Richman v. Beck, 5810.

• Decision Date: 18 June 1958
• Docket Number: No. 5810.,5810.
• Citation: 257 F.2d 575
• Parties: Val B. RICHMAN and J. Kent Giles, Appellants, v. Kenneth J. BECK, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

257 F.2d 575 (1958)

Val B. RICHMAN and J. Kent Giles, Appellants, v. Kenneth J. BECK, Appellee.

No. 5810.

United States Court of Appeals Tenth Circuit.

June 18, 1958.

Harold S. Harrison, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Llewellyn O. Thomas, Asst. U. S. Atty., Salt Lake City, Utah, and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellants.

Milton A. Oman, Salt Lake City, Utah (Oman & Saperstein, Salt Lake City, Utah, were with him on the brief), for appellees.

Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.

PHILLIPS, Circuit Judge.

Beck brought this action against Richman, State Supervisor for Utah of the Bureau of Land Management, and Giles, Range Manager of Utah Grazing District No. 2,¹ seeking a declarative adjudication that Beck had the right to trail sheep across public lands in District No. 2, a mandatory injunction commanding the issuance by Richman and Giles and by their successors in office to Beck of permits or licenses "for the grazing or crossing of said public lands" and a mandatory injunction commanding Richman and Giles and their successors in office thereafter to continue to extend and issue such permits or licenses to Beck, upon proper application therefor.

Beck is engaged in the sheep raising business. In the course of his year-long operation he lambs his sheep on his range in the foothills of the Wasatch Mountains in Central Utah. He then moves his sheep to his summer range, lying to the east, for grazing purposes during the summer months. At the end of the summer season, he returns his sheep to his lambing range and then drives, or trails, his sheep from such range through District No. 2 to his winter range within Nevada Grazing District No. 4,² in the State of Nevada, adjacent to the Utah-Nevada state line. At the conclusion of the winter grazing on the Nevada range, Beck drives, or trails, his sheep through District No. 2 to his lambing range along the same route he uses in the fall to trail his sheep to the Nevada range. He thus concludes his year-long operation.

For the years since 1935, Beck has qualified for winter grazing under the provisions of the Taylor Grazing Act³ and has been issued permits annually by the Bureau of Land Management authorizing such winter grazing in District No. 4, during the period from November 1 to April 30.

The trail used by Beck is 1 to 2 miles wide and 180 miles in length. It takes him approximately 30 days to trail his sheep across District No. 2. Unless Beck is accorded the right to trail his sheep across District No. 2 before November 1 and after April 30, respectively, he will be deprived of approximately 60 days' use of his Nevada range, that being the time required for the two trailing operations. However, sheep being trailed also graze along the trail and, should Beck be permitted to trail his sheep, before the opening date and after the closing date for grazing, through District No. 2 detriment would result to grazing permittees in such District whose right to graze is limited to November 1 to May 1.

Authority to issue and renew permits and licenses, including crossing and trailing permits or licenses in District No. 2, has been delegated by the Secretary of the Interior to Richman and Giles, as State Supervisor and Range Manager, respectively, and they had such authority at all times here material.

Section 18 of the Taylor Grazing Act⁴ provides in part:

"In order that the Secretary of the Interior may have the benefit of the fullest information and advice concerning physical, economic, and other local conditions in the several grazing districts, there shall be an advisory board of local stockmen in each such district, the members of which shall be known as grazing district advisers. * * *

"(b) Each district advisory board shall meet at least once annually at a time to be fixed by the Secretary of the Interior, or by such other officer to whom the Secretary may delegate the function of issuing grazing permits, and at such other times as its members may be called by such officer. Each board shall offer advice and make a recommendation on each application for such a grazing permit within its district: * * * Each board shall further offer advice or make recommendations concerning rules and regulations for the administration of this chapter, the establishment of grazing districts and the modification of the boundaries thereof, the seasons of use and carrying capacity of the range, and any other matters affecting the administration of this chapter within the district. * * *"

In 1939 the Advisory Board for District No. 2, established pursuant to § 18, supra, recommended that November 1 be fixed as the opening date and that May 1 be fixed as the closing date for grazing in District No. 2. In 1942 such Advisory Board recommended that the opening date be fixed as November 1 and that it should apply to trail herds, as well as grazing herds. Such recommendations were approved by R. D. Nielson, the District Grazier. At that time the Range Manager was designated as District Grazier.

Prior to 1956, a trail had been established in District No. 2 for use by raisers of livestock to trail their herds from Nevada to summer ranges in the Wasatch Mountains of Utah and back to Nevada.

Prior to 1956, Beck had apparently used the established trail and trailed his herds between the opening and closing dates fixed for District No. 2.

On September 24, 1956, Beck made an application for a license, or trailing permit, to cross District No. 2 with 2,725 sheep, between October 10 and October 31, 1956. On September 28, 1956, the Advisory Board recommended that such application for the dates requested be denied, but that if it should be amended "to conform with the dates and usual rules of trailing" it should be "approved for trailing not sooner than November 1st." On October 5, 1956, Giles denied such application.

Beck filed his appeal from such denial in accordance with the provisions of § 161.10, Title 43, C.F.R., in effect in the year 1956. Such appeal had not been disposed of on March 8, 1957.

In October, 1956, agents of the Bureau of Land Management intercepted Beck's sheep while they were being trailed across District No. 2, en route to Beck's Nevada range. On October 6, 1956, while the sheep were on the trail, Beck was served with a notice of trespass for having commenced trailing in District No. 2 prior to November 1 and was requested to pay a fine for such trespass. Beck denied that his sheep were trespassing, refused to pay the fine, and on December 18, 1956, commenced the instant action.

Counsel for Richman and Giles challenged the jurisdiction of the trial court on the ground that the action was a suit against the United States, which had not consented to be sued, and that the Secretary of the Interior was an indispensable party defendant.

The trial court entered a judgment adjudging that Beck was entitled as a matter of right "to trail his livestock across the public lands involved herein between his privately owned or controlled ranges and the public ranges upon which he holds grazing permits or licenses at any and all times in connection with the conduct of his livestock business to improve or protect the condition of his livestock, or to otherwise efficiently manage them; * * *" and enjoining Richman and Giles from further withholding from Beck "any grazing license or permit for the crossing by plaintiff Beck with his livestock of the public lands within Utah Grazing District No. 2 for the purpose of arriving upon plaintiff's Beck's grazing area in Nevada Grazing District No. 4 on or after November 1 of each year, or for the purpose of returning to plaintiff's Beck's owned ranges in Utah either before or after April 30 each spring."

Section 1 of the Taylor Grazing Act, 43 U.S.C.A. § 315 in part provides:

"In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is

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