Duval Ranching Co. v. Glickman

Decision Date14 March 1997
Docket NumberNo. CV-N-95-38-ECR.,CV-N-95-38-ECR.
Citation965 F.Supp. 1427
PartiesDUVAL RANCHING COMPANY; S & D Company; Kirk and Ramona Dahl; Sandra L. Sharp, individually; and Sandra L. Sharp and Randall Sharp as trustees of the Leslie B. Sharp Testamentary Trust, Plaintiffs, v. Daniel R. GLICKMAN, Secretary of Agriculture; Jack Ward Thomas, Chief, United States Forest Service; R.M. "Jim" Nelson, Acting Forest Supervisor, Humboldt National Forest; D. Waive Stager, Acting District Ranger, Ruby Mountains Ranger District, Humboldt National Forest; United States Forest Service; and United States, Defendants.
CourtU.S. District Court — District of Nevada

Gary D. Woodbury, Elko, for plaintiffs.

Shirley Smith, Asst. U.S. Atty., Reno, NV, Stephen G. Bartell, Claire E. Douthit, General Litigation Section, Environment & Natural Resources Div., U.S. Department of Justice, Washington, DC, for defendants.

EDWARD C. REED, Jr., District Judge.

Plaintiffs are ranchers. They have sued the United States, the United States Forest Service, and individual federal officers for a variety of violations of state and federal law.1 The dispute is essentially over property rights and land use in and around the Humboldt National Forest in Elko County, Nevada. Defendants have moved for summary judgment (# 76) as to all of Plaintiffs' claims, Plaintiffs have opposed (# 80), and Defendants have replied (# 83). For the reasons outlined below, we GRANT summary judgment to Defendants.

BACKGROUND

The properties at issue sit in the northern part of what is known as the Ruby Valley, on the western slope of the Humboldt Mountains. Stipulation at 2(# 76). Four springs — Kelly, Woolverton, Ray, and House (which is actually two springs situated close together) — originate in the adjacent Humboldt National Forest, in what the ranchers term "close proximity" to their own land. Complaint at ¶ 24(# 1). The water flowing from these springs flows through natural watercourses and through ditches. The ranchers who live nearby are 1) Don, Grace, and Sim Duval, owners of Plaintiffs Duval Ranching Company and S & D Company, 2) Plaintiffs Sandra and Randall Sharp, mother and son, trustees of Plaintiff The Leslie B. Sharp Testamentary Trust, and owners of the Sharp Angus Ranch, and 3) Plaintiffs Kirk and Ramona Dahl. Complaint at 8-9(# 1).

A. Kelly Spring

Both House Spring and Kelly Spring originate in the Rockslide drainage. Id. at ¶ 35. The upper portion of the Rockslide drainage is managed by the Forest Service, while the lower portion is owned by the Duvals. Id. at ¶ 36. About a half mile below Kelly Spring is an impoundment structure, and about 100 yards below that structure is an irrigation ditch which delivers water to the Duval Ranch. Id. The Duval Ranching Company claims ownership of the easement for this ditch. Stipulation at 5(# 76).

In the summer of 1992, Don Duval installed a collection box, pipeline, trough and overflow at Kelly Spring. Complaint at ¶ 39(# 1). He had not at that time applied for a special use permit. Stipulation at 6(# 76). Duval was charged with two misdemeanors: damaging a natural feature of the United States, 36 C.F.R. § 261.9(a), and placing a structure on national forest land without approval from the Forest Service. 36 C.F.R. § 261.10(a). He pled guilty before a federal magistrate in January 1994, and was fined and ordered to restore the site to its original condition. Stipulation at 6(# 76). Duval began the restoration work, and applied unsuccessfully for a special use permit to replace the box. Id. In early October 1994, a group of unidentified citizens installed a new water collection box, which is currently in place, at Kelly Spring. Id.

B. Woolverton Spring

The upper portion of the Woolverton drainage is public land, managed by the Forest Service; the lower portion is owned by Plaintiffs Kirk and Ramona Dahl. Stipulation at 3(# 76). Woolverton Spring originates in this drainage. Id. Its waters flow for about three-quarters of a mile in their original channel, and are then diverted across national forest land to the Dahls' ranch, by means of an irrigation ditch for which the Dahls claim an easement. Id.

