Sellas v. Kirk, 13214.

• Citation: 200 F.2d 217
• Decision Date: 07 January 1953
• Docket Number: No. 13214.,13214.
• Parties: SELLAS v. KIRK.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

200 F.2d 217 (1952)

SELLAS v. KIRK.

No. 13214.

United States Court of Appeals Ninth Circuit.

November 25, 1952.

Rehearing Denied January 7, 1953.

Ernest S. Brown and Clel Georgetta, Reno, Nev., for appellant.

Wm. Amory Underhill, Asst. Atty. Gen., Miles N. Pike, U. S. Atty., Reno, Nev., Roger P. Marquis and John C. Harrington, Attys., Department of Justice, Washington, D. C., for appellee.

Before HEALY, BONE, and POPE, Circuit Judges.

HEALY, Circuit Judge.

Appellant sued to enjoin appellee, range manager of Nevada Grazing District No. 4, from effecting a reduction in the former's permitted grazing on the public lands within the District, and he asked also for declaratory relief. Appellee moved to dismiss for failure of the complaint to state a cause for relief, for lack of jurisdiction in the court over the subject matter, and on the ground that in any event the Secretary of the Interior is an indispensable party defendant. In support of the motion appellee presented an affidavit of the regional chief of the Division of Range Management of the Interior Department and certain other exhibits including an opinion of the Secretary approving appellee's action. Appellant by affidavit supplied correspondence with the Department relating to the controversy. The cause being submitted on this showing, the court granted the motion and directed entry of a judgment of dismissal 101 F.Supp. 237.

The case concerns the administration of the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq., as amended. In summary, this Act authorizes the Secretary of the Interior to establish grazing districts on the public lands, to make provision for the protection, administration, and improvement thereof, and to make such rules and regulations and establish such services as may be necessary to accomplish the purposes of the Act, namely, to preserve the land and its resources from destruction or unnecessary injury, and to provide for the orderly use, improvement, and development of the range. The Secretary is authorized to issue permits to graze livestock to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the public range, preference to be given "to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of lands, water or water rights owned, occupied, or leased by them, * * *."

The facts appearing in the record are these: Nevada Grazing District No. 4 was established by the Secretary in 1936 pursuant to the Taylor Act. During the priority period (defined in the regulations as the 5-year period immediately preceding June 28, 1934, the date of the enactment) appellant had grazed some 2,500 sheep and 200 cattle on the public domain in this area. After 1936 he was granted temporary year-to-year licenses to graze as many as 2,000 sheep and 75 cattle; and in 1943 a 10-year permit to graze that number of livestock was issued to him, this permit being subject to termination in whole or in part at any time under specified circumstances. These privileges were granted during a period when an attempt was being made to work out a proper classification of base properties¹ and before commensurate property surveys for the District had been completed. The 1943 permit was canceled in August 1946 because of developments now to be related.

It is stated in the Secretary's opinion embodied in the record that the District in question is a "transitional area," namely, an area lying between one which requires a land base for livestock operations and one which requires a water base. The Federal Range Code, 43 CFR § 161.4, requires that base properties be classified as land or water. Because of the transitional character of the area it was not possible to establish a satisfactory base for classification of the property in it under the existing regulation. Accordingly in 1944 the Advisory Board of the District (a body of local stockmen elected under authority of the Act by the users of the range) adopted a resolution recommending that, in the determination of the proper use of base properties of applicants and their relative dependence upon the range, owned or controlled dependent land and prior water be recognized as base property, but that total grazing privileges be based on at least a two-thirds land base and not to exceed a one-third water base. Pursuant to the recommendation of the Advisory Board, the Secretary in 1945 promulgated a special rule for the District, which we quote on the margin.² The Federal Range Code, 43 CFR 161.15 specifically authorizes the making of special rules suited to local conditions.

Following the adoption of the special rule all base properties in the District were adjudicated. As regards appellant, it was found that his land base had a demand on the range for 1,990 animal-unit months, and his waters were rated at 4,438 animal-unit months.³ Applying the ratio of two-thirds land and one-third water, appellant's privileges were determined to be 2,985 animal-unit months in Class 1.⁴ At the same time, all operators in the District were required to take a 10% cut in their Class 1 grazing privileges in order that the recognized demand be adjusted to the available range. The net result was that appellant's privileges were reduced to the equivalent of 1,000 sheep and 57 cattle, 87% on the Federal range.

Appellant took an administrative appeal from that adjudication, but later withdrew it. His existing permit having been canceled in consequence of the adjudication, he applied for a permit to graze 2,500 sheep and 200 cattle for the period from July 1, 1947 to June 30, 1948. The application was granted by the range manager to the extent of 1,000 sheep and 57 cattle, only. Appellant protested...