United States v. Fraser

• Decision Date: 01 November 1957
• Docket Number: Civ. No. 1804.
• Citation: 156 F. Supp. 144
• Parties: UNITED STATES of America, Plaintiff, v. R. B. FRASER, R. B. Fraser, Inc., a corporation, R. B. Fraser, Jr., Fraser Livestock Co., a corporation, and Charles Fraser, also known as Chas. Fraser, Defendants.
• Court: U.S. District Court — District of Montana

156 F. Supp. 144

UNITED STATES of America, Plaintiff, v. R. B. FRASER, R. B. Fraser, Inc., a corporation, R. B. Fraser, Jr., Fraser Livestock Co., a corporation, and Charles Fraser, also known as Chas. Fraser, Defendants.

Civ. No. 1804.

United States District Court D. Montana, Billings Division.

November 1, 1957.

COPYRIGHT MATERIAL OMITTED

Krest Cyr, U. S. Atty., Butte, Mont., and Dale F. Galles, Asst. U. S. Atty., Billings, Mont., for plaintiff.

Kurth, Conner & Jones, Billings, Mont., for defendant.

JAMESON, District Judge.

This action contains nine counts. In the first five counts plaintiff seeks recovery of a statutory penalty for livestock trespassing upon Indian lands, and in the sixth count a permanent injunction prohibiting the grazing of livestock by defendants upon these lands. In the seventh and eighth counts plaintiff seeks recovery for overstocking lands included in a grazing permit issued by plaintiff to defendant R. B. Fraser, and in the ninth count a balance due under this permit for the year 1954.

First Count

In its first count, plaintiff seeks recovery of a penalty of $1 per head, or a total of $2285, for the trespass of 2285 sheep, upon Indian Trust land of the Crow Indian Reservation on December 31, 1943. This cause of action is asserted under Title 25 U.S.C.A. § 179, which provides:

"§ 179. Driving stock to feed on lands. Every person who drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe, is liable to a penalty of $1 for each animal of such stock. This section shall not apply to Creek lands (R.S. § 2117; Mar. 1, 1901, c. 676 § 37, 31 Stat. 871.)"

Supplementing the statute, the Department of the Interior adopted the following regulation:

"No. 71.21 Trespass. The owner of any livestock grazing in trespass on restricted Indian lands is liable to a penalty of $1 per head for each animal thereof together with the reasonable value of the forage consumed and damages to property injured or destroyed."

"The following acts are prohibited:

"(a) The grazing upon or driving across any restricted Indian lands of any livestock without an approved grazing or crossing permit, except such Indian livestock as may be exempt from permit.

"(b) Allowing livestock not exempt from permit to drift and graze on restricted Indian lands without an approved permit." 25 C.F.R. 1956 Supp. 71.21.

Defendants contend that the action is barred by Title 28 U.S.C.A. § 2462, which reads:

"§ 2462. Time for commencing proceedings. Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon."

Plaintiff argues that this proceeding is not an action for a penalty but one for the recovery of civil damages of a compensatory nature, and that the so-called penalty is in fact liquidated damages. In support of this contention, counsel rely primarily upon Rex Trailer Co. v. United States, 76 S.Ct. 219, 350 U.S. 148, 100 L.Ed. 149; Meeker v. Lehigh Valley Railroad Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644; and United States v. Weaver, 5 Cir., 1953, 207 F.2d 796. In my opinion all of these cases are distinguishable. They involved contractual relations in which the Government was a party. Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 221 for example, involved the purchase of goods from War Assets Administration. In concluding that the recovery was civil in nature, the court recognized that, "The Government has the right to make contracts and hold and dispose of property, and * * * may resort to the same remedies as a private person." It held that liquidated damages are "a well known remedy" and when reasonable are not to be regarded as penalties. The instant case, however, does not involve any lease or other contractual relation, insofar as the first count is concerned, but rather a trespass, without right, upon Indian land held in trust by the Government. The doctrine of liquidated damages accordingly is not applicable.

It may reasonably be inferred also from the regulations that the Department of Interior has construed the recovery of $1 per head as a penalty rather than compensatory damages, in view of the additional provision for recovery of "a reasonable value of the forage consumed and damages to property injured or destroyed." 25 C.F.R. 1956 Supp. 71.21, supra.

