LET'S BE CONSTRUCTIVE ABOUT PUBLIC LANDS

(By James A. Hooper, secretary-treasurer, Utah Wool Growers)

We hesitate to be suspicious, but with the recent heading of an editorial entitled "Lines Drawn for Fresh Public Lands Fight," we must question the sincerity of the various groups and publications which objected to House bill 4023, introduced in the House of Representatives on March 17, 1953.

When the ownership of the child, which was brought to Solomon in Biblical days, was in dispute, one of the women showed no disposition to object to the cutting up of the child. Recent publication makes us wonder if the writers of some articles have no consideration for the disposition and use of the national forests. They offer no constructive legislation, but like the dog in the manger, just object, ever fearful that there may be some added amendments, giving no consideration to those charged with the responsibility of administering the national forests and creating legislation. We would like to see a change in this attitude to one constructive in the interests of the national forests and the users of the same.

STUDY BENSON'S LETTER

The proposed legislation introduced by the chairmen of the committees respon. sible, Hon. George D. Aiken in the Senate and Hon. Clifford R. Hope in the House, with the blessing of President Dwight D. Eisenhower and designated as S. 2548 is the bill which recently drew the heading, Lines Drawn for Fresh Public Lands Fight.

Let us examine the letter of Secretary Ezra Taft Benson, written to the Honorable George D. Aiken, chairman, Committee on Agriculture and Forestry, United States Senate, under date of August 3, 1953.

Secretary Benson wrote "The objective of S. 2548 is to clarify and specify the procedures to be used by the Secretary of Agriculture in administering the grazing resources of the national forests and the title III Bankhead-Jones lands in the 14 Western States."

SPELLS OUT EXEMPTION

"The bill deals with construction of range improvements by permittees; transfer of grazing privileges; base property standards; an economic study to help develop a method for determining grazing fees; boards of appeal with respect to grazing uses; formal hearings and appeals to the courts. The bill also spells out certain exceptions to its provisions, and recognizes the importance of all resources and uses of these lands."

During the last 20 years the free people of the United States have experienced much of their dissatisfaction, as was recorded in the last November election, that they desire to be governed by laws, not by rules, regulations, and directives. The experiences of other nations under this form of government has now been the downfall of every nation. The Secretary of Agriculture now requests legislation as stated above and in line with the experiences of the past.

ENDORSES ACTIVITIES

With regard to the legislation requested we quote from the same letter, "Recent changes in administrative practice now assure permittees the benefits of increasing grazing capacity resulting from their own investments." This is an endorsement of present activities by legislation. A further endorsement of present activities is submitted by the Secretary and endorses the proposed legislation. "The Secretary has authority under existing law to compensate permittees for the loss of improvements." This proposal directs him to provide such compensation. "Issuance of permit to a new permittee where the prior permittee has not been compensated for improvements by either the Government or the new permittee is not now prohibited."

Throughout the entire letter of the Secretary, he reminds those charged with the responsibility of negotiating legislation that the proposed bill puts into legislation what has been proven satisfactory, by administration and we quote again, "Under present regulations the Secretary or his representative specifies the terms and conditions under which the preference may be transferred. Present administrative instructions prohibit reductions at time of transfer solely because of the transfer." Referring to base property, we quote again, "The requirements in section 4 do not differ from present practice."

୮

DIRECTS STUDY OF FEES

The new material directs the Secretary to make a study of present fees. The proposed provisions for appeal and review are but slightly changed. The formal hearings and appeals to the court have drawn the following comment from the Secretary: "Present law does not authorize formal hearings or statutory appeals to the courts. However, courts will grant relief from arbitrary or capricious actions of public officers." Section 11 makes certain exceptions to the bill and we quote: "This section specifically limits the review of decisions of the Secretary with respect to grazing to the manner prescribed in the act. It states that nothing in the act would restrict the authority of the Secretary to limit or discontinue the grazing use of any lands in order to prevent injury to such lands from grazing, or to change the use of any lands, and provides that the formal hearings and appeals procedures of sections 7, 8, and 9 shall not apply to protection adjustments and changes of use."

Section 12 recognizes other uses and we quote again: "This section states a congressional policy that the Secretary shall give consideration to all resources and uses, including grazing, watershed conservation, timber production, recreation, mining, and wildlife."

