U.S. v. Shenise

• Decision Date: 18 March 1999
• Docket Number: No. 98-7185-M.,98-7185-M.
• Citation: 43 F.Supp.2d 1190
• Parties: UNITED STATES of America, Plaintiff, v. Joseph G. SHENISE, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1190

43 F.Supp.2d 1190

UNITED STATES of America, Plaintiff, v. Joseph G. SHENISE, Defendant.

No. 98-7185-M.

United States District Court, D. Colorado.

March 18, 1999.

Litigant's Attorney, David C. Conley, Gorsuch, Kirgis, LLP, United States District Court, Denver, CO, for Litigant Joseph G. Shenise, defendant.

MEMORANDUM OPINION AND ORDER

COAN, United States Magistrate Judge.

Defendant Joseph G. Shenise was charged with willful grazing trespass on lands under the control of the Bureau of Land Management ("BLM") on two occasions, June 27, 1998 and July 3-4, 1998, in violation of the Taylor Grazing Act, 43 U.S.C. § 315a, and BLM regulations, specifically, 43 C.F.R. § 9264.1(a). See September 21, 1998 Information. Shenise was advised of the charges contained in the Information and possible penalties and waived a formal reading of the Information and further advisement of Constitutional rights on October 14, 1998.

A trial to the court was held on October 14, 1998, October 21, 1998 and December 23, 1998. Assistant United States Attorney Sheilah M. Rogers represented the Bureau of Land Management and Mr Shenise was represented by David C. Conley. Testimony was taken from Keith Berger, Deputy Sheriff Chess, Ranger Jack Hagan, Tony Mule, Merle Blankenship, Robert Clift, Antoinette Shenise, and Joseph Shenise. Counsel stipulated to the admissibility of Exhibits 1 through 37. In addition, government exhibits 38 through 40 were admitted, as was defendant's exhibit A. At the conclusion of the trial, the matter was taken under advisement. The court granted the parties' motion for post trial briefs, which were received February 1, 1999. After careful review of the pleadings, the transcript, and the parties' arguments at trial and as contained in their trial and post trial briefs, the court finds as follows.

I

The Brush Hollow allotment consists of 240 acres of federal public land under the control of the Bureau of Land Management ("BLM"), located in Fremont County, Colorado, just north of County Line Road 123, which is the W1/2, SW1/4, the W1/2, SE1/4, and the S1/2, NW1/4 of Section 24, Township 18 South, Range 69 West of the 6th Principal Meridian, Fremont County. (Exs.14, 29, 35) Just to the west of the allotment is private land, also known as "the base property," owned by Joe Barela. Because he was a private landowner on land adjacent to BLM land, Barela qualified for and held a permit to graze livestock on the Brush Hollow allotment. Bisecting the Brush Hollow allotment and on its northeast and southwest sides are parcels owned by the state of Colorado. Immediately south of Barela's land is another parcel owned by the state of Colorado. (Exs.33a, 34) Shenise has leased all of the Colorado state lands and his horses are permitted to graze on those lands. (Tr. 24¹).

There is a fence along the boundary of Barela's land, except that it deviates west of his property line on the eastern side. (Ex. 34) Although there is some fencing along a portion of the northernmost state parcel of land, there is no fence between the state lands leased by Shenise and the Brush Hollow allotment. (Id.) To fence off at least a portion of the state public lands from the BLM would cost between $8,000 and $10,000. (Tr. 46) There have been some discussions between Shenise and the BLM or the state of Colorado about fencing parts of the leased state public land, including fencing off the entire northeast state parcel, but no agreement was ever reached. (Tr. 62-63; Tr. II, 95-99; Tr. III 73-78) The BLM did not consider paying for a fence (Tr. 56-57, 72, 93-94), and, although the BLM discussed fence proposals with Shenise, it did not agree to provide labor or materials to build the fence. (See, e.g., Tr. III, 150; Ex. 16) At minimum, various fence proposals would result in Shenise losing at least 40 acres of the northernmost part of his state leased land. (Tr. II, 104) In May of 1998, Shenise indicated he was going to build a fence (Tr. II, 105), but medical expenses prevented him from doing so. (Tr. III, 113) Shenise is still not clear about the boundary lines on the BLM land and state land, but has not taken any steps to determine the boundaries. (Tr. III, 119)

In early 1994, Barela was not turning out cattle and not using his permit on the Brush Hollow allotment, so he applied for non-use of his permit, which was approved by the BLM. In accordance with the terms of the non-use permit, Barela would not pay a grazing fee and would not graze livestock on the BLM land. (Tr. 30)

