Roaring Springs Associates v. Andrus, Civ. No. 77-330.

• Decision Date: 14 August 1978
• Docket Number: Civ. No. 77-330.
• Citation: 471 F. Supp. 522
• Parties: ROARING SPRINGS ASSOCIATES, a co-partnership, Plaintiff, v. Cecil D. ANDRUS, Secretary of Interior, Curt Berklund, Bureau of Land Management, Director, Murl W. Storms, Bureau of Land Management, Oregon State Director, L. Christian Vosler, Bureau of Land Management, Burns District Manager, Defendants.
• Court: U.S. District Court — District of Oregon

471 F. Supp. 522

ROARING SPRINGS ASSOCIATES, a co-partnership, Plaintiff, v. Cecil D. ANDRUS, Secretary of Interior, Curt Berklund, Bureau of Land Management, Director, Murl W. Storms, Bureau of Land Management, Oregon State Director, L. Christian Vosler, Bureau of Land Management, Burns District Manager, Defendants.

Civ. No. 77-330.

United States District Court, D. Oregon.

August 14, 1978.

William F. Schroeder, Vale, Or., for plaintiff.

Thomas C. Lee, Asst. U. S. Atty., Portland, Or., for defendants.

ORDER

JAMES M. BURNS, District Judge.

I have carefully considered the arguments raised in defendants' Objections to the Findings and Recommendation of the Magistrate. In addition, I had the benefit of oral argument conducted on a conference call basis. At the close of that call, I indicated to counsel I would affirm the Magistrate, for reasons stated at that time. I remain persuaded that those Findings and Recommendation speak clearly and correctly to the issues posed by the briefs for summary judgment. They merit publication as the opinion of the judges for the District of Oregon on the proper interpretation of 16 U.S.C. § 1334, at least in this context.

Mandamus is available. Even if geography and the habit of these wild free-roaming horses dictate that the Secretary of the Interior must go back again to retrieve the animals, that is nevertheless his duty prescribed by the statute. Funds are currently available to carry out the removal. I express no opinion as to the law's requirement if and when these funds run out. The defense of sovereign immunity is unavailable insofar as it is asserted by the United States at this point.

Accordingly, IT IS ORDERED that defendants' motion for summary judgment is denied and plaintiff's motion for summary judgment is granted. Entry of judgment will await the preparation of an appropriate order, first to be prepared by plaintiff's counsel, then reviewed by defendants, and if the parties cannot agree, I will arrange for another hearing or conference call.

FINDINGS AND RECOMMENDATION

GEORGE E. JUBA, United States Magistrate.

Plaintiff owns land in eastern Oregon. The land is unfenced. It is adjacent to land owned by the federal government. Free roaming horses have moved off the federally owned land onto plaintiff's land. Plaintiff has informed the nearest federal marshal and agent of the Secretary of the Interior of the situation and asked that the horses be removed. They have refused to remove the horses. Plaintiff has brought a mandamus action seeking an order compelling the defendants, who are the Secretary of the Interior and three of his agents, to remove the horses from its land. All parties have moved for summary judgment.

Plaintiff has brought this mandamus action pursuant to 28 U.S.C. § 1361. That statute reads in pertinent part:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Relief is appropriate under § 1361 if 1) it appears that the plaintiff's claim is clear and certain and 2) the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Smith v. Grimm, 534 F.2d 1346, 1352 (9th Cir. 1976); United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969); Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970). The major issues in resolving these motions are 1) do defendants owe a clearly prescribed ministerial duty to plaintiff to remove the horses from plaintiff's land and 2) assuming such a duty is owed, is plaintiff's claim barred nonetheless by the doctrine of sovereign immunity.

Is there a duty owed? 16 U.S.C. § 1334 provides in pertinent part:

If wild free-roaming horses or burros stray from public lands onto privately owned land, the owners of such land may inform the nearest Federal marshall or agent of the Secretary, who shall arrange to have the animals removed. . . .

Plaintiff contends that herein lies the duty to remove the horses from its land.

Defendants assert that the horses in question have not strayed onto plaintiff's land and, therefore, they owe no duty to plaintiff under the statute. In support of this contention they point to the Oregon estray laws. ORS 607.007(1) provides:

Estray means livestock of any unknown person which is unlawfully running at large or being permitted to do so, or which is found to be trespassing on land enclosed by an adequate fence.

Defendants contend that the horses are not estrays because the land involved is in open range country (in other words, livestock in this region may roam as they please) and plaintiff has no fence erected around its property.

The Wild Horse and Burro Act, 16 U.S.C. § 1331 et seq., of which 16 U.S.C. § 1334 is a part, contains no definition of "stray". Defendants argument relies on an incorporation of state estray laws into the Act for purposes of defining what is meant by the word "stray" in § 1334.

There is no indication in the legislative history of the Act that Congress intended such an incorporation. Moreover, a reading of § 1334 does not support such an incorporation. First, Congress used the word stray as a verb. The pertinent sentence reads: "If wild free-roaming horses or burros stray from public lands onto privately owned land . . .." The verb stray describes the movement of wild horses from public to private lands. Had the statute used the word stray as a noun, e. g., wild horses who are strays, an incorporation theory would look more viable, for then it would be necessary to define what are strays.

There is also no reason to believe that Congress intended that the treatment of wild horses would vary from state to state, depending on the state estray laws. First, this might head the Act into unnecessary equal protection problems. Second, the Act was primarily intended to protect wild horses and burros and keep them on public lands as a symbol of our national heritage. Since the Act expresses national policy, there is no reason to believe that its enforcement was to vary from state to state.

The defendants next contention is that the Secretary of the Interior has promulgated a regulation, 43 CFR § 4750.3, pursuant to § 1334 which undermines plaintiff's assertion that the Secretary has a duty to remove the wild horses from plaintiff's land. The regulation reads as follows:

The authorized officer shall remove, as soon as he can make the necessary arrangements, wild free-roaming horses and burros, from private land at the request of the landowner where the private land is enclosed in a "legal fence" . . In "no fence districts" or other areas where the private landowner is not required by State statute to fence the private land to protect it from trespass by domestic livestock, the authorized officer shall, as soon as he can make the necessary arrangements, remove wild free-roaming horses or burros from such private land at the request of the landowner.

According to defendants this regulation imposes a duty on the Secretary to remove wild horses from private lands enclosed by a legal fence or from private lands which are unfenced if such lands are in a fence-in area (an area where livestock owners have a duty to fence their livestock in and a private landowner is not required to fence his land in to protect it from trespassing livestock). Defendants, however, insist that they have no duty to remove wild horses where the landowner has not fenced his property, but, under state law, must do so to protect it from trespassing livestock. In other words, defendants contend that in a fence-out or open range area (one where a landowner must fence out trespassing livestock) they must only remove wild horses if the landowner has erected a fence. In the present case the land is in an open range area and the plaintiff has not erected a fence.

I agree with defendants reading of the regulation. The question then is whether the regulation conflicts with the statute. If the regulation is inconsistent with the...