Stewart v. Penny

• Decision Date: 26 February 1965
• Docket Number: Civ. No. 1619.
• Citation: 238 F. Supp. 821
• Parties: Charles H. STEWART, Plaintiff, v. Gordon PENNY, individually and as Manager of the Reno, Nevada Land Office, Bureau of Land Management, U. S. Department of Interior and Dante Solari, individually and as District Manager, Bureau of Land Management, U. S. Department of Interior, Defendants.
• Court: U.S. District Court — District of Nevada

238 F. Supp. 821

Charles H. STEWART, Plaintiff, v. Gordon PENNY, individually and as Manager of the Reno, Nevada Land Office, Bureau of Land Management, U. S. Department of Interior and Dante Solari, individually and as District Manager, Bureau of Land Management, U. S. Department of Interior, Defendants.

Civ. No. 1619.

United States District Court D. Nevada.

February 26, 1965.

John Chrislaw, Minden, Nev., for plaintiff.

John W. Bonner, U. S. Atty., Las Vegas, Nev., Merlyn H. Hoyt, Asst. U. S. Atty., Reno, Nev., Thomas L. McKevitt, Dept. of Justice, Washington, D. C., for defendants.

THOMPSON, District Judge.

The inadequacy of our public land laws to afford reasonably workable methods, under present conditions, for the acquisition of public lands by private citizens is a matter of growing national concern. It is of particular concern to the State of Nevada inasmuch as approximately eighty-five per cent of the area of this State (the seventh largest) is still in the public domain. Much of it has a valuable potential for private use. Yet the archaic federal land laws, enacted in an era of an agrarian economy, are ill-suited to an orderly disposition of the lands into private ownership. The laws were enacted with the laudable motive of enabling the penniless pioneer to acquire a home for himself and family primarily through toil and with little capital expenditure. That purpose was long ago achieved and most of the lands of the Western States which had a valuable agricultural potential, even if only marginally so, have been patented to individuals under the beneficent laws to the exclusion of the wealthy who, under a different policy, might have acquired large blocks of public lands by purchase. The inapplicability of this policy to modern conditions has, during the past quarter-century, accomplished a virtual deep-freeze of public lands in federal ownership. True, some small progress has been made under the Small Tract Act, laudable for its effort to dispose of public lands, but questionable insofar as it has clung to the concept of "proving up" the entry by requiring construction of minimum improvements, a policy which has resulted in shanty town like development of many areas opened to small tract entry.

The inertia of Congress in modernizing the public land laws has been a disservice not only to the public but also to the officials of the Bureau of Land Management who have been faced with the problem of applying archaic laws to present day problems of public land disposition. This is such a case.

On November 23, 1953, Charles E. Stewart, of Gardnerville, Nevada, filed an application for homestead entry upon the E½W½, Sec. 18, T. 19 N., R. 20 E. (160 acres) with the Reno Land Office of the Bureau of Land Management. A land status investigation determined that the SE¼SW¼ had theretofore been withdrawn as a highway material deposit site, and this portion, by amendment, was excepted from the application, reducing it to 120 acres. The remainder was included in a Taylor Grazing District, so the Land Office, acting pursuant to Part 296 of the Code of Federal Regulations, undertook to determine whether the land could properly be reclassified for homestead entry. On March 14, 1955, the Land Office made its decision, allowing the entry, and finding: "A field examination has been made and it has been determined that the land is more valuable and suitable for homestead entry than for the protection (sic) of native grasses and forage plants and accordingly the land is opened to entry." A specific condition of the entry was "Submission to the Manager, Land Office, Reno, Nevada, within 30 days of receipt of this notice, evidence of filing of a water permit application with the State Engineer, Carson City, Nevada, for the lands allowed. Failure to submit such evidence will subject this allowance to cancellation." Stewart complied with the condition.

Stewart thereupon took possession of the 120 acres, built a house, dug a well, developed the spring, built a small reservoir, cleared and cultivated land, and made other improvements. On January 14, 1959, Stewart filed his "Homestead Entry Final Proof", alleging that he had cleared and cultivated 15 acres in 1956-1957 and 5 acres more (20 acres total) in 1958, on which he had raised potatoes, sweet potatoes, onions and peanuts, and that he had constructed improvements at a cost of $3,970. Land examiners of the Bureau of Land Management examined the land and made an adverse recommendation which resulted in the initiation of a government contest to the application for patent. 43 CFR, Part 222. The contest complaint alleged:

"That the cited regulations require that `during the second year not less than one-sixteenth of the area entered must be actually cultivated, and during the third year and until final proof, cultivation of not less than one-eighth must be had;' and that for homestead entries on lands which are desert in character, there must be an available developed water supply sufficient to irrigate the acreage required to meet the cultivation requirement of the homestead laws.