PREFER ADDITIONS

The bill has not been formally accepted by livestock interests. We would prefer additions to the bill and some changes but we have a desire to be constructive and submit to the Secretary of Agriculture in the closing paragraphs of his letter to Hon. George D. Aiken, chairman, Committee on Agriculture and Forestry, United States Senate:

"The Department has considered carefully the probable effects of S. 2548. It feels that the provisions of the bill would benefit the holders of grazing privileges. It also feels that the bill would not hamper the administration of the national forests or Bankhead-Jones lands; that it would not interfere with the management and protection of the range resources; and that it would give due recognization to the multiple-use objectives of the national forests and importance of all resources and uses on the public lands under the jurisdiction of the Secretary." The Department recommends the enactment of S. 2548.

The Bureau of the Budget advises that there is no objection to the submission of this report.

In the interest of the entire country and in a compromising attitude, let's push the dog out of the manger.

STATEMENT FILED ON BEHALF OF THE SMITH FAMILY OF SALT LAKE CITY, UTAH, BY MILTON V. BECKMAN, ATTORNEY, SALT LAKE CITY, UTAH

The undersigned on behalf of the Smith family of Salt Lake City, Utah, which family operates in the States of Utah and Colorado, presents with your kind permission, a few observations regarding Senate bill 2548 as the same in our opinion affects the whole of the livestock industry.

First we join with others in commending the committee in its having recognized the very unfair and inequitable position the livestock operator has been placed in when he has been charged with violations, and also the fact that the operator has had no recourse to the courts for the protection of valuable property rights. We think, however, that the bill is not far reaching enough to correct abuses and to protect the operator who might be innocent of the charges preferred against him.

We are mindful of the fact that by the bill an appellate court is clothed with jurisdiction to review the proceedings under which the operator has been charged and convicted. Section 10 provides, however, that during the pendency of proceedings instituted pursuant to section 7 or 8, unless specifically ordered by the Secretary or the court the act shall not stay or suspend the application of the decision involved. We see nothing, however, in the bill indicating that the court may issue writs of prohibition, certiorari, or mandamus. Are we to presume that the bill contemplates the issuance of such writs? The bill still presumes the party charged as being guilty of the act charged. This provision has operated in a manner most severe to the operator. We think this unfairness can best be shown by citing actual cases, that of Leland Ray Smith v. U. S. A. and Moroni A. Smith v. U. S. A.

The attention of the honorable committee is directed to the fact that under the present act, which appears to not have been changed by the proposed amendment, for a range manager to charge a violation and put into force and effect, a penalty, all that is required is for the manager to mail a notice in writing by registered mail to the operator setting forth the act complained of and charging the operator with a violation. Generally the penalty is immediately imposed, a hearing, if one is had, follows, the time for such hearing is set by the Department.

The comments and recommendations herein made apply to those cases where a violation is charged and a penalty is imposed only, and not to those cases where a reduction is required because of range depletion of forage, in which latter case the range manager is empowered to make cuts and reallocations as good range management dictates. Of course it is conceivable that a disagreement as to range depletion might exist between the range manager and the operator as has existed in the past.

The Leland Ray Smith case was filed in the Federal District Court of Colorado and predicated on the Tort Claims Act (USCA title 28, sec. 1346) in which action Smith, as plaintiff charged the Government agent with wrongfully and unlawfully and without having afforded plaintiff a legally conducted hearing, or any hearing in which plaintiff's rights were protected, finding, and determining that plaintiff's sheep had committed a willful trespass, as a result of which charge the agents imposed a 10 percent or 110 head reduction against plaintiff's band of sheep. This reduction was imposed and put into operation immediately upon the charge being made by the agent, not after a hearing was had. Plaintiff suffered the loss of his permits from the time the notice charging the violation was mailed by the agent. Smith as plaintiff, further charged that such act on the part of the agent was arbitrary and capricious and contrary to the provisions of section 471, subsection (b), title 16, USCA which law prescribes the penalty for violation in the following language:

"The President, in his discretion, is authorized to establish as national forests or parts thereof, any lands within the boundaries of Government reservations, other than national parks, reservations for phosphate * * *, which in the opinion of the secretary of the department now administering the area and the Secretary of Agriculture are suitable for the production of timber, to be administered by the Secretary of Agriculture under such rules and regulations and in accordance with such general plans as may be jointly approved by the Secretary of Agriculture and the secretary formerly administering the area, for the use and occupation of such lands and for the sale of products therefrom. Any person who shall violate any rule or regulation promulgated under this subdivision shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500 or imprisonment for not more than one year or both." [Italics added.]

Plaintiff further alleged in his complaint that he had exhausted his administrative remedies and his only remedy was recourse to the court. He prayed for restoration of the permits taken from him.

