Sellas v. Kirk, 905.
| Decision Date | 05 November 1951 |
| Docket Number | No. 905.,905. |
| Citation | 101 F. Supp. 237 |
| Parties | SELLAS v. KIRK et al. |
| Court | U.S. District Court — District of Nevada |
Ernest S. Brown, Clel Georgetta, Reno, Nev., for plaintiff.
Miles N. Pike, U. S. Atty., Reno, Nev., and Bruce R. Thompson, Asst. U. S. Atty., Reno, Nev., for defendant.
The complaint alleges that plaintiff applied for a permit to graze 2500 sheep and 200 head of cattle on Federal Range within Nevada Grazing District No. 4, Ely, Nevada, from July 1, 1947, to June 30, 1948. Plaintiff's application was granted in part only, that is, he was given a permit to graze 1,000 sheep and 57 cattle instead of 2500 sheep and 200 cattle. It is plaintiff's contention that such action was arbitrary, capricious and an abuse of discretion and in excess of statutory authority; and in support of such contention he alleges that the "Range Manager" failed and refused to give the proper consideration and allowance for plaintiff's prior water and water rights as base property in computing the quantity of his legal grazing privileges; and contrary to law did arbitrarily, capriciously and in abuse of discretion, adopt a formula whereby the plaintiff was allowed credit for his prior water and prior water rights only to the extent of one-third of his total operating capacity, whereas in truth and in fact the base property upon which the operation of plaintiff's livestock business is computed under the aforesaid grazing statute is dependent almost entirely upon prior water and prior water rights. He prays that the Range Manager be restrained from reducing his herds on said public domain to 1,000 sheep and 57 cattle, and for declaratory judgment; that the Range Manager be required to consider plaintiff's prior water and prior water rights together with his land base in determining the base property of plaintiff, thus entitling plaintiff the privilege of grazing on said public lands the total of 2500 sheep and 200 head of cattle.
The defendant Jesse Kirk, as Range Manager, moves the Court to dismiss plaintiff's complaint. In support of his motion the defendant urges: (1) That plaintiff has no right to judicial review because under the Administrative Procedure Act, 5 U.S. C.A. § 1009, there may be no judicial review of activities committed to agency discretion; and (2) the Government contends that the Secretary of the Interior is an indispensable party.
The affidavit of E. R. Greenslet, Regional Chief, Division of Range Management, Bureau of Land Management, Department of Interior, was, on the hearing of defendant's motion, accepted in evidence in support thereof. From that affidavit it appears that administrative hearings were had and that plaintiff was given opportunities to present his views. It may be said that plaintiff has exhausted his administrative remedies.
The gravamen of plaintiff's complaint is the adoption and application of the formula, that formula being the subject matter of a resolution of the Advisory Board of the district. The resolution is as follows:
Nevada Grazing District No. 4 in the vicinity of Ely, White Pine County, Nevada, is characterized in the decision of the Department of the Interior, dated June 15, 1950, as a "transitional area, that is an area lying between one which requires a land base for livestock operations and one which requires a water base for such operations"; said decision being attached to and made a part of the above mentioned affidavit of E. R. Greenslet.
It appears that such resolution on February 21, 1945, was in substance adopted as a special rule for Nevada Grazing District No. 4 (defendant's Ex. #2) pursuant to authority vested in the Secretary of the Interior by statute, 43 U.S.C.A. § 315 et seq., and in accordance with the provisions of 43 C.F.R. § 161.15. Sec. 315a, 43 U.S.C. A., provides: "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 section 315 of this title, 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 purposes of sections 315-315m, 315n, 315o and 315o-1 of this title and to insure the objects of such grazing districts, namely, to regulate their occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly use, improvement, and development of the range; * * *."
Pursuant to the authority granted to him by 43 U.S.C.A. § 315a, the Secretary of the Interior promulgated regulations, "The Federal Range Code for Grazing Districts," and of such regulations the following are pertinent here:
This is not a case where an application for a permit has...
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Hall v. Hickel
...U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148. A more ancient precedent in this Court is Sellas v. Kirk, 9th Cir. 1953, 200 F.2d 217, affirming 101 F.Supp. 237 in which both the district court and the court of appeals held that a rule established by the Secretary concerning classification of base p......
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Sellas v. Kirk, 13214.
...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 ......