Saulque v. U.S.

• Citation: 663 F.2d 968
• Decision Date: 14 December 1981
• Docket Number: No. 80-4078,80-4078
• Parties: Joseph C. SAULQUE, Plaintiff-Appellant, v. UNITED STATES of America and Cecil Andrus, Secretary of the Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 968

663 F.2d 968

Joseph C. SAULQUE, Plaintiff-Appellant, v. UNITED STATES of America and Cecil Andrus, Secretary of the

Interior, Defendants-Appellees.

No. 80-4078.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 1981.

Decided Dec. 14, 1981.

Linda Anisman, Bishop, Cal., for plaintiff-appellant.

James E. White, Asst. U. S. Atty., Fresno, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before SKELTON ^*, Senior Judge, GOODWIN and NORRIS, Circuit Judges.

SKELTON, Senior Judge:

The appellant, Joseph C. Saulque, is a Paiute Indian. He filed an application on September 25, 1972, for an Indian allotment of 160.42 acres with the Bureau of Indian Affairs of the Department of Interior under the General Allotment Act of 1887 (25 U.S.C., §§ 334 and 336, as amended). The California State Director of the Bureau of Land Management issued an initial decision on April 30, 1974, classifying the 160.42 acres as unsuitable as agricultural land for disposal under the General Allotment Act. Saulque appealed from this decision to the Department of Interior on the basis that the lands were well suited for agriculture and submitted evidence in support of his petition-application. The Department then conducted an extensive survey and prepared an official land report on the facts. On December 5, 1975, the State Director's decision was affirmed and appellant's application was again denied by the Secretary of Interior.

Appellant then filed a complaint for declaratory relief pursuant to 28 U.S.C. §§ 2201-2202, in Federal District Court, Eastern District of California, asserting among other things that the Secretary's action was arbitrary and capricious. Both appellant and respondent filed motions for summary judgment, and on December 26, 1979, the court found that the Secretary had properly denied appellant's application and accordingly denied appellant's motion and entered judgment for the respondent. Thereafter, appellant filed this appeal. We affirm.

The government assumes for the purposes of this appeal that the facts stated in appellant's brief are substantially correct. They are generally as follows:

In 1972, while a student in Brigham Young University in Utah, appellant Saulque became aware of several parcels of vacant land located in the Owens Valley, Inyo County, California. Some of these parcels were mentioned in a letter dated April 1, 1913, from the Assistant Commissioner of Indian Affairs of the General Land Office, Department of Interior, to the Register and Receiver, Independence, California, as follows:

Sirs:

March 21, 1913, the Department approved the recommendation of the Second Assistant Commissioner of Indian Affairs to the effect that the land in the E 1/2 NE 1/4, NW 1/4 NE 1/4, N 1/2 NW 1/4, E 1/2 SE 1/4 Sec. 6, T. 8 S., R 33E.; and the N 1/2 NW 1/4, W 1/2 SW 1/4, Sec. 25, S 1/2, S 1/2 N 1/2 Sec. 35, T. 14 S., R. 35 E., MDM., be temporarily suspended from entry, until a further report can be submitted with a view to having an additional executive order issued withdrawing such other land as may be available and needed for the homeless Indians living in Inyo and Mono Counties, California.

You are, therefore, directed to make proper notations thereof on your records.

Very respectfully,

/S/

Assistant Commissioner On March 18, 1972, Mr. Saulque wrote to Robert N. Seitz, Area Realty Officer of the Bureau of Indian Affairs, to inquire about the status of these various parcels of land, including those parcels described in the letter of April 1, 1913. Receiving an incomplete reply, Mr. Saulque again wrote to Mr. Seitz on July 12, 1972. On July 19, 1972, Mr. Saulque received the following reply from Mr. Seitz:

Dear Mr. Saulque:

This is in reply to your letter of July 12 regarding certain lands in Inyo County, described below, which were temporarily withdrawn on March 21, 1913, for use of homeless Indians living in Inyo and Mono Counties:

Lots 3, 4, E 1/2 SE 1/4 section 6, T. 8 S, R. 33 E., M.D.M., California, containing 160.42 acres.

N 1/2 NW 1/4, W 1/2 SW 1/4 section 25, N 1/2 S 1/2, SW 1/4 SW 1/2, SE 1/4 SE 1/4, Section 35, all in T. 14 S., R. 35 E., M.D.M., California, containing 400.00 acres.

The above-described lands, aggregating 560.42 acres, are still in a withdrawn status.