It might be well to here point out the fact that a livestock operator places a value of approximately $10 a head on his permits. They are of that value to the Smiths in their operations.

Upon Smith having filed his complaint reciting the above as facts, the Government moved the court for a dismissal of the complaint, relying upon three grounds as follows:

"1. That said complaint wholly fails to state a claim upon which relief can be granted.

"2. The Court is without jurisdiction of the subject matter of said complaint, or to grant the mandatory relief sought by said complaint.

"3. That said complaint is not maintainable under either the Federal Tort Claims Act or any other Act of Congress."

The Court granted the Government's motion and dismissed the complaint stating its decision in the following language:

"KNOUS, District Judge.

"This Matter is before the Court upon the defendant's motion to dismiss the amended complaint.

"The plaintiff alleges that his cause of action arises under the Tort Claims Act, Title 28, U. S. C. A., sec. 1346. The amended complaint pleads that the plaintiff for many years has enjoyed grazing permits issued by the Secretary of Agriculture which allowed plaintitff to graze 1,100 head of sheep in Routt National Forest in Colorado. It is further recited that on or about January 1950, the defendant made a wrongful and illegal finding to the effect that some of plaintiff's

sheep had trespassed and that thereupon a penalty was imposed reducing the plaintiff's grazing privilege by 10 percent, which thereby allegedly damaged him in the sum of Ten Thousand Dollars.

"The amended complaint further states that this action was taken without affording the plaintiff a proper hearing and was arbitrary and capricious. Exhaustion of administrative remedies is alleged.

"It is prayed that the plaintiff be compensated for his damages and that in addition an order be entered by this court to compel the Government to restore the plaintiff to his former grazing privileges. Thus, two distinct remedies, one for damages and the other for relief in the nature of mandamus, are sought by the plaintiff.

"It appears from the presentations of the parties that in ordering the reduction of the plaintiff's grazing permit complained of, the Forest Service proceeded under the regulations promulgated by the Secretary of Agriculture, set out in Title 36 CFR, part 231, Sec. 231.6, 1949 edition, which authorizes 'the revocation of grazing permits * in whole or in part for a clearly established violation of * ** the regulations on which it is based * **' in conjunction with Title 36 C. F. R., part 261 and particularly Section 261.7 defining and prohibiting trespass attendant to the grazing of livestock.

* *

"In support of its motion to dismiss, the Government contends, inter alia, that being so premised, the conduct of its agents and employees complained of, falls within the purview of Section 2680 (a), Title 28, U. S. C. A., which specifies that the provisions of the Tort Claims Act 'shall not apply to ***

"(a) Any claim based upon an act or omission of an employee of the Government exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.'

"As the preface to his opposition to this contention, the plaintiff cites section 471, Title 16, U. S. C. A., relating to grazing in national forests and providing for the issuance of rules and regulations in respect thereto which recites:

"Any person who shall violate any rule, or regulation promulgated under this subdivision, shall be guilty of a misdemeanor and upon further conviction shall be fined not more than five hundred dollars ($500.00) and imprisoned for not more than one year, or both.'

"Therefrom plaintiff argues that since the Congress has fixed the penalty for the violation of any national forest rule or regulation involving trespass as a fine and imprisonment, the Secretary is without statutory authority to impose a different or additional penalty for trespass or to promulgate a regulation so permitting. Thus, it is said the regulation relied upon by the Government is a nullity and that as a result the acts of the Government employees complained of were rendered actionable under the Tort Claims Act.

"The Court is unable to concur in this conclusion. By enacting the exception to the Tort Claims Act contained in Title 28, U. S. C. A., Sec. 2680 (a) hereinabove quoted, the Congress refused the consent of the United States to be sued for damages which may have been sustained as a result of the action of its agents or employees in the execution of a regulation, whether valid or invalid. Thus, in determining whether a claim is within the jurisdiction of the court under the act, the sole question goes to the cxistence of the regulation and not to its legality or illegality. Accordingly, their existence being unquestioned, the invalidity of the regulations herein involved, even if established, would not remove the ban interposed by Title 28, U. S. C. A., Sec. 2680 (a) supra, and the Court must conclude that it is without jurisdiction to entertain a claim for damages alleged by the plaintiff.

"As viewed by the Court, the decisions in Osborne v. United States 145 F. (2d) 895, and Oman v. United States, 179 F. (2d) 738, strongly relied upon by the plaintiff, seem in no wise helpful to him.