"That the designated Contestee has not cultivated the required one-eighth of his entry, nor has he developed sufficient water to irrigate the required acreage of his HOMESTEAD ENTRY, Nevada 016595."

Stewart denied the charges and an administrative hearing was held April 5, 1960 before Hearing Examiner John R. Rampton, Jr.

At the outset of the hearing, Stewart moved that all charges relative to the insufficiency of water be dismissed upon the ground that the general Homestead Act, under which the entry was made, as distinguished from the Desert Land Act, required no proof of water, an issue which had been determined by the classification order of March 14, 1955. Decision on the motion was reserved and the hearing proceeded.

The Decision of the Examiner was filed August 11, 1960, and the adverse proceedings were dismissed. The examiner held (1) under 43 U.S.C. § 164, and 43 C.F.R., Part 166, governing homestead entries, no proof of water is required and this issue was foreclosed under the classification order of March 14, 1955, although the order may have been improvidently entered; and (2) the government had the burden of proof and it had not proved its charge that less than one-eighth of the entry (15 acres) had been cultivated by Stewart as required by the homestead laws and regulations. The government appealed the decision of the Hearing Examiner to the Director of the Bureau of Land Management. C.F.R. 222.13, 222.47, et seq.

On April 11, 1961, the Director reversed the decision of the Examiner.¹

Now it was Stewart's turn to appeal, and he did so to the Secretary of the Interior. CFR 221.73, et seq. On September 25, 1962, the Assistant Solicitor, acting for the Secretary, affirmed the Director's Decision upon different grounds.²

The Secretary's decision is based upon an extensive analysis of the testimony and exhibits concerning the area cultivated by Stewart from 1956 to 1959.

Thereafter, Stewart filed this action for review of the administrative proceedings and final agency action. 5 U.S.C. § 1009.

PARTIES

This action seeks review of a final decision by the Secretary of the Interior and prays for a reversal of his decision dated September 25, 1962 and of the Director's decision dated April 11, 1961. It also seeks to enjoin the named defendants from carrying out a threatened eviction of Stewart from the premises embraced within the homestead entry upon the grounds that the decision of the Secretary is against the law and the evidence. The only named defendants are Gordon Penny, described as Manager of the Reno, Nevada Land Office, Bureau of Land Management, United States Department of Interior, and Dante Solari, described as District Manager, Bureau of Land Management, United States Department of Interior.

In their Answer, the defendants alleged that the Secretary of the Interior is an indispensable party defendant. This is theoretically true, inasmuch as it is his final action which is being reviewed. This Court, nevertheless, clearly has jurisdiction to restrain threatened illegal action by subordinate officials of the Bureau of Land Management, the propriety of which rests upon the Secretary's decision. Adams v. Witmer (9 CCA 1958), 271 F.2d 29.

Under 28 U.S.C. § 1391(e), the Secretary might have been named a defendant in this action. In their pretrial memoranda, neither party referred to a defect of parties as an issue of law remaining in the case. Defendants have been represented throughout this case by the special attorneys in the Lands Division of the Department of Justice in the same manner as if the Secretary of the Interior had been a named defendant. The briefs to this Court have not mentioned a defect of parties. We conclude that any defense of defect of parties has been waived and this Court has jurisdiction to review the administrative proceedings and final agency action. To hold otherwise would be to substitute form for substance.

SCOPE OF REVIEW

The Government has filed an excellent brief in which it argues, in part, that the decision of the Secretary finding non-compliance with the statutory requirements for valid homestead entry is conclusive and binding upon the courts,³ citing Boesche v. Udall, 1963, 373 U.S. 472, 83 S.Ct. 1373, 10 L.Ed.2d 491; Best v. Humboldt Mining Co., 1963, 371 U.S. 334, 83 S.Ct. 379, 9 L. Ed.2d 350; Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659. We recognize the peculiar and specialized knowledge of the officials of the Department of the Interior respecting the interpretation of the multifarious laws and regulations relating to public lands, and that Congress has entrusted the guardianship of the public domain to the Department of the Interior. We have relied upon that knowledge and expertise in reaching our conclusions. We cannot, however, accept without limitation a contention that a high administrative...