Bilderback v. United States, Civ. No. 79-1221
| Decision Date | 22 October 1982 |
| Docket Number | 79-1222.,Civ. No. 79-1221 |
| Citation | 558 F. Supp. 903 |
| Parties | Lora I. BILDERBACK, Plaintiff, v. UNITED STATES of America, Defendant. Charles N. BILDERBACK, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Oregon |
Richard E. Kingsley, Lebanon, Or., for plaintiffs.
Sidney I. Lezak, Portland, Or., for defendant.
A. Introduction
As dusk turned to dark October 14, 1977, Rocky, a frisky but otherwise undistinguished Forest Service pack horse, trotted eastward in the westbound lane of Highway 20, where he encountered two westbound motor vehicles. The first, a truck, fortunately for its driver (and for Rocky) swerved and avoided contact. The second vehicle carried plaintiffs, Mr. and Mrs. Bilderback, returning from an outing in the forest nearby. Unfortunately for the Bilderbacks (and for Rocky), a head-on collision occurred, resulting in:
1) Injuries to the Bilderbacks
2) Damage to their car
3) Death to Rocky
4) This lawsuit
Rocky's legacy has spawned vexing questions of open range law and federal preemption of state grazing law, the solution to which may well have far-reaching results. It is ironic that an otherwise routine car-horse collision could produce such knotty legal problems. For the reasons that follow, I conclude that Rocky's roam was wrongful; that the Willamette National Forest is not open range under Oregon's liberal open range law, where animals may run at large; that under the circumstances here, Rocky's presence on the highway was the product of negligence on the part of his master — a government employee — and thus that plaintiffs have established governmental liability under the Tort Claims Act.
The government contends that under Oregon law the Willamette National Forest is open range land where livestock may lawfully roam at large. Relying on Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960), (and ORS Ch. 607), the government argues that it had no duty to keep its horses and mules off the highway. Hence, it concludes that it cannot be held liable for allowing Rocky and his equine compatriots to run on Highway 20.
The question presented here is initially one of state legislative jurisdiction or application. The government is arguing for the application of state law to federal land. Whether such an application is appropriate or not depends, in the first instance, on the type of federal property involved.
Under the Constitution, two provisions relate to federal property. The first is the so-called "jurisdiction" clause.
Under this provision, the state loses all legislative power over the property in question, except such authority as it explicitly reserves to itself in ceding jurisdiction. Paul v. United States, 371 U.S. 245, 263-69, 83 S.Ct. 426, 437-40, 9 L.Ed.2d 292; Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885). For the federal government to acquire exclusive jurisdiction over land within a state, it is necessary to have both consent of the state and acceptance by Congress. Paul, supra; Fort Leavenworth R. Co., supra. Once these requirements are met, however, exclusive federal enclaves may be created for purposes other than those enumerated in the jurisdiction clause. Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 527-30, 58 S.Ct. 1009, 1013-15, 82 L.Ed. 1502 (1938).
The other constitutional provision regarding federal land is the more familiar "property" clause.
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or the property belonging to the United States..... Art. IV, Sec. 3, Cl. 2.
While the furthest reach of congressional power under the property clause has not yet been resolved, the Supreme Court has observed that congressional power over public lands is "without limitations." Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976). Where the federal government does not have exclusive jurisdiction over a particular area of federal land, the state is free to enforce its civil and criminal laws on those lands. But where Congress acts under the property clause providing rules and regulations for the public land, any state law which conflicts with the federal law must recede. Kleppe, 426 U.S. at 543-45, 96 S.Ct. at 2293-94. As in other areas of the law, federal law overrides inconsistent state law under the Supremacy Clause, Art. VI, Cl. 2.
In this case, it appears that the Willamette National Forest is not an exclusive federal enclave. It is not clear whether the state of Oregon ceded jurisdiction.1 It is certain, however, that Congress did not accept, or has since renounced, exclusive jurisdiction over the forest. The provisions of Title 16 U.S.C. § 480 provide that the states retain civil and criminal jurisdiction over the national forests. The Supreme Court has interpreted this statute to mean that the states have legislative jurisdiction over the national forests. Wilson v. Cook, 327 U.S. 474, 486-87, 66 S.Ct. 663, 669-70, 90 L.Ed. 793 (1945). Thus, Oregon open range law would apply to the Willamette National Forest unless it conflicts, in the supremacy clause sense, with some federal law governing the forest under the property clause.
I conclude there is federal law which applies, and which overrides Oregon open range law. Congress has vested in the Secretary of Agriculture the sole authority to control grazing in the national forests. Under the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528, Congress declared that the national forests are established and shall be administered for, among other things, range purposes. Section 1 of the Organic Act of 1897, 16 U.S.C. § 551, vested the Secretary of Agriculture with the authority to "make such rules and regulations ... as will insure the objects of such forest reservations." In addition, 16 U.S.C. § 580l provides that "in regulating grazing on the national forests" the Secretary is authorized to issue permits for grazing of livestock "under such terms and conditions as he may deem proper." See also 7 U.S.C. § 1011; 43 U.S.C. §§ 1751, 1752. These laws leave little apparent room for the operation of state grazing law in national forest areas.
Moreover, the Secretary has exercised his authority under these statutes and promulgated regulations governing grazing in the national forests. In part, these regulations provide:
36 C.F.R. §§ 222.1-222.3 (1980). In implementing these regulations in the Willamette National Forest, the Forest Service has established two areas as grazing allotments. (Def's Answers to Interrog.) The conditions made a part of the grazing permit prohibit grazing outside the designated allotment. Id., Ex. A.
The Secretary has also promulgated regulations prohibiting certain acts regarding livestock on the national forest lands:
36 C.F.R. § 261.7 (1980).
In my view, these laws and regulations are inconsistent with the Oregon open range law. The Oregon grazing law permits livestock to roam freely and graze at will in any area not designated as a livestock district. ORS Ch. 607. See also Kendall v. Curl, supra. Under the federal laws and regulations quoted above, this is clearly not permitted in the national forest lands. Grazing within the forests is strictly controlled, and unauthorized livestock are absolutely forbidden. The state open range law must therefore recede.
The government contends there is no indication that the allotment grazing system was intended to remove the national forests from the open range. It asserts that the range allotment system was created to serve entirely different purposes than Oregon's livestock districts. Its argument appears to be that since the allotment grazing system was developed for multiple use purposes, this somehow prevents it from over-riding state open range law.
This argument lacks merit. Regardless of intent2 or the purposes underlying the federal and state laws, it is certain that the state law seems to permit what the federal law prohibits. Under the property and supremacy clauses, the federal law must prevail.3
Support for this view is found in a series of cases involving unauthorized livestock grazing on national forest land. In these cases the government sought an injunction against the owners of livestock who...
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