United States v. Thompson

• Decision Date: 30 September 1941
• Docket Number: No. 154.,154.
• Citation: 41 F. Supp. 13
• Parties: UNITED STATES v. THOMPSON.
• Court: U.S. District Court — District of Washington

41 F. Supp. 13

UNITED STATES v. THOMPSON.

No. 154.

District Court, E. D. Washington, N. D.

September 30, 1941.

Lyle Keith, U. S. Atty., and Harvey Erickson, Asst. U. S. Atty., both of Spokane, Wash., for plaintiff.

Herman Howe, of Leavenworth, Wash., for defendant.

SCHWELLENBACH, District Judge.

This is an action brought by the Government to enjoin the defendant and his agents and employees from grazing his horses and cattle upon the lands of the Wenatchee National Forest and, particularly, on the Tumwater Forest camp ground therein. The evidence discloses that the defendant is owner of a small number of cattle which have been and are straying on the United States national forest lands and grazing thereon. There is no evidence of deliberate or intentional driving his stock onto the Government's land. Defendant just simply permits his stock to be loose and they graze upon his land, upon the lands of private owners and upon Government land. The defendant admits the facts and alleges that the defendant is protected by the provisions of the Washington State Statute which provides for the creation by the Boards of County Commissioners of counties within the State of restricted stock areas within which livestock are not permitted to run at large. Remington Revised Statutes of Washington, Sections 3068 to 3070 — 3 inclusive. The evidence discloses that a portion of the land owned by the Government included in the forest area was acquired by deed from the Great Northern Lumber Company dated December 10, 1926. The remainder of the forest area land is unappropriated public land which has never been segregated from the public domain. As to the purchased land, defendant contends that the State of Washington has never ceded nor has the United States accepted jurisdiction. As to the unappropriated public lands, the Enabling Act, Section 4, and paragraph second of the Washington State Constitution, article 26, provides that the people inhabiting the State "do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, * * * and that until the title thereto shall have been extinguished by the United States, same shall be and remain subject to the disposition of the United States."

It is the contention of the defendant that the State law under which, by inference at least, unrestricted grazing of cattle is permissible in those Counties where the restricted areas contemplated in the State Statutes have not been created gives to the defendant the right to graze his cattle upon any unfenced land. He contends that, because the United States has not acquired exclusive jurisdiction over its lands, the Secretary of Agriculture was not entitled to promulgate regulations governing the use of such lands for grazing purposes.

The defendant points out that there are many instances where, for the Federal Government to refuse to recognize the right of the State to protect its citizens by the exercise of its police power, would seriously endanger the health and safety of the citizens of the State.

If this case turned upon the question of exclusive jurisdiction, I would be compelled to accept the logic of the defendant's position. We of the West are more fully cognizant of the necessity of preventing encroachments upon the jurisdiction of our States than are others who live in states where the public domain does not constitute such a large percentage of the total area. As was said by Chief Justice Hughes in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 215, 82 L.Ed. 155, 114 A.L.R. 318:

"As the Solicitor General has pointed out, a transfer of legislative jurisdiction carries with it not only benefits, but obligations, and it may be highly desirable, in the interest both of the national government and of the state, that the latter should not be entirely ousted of its jurisdiction. The possible importance of reserving to the state jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the government expand and large areas within the states are acquired."

Again, in Mason Co. v. Tax Commission of Washington, 302 U.S. 186, 58 S.Ct. 233, 244, 82 L.Ed. 187, Chief Justice Hughes said this: "The mere fact that the Government needs title to property within the boundaries of a State, which may be acquired irrespective of the consent of the State (Kohl v. United States, 91 U.S. 367, 371, 372, 23 L.Ed. 449), does not necessitate the assumption by the Government of the burdens incident to an exclusive jurisdiction. We have frequently said that our system of government is a practical adjustment by which the national authority may be maintained in its full scope without unnecessary loss of local efficiency. In acquiring property, the federal function in view may be performed without disturbing the local administration in matters which may still appropriately pertain to state authority."

The Congress, itself, recognized this fact last year with the adoption of the Act of October 9, 1940, Public No. 825, 76th Congress, 3d Session; U.S.C.A. Title 40, § 255, which reads as follows:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or...