Parker Land and Cattle Co., Inc. v. US, 91-CV-0039-B

• Citation: 796 F. Supp. 477
• Decision Date: 04 June 1992
• Docket Number: No. 91-CV-0039-B,91-CV-0091-B.,91-CV-0039-B
• Parties: PARKER LAND AND CATTLE COMPANY, INC., Plaintiff, v. UNITED STATES of America, Defendant. Lyle R. PECK, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Wyoming

796 F. Supp. 477

PARKER LAND AND CATTLE COMPANY, INC., Plaintiff, v. UNITED STATES of America, Defendant.

Lyle R. PECK, Plaintiff, v. UNITED STATES of America, Defendant.

Nos. 91-CV-0039-B, 91-CV-0091-B.

United States District Court, D. Wyoming.

June 4, 1992.

COPYRIGHT MATERIAL OMITTED

Stanley K. Hathaway, Brent R. Kunz, and Rebecca L. Hellbaum, Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, Wyo., and Dennis C. Stickley, Wellington, New Zealand, for plaintiff Parker Land.

Mark J. White, Riverton, Wyo., for plaintiff Lyle R. Peck.

Carol A. Statkus and Matthew H. Mead, Asst. U.S. Attys., D. Wyo., Cheyenne, Wyo., for U.S.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRIMMER, Chief Judge.

This matter was presented in a trial to the Court on January 6-10, January 13-17 and January 21-24, 1992. The Court, having heard the testimony of witnesses, having considered the other evidence presented, having heard and considered the legal arguments of counsel, having reviewed the materials on file, and being fully advised in these premises, now makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

A. The Land

1. The Parker Land and Cattle Company, Inc. (Parker), owns several hundred acres of land and leases more than 11,000 acres of land from its founder and sole stockholder, Thomas Parker. This property is located east of the Continental Divide (Divide) in Fremont County, Wyoming.

2. In addition to the deeded land, Parker controls two grazing allotments administered by the Bureau of Land Management (BLM). See Tr.Ex. 72.

3. Both of these allotments are located in Fremont County, Wyoming, east of the Divide.

4. The three types of BLM allotments are improve, maintain and custodial allotments. Custodial allotments provide the allottee with the maximum control over the land and the minimum interference by the government.

5. Parker requested and received custodial allotments. Id.

6. Allotment No. 2113 contains 3,681.21 acres and Allotment No. 2120 contains 519.68 acres of land. Id.

7. Allotment No. 2113 authorizes Parker to use a total of 668 animal unit months (AUMs) of grazing preference, half in the period between May 1 through June 30 and the other half in the period between October 1 through November 30 of each year. Id.

8. In Allotment No. 2120 Parker is authorized to use a total of 87 AUMs of grazing preference, half in the period between April 1 through June 30 and the other half in the period between October 1 and October 31 of each year. Id.

9. These BLM permits do not require livestock enter and leave on any specified dates, rather they provide a time period during which the allottee may use the land.

10. Parker requested the time period in the allotments and never requested said time periods be modified.

11. The BLM does not manage or control the allottee's livestock and the safety of such livestock is the responsibility of the allottee.

12. Parker also controlled two grazing allotments on the National Forest Lands which were administered by the United States Forest Service (USFS). See Tr. Exs. C3 and C3A.

13. USFS allotments were located in the Shoshone National Forest and were also east of the Divide. Id.

14. These two USFS permits included approximately 46,000 acres and provided that the permittee could use the allotment from the middle of June through the first part of September. Id.

15. Like the BLM permits, the USFS permits provided a period of time in which the allottee may use the land. They do not, however, require that livestock enter or leave on certain dates. Id.

16. The USFS does not manage or control the permittee's livestock while that livestock is grazing on the federal permit. The well being of the cattle is the responsibility of the permittee, not the government.

17. John Story (Story), Parker's manager and president, treated the leased property as under his exclusive control and objected to the USFS allowing any other grazers on this land without first seeking his consent. Tr.Ex. R7.

18. The public lands may contain many dangers such as noxious weeds and diseased wildlife; however, this is a risk which a permittee accepts as a cost of doing business on such leased lands. Such risk is factored into the cost of the leases. The BLM and USFS do not owe a permittee or an allottee a duty to warn of all dangers located on the public lands.

19. The BLM and USFS are charged with the responsibility of managing the federal lands in accordance with the multiple-use objectives provided for in the federal statutes. See Multiple Use Sustained Yield Act, P.L. 86-517; and Federal Land Policy and Management Act, 43 U.S.C. § 1700 et seq.

