750
O'Connor, J., concurring
sion relating to "ownership" simply provides for compensation by some future permit holder in the event that the Secretary decides to grant title.
As detailed above, the Secretary did grant ownership rights to range improvements under certain circumstances prior to 1995. We see nothing in the statute that prevents him from changing his mind in respect to the future. And the Secretary has now changed his mind for reasons of administrative convenience and because what he takes as the original purpose of this provision (assuring that, in 1934, ranchers would pay compensation to nomadic sheep herders) is no longer important. In any event, the provision retains even the "contemplation of ownership" meaning stressed by the ranchers, for permit holders may still "own" removable range improvements, such as "corrals, creep feeders, and loading chutes, and temporary structural improvements such as troughs for hauled water," 43 CFR § 4120.3-3(b) (1995), which could be transferred to a new permit holder and thus compel compensation under § 315f.
In short, we find nothing in the statute that denies the Secretary authority reasonably to decide when or whether to grant title to those who make improvements. And any such person remains free to negotiate the terms upon which he will make those improvements irrespective of where title formally lies, including how he might be compensated in the future for the work he had done, either by the Government directly or by those to whom the Government later grants a permit. Cf. 43 U. S. C. § 1752(g) (requiring the United States to pay compensation to a permittee for his "interest" in range improvements if it cancels a permit).
The judgment of the Court of Appeals is
Affirmed.
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.
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007