Chournos v. United States, 4306.
| Decision Date | 01 February 1952 |
| Docket Number | No. 4306.,4306. |
| Citation | 193 F.2d 321 |
| Parties | CHOURNOS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Milton A. Oman, Salt Lake City, Utah (Milton V. Backman, Salt Lake City, Utah, on the brief), for appellant.
John C. Harrington, Washington, D. C. (Wm. Amory Underhill, Asst. Atty. Gen., Scott M. Matheson, U. S. Atty., Salt Lake City, Utah, and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before HUXMAN, MURRAH and PICKETT, Circuit Judges.
The plaintiff, as owner of a large tract of unfenced grazing land in Utah, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), to recover damages resulting from the alleged improper administration of the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq., on public lands contiguous to lands owned and controlled by plaintiff and within the limits of Utah Grazing District No. 1, otherwise known as Promontory Grazing District. This appeal is from a judgment in favor of the defendant.
The district, located in northwestern Utah, was created in April of 1935, and was divided into units for summer and winter grazing. Soon after its establishment in accordance with the Taylor Grazing Act and the Range Code, 43 C.F.R. 161, regular grazing permits to the full carrying capacity of the public lands were issued to the owners of base lands classified as dependent by use on such public lands. There were no public lands available for applicants in lower classifications. Within this district were lands owned by the Southern Pacific Land Company and referred to herein as railroad lands. The district and the company entered into a cooperative agreement whereby the unleased railroad lands would be administered by the district for grazing purposes as though they were public lands, with specified rentals or fees being paid to the company. The lessees of railroad lands were to retain the rights provided for in the Act and the Code to the same extent as any other owner or lessee.
The plaintiff had been engaged in the business of raising sheep for many years. His operations had been carried on 150 to 250 miles from the lands over which this dispute arose. He was a landowner and held regular grazing and exchange of use permits issued by the district within the area where his base lands were located. In 1947, plaintiff acquired by purchase the railroad lands in question, and obtained control of other lands in the same area by lease from the State of Utah. The total amount of the purchased and leased lands was in excess of 85,000 acres most of which was within the winter grazing area of the district. The railroad lands acquired by the plaintiff were the odd numbered sections while the public lands in the same vicinity were the even numbered sections, and this created a checkerboard pattern over the entire tract. This pattern was partially destroyed by lands granted to the State of Utah within each township which in this instance were leased by the plaintiff. There were approximately 230 sections within the exterior boundaries of the plaintiff's lands of which he owned or controlled approximately 62%.
Shortly after acquiring these lands, the plaintiff met with the Range Manager and most of the stockmen who owned or controlled lands within the area and who had theretofore through permits continuously used the railroad lands as well as the public lands. The plaintiff was advised that the problem created by his purchase could be solved only by entering into an exchange of use arrangement, or, if he did not care to use his land, by leasing it to the district under the Pierce Act, 43 U.S.C.A. § 315 m-1. The exchange of use arrangement was agreed upon. Thereafter, the plaintiff applied for exchange of use and crossing permits which were issued in the usual manner. These permits gave to the plaintiff the right to trail his sheep across public lands into the area and to graze them upon his own lands and the adjacent public lands to the extent of the forage produced upon his lands. In other words, his grazing privileges were limited to the feed equal to that which he produced upon his lands.
In September of 1948, the plaintiff again made application for crossing permits to trail his sheep from the summer range back into the area. He was advised by the Range Manager that he had not renewed his exchange of use permits and consequently was not entitled to trailing privileges. Plaintiff then filed an application for an exclusive grazing permit on the public lands within the boundaries of his own lands. He advised the Range Manager that he did not desire to surrender control of his lands and felt that such a requirement before granting a crossing permit was a violation of the law. He took the position that, under the Taylor Grazing Act and the Range Code, crossing and grazing permits should be promptly granted to him. He was later advised that upon recommendation of the Advisory Board the permits would not be issued. As provided for in the Range Code, an appeal was taken from this decision. Unsuccessful attempts were made to reach some sort of an agreement whereby the...
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