Counsel have not cited, nor have I found, any cases which have passed upon the question of whether Title 28 U.S.C. § 2462 is applicable to a cause of action asserted under Title 25 U.S.C.A. § 179. In a long line of cases, however, the courts have consistently treated recovery under Section 179 as a penalty. See for example United States v. Ash Sheep Co., 9 Cir., 1918, 250 F. 591, 592, affirmed 1920, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507, where R.S. 2117 (25 U.S.C.A. § 179) was construed as a "penal statute"; Janus v. United States ex rel. Humphrey, 9 Cir., 1930, 38 F.2d 431, 438, where the court held that the penalty for trespassing under Section 179 may be recovered by either civil or criminal action; Connolly v. United States, 9 Cir., 1945, 149 F.2d 666; United States v. Loving, D.C. N.D.Tex.1888, 34 F. 715.

It is my conclusion that the recovery sought under the first count is a penalty, and that the cause of action asserted under this count is barred by the provisions of Title 28 U.S.C.A. § 2462, supra.

Second, Third, Fourth and Fifth Counts

In the second, third, fourth and fifth counts, plaintiff seeks to recover the penalty prescribed by Title 25 U.S.C.A. § 179, supra, for livestock trespassing on Indian lands in violation of the statute and regulations of the Secretary of the Interior, issued pursuant to authority conferred by Title 5 U.S.C.A. § 22, and Title 25 U.S.C.A. § 466, and found in 25 C.F.R., 1956 Supp., Sec. 71.21, supra (First Count).

Plaintiff concedes a failure of proof with respect to the third count. Under the second count plaintiff proved a trespass of 82 head of cattle on February 13, 1952; under the fourth count, a trespass of 9 horses and 3 mules on July 8, 1955; and under the fifth count, a trespass of 11 head of cattle on July 28, 1955.

Defendants contend that the statute requires a willful or intentional trespass; that to the extent the regulations attempt to make the proof of trespass less onerous, they are unconstitutional; and that the evidence does not justify a finding of willful or intentional trespass. Plaintiff contends that the proof is sufficient to show that defendants allowed their cattle to drift and graze upon the Indian lands in violation of the statute and regulations, and that the continuing nature of the trespasses justifies a finding of willful trespass.

It is well settled (1) that the United States can prohibit absolutely or fix terms on which its property may be used; (2) that Congress has the exclusive right to control and dispose of the public lands of the United States; and (3) that when that right has been exercised with reference to lands within the borders of a state, neither the state nor any of its agencies has any power to interfere. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570; Utah Power & Light Co. v. United States, 243 U.S. 389, 404, 37 S.Ct. 387, 61 L.Ed. 791; Griffin v. United States, 8 Cir., 168 F.2d 457.

The power of Congress to control public lands may be exercised through vesting in the Secretary of the Interior the right to make rules and regulations necessary to effectuate the legislative policy. Regulations of the type here under consideration have long been held a valid exercise of delegated power. United States v. Grimaud, supra. In LaMotte v. United States, 254 U.S. 570, 41 S.Ct. 204, 206, 65 L.Ed. 410, the Supreme Court held valid regulations of the Secretary of the Interior relating to grazing leases by members of an Indian tribe, affirming an injunction against defendants where their failure to conform was "not accidental, but intentional and persistent." Regulations issued by the Secretary of the Interior were upheld also in United States v. Travis, D.C.W.D. Ky.1946, 66 F.Supp. 413, and United States v. Johnston, D.C.S.D.W.Va.1941, 38 F.Supp. 4. See also Fussell v. United States, 5 Cir., 1939, 100 F.2d 995.

Defendants have the burden of showing that regulations are not clearly within the statutory authority. As was said in United States ex rel. Knauff v. Watkins, 2 Cir., 1949, 173 F.2d 599, 603, "Regulations having been duly adopted, the burden is on one who questions them to show their invalidity. Montana Eastern Limited v. United States, 9 Cir., 1938, 95 F.2d 897. And this burden can be carried only by showing as a minimum that the regulations are inconsistent with the underlying statute or are unreasonable or inappropriate. United States v. Morehead, 243 U.S. 607, 37 S.Ct. 458, 61 L.Ed. 926; Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846." Defendants here have not shown that the regulations are unreasonable or inconsistent with the statute, and it is my conclusion that the regulations are valid.

It is true that in most cases involving trespass of livestock on Government land the court has found an element of intent or willfulness (or acts from which willfulness could be inferred) on the part of the owner of the livestock. In Light v. United States, supra, 220 U.S. 523, 31 S.Ct. 488 perhaps the leading case involving trespassing livestock on public domain, the court said:

"Even a private owner would be entitled to protection against wilful trespasses, and statutes providing that damage done by

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