Sincerely yours,

(SGD) Robert N. Seitz

Robert N. Seitz

Area Realty Officer

On September 25, 1972, Saulque applied for an allotment of the following described land:

Lots 3, 4, E 1/2, SE 1/4, Section 6, T. 8 S., R. 33 E., M.D.M., CA, containing 160.42 acres.

After completing his education, he returned to California, and on approximately February 1, 1974, he and his family settled on the applied-for land and began to make improvements, including installing a mobile home trailer and planting a 20' X 20' garden and ten trees.

On May 3, 1974, Saulque's attorney, Edward Forstenzer, wrote to the District Manager of the Bureau of Land Management to inform him that Saulque had settled on the land, and to request that the application be treated as an application for an allotment pursuant to 25 U.S.C. § 336, as well as 25 U.S.C. § 334. Again, on May 9, 1974, his attorney corresponded with the District Manager to clarify the fact that Saulque's application had been amended to include Lots 3 and 4.

The Bureau of Land Management of the Department of Interior made an investigation and survey of the land in question and prepared an official land report containing the facts, which was filed and made available to Saulque and the public in the state office in Bakersfield, California. Based on the facts contained in the report, the State Director issued a decision on April 30, 1974, denying Saulque's petition for the following reasons:

The land cannot be classified as suitable for disposal under the Indian Allotment Act for the following reasons:

1. The land is not suitable for the growing of cultivated crops. Sandy, rocky soils low in organic matter and water-holding capacity, boulders and uneven terrain cut by gullies, and lack of water preclude any reasonable possibility of a farming operation.

2. The anticipated return from agricultural use of the land would not support the residents. The only use which could be made of the land is grazing. This land was rated in a 1969 range survey at 22 acres per A.U.M., which means that 264 acres would be needed to support one cow for one year. This parcel would only support one cow for less than four months per year.

The following petition-application is not approved:

Serial Number: S 5525

Applicant: Joseph C. Saulque

Following the denial of Saulque's application for allotment by the State Director, he pursued his administrative remedies in the Department of Interior. During the administrative proceedings, Saulque presented his affidavit in which he stated that the land was suited for agricultural purposes and was similar to six other tracts in the area With the issues thus joined, the Secretary of the Interior made findings of fact and issued a final decision on December 5, 1975, affirming the decision of the State Director and denying Saulque's application, in pertinent part, as follows:

that had been allotted. He also submitted affidavits of two real estate appraisers and a feasibility study made by them to the effect that the land in question was suitable for agriculture. Saulque also filed a letter to the same effect from the County Director and Farm Advisor for the University of California Extension Service in Inyo and Mono Counties.

The General Allotment Act of February 8, 1887, as amended (25 U.S.C. 334), under which Mr. Saulque's application was filed, provides that allotments may include not to exceed 40 acres of irrigable land, 80 acres of nonirrigable agricultural land, or 160 acres of nonirrigable grazing land. Irrigable lands are those susceptible of successful irrigation at a reasonable cost from any known source of water supply; nonirrigable agricultural lands are those upon which agricultural crops can be profitably raised without irrigation; grazing lands are those which cannot be profitably devoted to any agricultural use other than grazing. Under any of these categories, the lands must be capable of providing the support of a family or, in other words, must constitute an economic family unit.

Our view of the record disclosed that the lands concerned do not fulfill these requirements of the law and regulations. The climate of the area is very arid and agricultural crops cannot be successfully produced without irrigation. Only 10 acres of the lands are both irrigable and cultivable. These lands will not provide an economic family unit as intended by the homestead and Indian allotment laws. In these circumstances, we can find no basis upon which to modify or vacate the State Director's initial decision, and said decision is hereby affirmed. This constitutes the final action of the Department in this matter.

Thereafter, Saulque appealed the Secretary's final denial of his petition by filing a suit for a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 in the District Court for the Eastern District of California. In his suit, Saulque makes the same claims that he made in the administrative proceedings that the land was suitable for agriculture. He also claims that the denial of his application by the Department of Interior was arbitrary, capricious and an abuse of discretion and contrary to the intent and purpose of the General Allotment Act of 1887. Saulque also says that the government should be estopped from denying his application because an agent of the government represented to him that the land was available for settlement by homeless Indians and his detrimental reliance thereon.

The district court made findings and held on the issues of arbitrariness and capriciousness of the agency action and on the suitableness of the land for agriculture, as follows:

The...