Jones v. Freeman, No. 19063.

Decision Date28 August 1968
Docket NumberNo. 19063.
Citation400 F.2d 383
PartiesTom 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, Appellants, v. Orville 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, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Fines F. Batchelor, Jr., Van Buren, Ark., for appellants and filed briefs.

Robert S. Lynch, Atty., Dept. of Justice, Washington, D. C., for appellees; Clyde O. Martz, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Atty., Raymond N. Zagone, Dept. of Justice, Charles M. Conway, U. S. Atty., Fort Smith, Ark., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., were with Robert S. Lynch, Washington, D. C., on the brief.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This case arises out of the efforts of the United States Forest Service to keep razorback hogs from foraging in the Ozark National Forest as they have been wont to do for decades.

The plaintiffs are Arkansas farmers who live adjacent to the forest. They concede that the Forest Service has the right to keep the hogs out of the forest, but protest the regulation promulgated by the Secretary of Agriculture to achieve this end. They particularly object to the regulations insofar as they permit the Forest Service to impound trespassing livestock, to assess expenses for so doing to their owners and, under certain circumstances, to sell the animals and retain a portion of the proceeds to cover their expenses — and to take these actions without giving the owners a trial-type hearing.1

One of the plaintiffs initially attempted to test the regulations insofar as they relate to impounding by bringing an action in replevin, in an Arkansas state court, against a District Forest Ranger which asked that two hogs be returned to the plaintiff and that he be awarded $50.00 in damages for wrongful detention. The case was removed by the government to Federal District Court and was there dismissed on the grounds that the suit was actually one between the plaintiff and the United States and that it had not consented to be sued.2 A motion for reconsideration was filed and a hearing on it was held. The District Court again denied relief but urged mediation of the dispute. In the present action, it summarized its prior decision as follows:

"* * * 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. * * *"

270 F.Supp. 989, 991 (W.D.Ark.1967).

The plaintiffs, individually and as representatives of the area landowners, then instituted the present action. The claim for relief alleged that: (1) the regulation provides for impoundment and sale of trespassing livestock without a trial-type administrative hearing or for judicial review, even though such action might be in violation of the regulation itself or the Constitution; (2) traps set near private land holdings present a danger to persons, livestock and wildlife; (3) the Forest Service, while claiming to be acting within its authority, has pursued a course of conduct solely intended to harass the landowners, to deprive them of life, liberty and property without due process of law, and to take property from them without just compensation. The complaint prayed for an injunction restraining the Forest Service from: (1) enforcing the challenged regulation (36 C.F.R. § 261.13); (2) attempting to withhold or sell hogs which the defendants purported to hold; (3) maintaining dangerous traps in the vicinity of private landholding; (4) enticing or removing livestock from private landholding; and (5) harassing and intimidating the landowners or depriving them of life, liberty and property without due process of law.

The defendants, generally, denied the allegations and further defended on the grounds that: (1) the complaint failed to state a claim for which relief could be granted; (2) the plaintiffs were without standing; and (3) the action was an unconsented suit against the United States.

The District Court treated the answer as a motion to dismiss the complaint for failure to state a claim. An order dismissing the action was entered.

In an attached memorandum, the court held:

"It is settled law that a suit to enjoin Government agents is a suit against the Government unless the acts sought to be enjoined are in excess of authority or in violation of the Constitution of the United States. See, Larson v. Domestic and Foreign Commerce Corp., (1949) 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628; and Malone v. Bowdoin, (1962) 369 U.S. 643, 82 S. Ct. 980, 8 L.Ed.2d 168.
* * * * * *
"* * * There is, however, no allegation that any acts actually committed by the Rangers have been in violation of the Constitution, and the court will not enjoin the enforcement of a valid regulation merely because unconstitutional acts might result from the enforcement thereof.
"The complaint also fails to allege any acts committed by the defendants in excess of their authority. With respect to the charges of intimidation and harassment, certainly these defendants have no authority to harass or intimidate residents living in the area of the National Forests. However, the only acts alleged were clearly within the conduct prescribed by the statutes and regulations. There is no allegation of any specific acts of harassment or intimidation."

The plaintiffs appeal from the decision of the District Court.

At the outset, we note that the complaint does not contain "* * * a short and plain statement of the grounds on which the court's jurisdiction depends." Rule 8(a) (1), Fed.R.Civ.P. This failure was not raised by the appellees in District Court but we must, nevertheless, satisfy ourselves that jurisdiction existed. E. g., Illinois Terminal R. Co. v. Friedman, 208 F.2d 675, 676 (8th Cir. 1954).

The plaintiffs assert in their brief before this Court that the District Court had jurisdiction under Chapter 7 of the Administrative Procedures Act, 5 U.S.C. §§ 701-06 (1965-66 Supp.). It does not. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 533 (8th Cir. 1967).

We believe that the facts to establish jurisdiction under 28 U.S.C. § 1346(a) (2) (1964 ed.) were pleaded, although not artfully.3 In any event, either this Court or the District Court, on remand, has power to permit amendment to avoid dismissal under jurisdictional grounds. 28 U.S.C. § 1653 (1964 ed.); e. g., Kaufman v. Western Union Telegraph Company, 224 F.2d 723 (5th Cir. 1955), cert. denied, 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825 (1956); Brooks v. Yawkey, 200 F.2d 663 (1st Cir. 1953); Columbian Nat. Life Ins. Co. v. Harrison, 6 Cir., 12 F.2d 986 (1926).

We thus turn to the merits.

Throughout this litigation, the defendants' principal argument has been that the plaintiffs' action is barred by the doctrine of sovereign immunity. We do not agree.

If the Secretary has acted beyond the scope of his authority in promulgating the "impounding" regulation, sovereign immunity is no defense. It is not a defense because the doctrine is premised on the theory that a suit against federal officers is, in essence, a suit against the United States only if those officers are acting within the scope of their authority. Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Thus, in Larson, the Court stated that the immunity from injunction process may not be claimed by "a Federal officer acting in excess of his authority." 337 U.S. at 690-691, 69 S.Ct. at 1462. In Malone the Court specifically noted that the plaintiff did not assert "that the Forest Service Officer was exceeding his delegated powers as an officer of the United States * * *." 369 U.S. at 648, 82 S.Ct. at 984. See generally, L. Jaffe, Judicial Control of Administrative Action, 222-231 (1965); Byse, Proposed Reforms in Federal "Nonstatutory" Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479, 1484-93 (1961); Note 55, Columb.L.Rev. 73, 74-75 (1955).

Whether the Secretary exceeded his delegated powers is a close and difficult question.

The Secretary's authority for the impounding regulation must be premised on 7 U.S.C. § 1011(f) (1964 ed.) or 16 U.S.C. § 551 (1964 ed.).4 While the source of authority might be important under other circumstances, here it is not, for neither section specifically authorizes the Secretary to impound trespassing animals, and both provide that any violation of the regulations shall5 be punished by a fine and/or imprisonment. In addition, each section provides for a trial and sentencing before a United States Commissioner.

Absent express authority to impound, the Secretary's authority, if any, must be implied. We believe it can.

The right to enjoin for trespass, although not specifically granted, has been implied. Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911). Accord, Perko v. United States, 204 F.2d 446 (8th Cir.) cert. denied, 346 U.S. 832, 74 S.Ct. 48, 98 L.Ed. 355 (1953); Beard v. United States, 41 F.2d 711 (9th Cir.), cert. denied, 282 U.S. 886, 51 S.Ct. 90, 75 L.Ed. 781...

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