected the permit, and, in September 1936, Carpenter both upheld the rejection and defended letting the advisory boards define prior use for their districts.  Livingston again appealed to Secretary Ickes, who referred it to Margold’s office.  Margold’s lawyers thought Livingston had been treated unfairly, and they were appalled by Carpenter’s delegation of the power to define prior use to the boards.  In March 1937, he advised Ickes to order that one year’s prior use sufficed for a preference in all grazing districts.  An accompanying memo claimed the order would show that “the Secretary’s Office stands ready to protect [the victims of] prejudiced Boards” and the graziers the boards dominated. Over Carpenter’s objection that it would violate “home rule on the range,” Ickes issued the order.

The victory-for Livingston and Ickes-was only temporary.  Livingston’s permit arrived too late for him to use it in 1937.  Then, the advisory board found a new reason to deny him a permit: now, it decided, the limited carrying capacity of the grazing district required a two-year priority rule, permissible under a “special rules” provision of the statute.  Livingston’s request for an injunction in federal district court suit was denied, probably for failing to exhaust his administrative remedies.  The Tenth Circuit affirmed per curiam in August 1938.  By then, Ickes had adopted the Federal Range Code, a codification of grazing practices compiled mostly by the stockmen, which included a two-year rule for all grazing districts. 

Early in Carpenter’s tenure, he and Ickes had differed over the selection of the members of the advisory board: Carpenter insisted that they be elected; Ickes, who considered stockmen “pirates,” wanted to appoint them so he could fire them as well.  Ickes also fumed that Carpenter had unlawfully delegated authority to the advisory boards, and he grew alarmed when conservationists complained that the stockmen’s grazing was disastrously affecting wildlife.  For his part, Carpenter dismissed Ickes as “an Eastern man” who “didn’t know which end of a cow got up first.”  He decided to institutionalize the boards before Ickes could undermine them.  He and his like-minded graziers, who rarely traveled to Washington, stonewalled the “special agents” Ickes dispatched to check up on them.  Carpenter encouraged stockmen to make their wishes known to their congressmen, and he personally cultivated Senator Pat McCarron (D-NV).

Ickes confided his growing frustration with Carpenter to his diary.  His Director was “oily and the truth isn’t in him when he thinks a lie will better serve his purpose,” he wrote.  Ickes thought Carpenter was “aligning himself with the stockmen in contradistinction to the Department of the Interior,” and he believed “it is going to be difficult to correct all the harm that Carpenter has done.”  As long as Carpenter directed the Grazing Division, the Secretary wrote, “I will have a Frankenstein that I will not be able to manage.” 

Although Ickes contemplated abolishing the advisory boards, he knew that would ignite a firestorm of protest and could end in the transfer of jurisdiction over the range to USDA.  Distracted by other bureaus, battling with rival Cabinet members, and frequently advising FDR on administration policy, Ickes did nothing, and the boards became entrenched.  After the congressional elections in November 1938, Roosevelt gave Ickes permission to fire the “slippery doublecrosser” Carpenter (Ickes's words), but the Interior Secretary could not block the passage of an amendment to the Taylor Grazing Act granting the advisory boards permanent status in 1939.  McCarran was a sponsor, and, in succeeding years the Nevada Senator repeatedly attacked Ickes for trying to rein in the boards through a forester who replaced Carpenter as Director of the Grazing Service (as the Grazing Division was renamed).

After Ickes stepped down for the Secretaryship in 1946, the Grazing Service was combined with the GLO to form the Bureau of Land Management (BLM).  Its budge was cut so drastically that stockmen themselves contribute $200,000 to pay the salary of the remaining staff.  BLM staff lacked the capacity to take the reins from the stockmen even if they wanted to.  One of Carpenter’s early appointees wrote him that “the program you had set up had gained so much momentum with the stockmen, the advisory boards, and the field personnel that when you said ‘good bye’ to the Secretary, neither he nor the one chosen as your successor was able to change one stone in the foundation you had laid.”  By the 1950s, BLM’s only supporters in Congress were the ranchers’ lobbyists and elected representatives.  “In order to continue to receive this support,” a historian wrote, “the Grazing Service had to make sure its policies corresponded to the wishes of these stockmen.”
Under the Federal Range Code, adopted in 1938, district advisory boards retained a central place in the issuance of permits but appeals from their rulings no longer passed through the Director.  A research monograph of the Attorney General’s Committee on Administrative Procedure (AGCAP) summarized the process as of 1940.  As before, the boards met, with a grazier in attendance, to pass on approximately 400 applications for permits under the Code’s complicated preference rules.  On such technical matters as the carrying capacity, Grazing Service officials known as “range examiners helped the advisors, but mostly they drew upon their own knowledge of the land and the grazing operations of applicants.  Sometimes but not invariably advisers excused themselves when their own permits were under consideration.  The advisors kept no records of their deliberations, save for sketchy minutes, and they gave no reasons for their recommendations.  During the advisors deliberations, graziers usually made suggestions.  The AGCAP researcher thought these usually-but perhaps not invariably--carried “considerable weight” with the advisers.

