Danks v. Fields

• Decision Date: 28 December 1982
• Docket Number: No. 82-1303,82-1303
• Citation: 696 F.2d 572
• Parties: Edward S. DANKS, John Fredericks, Maurice Danks, Dennis Snow, Lyle Danks, Curtis Danks, Clayton Danks, Emerson Chase, Ron Brugh, Williams Hall, Sr., Joe Chase, Bobbie Chase, Dennis Huber, Judy Fredericks, and Fort Berthold Land and Livestock Association, a Corporation, Appellants, v. Harrison FIELDS, Acting Superintendent of the Fort Berthold Indian Reservation; Harley Zephier, Area Director of the Aberdeen Office of the Bureau of Indian Affairs; Cecil Andrus, Secretary of the Interior, or Any of Their Successors, Agents or Employees, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 572

696 F.2d 572

Edward S. DANKS, John Fredericks, Maurice Danks, Dennis Snow, Lyle Danks, Curtis Danks, Clayton Danks, Emerson Chase, Ron Brugh, Williams Hall, Sr., Joe Chase, Bobbie Chase, Dennis Huber, Judy Fredericks, and Fort Berthold Land and Livestock Association, a Corporation, Appellants, v. Harrison FIELDS, Acting Superintendent of the Fort Berthold Indian Reservation; Harley Zephier, Area Director of the Aberdeen Office of the Bureau of Indian Affairs; Cecil Andrus, Secretary of the Interior, or Any of Their Successors, Agents or Employees, Appellees.

No. 82-1303.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 10, 1982.

Decided Dec. 28, 1982.

Thomas K. Schoppert, Schoppert Law Firm, New Town, N.D., for appellants.

Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Rodney S. Webb, U.S. Atty., Charles S. Miller, Jr., Asst. U.S. Atty., Fargo, N.D., Dirk D. Snel, Nancy B. Firestone, Attys., Dept. of Justice, Washington, D.C., for appellees.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

This appeal involves a controversy over grazing fees established by the Bureau of Indian Affairs (BIA) for land on the Fort Berthold Indian Reservation in North Dakota. The BIA issued grazing permits for that land in November, 1976, which expired on October 30, 1980. In October, 1979, the BIA announced that the annual grazing fee for the fourth and final year of the permit term would be increased from $42 per animal unit to $57 per animal unit. The plaintiffs unsuccessfully sought to have the fee increase set aside in administrative proceedings in the Department of Interior and in the district court. ¹ Because we find that the fee increase violated the terms of the permits the BIA issued in 1976, we reverse the judgment of the district court.

I. BACKGROUND

The plaintiffs are fourteen ranchers, who are enrolled members of the Three Affiliated Tribes, and the Fort Berthold Land and Livestock Association, a nonprofit corporation representing the individual plaintiffs as well as other ranchers on the Fort Berthold Indian Reservation. The defendants are officers and employees of the Department of Interior and the BIA, who are charged with administering the grazing permit program.

Pursuant to federal laws, 25 U.S.C. Secs. 393, 397, 403 & 466, and regulations, 25 C.F.R. Secs. 151 et seq., ² the Secretary of the Interior, through the BIA, administers grazing lands held in trust for individual Indians and for Indian tribes. ³ Under the In August, 1976, the Tribal Council for the Affiliated Tribes of the Fort Berthold Reservation established for the 1976-1980 grazing seasons an annual grazing fee of $27 per animal unit for tribally owned lands and recommended a $36 per animal unit annual fee for individually owned lands. The BIA Area Director rejected this recommendation, and set the grazing fee for individually owned land at $42 per animal unit per year. In addition, the Area Director modified all of the grazing permits to expressly provide:

                regulations, the BIA Area Director must "establish a reservation minimum acceptable grazing rental rate" for land owned by the government or individual Indians which will "provide a fair annual return to the land owners."    25 C.F.R. Sec. 151.13(b).  For tribally owned lands, however, the tribe's governing body may set the grazing rate.  25 C.F.R. Secs. 151.4, 151.13(b)
                

That grazing permits shall be issued for a four (4) year contract period beginning November 1, 1976, and terminating October 31, 1980. Grazing fees shall be re-evaluated in accordance with 25 C.F.R. by August 1, prior to the beginning of the fourth year and such rate shall prevail for the balance of the permit period. [Emphasis added.]

On October 3, 1979, nearly two months after the deadline contained in the permits, the BIA Area Director announced that the grazing fee on individually owned land for the 1979-1980 season, which began in November, 1979, would be increased from $42 to $57 per animal unit.

