Diamond Ring Ranch, Inc. v. Morton, 75--1201
| Citation | 531 F.2d 1397 |
| Decision Date | 22 March 1976 |
| Docket Number | No. 75--1201,75--1201 |
| Parties | , 6 Envtl. L. Rep. 20,637 DIAMOND RING RANCH, INC., Plaintiff-Appellee, v. Rogers C. B. MORTON, Secretary of the Interior, and Daniel P. Baker, State Director of the Bureau of Land Management for the State of Wyoming, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Claude W. Martin, Brown, Drew, Apostolos, Barton & Massey, Casper, Wyo. (William H. Brown, Brown, Drew, Apostolos, Barton & Massey, Casper, Wyo., on the brief), for plaintiff-appellee.
Neil T. Proto, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., Clarence A. Brimmer, U.S. Atty., Cheyenne, Wyo., and Edmund B. Clark and George R. Hyde, Attys., Dept. of Justice, on the brief), for defendants-appellants.
Victor H. Kramer, Charles E. Hill, Washington, D.C., Daniel G. Clement, Pasadena, Cal., Institute for Public Interest, for amicus curiae National Wildlife Federation.
Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
The Secretary herein seeks reversal of the judgment of the district court which voided a sanction imposed by the Secretary and his delegates against the Diamond Ring Ranch following an alleged violation by Diamond Ring Ranch of the terms and conditions of a lease of government land to it under the Taylor Grazing Act, 48 Stat. 1269, 43 U.S.C. Sec. 315 et seq. The violation giving rise to this was the alleged indiscriminate spraying by Diamond Ring of sagebrush on government land which was being used by Diamond Ring pursuant to the Taylor Grazing Act. This occurred without Diamond Ring's obtaining the approval of the Bureau of Land Management. The effect of this spraying was to temporarily at least eradicate the sagebrush so that other edible forage plants can grow. In a period of eight or ten years, we are told, the sagebrush returns. How much returns is a subject of dispute. The concern of the Bureau of Land Management is, presumably, that the sagebrush, although not edible by livestock, provides the food and habitat needs for wildlife.
The district court entered judgment on December 20, 1974, which included injunctive and declaratory relief favoring the Diamond Ring Ranch Company. The trial court rejected the Secretary's ruling that Diamond Ring had violated the Department regulations prohibiting unauthorized spraying. The court condemned the Secretary's decision to deny the Ranch Company a grazing license for a period of two years, holding that this revocation of the lease or license of the Taylor Grazing Act was not even a legal remedy under the Act.
The license or lease to graze cattle was granted to Diamond Ring in 1966. The ranch is located in the so-called Lander Grazing District in Wyoming. In subsequent years applications were filed by Diamond Ring for the yearly issuance of a license to continue the use of the lands in the so-called Horse Heaven Pasture. In its application submitted in January 1971, Diamond Ring agreed to obey all of the laws and regulations governing the federal range and to pay for all damages sustained by the United States for any violation.
The entire Horse Heaven Pasture has an area of 20,000 acres, 16,000 of which is federal land. The remainder is state and privately owned. This pasture is utilized for livestock grazing and is opened for hunting and fishing, there being draws and streams which flow into the Pathfinder Reservoir which is operated by the Bureau of Reclamation. Diamond Ring has what is called a Section 3 license for the acreage in question. In addition, it has a permit to graze livestock on the state land and is the owner of some private land within the Pasture.
This problem developed following the application by Diamond Ring filed April 12, 1971, seeking from the Agriculture and Stabilization and Conservation Service (ASCS), a subsidy for the spraying of approximately 5,000 acres of ranch company lands with herbicide 2, 4--D, designed to kill sagebrush. This herbicide defoliates plants.
The ASCS compensates a private company for spraying its own land at the rate of $.50 per acre. This subsidy is permitted only on private land and only if the company certifies that 80 percent of the sagebrush sprayed has been defoliated. The application was approved on April 22, 1971, upon the basis of Diamond Ring's representation that all of the land to be sprayed was private land. Unquestionably the government lands were sprayed.
