United States v. Travis, 370.

• Decision Date: 19 June 1946
• Docket Number: No. 370.,370.
• Citation: 66 F. Supp. 413
• Parties: UNITED STATES v. TRAVIS.
• Court: U.S. District Court — Western District of Kentucky

66 F. Supp. 413

UNITED STATES v.TRAVIS.

No. 370.

District Court, W. D. Kentucky, at Paducah.

June 19, 1946.

David C. Walls, U. S. Atty., and A. Roy Copeland, Asst. U. S. Atty., both of Louisville, Ky., for plaintiff.

James A. Vinson, of Eddyville, Ky., and C. C. Molloy, of Kuttawa, Ky., for defendant.

SHELBOURNE, District Judge.

The Kentucky Woodlands Wildlife Refuge was created by Executive OrderNumber 7966 dated August 30, 1938, as a Refuge and breeding grounds for birds and wildlife.

The territory presently comprising the Refuge lies partly in Lyon County and partly in Trigg County, and embraces approximately 50,000 acres acquired by the government, according to a stipulation of facts filed in this action, in various amounts and at various dates between June 1935 and November 1944.

The various statutes authorizing the acquisition of the acreage are set out by reference in the stipulation.Defendant does not question the legality of the acquisition.

The portions of the Refuge located in the Counties of Lyon and Trigg are in Magisterial Districts in which it is lawful to permit livestock to run at large.Elections, as provided by Section 259.030 Kentucky Revised Statutes, have been held in each of the Magisterial Districts, and in both elections the majority of votes was cast to permit livestock to run at large.

Defendant, Holloway Travis, a resident of Lyon County, owns a farm in the Magisterial District wherein lies that portion of the Refuge in Lyon County.Defendant resides upon his farm which is partly fenced and partly unenclosed.He permits his livestock to graze upon his lands and the stock, unrestrained by fences, stray onto the lands comprising the Refuge.

The Secretary of the Interior issued regulations for the administration of National Wildlife Refuges, the portions of which pertinent to this action, are:

"Sec. 12.2 Code of Federal Regulations Title 50.Entry upon refuges.Entry upon refuges unless otherwise provided shall be only under appropriate permit issued for the purpose * * *"

"Sec. 12.7.Domestic animals.The ranging of cattle or other domestic stock or the running at large of dogs or cats upon a refuge or the entry of any such animals upon a refuge for any purpose except as specifically authorized under the sections in this part is not permitted."

"Sec. 16.3.Grazing.No cattle, sheep, horses, or other livestock are permitted to graze on the public lands within the exterior boundaries of such game ranges, or refuges, except under permit of the Secretary of the Interior and in accordance with such conditions as he may prescribe therein and no grazing is permitted on lands within the exterior boundaries of such game ranges or refuges, which have been or which hereafter may be acquired by the United States for the use of the Department of Agriculture for the conservation of migratory birds and other wildlife, except under permit of the Secretary of Agriculture and in accordance with such conditions as he may prescribe therein."

This action was filed by the United States demanding an injunction against defendant permitting his stock to graze upon the Refuge.

In the stipulation, it is agreed that at times the defendant has and does permit his livestock to "run outside and at large and said stock of their own volition, did go upon said lands owned by plaintiff * * *"

Defendant contends that the government owns the lands "in a private or proprietary and not a governmental capacity, has no governmental control, jurisdiction or authority thereover, and that no valid, legal and enforcible law or rule making it unlawful for his livestock to go upon said lands was in force and effect * * *."

The government contends that the Regulation is valid and effective to prevent cattle and domestic animals to run at large upon the lands comprising the Refuge.

To grant the demands of the government will, as his counsel has earnestly contended, deny to defendant and other residents and stock raisers near the Refuge a benefit which they have long enjoyed by custom and agreement among themselves.A large section of land, including the Refuge, is enclosed on the North and East by the Cumberland River and on the West by the Tennessee River.With the three sides enclosed by these natural boundaries, by fencing one side only, the owners permit their stock to graze over the entire area, during the portion of the years between the harvesting of crops and the succeeding planting season.This provides a common benefit of great value without disadvantages to any of them.This custom having prevailed for many years, they feel they should not be denied the benefit they derive and assert that the government should be required to protect the Refuge against grazing stock by fencing.

Counsel for defendant has not pointed out any lack of authority in the government to acquire the lands comprising the Refuge.The Migratory Conservation Act, Title 16 U.S.C.A. Sec. 715 et seq. provides the authority.

The General Assembly of Kentucky at its 1942 Session approved the acquisition by the United States of such areas in Kentucky as the Federal Government deemed necessary for the establishment of migratory bird reservations in accordance with the Migratory Bird Conservation Act, and reserved over such areas only such jurisdiction and authority as was compatible with the administration, maintenance, protection and control thereof by the United States under the Federal Act.KRS Sec. 150.270.

Section 715i,Title 16 U.S.C.A., part of the Migratory Bird...