Disappointed applicants made their protests to the advisory board that denied their requests.  “As a rule, the applicant appears personally to press his contentions and to present whatever additional facts he may have in support of his application,” the AGCAP researcher wrote.  “The proceedings are extremely informal, and no record other than minutes are kept.”  The grazier also attends and often tries to bring about a compromise.  If not, the advisory board the researcher reported, graziers usually accepted the board’s recommendations.   The grazier then notified the applicant of the decision, but often without much of an explanation beyond a citation to a section of the Federal Range Code.  The AGCAP researcher noted that none of the graziers were lawyers and thought the Grazing Service should have a legal staff to help them write better notices of their decisions.

Under the Federal Range Code, appeals went no longer to the Director but a new official in the grazing service, the Chief Examiner.  The AGCAP researcher noted that the then-occupant of the position had “some legal training” and traveled from district to district to hear appeals, and that he was also “extremely active in the formulation of policies” of the Grazing Service by attending regional meeting if the graziers.  Before presiding over an appeal, the Chief Examiner usually discussed it with the grazier whose order was under appeal.  Appellants could be represented by counsel but usually were in only about half the cases.  The graziers appeared for the Grazing Service. The parties could subpoena and cross examine witnesses, and they could introduce maps, reports, and other evidence.  The rules of evidence were rarely invoked.  Appellants could cross examine the grazier, and the Chief Examiner usually actively questioned witnessed to fill gaps in the record and eliminate ambiguities.  Even so, the AGCAP researcher believed, the record in many appeals were “confused and rambling,” filled with “irrelevancies and inconsistencies.”  Much hearsay of “no probative value finds its way into the record.”

The Chief Examiner’s decision contains findings of facts and the conclusions he drew from them, usually jumbled together.  Often, he left uncertain just which provisions of the Federal Range Code he thought dispositive.  If a losing applicant still wanted to press his case, he could obtain a copy of the record before the Chief Examiner and appeal the ruling to the Secretary of the Interior.  When the appeal arrived in Washington, the Secretary referred it to the Solicitor’s Office, where a single lawyer specializing in grazing matters prepared the Solicitor’s recommendation.  The appellant stockman may file a brief, but the grazier usually does not, so the lawyer in the Solicitor’s Office usually consulted with someone in the Grazing Service.  Oral argument before the Secretary or his deputy was theoretically possible but happened only once between 1934 and 1940.

Often the proceedings took so long that the grazing season ended while they were still pending, and so the Solicitor recommended that the Secretary dismiss the appeal as moot.  For the few cases that reached the Secretary on the merits, the attorney in the Solicitor’s office prepared findings of facts, “entirely on his own judgment, even where questions of credibility are involved,” and drafted an opinion.  The Solicitor could revise the findings and opinion and then send it on to the Secretary.  The Secretary or his deputy rarely gave the documents more than a perfunctory review.  Only once was an opinion materially altered after leaving the Solicitor’s office.  Judicial review by injunction of the Secretary’s order was theoretically possible but seems never to have been sought before 1940.

Prompts.  Four prompts followed the essay.  They asked students (1) how the regulation of grazing by Gifford Pinchot and the USDA Forest Service and the U.S. Supreme Court’s ruling in Grimaud typified the emergence of the governance in the Progressive Era; (2) why Farrington Carpenter, although a lawyer who worked in the New Deal, was not a “New Deal lawyer”; (3) how the conflict between Harold Ickes and Farrington Carpenter illustrated Daniel Carpenter's point (in The Forging of Bureaucratic Autonomy (2001) that in the United States bureaucratic autonomy tended to emerge at the level of intermediate “mezzobureaucrats”; and (4) how one might argue the case for a sheepherder, denied a grazing permit, might draw upon Roscoe Pound's assault on “administrative absolutism" and other antistatist, anti-New Deal rhetoric.

Sources: Karen R. Merrill, Public Lands and Political Meaning: Ranchers, the Government, and the Property between Them (2002); Christopher McGrory Klyza, Who Controls the Public Lands? Mining, Forestry, and Grazing Policies, 1870-1990 (1996); Phillip O. Foss, Politics and Grass: The Administration of Grazing on the Public Domain (1960); Brian Balogh, "Scientific Forestry and the Roots of the Modern American State: Gifford Pinchot's Path to Progressive Reform," Environmental History 7 (April 2002): 198-225; Logan Sawyer, "Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes," Journal of Law & Politics 24 (Spring 2008): 169-208; Leigh Raymond, "Localism in Environmental Policy: New Insights from an Old Case," Policy Science 35 (2002): 179-201; Michael M. Welsch, "Beyond Designed Capture: A Reanalysis of the Beginnings of Public Range Management, 1928-1938," Social Science History 26 (2002): 347-391.