US v. Gardner

• Decision Date: 02 October 1995
• Docket Number: No. CV-N-95-328-DWH.,CV-N-95-328-DWH.
• Citation: 903 F. Supp. 1394
• Parties: UNITED STATES of America, Plaintiff, v. Cliff GARDNER and Bertha Gardner, Defendants.
• Court: U.S. District Court — District of Nevada

903 F. Supp. 1394

UNITED STATES of America, Plaintiff, v. Cliff GARDNER and Bertha Gardner, Defendants.

No. CV-N-95-328-DWH.

United States District Court, D. Nevada.

October 2, 1995.

Greg Addington, Assistant U.S. Attorney, Kathryn E. Landreth, U.S. Attorney, Reno, NV, Brian L. Ferrell, Trial Attorney, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for plaintiff.

Glade Hall, Reno, NV, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

HAGEN, District Judge.

Plaintiff has moved (# 7) for summary judgment. The matter has been fully briefed, argued and submitted for decision. The Court urged the parties to come to an accord and has delayed this decision in the hope they would. None having been reached, the matter will now be decided.

Standard on a Motion for Summary Judgment

Summary Judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." F.R.Civ.P. 56(c). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, Zoslaw v. MCA Distr. Corp., 693 F.2d 870, 883 (9th Cir.1982), and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Baker v. Centennial Ins. Co., 970 F.2d 660, 662 (9th Cir.1992). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1306 (9th Cir.1982).

Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the respondent must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

There is no genuine issue of fact for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id., 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). "A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation." British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Moreover, if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than otherwise would be necessary to show there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987).

FINDINGS OF FACT

There is no genuine issue as to the following facts:

1. On February 2, 1848, the land that makes up the State of Nevada was ceded to the United States by Mexico in the Treaty of Guadalupe Hidalgo, 9 Stat. 922.

2. Article V of the Treaty defines the boundary line between the United States and Mexico which defines the territorial expanse of the two republics. Id. at 926-28. The Treaty, in relevant part, resulted in Mexico's cession of lands to the United States. These lands included the present day State of Nevada.

3. Since 1848, the United States has exercised its sovereign and proprietary rights over this property, including the imposition of certain tracts under the general land laws, the transfer of specific lands to the State of Nevada, and the reservation of other tracts for various purposes.

4. For example, in 1891, Congress authorized the President to "set apart and reserve" Forest Reserves from the public domain. 26 Stat. 1103. Beginning in 1906, the President used this authority to establish a number of forest reserves in Nevada. These reserves were soon consolidated into the Humboldt and Toiyabe National Forests.

5. On March 21, 1864, the United States Congress enacted the Nevada Statehood statute which authorized the residents of the Nevada Territory to elect representatives to a convention for the purpose of having Nevada join the Union. Nevada Statehood Act of March 21, 1864, 13 Stat. 30 (1864). Among its provisions, the Act granted certain tracts of United States' public lands to the State when it entered the Union. See, Id., §§ 7-10 (1864).

6. In addition, the Nevada Statehood statute required the convention to adopt an ordinance agreeing and declaring that the inhabitants of the Territory of Nevada "forever disclaim all right and title to the unappropriated public lands lying within said territory...." Id. at § 4.

7. Nevada's Constitutional convention accepted Congress's invitation to become a state and passed the Constitution of the State of Nevada, which includes an ordinance that states in relevant part:

That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.

Ordinance of the Nevada Constitution, reprinted in 1 Nev.Rev.Stat. at 20 (1986).

8. The Nevada Constitution provides that this "ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada." Id.

9. Upon receipt of the State Constitution ratified by the inhabitants of the Nevada Territory and the Ordinance disclaiming all unappropriated public lands in the Territory, the President of the United States, on October 31, 1864, proclaimed that Nevada had been admitted to the Union. See, 13 Stat. 749.

10. The National Forest System is administered by the Forest Service under various statutes. The organic Administration Act of 1897, 30 Stat. 34, 16 U.S.C. § 473 et seq., provides that lands may be reserved as National Forests. That statute further provides that the Secretary of Agriculture may issue rules and regulations concerning the National Forests.

11. In 1906, the Secretary of Agriculture issued regulations requiring that persons desiring to graze stock in the National Forests first secure a permit to do so from the Forest Service.

12. The Granter-Thye Act of 1950, 64 Stat. 82, 88, provides independent authority for the Forest Service to issue permits for grazing on National Forest lands. Section 19 of that statute, 16 U.S.C. § 5801, states:

The Secretary of Agriculture in regulating grazing on the national forests ... is authorized, upon such terms and conditions as he may deem proper, to issue permits for the grazing of livestock for periods not exceeding ten years and renewals thereof: Provided, That nothing herein shall be construed as limiting or restricting any right, title or interest of the United States in any land or resources.

13. In 1976, Congress enacted the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., which requires the preparation of land and resource management plans for each unit of the National Forest System which shall form one integrated plan for such units. 16 U.S.C. § 1604(a), (f)(1). Among other things, NFMA requires that "permits ... for the use and occupation of National Forest System lands shall be consistent with the land management plans." 16 U.S.C. § 1604(i).

14. In addition, Section 402(a) of the Federal Land Policy and Management Act of 1976 ("FLPMA"), 90 Stat. 2743, 43 U.S.C. § 1752(a), provides that, subject to certain exceptions, livestock grazing permits issued for National Forests in the sixteen contiguous Western States shall be for a term of ten years. Section 402(a) further provides that such grazing permits shall be:

subject to such terms and conditions the Secretary concerned deems appropriate and consistent with the governing law, including, but not limited to, the authority of the Secretary concerned to cancel, suspend, or modify a grazing permit or lease, in whole or in part, pursuant to the terms and conditions thereof, or to cancel or suspend a grazing permit or lease for any violation of a grazing regulation or of any term or condition of such grazing permit or lease.

15. The Department of Agriculture's regulations concerning grazing on National Forest System lands are published at 36 C.F.R. Part 222.

16. The regulations caution that grazing permits "convey no right, title or interest held by the United States in any lands or resources." 36 C.F.R. § 222.3(b). The regulations also state that the terms and conditions of a grazing permit can be modified "to conform to current situations brought about by changes in law, regulation, executive order, development or revision of an allotment management plan, or other management needs." 36 C.F.R. § 222.4(a)(7).

17. In addition, the regulations provide, among other things, that the Forest Service may cancel or suspend, in whole or in part, any grazing permits "if the permittee does not comply with provisions and requirements in the grazing permit or the regulations of the Secretary of Agriculture on which the permit is based." 36 C.F.R. § 222.4(a)(4).

18. Grazing without Forest Service authorization on National Forest lands is subject to assessment of an "unauthorized grazing use" fee. 36 C.F.R. § 222.50(h).

19. Forest Service policy specifies that the rate for unauthorized use is based on the full commercial value of leased forage, unadjusted for differential operating costs for grazing National Forest System lands and leased private rangelands. Forest Service Manual at 2238.4. The...