In The

Supreme Court of the United States




Decided May 15, 2000

Justice O’Connor, Concurring

Topic: Economic Activity*Court vote: 9–0
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Joining O'Connor opinion: Justice THOMAS Justice THOMAS
Citation: 529 U.S. 728 Docket: 98–1991Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE THOMAS joins, concurring.

I join the Court's opinion. I write separately to make the following observations concerning the Court's decision. First, in Part II-A, 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 Court's third reason for rejecting petitioners' facial challenge to the regulations. Petitioners have not shown how the new regulations themselves-rather than specific actions the Secretary might take pursuant to those regulations-violate the Taylor Grazing Act's 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 743, 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 Secretary's 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 Secretary's conduct can be termed a failure to adequately safeguard such privileges, the permit holder may bring an as-applied challenge to the Secretary's action at that time. The Court's holding today in no way forecloses such a challenge. See ante, at 744 ("[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 Court's decision today only rejects petitioners' claim that the 1995 regulations exceed the Secretary's authority under the Taylor Grazing Act. We are not presented in this case with a claim under the Administrative Procedure Act (AP A), 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 capricious" claim remains open to these permit holders, the Court's decision does not foreclose such an AP A challenge generally by permit holders affected by the 1995 regulations.

With these understandings, I join the Court's opinion.

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