New Mexico State Game Commission v. Udall
| Decision Date | 13 June 1969 |
| Docket Number | No. 58-68.,58-68. |
| Citation | 410 F.2d 1197 |
| Parties | The NEW MEXICO STATE GAME COMMISSION, Plaintiff-Appellee, v. Stewart L. UDALL, Secretary of the Interior, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jacques B. Gelin, Dept. of Justice, Washington, D. C. (Clyde O. Martz, Asst. U. S. Atty. Gen., John F. Quinn, Jr., U. S. Atty., Michael P. Watkins, Asst. U. S. Atty., Albuquerque, N. M., S. Billingsley Hill, Dept. of Justice, Washington, D. C., with him on the brief), for defendants-appellants.
George T. Harris, Jr., Sp. Asst. Atty. Gen., Albuquerque, N. M. (James A. Maloney, Atty. Gen., and Boston E. Witt, former Atty. Gen., Santa Fe, N. M., Peter J. Broullire, III, Sp. Asst. Atty. Gen., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.
Paul A. Lenzini, Washington, D. C., for International Assn. of Game, Fish and Conservation Comrs., amicus curiae.
Joseph Clifford, Asst. Atty. Gen., Phoenix, Ariz. (Gary K. Nelson, Atty. Gen., adopting the brief of The New Mexico State Game Commission, plaintiff-appellee herein), for State of Arizona, amicus curiae.
Ford Scalley, Salt Lake City, Utah (Phil L. Hansen, Atty. Gen., Kenneth M. Hisatake, Sp. Asst. Atty. Gen., Salt Lake City, Utah, on the brief), for State of Utah, amicus curiae.
Elmer P. Cogburn, Denver, Colo., for National Wildlife Federation.
Duke W. Dunbar, Atty. Gen., Gerald W. Wischmeyer, Asst. Atty. Gen., Denver, Colo., for Colorado Game, Fish, and Parks Division.
T. J. Jones, III, Boise, Idaho, Special Counsel for Idaho Fish and Game Dept.
Robert C. Londerholm, Atty. Gen., filed motion to adhere to the brief of The New Mexico State Game Commission, plaintiff-appellee herein, for Kansas Forestry, Fish and Game Commission.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Nicholas V. Olds and Esther E. Newton, Asst. Attys. Gen., Lansing, Mich., for State of Michigan.
Forrest H. Anderson, Atty. Gen., Chadwick H. Smith, Asst. Atty. Gen., Helena, Mont., for Montana State Fish and Game Commission.
Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, Neb., for Nebraska Game and Parks Commission.
Robert Y. Thornton, Atty. Gen., Salem, Or., Roy C. Atchinson, Asst. Atty. Gen., Portland, Or., for State of Oregon.
John J. O'Connell, Atty. Gen., Mike Johnston, Asst. Atty. Gen., Olympia, Wash., for Washington Dept. of Game.
Before PICKETT, LEWIS and HILL, Circuit Judges.
The New Mexico State Game Commission brought this action seeking a judgment declaring that the Secretary of Interior and his subordinates did not have authority to kill deer within the boundaries of Carlsbad Caverns National Park in New Mexico for research purposes, without obtaining state permits required by New Mexico Statutes. The Commission also sought an injunction prohibiting further killing of deer without the state permit. The complaint alleged that under the law of New Mexico the Commission controls, regulates and manages the hunting of deer and other wild-life on all lands within the State of New Mexico; that the defendants were charged by federal law with the responsibility of managing and controlling lands in New Mexico known as "Carlsbad Caverns National Park"; that the Commission was advised by the Park Superintendent that a "Deer Range Ecology Study" was to be undertaken which required the killing of not more than 50 deer within the park boundaries;1 that some deer had been killed in violation of state law and the "announced scheme of killing fifty (50) deer" would be continued unless restrained. Attached to the complaint as exhibits was correspondence between the Park Superintendent and the Commission's Chief of Game Management.
Prior to the commencement of the action, a representative of the Commission was furnished with a statement of the objectives of the study and procedures to be followed. The value of the study to the State's overall management of one of its deer herds was acknowledged. Objection to the program arose only when the park officials refused to apply for state permits which had been offered. The trial court denied a motion to dismiss, holding that the action was not an unconsented suit against the United States. The case was disposed of on stipulated facts without a trial, and the court concluded that the aforesaid deer-killing program was not within the statutory authority of the Secretary of Interior or his subordinates, and enjoined further killing of the deer without a state permit. 281 F.Supp. 627. The district court recognized the "Government's authority to protect its lands" within the park boundaries, but held that the deer-killing program could be undertaken only after a showing or a finding that there was existing depredation cause by the deer. We are of the opinion that this narrow construction of the statute is unwarranted and hold that the research program to obtain reliable scientific information necessary to conserve the scenery and wildlife in the park was within the Secretary's statutory authority, and hence the case is an unconsented suit against the United States.
There is no dispute between the parties as to the general applicable law. As we stated in Harper v. Jones, 195 F. 2d 705, cert. denied, 344 U.S. 821, 73 S. Ct. 19, 97 L.Ed. 639:
"(W)here a federal officer acts within the limits of his legal power and authority and exercises a function legally delegated to him, an action to restrain him cannot be maintained without impleading the sovereign even though there is a claim of error in the exercise of that power or an abuse of discretion."
See also Larson v. Domestic and Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L. Ed. 1628; Ogden River Water Users Ass'n. v. Weber Basin Water Conservancy, 10 Cir., 238 F.2d 936; New Mexico v. Backer, 10 Cir., 199 F.2d 426; Frost v. Garrison, D.C.Wyo., 201 F.Supp. 389. These decisions, as well as a myriad of others, recognize that if a federal officer or employee acts beyond the power conferred upon him by Congress, the Immunity Rule has no application. The Court in Larson quoted with approval this language from Philadelphia Co. v. Stimson, 223 U.S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570:
337 U.S. 690-691, 69 S. Ct. 1462.
The basic question, then, as presented here, is whether the supervisory powers granted to the Secretary of Interior over the management of national parks authorize the killing of deer within Carlsbad Caverns National Park for an ecology study to determine deer range conditions within that park.2
The Secretary does not assert that the United States has any ownership in wild animals within the various states. Court decisions indicate that, insofar as wild animals within a state are capable of ownership, they are owned by the state in its sovereign capacity for the benefit of its people, with the resulting right to regulate the taking thereof. See Lacoste v. Dept. of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437; Geer v. Connecticut, 161 U.S. 519; 3 C. J.S. Animals §§ 4 and 5 where the decisions are collected. It is conceded that the Secretary has the authority to destroy animals to protect national park property.
In Hunt v. United States, 278 U.S. 96, 49 S.Ct. 38, 73 L.Ed. 200, the power of the Secretary of Agriculture to direct the destruction of large numbers of deer when such action was necessary to protect the lands of the United States from serious injury was upheld under a statutory provision authorizing the Secretary of Interior to "make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside * * *." 30 Stat. 31, 35.3 Referring to the action taken by the Secretary, the Court said:
Hunt v. United States, supra, at 100, 49 S.Ct. at 38.
The State Commission and the amicus curiae, accepting the conclusion of the trial court,4 here argue that the Hunt decision is limited to authorizing destruction of deer to prevent depredation on public lands known to be occurring. The essence of the argument is that the statute authorizes the killing of wild animals only upon a finding that there exists a present depredation of the park property by the animals to be killed. It is true that the statute herein referred to does not in so...
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