When the individual plaintiffs received notice of the fee increase, they stated their intention to refuse to pay it. After the fees for the 1979-1980 grazing season came due on November 1, 1979, the Superintendent of the Fort Berthold Reservation moved to cancel the permits held by members of the Fort Berthold Land and Livestock Association (hereafter Association) because they refused to pay a grazing fee higher than $36 per animal unit. The Superintendent also advertised the availability of the range units held by the Association members, demanded that the members either pay the new fee or abandon the land they held, and threatened at least some members with trespass suits if they did not accede to his demand. Ultimately, the fourteen individual plaintiffs removed their cattle and placed the livestock on other ranges or in feed lots. Other Association members paid the fee under protest.

The plaintiffs--both the individual ranchers and the Association--then began pursuing this appeal. In January, 1980, they requested the BIA Area Director to rescind the fee increase. He transferred the matter to the Commissioner of Indian Affairs, who in turn transferred it to the Interior Board of Indian Appeals (IBIA).

While the matter was pending in the IBIA Hearing Division, the plaintiffs filed an action in the district court to set aside the fee increase and to enjoin the defendants from enforcing the new rate. The district court issued a preliminary injunction against the fee increase, but ordered the individual plaintiffs to deposit five-sixths of the new fee with the BIA as security pending the final resolution of this matter. ⁴ The district court also ordered the defendants to allow the individual plaintiffs Thereafter, the IBIA, reversing the decision of the administrative law judge (ALJ) in its Hearing Division, held that the fee increase was valid even though it was announced after the August 1, 1979, deadline set in the permits. The IBIA remanded the matter to an ALJ for a hearing on the reasonableness of the increase. After the hearing, the ALJ recommended the annual fee be reduced from $57 to $52 per animal unit. The IBIA, however, rejected the ALJ's recommendation, and upheld the BIA's $57 fee. The plaintiffs then filed an amended complaint in the court below seeking an order establishing an annual $36 per animal unit fee and directing return of the amount in excess of that rate held by the BIA. The district court granted the defendants' motion for summary judgment, and affirmed the fee increase.

to return their cattle to their range units for the balance of the original permit period if they posted the security. ⁵

The plaintiffs now appeal, claiming that the fee increase is invalid on three grounds: (1) it was announced after August 1, 1979; (2) it was issued in violation of their rights to due process; and (3) it is unreasonable.

II. DISCUSSION

The plaintiffs contend that the fee increase was invalid because the BIA violated the terms of the grazing permits by announcing the increase on October 3, 1979, two months after the August 1 deadline set in the permits. ⁶

The IBIA rejected this claim in the administrative proceedings below, ruling that the permits did not require the BIA to make any fee increases by August 1, 1979. The IBIA found that the August 1 deadline in the permits was merely a nonbinding "goal" or "objective" for the completion of re-evaluations. The district court affirmed the IBIA's decision on the basis of the agency's opinion.

Generally, a BIA decision to increase grazing permit fees cannot be set aside unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A); First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1373-1376 (8th Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971) ("substantial evidence" standard of review applies only to agency determinations on the record after a hearing required by statute or agency action taken after a public adjudicatory hearing).

We recognize that some agency decisions are "primarily of a judgmental or predictive nature," and that "complete factual support in the record for the [agency's] judgment or prediction is not required." F.C.C. v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813-814, 98 S.Ct. 2096, 2121, 56 L.Ed.2d 697 (1978). This matter, however, does not present such a situation. In rejecting the plaintiffs' claim that the BIA could not validly increase the grazing fee after August 1, 1979, the IBIA based its decision on its interpretation of written documents--the grazing permits, not its judgment regarding policy within its area of expertise. Cf. id. See Davis, Administrative Law Treatise, Sec. 14.28 (2d ed. 1979). It is settled that the interpretation of a written document is a question of law to be determined by the courts. Federal-Mogul Corp. v. N.L.R.B., 566 F.2d 1245, 1256 (5th Cir.1978). Although we are free to adopt an agency's construction of such a document, we are not bound to do so. Id. Here, we believe that the IBIA plainly erred in concluding that the August 1, 1979, deadline contained in the permits was a nonbinding goal. As discussed below, the permits' plain language shows that the deadline was mandatory, and the record does not support any other interpretation.

The first justification advanced by the IBIA for its decision was that "the plain wording of the permit does not convey the stipulation that new fees may be pronounced by August 1, 1979, but not thereafter." We cannot agree.

The grazing permits explicitly provide that the "grazing fees shall be re-evaluated * * * by August 1." Contrary to the view of the IBIA, this provision clearly indicates that any change in fees must be made and announced by August 1, 1979. The word "shal...