Dahl and his wife have owned their ranch for over forty years and claim a water right dating back to 1875. Complaint at ¶¶ 2, 6(# 1). About six years ago, the Forest Service fenced off about 5.5 acres around Woolverton Spring in order to create or protect a riparian area. Complaint at ¶ 30(# 1). In addition, the spring has been covered, although the parties dispute how this came about. The ranchers allege that the Forest Service brought in heavy equipment and covered with fill material an area about 100 by 150 feet around the spring. Id. The Forest Service claims there was a natural landslide in the 1980's which disturbed the spring. Stipulation at 9(# 76). Finally, Dahl alleges that the ditch bank has been cut out allowing the water to flow back to the natural channel, and tree branches and other debris have been placed in the ditch, allegedly by Forest Service employees, causing the water in the ditch to flow over the bank. Id.

C. Ray Spring

The bulk of the Ray drainage is public land; the lower quarter of the drainage is privately owned. Complaint at ¶ 41(# 1). Sandra Sharp claims that the Sharp Angus Ranch owns vested water rights to Ray Spring dating back to 1889. Opp'n, Ex. 10. A natural channel runs through the drainage, which was allegedly dug out in the past with a drag line or similar device, and then gets diverted to an irrigation ditch. Id. This irrigation ditch runs across the Duval's ranch and terminates at the Sharps' property. Id. Both the Duvals and the Sharps claim easements for this ditch. Id., Exs. 9 and 10.

In 1990, the Forest Service planted Nebraska sedge in the Ray Spring channel. Opp'n, Ex. 2(# 80). Don Duval cleared the spring in May 1992, but was told by Forest Service personnel that the next time he did so he would face criminal charges. Stipulation at 4(# 76). In October 1992 Sandra Sharp orally proposed installation of a pipeline and trough which would have run across public land, but could not go forward with the project because the Forest Service refused to allow it. Opp'n, Ex. 10(# 80).

D. House Spring

The Duvals claim an easement for a ditch running from House Springs (I and II) to their ranches. Id., Ex. 9; Stipulation at 7(# 76). Other than allegedly challenging the Duvals' title to the easement, the Forest Service has done nothing to the Springs or the associated ditch. Opp'n, Ex. 9(# 80); Stipulation at 7(# 76).

E. Mooney Ditch

The Dahls claim an easement across National Forest land for the Mooney Ditch. Stipulation at 7(# 76). The Forest Service has apparently done nothing to the Ditch. Id.

F. Prior Proceedings

Plaintiffs (including, at the time, the Elko County Board of Supervisors) filed this action on January 20, 1995 for a variety of claims, which we outline below. On November 17, 1995 this Court denied (# 40) their motion for a preliminary injunction after oral argument. Elko County Board of Supervisors v. Glickman, 909 F.Supp. 759 (D.Nev. 1995). On April 19, 1996(# 44) we dismissed the Elko County Board of Supervisors for lack of standing. We then denied (# 50) Plaintiffs' motion to substitute as counsel the Elko County District Attorney in his official capacity, but on June 7, 1996 granted (# 61) their motion to substitute him in his individual capacity. Duval Ranching Co. v. Glickman, 930 F.Supp. 467 (D.Nev.1996); Duval Ranching Co. v. Glickman, 930 F.Supp. 469 (D.Nev.1996). On August 28, 1996 Defendants moved (# 76) for summary judgment. Plaintiffs have opposed (# 80), Defendants have replied (# 83), and this motion is now ripe.

DISCUSSION
I. Summary Judgment Standard

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Northwest Motorcycle Ass'n v. U.S. Department of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The moving party is entitled to summary judgment where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed. R. Civ. P. 50(a). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form — namely, depositions, admissions, interrogatory answers, and affidavits — only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed. R.Civ.P. 56(c); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).

In evaluating the appropriateness of summary judgment, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine issue for the trier of fact, as...

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