Red Canyon Sheep Co. v. Ickes, 6991.

Decision Date27 May 1938
Docket NumberNo. 6991.,6991.
Citation98 F.2d 308
PartiesRED CANYON SHEEP CO. et al. v. ICKES, Secretary of Interior, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit


Frank K. Nebeker, of Washington, D. C., for appellant.

Nathan R. Margold, Solicitor, Department of the Interior, and Frederick Bernays Wiener and Jackson E. Price, Assistant Solicitors, Department of the Interior, for appellee.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing, upon motion of the appellees, an amended bill of complaint. The bill was filed by the appellants Red Canyon Sheep Company, Willis R. Lovelace, and Frank Maxwell. They sought to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from conveying to one C. M. Harvey certain lands located in what is known as Grazing District No. 4, established in New Mexico under the Taylor Grazing Act of June 28, 1934, 48 Stat. 1269, as amended by 49 Stat. 1976, 43 U.S.C.A. §§ 315-315p. From the allegations of the bill, which under the motion to dismiss must be taken to be true, and from certain enactments of the Congress of which we take judicial notice, the following appears:

More than 25 years before the filing of the bill the appellants entered into the sheep business in New Mexico. Pursuant to the customs there prevailing, which had both local and Federal sanction, they drilled for water upon arid public lands, developed producing wells, secured title to the lands upon which the wells were developed, and commenced and continued to graze sheep upon the adjacent public domain. The sparsity of grass and forage in the region in question is such as to require from one to two sections of land to furnish sustenance for 100 sheep or 20 cattle during the grazing season; and only such persons as have wells for stock watering purposes can successfully make use of the public domain as a means of engaging in the stock industry, there being few springs or running streams of water thereon. The appellants, in developing their wells, expended large sums of money and they have built up a substantial livestock business.

In 1922 the Congress enacted the first of a series of statutes1 authorizing the Secretary of the Interior to exchange public lands — whether located within or without the boundaries of a national forest — for privately owned lands located within such a forest, if the Secretary of Agriculture regarded it as desirable to include, within the publicly owned area, the private lands proposed for exchange. On August 15, 1929, C. M. Harvey, above named, was the owner of certain lands lying within the borders of the Lincoln National Forest in New Mexico; pursuant to the Act of February 7, 1929, he proposed to the Secretary of the Interior that an exchange be made of his lands for the very lands in New Mexico, located outside the Forest, upon which the appellants had, as above described, long been grazing their sheep. In 1932 the Department of the Interior suspended action on this proposal for exchange on the ground that it was not authorized by the then existing statutes. But in 1935 negotiations were renewed; the Department of the Interior then took the position that an Act of June 25, 1935, 49 Stat. 422, 16 U.S.C.A. § 486 note, had removed the obstacles to the exchange theretofore thought to exist, and, by an order of March 17, 1936, dismissed a protest which the appellants had filed against the exchange. It is the consummation of this exchange which the present suit seeks to restrain.

On June 28, 1934, the Taylor Grazing Act was passed, the pertinent provisions of which we set out later in this opinion. By that Act the Secretary of the Interior was authorized to create districts for grazing purposes upon the public domain, and to grant grazing permits to users of the range who complied with regulations to be laid down by the Secretary under the Act. In order to carry out the purposes of the Act, the President, by an Executive Order of November 26, 1934, No. 6910, withdrew from settlement, location, sale or entry all vacant, unreserved, and unappropriated public lands in New Mexico, pending further classification and determination of the most useful purposes to which they might be put in consideration of the provisions of the Act, and for conservation and development of national resources. In compliance with the provisions of the Act, on April 8, 1935, the Secretary of the Interior created a grazing district in New Mexico known as Grazing District No. 4, and this embraced, among others, the very lands which the appellants had been using for grazing purposes. The Secretary then granted to the appellants, pursuant to regulations issued under the Act, interim permits, called licenses, to graze their flocks over these very lands.2 The issuance of these licenses was based — so it is alleged in the bill — upon a determination by proper officials of the Interior Department that each of the appellants was a person who could most economically make use of the lands in question for grazing purposes; and who was therefore entitled to priority under the regulations promulgated by the Department.