At various times, the BLM explored the possibility of an "exchange of use" permit,² with Barela or his permittee and Shenise, which would allow Shenise to graze his horses on the BLM land without being cited for trespass. (Tr. 33, 66-70; Exs. 12a, 14, 15, Tr. II, 91, 93; Tr. III, 132) If Shenise had agreed to an exchange of use permit, he could have turned out the number of livestock that the state land would support, and there would have been access for his horses also on Barela's property. (Tr. III 132-33) This permit would have allowed both Shenise and Barela to graze their livestock on both the Brush Hollow allotment and state leased lands, so long as the 20 AUM grazing capacity³ of the BLM land was not exceeded. Shenise did not agree to an exchange of use permit (Tr. 38, 52, Ex. 26), because he perceived it as a financial burden. (Tr. III, 28, 86-87) Shenise previously leased Barela's base land adjoining BLM land which also gave him the BLM grazing permit (Tr. II, 111; Tr. III, 9). At some time in 1996, Shenise had asked Barela if he could lease Barela's BLM permit, but was told that it was a non-use permit. (Tr. III, 107) In discussions with BLM representatives, Shenise was told he could not have the Brush Hollow permit because it legally belonged to Barela, as the owner of the base property. (Tr. III, 138-39) In 1998, Shenise did not have a permit to graze his horses on BLM land.

Shenise and his wife Toni Shenise own the horses pictured in Exhibit 36. The state land which Shenise leases is open territory, with a lot of grazing areas, broken up with pinon and juniper trees. (Tr. II, 114; Tr. III, 13) Shenise turns out ten horses on that land. (Tr. II, 117) The adjoining BLM land is more thickly wooded with pinon, has a lot of shale and is not as good for grazing. On the 80 acre eastern BLM parcel, however, there are some big open meadows and parks, suitable for livestock grazing. (Tr. III, 128; Ex. 33-1)

The parties stipulated that any horses seen in the Brush Hollow area on June 27 and July 3-4, 1998 would have been Shenise's. Toni Shenise testified that, in the summertime, the horses stay in the southern portion of the state land because there is too much activity and traffic near the Brush Hollow reservoir (Tr. II, 118-19; Tr. III, 16, 90) Both Shenises said the horses are more likely to be in the southernmost area due to the noise of fireworks on the Fourth of July. (Tr. II, 119; Tr. III, 18, 91) Shenise said he needs to have his horses graze because it would cost him a fortune to feed them if they were penned up. (Tr. III, 121)

Shenise was warned that his horses could not use the BLM public land for grazing on January 28, 1993 (Ex. 4), January 29, 1993 (Ex. 5), and February 20, 1998. (Ex. 14; Tr. III, 111-13) Shenise knew his horses grazing on the BLM would be trespassing (Tr. III, 112), but he testified he was never told to remove his horses from the BLM property. (Tr. III, 71, 108) On a few occasions before the summer of 1998, either Shenise's horses or the manure they left was found on BLM land. (See, e.g., Tr. 102) On two occasions, once in 1997 (Exs.8,9) and again in 1998 (Ex. 12a), Shenise represented that he owned the land where the horses were found on June 27 and July 3-4, 1998.

On June 27, 1998 and just before midnight on July 3, 1998, Ranger Hagan and Deputy Chess observed Shenise's horses grazing in the area west of the Brush Hollow reservoir on BLM land. (Tr. 104, 107-109, 111-113, 138-148, Exs.33(1), 33(2)) Shenise was cited for grazing trespass on June 27, 1998 and July 3-4, 1998. (Exs.17, 18, Information)

II

Shenise is charged with willful violations of the Taylor Grazing Act, § 315a and 43 C.F.R. § 9264.1(a). The pertinent section of the Taylor Grazing Act states:

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 this subchapter 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; and the Secretary of the Interior is authorized to continue the study of erosion and flood control and to perform such work as may be necessary amply to protect and rehabilitate the areas subject to the provisions of this subchapter, through such funds as may be made available for that purpose, and any willful violation of the provisions of this subchapter or of such rules and regulations thereunder after actual notice thereof shall be punishable by a fine of not more than $500.

43 U.S.C. § 315(a) (1998).

The pertinent regulation states:

Persons performing the following prohibited acts on public and other lands under Bureau of Land Management Control may be subject to criminal penalties under § 9264.1(k) of this title:

(a) Allowing livestock or other privately owned or controlled animals to graze on or be driven across those lands without a permit or lease or in violation of the terms and conditions of a permit of lease, either by exceeding the number of livestock authorized, or by allowing livestock to be on these...