Published on October 17, 2017
An Oregon ranching couple is asking the U.S. Supreme Court to revive their lawsuit against the U.S. Bureau of Land Management over grazing and water rights.
A ruling by the 9th Circuit Court of Appeals upheld the dismissal of the case earlier this year, effectively allowing BLM to shirk its obligations, according to Jesse and Pamela White of Malheur County.
The dispute between the Whites and the BLM arises from the unraveling of a 1973 deal under which the ranchers allowed the federal agency to impair their water rights in exchange for providing them with additional cattle grazing on public land.
Under the agreement, BLM was allowed to build 20 reservoirs affecting the Whites’ water rights while increasing their allowable grazing by 1,400 animal unit months, or AUMS — a measure of the forage consumed by a cow-calf pair during a month.
Continued conflicts with BLM prompted the couple to try to enforce their water rights, leading the agency to decide in 2008 to remove or retrofit the structures affecting the Whites.
Meanwhile, the BLM would revoke the 1,400 additional AUMS as their water rights were restored.
While they initially agreed to this arrangement, the Whites later filed a lawsuit against BLM for completely withdrawing the 1,400 AUMs without fully restoring their water rights.
A federal judge dismissed their complaint, partly because water rights are under the jurisdiction of Oregon regulators, and the 9th Circuit refused to overturn that ruling.
The Whites disagree with this interpretation because the continued impairment of their water rights should trigger the reinstatement of the additional AUMs, over which Oregon water regulators have no authority.
The 9th Circuit found that BLM can’t be compelled to restore the AUMs or the water rights because these aren’t official “agency actions” under administrative law.
Under administrative law, courts can only order a federal agency to take an action when it has “ignored a specific legislative command,” but the Whites “do not identify any statute or regulation that requires the BLM to grant them additional AUMs,” the 9th Circuit said.
In their petition for review to the nation’s highest court, the Whites argue the BLM’s 2008 agreement is a final action that’s legally binding under administrative law.
It’s not enough for the BLM to say it will restore the couple’s water rights — the agency must actually carry out that decision, the Whites said.
“Under the Ninth Circuit’s interpretation, however, BLM can avoid judicial review by granting the relief but then failing to provide it,” their petition said. “Under this approach, it does not matter that the agency’s failure to provide the relief granted is equivalent to denial of that relief.”
Attorneys for the federal government have until Nov. 9 to respond to the White’s petition to the Supreme Court.