20. These statutes expressly provide that nothing in them affects the responsibilities or jurisdiction of the states for the management of resident wildlife.

21. The Wyoming Game and Fish Department (WGFD) has primary responsibility for managing wildlife located on lands covered by the BLM and USFS grazing permits.

B. The Parker Herd

22. In February 1984, Parker purchased 25 bred-heifers through the Riverton Livestock Exchange.

23. The source herds for these purchased cattle were located in Wyoming and Montana.

24. Parker exchanged stray cattle with ranchers west of the Divide during the 1980's. All of these exchanges were from ranches located in Wyoming.

25. There were summer pasture grazing operations in the vicinity of the Parker operation, to which cattle were brought in on an annual basis; however out of state grazing cattle are only allowed to enter the state under strict standards.

26. For a limited period of time Parker used artificial insemination (AI) in its operation. The semen came from a national company located in Wisconsin.

27. Parker began a brucellosis vaccination program in 1985. Dr. Woody testified that in February 1989 John Story informed him that the Parker herd was approximately 65% vaccinated.

28. The decision to implement a vaccination program had to be phased in over a period of years as the United States Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS) only allows for vaccination of calves.

29. Dr. Norman R. Swanson, the recently retired Wyoming State Veterinarian, testified that as of 1985 his office has permitted calfhood vaccinations for animals between the ages of four to 12 months.

30. Prior to 1985 the vaccination was given in stronger doses and could only be given to animals which were younger than nine months of age.

31. The Parker operation began calving season in January and did not come off the leased land until October, thus the calves would then be too old to vaccinate.

32. Parker made a business decision to operate in the early calving season method in order to have bigger calves at the time they were sold.

33. Inherent in this business decision is that Parker was willing to risk not vaccinating its animals in order to achieve greater weights and thereby greater profits at sale.

34. Parker was in sole control of the decision of when to begin calving season.

35. Other ranchers in the Parker area calved later in the year and then vaccinated their animals when they came off of summer range.

C. The Disease.

36. Brucellosis is a bacterial infection of the mammary glands and reproductive tracts, which causes sexually mature female animals to abort their fetuses. The disease also causes the host to produce infected milk.

37. Dr. E. Thomas Thorne, research veterinarian for the WGFD, testified the following must be present to transmit the disease: (1) A pregnant infected animal; (2) a susceptible cow, danger is heightened if said cow is pregnant; and (3) the cow and other animal are in same place at the time of a birth event or abortion.

38. Dr. Thorne also testified the possibility of transmission was enhanced in a situation where the infected elk could not get away from the cow as elk are solitary animals when they give birth.

39. Dr. Thorne testified that the female elk will attempt to clean the entire area of any evidence of the birthing event. This clean-up process includes eating all the discharge as well as the aborted fetus.

40. Dr. Thorne further testified that the disease is not transmitted by males in the natural breeding process, but can be passed under AI conditions.

41. Dr. Young testified that cows contract the disease by ingestion, such as licking of an aborted fetus or the fluids discharged during a birthing event, and not through feces or urine.

42. Wyoming has been designated as a brucellosis-free state since 1985.

43. The Parker brucellosis infection did not affect Wyoming's brucellosis-free status.

D. The Outbreak.

44. In November 1988 the Market Cattle Inspection (MCI) system identified a possible brucellosis suspect reactor cow which was traced to the Parker herd.

45. Dr. Douglas Woody, a veterinarian with APHIS, notified Story of the possible reactor.

46. Dr. Woody offered to test the Parker herd free of charge.

47. Story declined the offer and informed Dr. Woody that the herd was 100% percent vaccinated against brucellosis and that no new cows had been added to the herd for six or seven years.

48. As a result of this information, Dr. Woody did not order a whole herd test.

49. In February 1989 the MCI system traced a second brucellosis reactor back to the Parker herd.

50. Dr. Woody immediately quarantined the Parker herd.

51. The herd was then given three tests for brucellosis.

52. In the first test 45 reactors were identified. The second test identified 2 additional reactors. The final test indicated 38 more reactors and 23 suspect reactors.

53. Story then informed Dr. Woody that the herd was not 100% vaccinated, but rather approximately 65% vaccinated.

54. Story informed Dr. Woody that no females had been added to the herd for ten years.

55. After the extent of the infection was discovered, Parker followed the government's advice to depopulate the herd.

56. The decision to depopulate was...