Burke v. South Phillips County Co-operative State Grazing District

339 P.2d 491, 135 Mont. 209, 1959 Mont. LEXIS 38

• Court: Montana Supreme Court
• Decided: June 1, 1959
• Docket: No. 9773
• Status: Published

Opinions

MR. JUSTICE CASTLES:

This appeal is taken from a district court order dismissing an appeal to that court from a decision of the Montana Grass Conservation Commission. The appeal to the district court was submitted on tbe record made at the hearing before the Commission.

The respondent is the South Phillips County Cooperative State Grazing District, an incorporated state grazing district under section 46-2301 et seq., R.C.M. 1947, and will be referred to as the “District.” The status under our statutes of such districts was discussed by this court in Langen v. Badlands Co-op. State Grazing District, 125 Mont. 302, 234 Pac. (2d) 467, and need not be repeated here. See also R.C.M. 1947, sections 46-2301, 46-2307; 43 C.F.R. The district here involved administers federally owned land through cooperative agreement with the Department of Interior.

The appellant, Don Burke, is a member of the District and a grazing permittee, due to his purchase in May 1950, of a portion of ranch locally known as the Carnahan ranch. Originally the Carnahan ranch was a large spread with grazing rights for 320 animal units, but prior to Burke’s purchase, part of the ranch had been sold and the portion sold was determined to have 223 animal units. Burke claims that the difference between 320 and 223, i. e., 97, is the number of animal units to which he is entitled and that the District and Commission have deprived him of a part of these rights.

The following sketch of 1714 square miles will give a graphic picture of the land involved. The area shown as Area “A” consisting of 320 acres was the base property of the Carnahan ranch when purchased by Burke in May of 1950. Section 36, immediately to the north of Area “A” is state land leased by the Carnahan ranch, and found to be controlled sufficiently to be commensurate property. R.C.M. 1947, section 46-2320. Areas “B” and “C” are county range lands purchased by Burke subsequent to 1950. Area “B” of this county range land was fenced by Burke and broken up for cultivation. The balance of the sketched lands are range lands controlled by the District and included in the boundary of Burke’s allotment.

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Prior to Burke’s purchase of his portion of the Carnahan ranch, although he denied it, the record confirms that Burke inquired of certain officers of the District as to what preference rights went with the portion of the Carnahan ranch he was about to purchase. He was informed that a survey would have to be made to determine what rights would go with his base commensurate property. In April of 1950, which would be at about the time Burke was negotiating for the property, one Glenn Mueller, a Forest Service official, made this range survey and as a result the Carnahan ranch preference right was established at 14 animal units.

The 14 animal unit preference was later raised to 43 when it was discovered that section 36, the state land lease, could be considered as controlled by Burke and as commensurate base property. The record is quite clear that Burke knew before his purchase of the Carnahan ranch of this situation, either as to the exact number of preference rights or at the very least that they were established at a number less than the arithmetic 97 head balance he now claims. There is evidence that the Carnahan ranch had deteriorated prior to 1950 so a reduction in preference rights would be proper. Section 161.6, subd. (e) (7), 43 C.F.R. (Federal Range Code).

Also the record reveals that Burke was granted permits, preference plus temporary for a total of 100 head in 1950, 100 head in 1951,100 head in 1952, and 70 head in 1953. During this time his preference rights were established at 43 head. Burke was apparently satisfied with the arrangement when he made his purchase and afterward he entered into a written fencing agreement based on a 43 animal unit preference but later refused to go through with it.

Finally, on November 22, 1953, Burke applied to the District for his 1954 grazing permit. He applied to graze 125 head. On March 8, 1954, the District granted to Burke a permit for 92 animal units, 43 Class One preference and 49 temporary. On April 15, 1954, the District set the boundaries of Burke’s allotment of range land. On April 27, 1954, Burke filed his notice of appeal to the State Grass Conservation Commission.

In the notice of appeal, appellant stated as grounds for the appeal that he owned and controlled commensurate property; that the carrying capacity of the range exceeded the reasonable needs of the members owning or controlling dependent commensurate property; that his predecessors in interest had used the range applied for in each of the five years immediately preceding June 28, 1934, and that he is entitled to issuance to himself of grazing permits in preference to others in the district who did not qualify by ownership of commensurate property and by prior use in the five years immediately pTior to June 28, 1934; that he was deprived by the action of the District of the full use and benefit of his permanent preference rights; that the District’s action in establishing boundaries of his grazing allotment deprived him of the benefit of a stock-water resorvoir for which he had helped pay; and that the range allotted him was insufficient.

On the appeal above noted, a hearing was held before the Grass Conservation Commission. The Commission made findings of fact and conclusions and rendered its decision. It found that other users in the vicinity, Harris, Humenik and Orohood, were the possessors of dependent commensurate property; that the District properly deducted the carrying capacity of appellant’s privately controlled self-furnished range from his preference demand in the district range; and that the District acted properly in establishing Burke’s preference rating at 43 animal units. The action of the District was confirmed and the appeal dismissed.

Burke then appealed to the district court. The matter was submitted to the district court on the record made before the Commission. The district court affirmed the Commission’s decision and dismissed the appeal. It is from that order that this appeal is taken.

The appellant urges seven specifications of error which can be set forth in two questions:

1. Did the District act within the law when it established the appellant’s preference grazing rights at 43 animal units?

2. Did the District properly classify lands (Area “B” on the map) as self-furnished grazing land even though cultivated and not used as grazing lands?

