Jones v. Freeman

• Decision Date: 24 July 1967
• Docket Number: Civ. A. No. 2035.
• Citation: 270 F. Supp. 989
• Parties: Tom JONES, Jimmy Reed and Frank Workman, Individually and as Representatives of the Residents and Landowners of the Northwest, Crawford County, Arkansas, Area of the Ozark National Forest, Plaintiffs, v. Orvil L. FREEMAN, Secretary of Agriculture, United States of America, Alvis Z. Owen, Forest Supervisor, Ozark-St. Francis National Forests, and Gene S. Jackson, District Forest Ranger, Defendants.
• Court: U.S. District Court — Western District of Arkansas

270 F. Supp. 989

Tom JONES, Jimmy Reed and Frank Workman, Individually and as Representatives of the Residents and Landowners of the Northwest, Crawford County, Arkansas, Area of the Ozark National Forest, Plaintiffs, v. Orvil L. FREEMAN, Secretary of Agriculture, United States of America, Alvis Z. Owen, Forest Supervisor, Ozark-St. Francis National Forests, and Gene S. Jackson, District Forest Ranger, Defendants.

Civ. A. No. 2035.

United States District Court W. D. Arkansas, Fort Smith Division.

July 24, 1967.

Fines F. Batchelor, Jr., Van Buren, Ark., for plaintiffs.

Charles M. Conway, U. S. Atty., Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., for defendants.

OPINION

JOHN E. MILLER, District Judge.

On December 2, 1966, Tom Jones, Jimmy Reed and Frank Workman, "individually and as representatives of the residents and landowners of the northwest, Crawford County, Arkansas," area of the National Forest, commenced the instant action by filing their "Petition for Injunctive Relief." The petition listed as defendants Orvil L. Freeman, Secretary of Agriculture, Alvis Z. Owen, Forest Supervisor, Ozark-St. Francis National Forests, and Gene S. Jackson, District Forest Ranger.

Plaintiffs (petitioners) alleged that the defendant Secretary has adopted an administrative regulation, 36 C.F.R. 261.13, which provides for impoundment of livestock and sale thereof, without providing administrative or judicial remedies for factual determination "even though action purporting to be taken thereunder might be completely in violation of said regulation, the statutes and Constitution of the United States of America," and that therefore the defendants should be restrained from enforcing the regulation; that in enforcing the regulation, the defendants have placed dangerous traps at places where they constitute an attractive nuisance for children, and a danger to the plaintiffs and their livestock; and that the defendants have pursued a "studied course of harassment" in an attempt to deprive defendants, and others similarly situated, of life, liberty and property without due process.

They pray that the court enjoin and restrain the defendants from enforcing the regulation, placing out the traps, depriving the plaintiffs of life, liberty and property without due process, and intimidating or harassing the plaintiffs.

On April 3, 1967, the defendants filed their answer admitting that the plaintiffs reside in Crawford County, Arkansas, in the Western District of Arkansas, and that the cause of action arose in this District. The defendants denied all of the material allegations of the complaint, and alleged that the complaint fails to state a claim upon which relief can be granted; that the plaintiffs have no standing to sue for the relief sought; and that the suit is actually an unconsented suit against the United States although nominally against officers and employees thereof. The court is treating the allegations in the answer as a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. All parties have submitted briefs.

This instant action is a sequel to an action in replevin, filed on October 24, 1966, in the Van Buren, Arkansas, Municipal Court, by plaintiff Jimmy Reed v. Gene Jackson, to recover possession of certain livestock, to-wit: one white hog; one red shoat; and one white boar shoat, which property was being wrongfully withheld from plaintiff. The prayer was for the recovery of the hogs, together with the sum of $50.00 as damages for the wrongful detention thereof.

On October 26, 1966, the United States Attorney, for and in the name of the defendant, Gene Jackson, removed the cause to this court on the ground that Jackson was at all times relevant an officer of the United States and acting in his capacity as District Forest Ranger. Upon removal the cause was designated as Civil Action No. 2024. On October 27, 1966, the Government filed the following motion to dismiss:

"The defendant moves the Court as follows:

"1. To dismiss the action on the ground that the Court lacks jurisdiction because the action is actually a controversy between the plaintiff and the United States of America, and the United States has not consented to be sued.

"2. The Municipal Court of Van Buren, Arkansas, does not have jurisdiction herein as the suit herein is actually a suit against the United States."

The motion was granted on October 31, 1966.

On November 4, 1966, the plaintiff filed his motion for a new trial, which the court treated as a motion for reconsideration. A hearing was held on December 20, 1966. At the hearing testimony was offered by Jimmy Reed, Mrs. Reed, Tom Jones and Frank Workman. The gist of the testimony was that a relationship of antagonism existed between the Forest Rangers and the citizens of Crawford County, and that because of such relationship the Rangers had allowed the livestock to escape from the plaintiff's property and/or had enticed them into a trap located on Government property. The court found that plaintiff failed to establish the allegations of his complaint, and an order was entered denying the plaintiff's motion to reconsider and directing the Forest Service to retain the livestock for thirty days, without cost to the plaintiff, so that the parties might have an opportunity to settle their differences by agreement. Apparently no such settlement has been reached.

The defendants' primary contention is that the instant suit, to enjoin them as officers of the United States, is actually...