As a foundation for equitable relief the bill alleges that, if the proposed exchange is consummated, the appellants' privately owned land and the improvements thereon adjacent to the grazing district will become valueless, that the appellants will be unable to secure other public lands for grazing purposes, and that they will be compelled to retire from the sheep business in which they are now engaged. Further, it is alleged that the appellants have exhausted their administrative remedies and have no adequate remedy at law. The bill prays that an order be made restraining the appellees, and all persons claiming to act under their authority or control, from conveying or attempting to convey any of the lands in Grazing District No. 4 in respect of which licenses have been issued to the appellants, and also from taking any action in derogation of the appellants' rights.

The appellees requested the trial court, and in their brief request this court, to take judicial notice of the proceedings in the Interior Department relating to the Harvey application for an exchange. This we may do. Cf. Santa Fé Pac. R. R. v. Payne, 50 App.D.C. 95, 267 F. 653 (1920); United States v. Brewer-Elliott Oil & Gas Co., 249 F. 609 (D.C.W.D.Okl.1918). The only fact thus added is that after an adverse opinion by the Solicitor of the Department in 1932 on the 1929 proposal for exchange, the Secretary of the Interior did not reject the application outright, but suspended action on it to await enabling legislation.

The appellees moved to dismiss the bill upon the grounds that the appellants lacked any interest to maintain the suit in that they had no vested interest in the lands and did not show themselves entitled to a patent; that Harvey had a valid existing right in the lands prior to the Executive Order of 1934, which right was saved from the operation of that order; that in any event the proposed exchange was legally authorized under a proper construction of the Act of 1935 above referred to; and finally, that the appellants had an adequate remedy by a suit at the situs of the land, if a patent were erroneously issued to Harvey. The motion of the appellees was granted by the trial court, and it is from the order granting the motion and dismissing the appellants' bill that the appeal is taken.

The appeal presents the following questions: I. Has a court of equity jurisdiction to protect the claimed rights of the appellants? II. If so, is the proposed transfer a wrongful invasion of those rights, so that equity jurisdiction may be invoked? Thereunder, had Harvey a valid and existing right which was saved from the operation of the Taylor Grazing Act and the Executive Order of 1934; and does the Act of June 25, 1935, authorize the transfer? III. If points I and II are answered in the affirmative, then should a court of equity in the circumstances of the instant case exercise its jurisdiction to protect the appellants? Thereunder, is the Act of June 25, 1935, so doubtful in meaning that the Secretary's discretion is not to be controlled by mandatory injunction; have the appellants an adequate remedy by a suit in New Mexico to impress a trust upon the lands in question after consummation of the proposed exchange; and should the asserted power of the Secretary under the Taylor Grazing Act to reclassify the lands in a grazing district, drop them therefrom, and then effectuate a transfer, prevent the issuance of an injunction if the same is otherwise warranted?


Has a court of equity jurisdiction to protect the claimed rights of the appellants? This question requires first an analysis of the Taylor Grazing Act and a determination of the nature of the appellants' rights thereunder. The pertinent provisions of the Act are as follows:

"Be it enacted . . . That in order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof . . .. Nothing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands . . . .

"Sec. 2. The Secretary of the Interior shall make provision for the protection, administration, regulation, and improvement of such grazing districts as may be created under the authority of the foregoing section, and he shall make such rules and regulations and establish such service, enter into such cooperative agreements, and do any and all things necessary to accomplish the...

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    ...right to do so under the provisions of the Taylor Grazing Act. A reading of the carefully considered opinion in Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308, 309, which was based upon the Taylor Grazing Act, can leave no doubt that the ranchers could exclude intruders even if ......
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    ...water or water rights owned, occupied, or leased by them". 3 Oman v. United States, 10 Cir., 179 F.2d 738. Cf. Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308. 4 Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304, 43 S.Ct. 354, 67 L.Ed. 664. 5 United States v. Miller, ......
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1 books & journal articles
  • Trust principles as a tool for grazing reform: learning from four state cases.
    • United States
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    • March 22, 2003
    ...(2000). (373) GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 786-87 (5th ed. 2002) (citing Red Canyon Sheep Co. v Ickes, 98 F.2d 308 (D.C. Cir 1938), for the proposition that the Taylor Grazing Act was meant to define and prevent interference with gazing (374) 324 F.2d 428 ......

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