The crucial evidence relied on by the Bureau of Land Management to prove that spraying on the government land was willful was to the effect that Diamond Ring failed to supervise and instruct the pilot of the airplane owned by Buffalo Flying Service as to the land to be sprayed. Prior to the actual spraying the pilot, Doyle Vaughn, and the vice-president of the Ranch Company, Lee Irvine, surveyed the area to be sprayed with the use of three maps and by flying over it in a two-seater tandem airplane. In the course of the flight Mr. Irvine did not identify the privately owned land within the Horse Heaven Pasture nor advise Vaughn how to find the ranch's land nor did he suggest that the Company's privately owned land be flagged or identified to be sure that it alone would be sprayed. Instead he identified the federal land as an area to be sprayed, although not as such. It was the areas of intense sagebrush which were selected. The spraying was conducted on June 15, and on that occasion Mr. Vaughn requested that Irvine accompany him on the flight so as to assist in identifying the areas to be sprayed, but Irvine refused to do this due to being preoccupied at the time with docking sheep.
Vaughn proceeded to spray the land which Irvine had identified on the earlier flight. The area sprayed was within the Horse Heaven Pasture and included 300 acres of Ranch Company land (private), 370 acres of state land and 3,600 acres of government land which was used by Diamond Ring under a Taylor Grazing Act license.
When the spraying was completed, Irvine applied for the payment of the subsidy payable for spraying 5,000 acres of Ranch Company private land. Thereupon, the $2,500 payment was made. Soon thereafter, on July 28, 1971, the Natural Resource Area Manager of the Bureau of Land Management, Boyce Coffey, whose responsibility was resource management, noticed the discolored area in Horse Heaven Pasture. On examining the ground a short time later he found that considerable areas of federally licensed land had been sprayed. Samples of vegetation, branches, dirt, etc., were gathered and a survey was subsequently undertaken to determine the amount of federally owned land that had been sprayed.
Diamond Ring does not dispute the number of acres of public land sprayed nor does it dispute its failure to obtain prior permission. On November 2, 1971, a violation and hearing notice was sent to Diamond Ring. This alleged that there had been a willful violation of the regulation, 43 C.F.R. Secs. 4112.3--1(e) and 4113.1.
A very considerable hearing which was held generated a voluminous record. The strong reaction of the government officials arose from the fact that there had been a failure to obtain the prior permission of the Bureau of Land Management and from the further fact that the spraying program had been conducted without regard to whether the government land was being sprayed or privately owned land. There does not appear to be much indication that the particular spraying was seriously detrimental to the public land. Indeed, Diamond Ring argues that it helped it by encouraging the production of forage utilized by domestic and game animals and improving the watershed conditions. Whether it helped or hurt is problematical and is of limited relevancy.
After hearing all of the evidence the Examiner found that there was such a lack of preparation for and control over the spraying program as to exhibit a flagrant disregard of property lines and that this was tantamount to an intentional and willful act of spraying the public lands involved. The Examiner concluded that the spraying was willful. This was in accordance with the charge that there had been a willful violation of 43 C.F.R. Sec. 4112.3--1(e).
The Interior Department sought a three-year suspension of the ranch's grazing license for Horse Heaven Pasture lands and a 25 percent reduction on other licensed lands. However, the Hearing Examiner refused to adopt this recommendation and imposed a suspension of the suspension and thus in effect placed the Ranch Company on probation. An administrative appeal was taken to the Interior Board of Land Appeals. This body affirmed the conclusion of willfulness, but modified the Examiner's decision of suspension of the suspension. It ordered an actual imposition of a two-year suspension of the ranch's license covering only the lands sprayed.
On appeal to the district court, Judge Kerr found the ranch error was innocent and in good faith and that the two-year suspension was arbitrary. He further held that the maximum sanction allowed by law was $500, so essentially we must determine whether the district court exceeded the scope of review pursuant to the substantial evidence standard, but basically the question is who has the power to manage these public lands. If the government agency which has granted the lease lacks power to revoke it there is no effective sanction in the law.
No such lack of power in the Secretary is disclosed. The Act demands that he make provision for the protection, administration, regulation and improvement of such grazing districts created under the authority of the Taylor Grazing Act and to make rules and regulations and establish such service, and enter into agreements and do anything necessary to assure the objects of the grazing district, namely, to regulate their occupancy and use, and to preserve the land and its resources from destruction or unnecessary...
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