Fallini v. Hodel
| Citation | 725 F. Supp. 1113 |
| Decision Date | 16 November 1989 |
| Docket Number | No. CV S-86-645 RDF.,CV S-86-645 RDF. |
| Parties | Joe B. FALLINI, Jr., Susan Fallini and Helen Fallini, Plaintiffs, v. Donald P. HODEL, Secretary of the Interior; Robert F. Burford, Director of Bureau of Land Management; Edward F. Spang, Nevada State Director, Bureau of Land Management, Defendants. |
| Court | U.S. District Court — District of Nevada |
W.F. Schroder, Jr., Vale, Or., and Ann B. Reaser, Allison, McKenzie, Hartman, Soumbeniotis & Russell, Las Vegas, Nev., for plaintiffs.
U.S. Attorney by David Moynihan, Asst. U.S. Atty., Las Vegas, Nev., Jose Toro, Allan Brock, Charles R. Shockey, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants Animal Protection Institute of America.
ORDER SETTING ASIDE DECISION OF THE INTERIOR BOARD OF LAND OF APPEALS
Plaintiffs Joe B. Fallini, Jr., Susan Fallini, and Helen Fallini (the Fallinis) seek judicial review of a decision of the Interior Board of Land of Appeals, Joe B. Fallini, Jr. et al. v. Bureau of Land Management, 92 IBLA 200, June 12, 1986. See Doc. No. 17.
Plaintiffs own and graze cattle on over 2700 acres of private land generally known as Twin Springs Ranch in Nye County, Nevada, within the Reveille Allotment, Tonopah Resource Area, Battle Mountain District of the Bureau of Land Management (BLM). They also graze cattle on 160 acres of public land within Reveille Allotment under permit from the BLM.
Over the years, the BLM has issued to the Fallinis a number of permits to install improvements at the major sources of water within the allotment. See Administrative Record ("AR"), Item 26A 2a. The sources of water are on public lands, but the Fallinis hold the rights to that water under Nevada Law. The permits authorize the Fallinis to make improvements at those sources of water so that it may be available for livestock grazing. Virtually all of the stock water within the Reveille Allotment is ground water pumped to the surface by the Fallinis pursuant to BLM improvement permits and state issued appropriation permits. Each permit also requires that the water impounded at those sources will be available to wildlife. The range improvement permit relevant in this case pertains to the artificial water source known as Deep Well.
Pursuant to their BLM improvement permit, the Fallinis installed pumps, gates, and other improvements at Deep Well. Gates were installed in order to facilitate rotation grazing of livestock. Livestock is moved around the grazing lands in order to allow forage to rest and revive. Cattle movement is accomplished by shutting the gates at one water source and opening the gates at another water source. The cattle forage around whichever water source they have access to, thereby, allowing the grazing lands surrounding closed water sources to recover.
In 1971, Congress passed the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340, to protect wild horses and burros on public lands where they were historically found. At that time, approximately 130 wild horses freely roamed within portions of the Revenue Allotment. No horses roamed within the area surrounding Deep Well. By 1984, the number of wild horses within the Reveille Allotment had increased to approximately 1800 head, including several hundred horses which were grazing the land surrounding and drinking water from Deep Well.
In late 1983, the Fallinis installed highway guardrails across the entrances to all of their water facilities within the Reveille Allotment in order to discourage access by wild horses. The guardrails did not affect water access by cattle or wildlife other than the wild horses.
On December 23, 1983 the BLM's manager for the Reveille Allotment issued a proposed decision notifying the Fallinis that the erection of highway guardrails constituted an improvement at the watering facilities and such modification violated the Fallinis' improvement permit because BLM approval for the modification had not been sought or obtained as required by regulations. The proposed decision required removal of the highway guardrails within fifteen days; failure to comply with the proposed order would result in cancellation of the Fallinis' permits.
The Fallinis removed the guardrails at each water source except Deep Well and filed a protest of the proposed decision as it applied to Deep Well. In turn, on May 3, 1984, the BLM's manager cancelled the permit authorizing the Fallinis to make improvements at Deep Well because they had violated the permit's conditions and the applicable authorization regulation, 43 C.F.R. 4140.1(b)(2) by making improvements without first obtaining approval from the BLM.
