Before Mr. Justice BURTON, retired,* and WILBUR K. MILLER and DANAHER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Petition for Rehearing Denied September 22, 1960. 1960.CDC.93
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
This case involves appellant's claim that he has wrongfully been denied rights accruing to him under the Taylor Grazing Act *fn1 and the Federal Range Code. *fn2 The Secretary on June 19, 1956 promulgated a Special Rule *fn3 the effect of which was to reduce appellant's claimed preferential grazing privileges on the federal range and to permit grazing by other users allegedly not entitled to grazing preferences. Cross motions for summary judgment were considered by the District Court where judgment was entered for the Secretary and appellant's complaint was dismissed. Basically this appeal presents only an issue as to the validity of the Special Rule.
The Secretary's motion in the District Court, in part, asked judgment on the ground that "The United States, a sovereign not amenable to suit, is an indispensable party defendant." The point was not pressed as the District Judge noted, and properly, we think. *fn4 Here the Secretary was named and appeared, *fn5 and we have held that rights acquired under the Taylor Grazing Act may be protected against unlawful action by the Secretary. *fn6 We think the case is properly here.
The Secretary established Montana Grazing District No. 1 on July 11, 1935, as by section 1 of the Act he was authorized to do after notice and hearing. *fn7 He issued the Federal Range Code pursuant to section 2 of the Act which "seeks to provide the most beneficial use of the public range and to protect grazing rights in the districts it creates. Chournos v. United States, 193 F.2d 321." *fn8 (Emphasis added.) The Act in section 3 provided that the Secretary is authorized to issue grazing permits "to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range . . .. Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of lands, water or water rights owned, occupied, or leased by them . . .." *fn9 This appellant qualified for the "preference" specified in the Act, for he had been continuously engaged in the livestock business in the area in question since 1925 and was so engaged over the five years prior to the date the Act was passed.
Moreover, section 3 proceeds, grazing permits were to run for a period of ten years, "subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior, who shall specify from time to time numbers of stock and seasons of use." The same section recognized that a grazing unit without a grazing permit might suffer loss of value.
We have heretofore noted, as does the statute, that those qualifying under the Act definitely acquired "rights," although we did not define them by category. "Yet, whether they be called rights, privileges, or bare licenses, or by whatever name, while they exist they are something of real value . . . which have their source in an enactment of the Congress." *fn10 (Emphasis added.)
We were not alone in recognizing in the Red Canyon case that the Act conferred rights upon a permittee who came within its terms. In the Tenth Circuit whose judges are thoroughly familiar with the problems of the range, it has been observed that the Secretary has "not merely a duty to refrain from the invasion of [permittees'] grazing privileges, but an affirmative obligation to adequately safeguard them." *fn11
It is reasonable to conclude that the Secretary himself took a similar view of his duty. The Range Code issued agreeably to the statute, provided specifically that "Preference in the granting of grazing privileges will be given to those applicant within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights * * owned, occupied, or leased by them." *fn12 The Range Code defined "Base property," "Forage land" and "Land dependent by use." *fn13
The latter is said to be forage land of "such character that the conduct of an economic livestock operation requires the use of the Federal range in connection with it and which, in the 5-year period immediately preceding June 28, 1934 (referred to in this part as the 'priority period'), was used as a part of an established, permanent, and continuing livestock operation for any two consecutive years or for any three years in connection with substantially the same part of the public domain, now part of the Federal range . . .." *fn14
It is clear that a permittee as against the United States may acquire no "right, title, interest, or estate in or to the lands" (emphasis added) as section 3 provides, *fn15 and the Government for its own use may without payment of compensation withdraw the permit privilege. *fn16 Otherwise, consistently with the purposes and provisions of the Act, "grazing privileges recognized and acknowledged shall be adequately safeguarded." *fn17 It would seem beyond peradventure that when the Secretary in 1935 created Montana Grazing District No. 1 which included lands upon which this appellant then was grazing, he and others similarly situated "who have been grazing their livestock upon these lands and who bring themselves within a preferred class set up by the statute and regulations, are entitled as of right to permits as against others who do not possess the same facilities for economic and beneficial use of the range." *fn18
What particular number of stock a preference applicant might be entitled to graze must depend upon circumstances, having in mind the orderly use of the public lands, the possibility of overgrazing, the forage capacity of the base property, available water and other factors pertinent to such a complicated administrative problem. *fn19 Subject to such considerations and ...