Dastervignes v. United States

• Decision Date: 02 March 1903
• Docket Number: 893.
• Citation: 122 F. 30
• Parties: DASTERVIGNES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

122 F. 30

DASTERVIGNES et al. v. UNITED STATES.

No. 893.

United States Court of Appeals, Ninth Circuit.

March 2, 1903

Charles H. Fairall and H. R. McNoble, for appellants.

Marshall B. Woodworth, U.S. Atty. (P.C. Knox, U.S. Atty. Gen., of counsel), for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This suit was brought to enjoin the plaintiffs in error defendants in the court below, from herding and grazing sheep on the Stanislaus forest reservation, situate in the Northern District of California. The bill of complaint alleges, among other things, 'that the President of the United States of America did, on the twenty-second day of February, 1897, and by virtue of the authority vested in him by section 24 of the act of March 3, 1891 (26 Stat. 1103 (U.S. Comp. St. 1901, p 1537)), create and set apart from the public lands and domain of the United States, certain public lands within the state of California,' known as the 'Stanislaus Forest Reservation'; that under and by virtue of an act of Congress approved June 4, 1897, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1898, and for other purposes,' (30 Stat. 35 (U.S. Comp. St. 1901, p. 1540)) the Secretary of the Interior was vested with authority to make such rules and regulations, and establish such service as would insure the objects for which forest reservations were created under section 24 of the act of March 3, 1891; that the Secretary of the Interior did, under and by virtue of the authority vested in him under the act of Congress of June 4, 1897, make, prescribe, and promulgate on December 23, 1901, rule 13, which declared that 'the pasturing of sheep and goats on the public lands in the forest reservation is prohibited,' provided that in certain named states and localities, where the continuous moisture and abundant rainfalls make rapid renewal of herbage and undergrowth possible--

'The Commissioner of the General Land Office may, with the approval of the Secretary of the Interior, allow the limited grazing of sheep within the reserves or parts of reserves * * * and also provided, that when it shall appear that the limited pasturage of sheep and goats in a reserve, or part of a reserve, in any state or territory will not work an injury to the reserve, that the protection and improvement of the forests for the purpose of insuring a permanent supply of timber and the condition favorable to a continuous water flow, and the water supply of the people will not be adversely affected by the presence of sheep and goats within the reserve, the Commissioner of the General Land Office may, with the approval of the Secretary of the Interior, also allow the limited grazing of sheep and goats within such reserve. Permission to graze sheep and goats within the reserves will be refused in all cases where such grazing is detrimental to the reserves or to the interests dependent thereon. * * * The pasturing of livestock, other than sheep and goats, will not be prohibited in the forest reserves so long as it appears that injury is not being done the forest growth and water supply, and the rights of others are not thereby jeopardized. Owners of all livestock will be required to make application to the Commissioner of the General Land Office for permits to graze their animals within the reserve. Permits will only be granted on the express condition and agreement on the part of the applicants that they will agree to fully comply with all and singular the requirements of any law of Congress now or hereafter enacted relating to the grazing of livestock in forest reserves, and with all and singular the requirements of any rules and regulations now or hereafter adopted in pursuance of any such law of Congress.'

The bill further alleges that the defendants, in July, 1902, did conduct and drive upon the Stanislaus reservation 'two bands of sheep, numbering two thousand sheep or thereabouts in each band, for the purpose and with the object of grazing, pasturing, and feeding said sheep upon the grass, herbage, and undergrowth, growing and being' upon the Stanislaus forest reservation, in violation of the thirteenth paragraph of the rules and regulations of December 23, 1901. That said sheep have been and remained upon said reservation continuously up to the present time, and now are, and still remain, upon the said reservation, grazing, pasturing, and feeding upon the grass, herbage, and undergrowth growing upon said reservation, in violation of paragraph 13 of the rules and regulations above referred to; that said defendants have not, nor has either of them, obtained for himself or any one else a permit from the Commissioner of the General Land Office, approved by the Secretary of the Interior, allowing or permitting the grazing and pasturing of said sheep upon said reservation; that said sheep are 'committing great and irreparable injury to the said public lands of the Stanislaus forest reservation, and to the grasses, herbage, and undergrowth growing and being upon the public lands of said Stanislaus forest reservation, and to the timber and water flow and water supply in and upon the public lands of said Stanislaus forest reservation, by grazing and pasturing upon the same, and upon the grass, herbage, and undergrowth growing and being upon the public lands of Stanislaus forest reservation, and by drinking from the water flow and the water supply in said Stanislaus forest reservation, and by the tramping, traveling, and driving of said sheep onto and upon the public lands of said Stanislaus forest reservation. ' And, in support of the equitable relief asked for, the bill contains the further averment that, unless said defendants are restrained and enjoined from further allowing their sheep to graze upon said reservation, 'great and irreparable injury will ensue to the public lands of said Stanislaus forest reservation. ' Affidavits were filed in support of the averments in said bill as to the injury resulting to the lands of said reservation.

Upon the filing of the bill, the court made an order requiring defendants to appear and show cause, if any they could, why they should not be enjoined from the commission of the acts complained of, and in the meantime issued a restraining order enjoining them from the commission of such acts. The defendants appeared and moved to dissolve the restraining order, on the ground that it was issued without right, and that the bill is without equity. At the same time the defendants interposed a demurrer to the bill, on the ground that it does not state facts sufficient to constitute a cause of action, or entitle the complainant to any relief, and upon the further ground that there is a misjoinder of parties defendant, in this: that there is no joint act, or joint threatened act, of the parties mentioned in the bill. Upon the hearing of the motion, supplementary affidavits were filed by both parties, one of which-- the affidavit of Newhall in support of the bill-- was more specific, with reference to the ground that the acts committed constitute irreparable injury, than was alleged in the bill, in this: that the sheep 'not only eat and destroy the vegetation, grasses, undergrowth, young and growing trees and seedlings, upon said lands, but that they devour and eat up and destroy the roots of said vegetation, grasses, undergrowth, young and growing trees and seedlings, to the permanent and irreparable injury of said Stanislaus forest reserve; *** that the devouring and destruction of the vegetation, grasses, undergrowth, young and growing trees and seedlings, in the manner hereinbefore specified, leaves the earth bare and liable to disastrous washings out by the rains, leaving no soil or earth, but bare rock, which renders the growth of vegetation, grasses, undergrowth, young and growing trees and seedlings, extremely difficult, and in many cases impossible, all to the irreparable damage and injury of said Stanislaus forest reservation, and the purposes for which said forest reserve were created.'

The court, upon the hearing, overruled the demurrer, and granted an order for an injunction pendente lite. This appeal is from the order granting the injunction.

The contention of counsel for appellants is (1) that the rules hereinbefore referred to 'discriminate against the owners of sheep'; (2) that the appellants 'had an implied license to pasture (their sheep) upon the public domain' (3) that the act of Congress approved June 4, 1897, is an 'unauthorized delegation of legislative authority to an administrative officer'; (4) that 'no irreparable injury is shown'; and (5) that 'there is a misjoinder of defendants.' And upon these several points they...