The Fallinis appealed the BLM decision to an administrative law judge who held that "the Fallinis have not violated the conditions of the ... permit involved in this case nor any applicable federal regulations." AR, Item 23. The BLM appealed to the Interior Board of Land Appeals (IBLA) which reversed the administrative judge. The Fallinis appeal the IBLA's decision.
TABLE OF CONTENTS
page
INTRODUCTION 1113
FACTS 1114
DISCUSSION
I. STANDARD OF REVIEW ............................... 1115
II. ARBITRARY AND CAPRICIOUS STANDARD ................ 1115
A. CONSTRUCTION OF PERMIT LANGUAGE ............... 1116
B. FAILURE TO CONSIDER IMPORTANT
ASPECT OF PROBLEM ............................. 1117
C. POLITICAL INFLUENCE ........................... 1118
D. CONCLUSION .................................... 1119
III. BEYOND STATUTORY AUTHORITY AND
JURISDICTION .................................... 1119
A. IMPLIED RESERVATION OF WATER
RIGHTS ....................................... 1119
B. STATE LAW CONFLICT WITH FEDERAL
LAW .......................................... 1121
C. CONCLUSION .................................... 1121
IV. CONTRARY TO CONSTITUTIONAL
RIGHT ........................................... 1122
A. DEPRIVATION OF NEARLY ALL ECONOMICALLY-VIABLE
USE OF
PROPERTY ..................................... 1123
B. PUBLIC INTEREST ............................... 1123
C. CONCLUSION .................................... 1124
CONCLUSION ............................................ 1124
DISCUSSION
5 U.S.C.S. § 706(2)
A district court applying the "arbitrary and capricious" standard is limited to deciding whether there has been a clear error of judgment by the agency and whether the agency action was based on consideration of relevant factors. Nance v. Environmental Protection Agency, 645 F.2d 701, 705 (9th Cir.1981), cert. den., 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The scope of judicial review under this standard is narrow, and a reviewing court may not substitute its judgment for that of the agency. Natural Resources Defense Counsel, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir.1987). Moreover, an agency's interpretation of the statute it administers, or of its own regulations, is entitled to deference, although the courts are the final authorities on issues of statutory and regulatory construction. Id. The agency's interpretation will be upheld unless it is plainly erroneous or inconsistent with the regulations. Washington State Health Facilities v. DSHS, 879 F.2d 677, 681 (9th Cir.1989).
This court must review the agency conclusions that the Fallinis' installation of the highway guardrail across a gate opening to the enclosure at Deep Well was a modification of the range improvement such as to require authorization from the agency. In analyzing the administrative record compiled by the IBLA, this Court is not persuaded that the proper, substantive legal standards were applied and that applicable rules and regulations were correctly interpreted in reaching the decision. Roberts v. Morton, 389 F.Supp. 87, 90 (D.Colo.1975), affirm'd 549 F.2d 158 (10th Cir.1976), cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977).
The IBLA decision charged the Fallinis with permit condition violations and a modification of their range improvement permit for Deep Well without obtaining BLM approval in violation of 43 C.F.R. § 4140.1(b)(2). BLM regulations allow for the imposition of civil and criminal penalties for "modifying ... range improvements without authorization...." 43 C.F.R. § 4140.1(b)(2) (1986); see also, 43 C.F.R. § 4120.3-3 (). The Fallinis' range improvement permit approves the construction of four steel gates at Deep Well. AR, 27A, Exh. 10.
Relying on expert testimony presented by the Fallinis, the IBLA found that although erection of highway guardrails "might be considered as gates, thus, (sic) falling within the parameters of the improvements listed in the permits," 92 IBLA 200, 207 (1986), the technical definition of "gate" was not determinative. Id. Instead, the IBLA rested its decision on its reading of the purpose behind the BLM's authorization to construct gates at Deep Well. Id. The purpose of the...
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