"In Osborne v. United States, supra, the jurisdictional questions herein involved did not attend because the proceeding was not brought under the Tort Claims Act. In Oman v. United States, supra, there was no attempt to revoke grazing permits by the Government employees involved but instead they were charged with an outright tortuous interference with plaintiff's grazing rights extrinsic of any promulgated rule or regulation. In these circumstances, the Court of Appeals held that the District Court of Utah had jurisdiction to proceed under the Tort Claims Act. The distinction between that case and the one at bar is most significantly disclosed by the language of the opinion of Judge

Murrah in Oman v. United States 179 F. (2d) 738, beginning at (1) at page 740, and continuing under such designation on page 741, to which reference is made. "The court is further convinced that it is without jurisdiction to entertain plaintiff's prayer for equitable relief. The opinion in Palmer v. Walsh (78 Fed. Supp. 64) presents a keen analysis of the problems which attend in this connection. Therein, after a most complete exploration of the authorities in this field, it was concluded that no Federal district court, other than for the District of Columbia, has jurisdiction to issue a mandatory writ of the character sought by the complaint herein. The court is convinced that the law, as expounded in the Palmer case, supra, resolves the issues posed by the prayer for equitable relief against the plaintiff (see also, Marshall v. Corty, et al., 1 Cir., 185 F. (2d) 622; Money v. Wallin, et al., 88 F. Supp. 980; McCarthy et al. v. Watt et al., 89 F. Supp. 841; Briener et al. v. Kinskern et al., 90 F. Supp. 9; Fredericks v. Rossell et al., 95 F. Supp. 754).

"It is, therefore, ordered, adjudged, and decreed that the plaintiff's amended complaint and the cause of action therein alleged be, and the same are hereby, dismissed without prejudice.

"Dated at Denver, Colorado, this twenty-third day of November A. D. 1951. "WILLIAM LEE KNOUS, "United States District Judge."

The second case is that of M. A. Smith v. U. S. A., also filed in the United States District Court in and for the State of Colorado. This case was also filed under the Tort Claims Act being predicated upon class 1 preference grazing permits which had been used and enjoyed by M. A. Smith since the year 1931. One of the bands of sheep grazed under said permits was known and designated as Diamond Mountain band consisting of 937 sheep in number, which band grazed an allotment known as South Fork Snake allotment. Smith also had at the time other sheep bands grazing in the same area known and designated as Saddle Mountain and Slater Creek bands consisting of 1,608 head of sheep, which bands grazed on allotment other than that grazed by the Diamond Mountain band.

On January 17, 1953, and while an appeal from a hearing on a willful-trespass charge, not against the Diamond Mountain band but against the Saddle Mountain and Slater Creek bands, was pending, agents of the Government mailed a notice to Mr. Smith charging his Diamond Mountain band of sheep with being in trespass. No hearing was had on this charge from which an appeal could be taken, no witnesses were produced, neither was Mr. Smith afforded an opportunity to defend against such charge, but former Secretary of Agriculture Brannan stated that his attention was informally directed to this charge while he had the case involving the Saddle Mountain and Slater Creek bands before him on appeal, which case was reversed in part by the Secretary. However, without a hearing of any kind, Secretary Brannan imposed a 10-percent cut against Smith's Diamond Mountain band consisting of 94 head. This charge was made against an overlap in grazing the allotment boundary line. Mr. Smith in his complaint charged the Government with having taken property without due process and without just compensation and prayed that writ of certiorari issue out of the court to the Government commanding the Government and its agents to certify and return to the court the proceedings which were had by which Mr. Smith's grazing permits were reduced 10 percent.

The Government filed its motion to dismiss the complaint in this case, as in the Leland Ray Smith case, setting forth as grounds for dismissal substantially those contained in its motion in the Leland Ray Smith case attacking the jurisdiction of the court. The court also granted the Government's motion in the M. A. Smith case, holding that the complaint failed to state a claim upon which relief could be granted and that the complaint was not maintainable under the Federal Tort Claims Act, or any other act of Congress; that the court was without jurisdiction; and that the matters complained of were within the administrative discretion of the Secretary of Agriculture acting pursuant to the regulations promulgated by the Secretary.

The above two cases show the extreme necessity for relief and cite homely examples of the unfair position the livestock operator has found himself in where his property may be taken from him without so much as a hearing, without being confronted with witnesses and without any right of appeal and further without resort to any court to protect such rights or to have the proceedings by which those rights have been taken reviewed. It is un-American in every sense of the word. We feel that it clearly shows the importance of invoking not the circuit court of appeals but a local Federal district court, with juris