Throughout his brief, appellant argues that he had an established preference rating of 97 animal units which were appurtenant to the property which he bought. This assumption the appellant arrived at as follows: The main part of the old Carnahan ranch was sold prior to the appellant’s purchase of the remainder to the Town Brothers. Minutes of the District on May 22, 1950, reveal that Town Brothers were decided upon as having 223 animal units. This figure deducted from 320 units originally allotted to Carnahan in 1944, left the alleged 97 units on the Burke purchase. However, as the District man testified, this was not considered as being 97 units of preference rights appurtenant to the land at that time. As of November 29, 1944, it would have been, but the record is replete with testimony that the base property had deteriorated.

Testimony indicates that Mrs. Carnahan came to the Dis-trict with her real estate agent to inquire what preference rights went with the land she was selling. They were informed that a new survey would be made. Such was done on April 26, 1950, and as said before the appellant Burke had knowledge of his rights to 43 animal units from prior to his purchase. Thus, we believe the District was acting within its discretion when it established a preference right of 43 units. At that time it was not reducing an appurtenant preference right of 97 units.

If such a preference right of 97 units were appurtenant to the Burke property at the time of his purchase, he has failed to carry the burden of proof required of him. Mrs. Carnahan, his predecessor in interest, apparently did not claim 97 units as being appurtenant to her property. As a matter of fact, the record does not show that she had any stock under permit at the time of Burke’s purchase. Burke’s position is that he has his predecessor’s rights, but he has failed to show what those rights were by a preponderance of the evidence or by any evidence.

The Federal Range Code, section 161.6, subd. (e) (7), 43 C.F.R., provides:

“If a licensee or permittee ceases to make substantial use of his base property in connection with his year-round livestock operation, the authorized use under such license or permit will be subject to reduction in proportion to the diminished use of the base property.”

From what we have heretofore stated, with regard to the deterioration of the ranch, it is obvious that this provision of the Range Code is applicable. Appellant Burke argues that R.C.M. 1947, section 46-2322, makes provision that grazing preferences shall run with and be appurtenant to the dependent commensurate property upon which they are based and, that to make any reduction, certain requirements under that section as to notice and hearing proceedings must be followed. Certainly there can be no argument with the law he cites, except that it does not apply under the facts disclosed by this record.

Burke bought the ranch knowing it rated only 43 animal units so what he bought was never reduced.

As related before we have no showing of the continuous use or nonuse under permits of the appellant’s predecessor in interest. We have no sufficient showing made that any preference rights were appurtenant to the land in April or May of 1950. No deeds, assignments of leases, assignments of grazing rights, contracts, prior permits or other documents were offered to establish any preference rights. The only evidence was that previously referred to in the minutes of April 22, 1950, which alluded to the Carnahan property previously sold. Other evidence indicates that Burke’s predecessor in interest came to the District in person to inquire in an- attempt to re-establish preference rights as previously-related.

We have held in Langen v. Grazing District, supra, that the burden is on the stockgrazer to know .the law .and take, such action at the proper time as would protect any rights he might have. In that case, we also held that on review the courts will only inquire insofar as to ascertain if the Board-or Commission has stayed within statutory bounds and has not- acted arbir trarily, capriciously, or unlawfully.

We find that the District did not act arbitrarily, capriciously or unlawfully.

The second question presented, whether the District properly classified lands as self-furnished grazing land even though cultivated and. not used for grazing will now be considered. This question, is involved because of-.the resurveys of Burke’s land for commensurability in 1953. It is appellant’s position that he has increased his commensurate rating by the addition of new base property and improvement of the old base property. He also contends that he is entitled to preference as to grazing rights on the range over three other users, Harris, Humenik, and Orohood.

First, to dispose of the latter contention, the record is barren of any testimony that Harris, Humenik and Orohood were not possessors of dependent commensurate property in the District. They had to have such property to be granted grazing rights and as the Commission had available to it, the records of the District, and so found, these three ranchers must have ■qualified. We will not presume a failure of duty by a public commission. R.C.M. 1947, section 93-1301-7, subds. 15, 33.

The appellant limits his argument to the particular range involved. The record does not show that the appellant does not have sufficient range. As a matter of fact it shows that the District has treated him quite generously. He has enjoyed a higher proportion of temporary use than the others running in ■common with him; Harris being permitted grazing privileges of 115 percent of his preference; Humenik 122 percent, Orohood 150 percent and appellant Burke 214 percent of his recognized preference.

On the sketch previously set out, Areas “B” and “C” were summer range county lands leased for grazing purposes. Burke ■subsequently bought them. He still uses Area “C” for grazing, but has fenced and cultivated Area “B” to some extent not fully shown in the record. He claims that this area should be considered as base property.

As to the self-furnished range the Commission concluded:

“That this action of the respondent district in deducting the carrying capacity of his privately controlled self-furnished range from appellant’s preference demand on district range is entirely consistent with existing policies which may be found on page 43 of the Handbook for the Operating of State Grazing Districts, 1953, as a part of paragraph IV of the Basie Policies Agreement of 1944, as follows: ‘Allocations of land and grazing privileges in State Grazing Districts will be made in accordance with preference demand of the members on District ranges available, but members privately owned or controlled summer ranges will be deducted from such members preference demand on the District range’.” Emphasis supplied.

This same policy was testified to at the hearing. The appellant cites us to no testimony, policy or law to the contrary. We said in the Langen case, supra, 125 Mont, at page 309, 234 Pac. (2d) at page 471:

“Where the question involved is within the jurisdiction of an administrative tribunal which demands the exercise of sound administrative discretion, requiring the special knowledge, experience and services of trained officers to determine technical and intricate matters of fact, and where a uniformity of ruling is essential to comply with the state’s policy and the purposes of the regulatory statute on review by the court of such decisions by such authorities, the courts will inquire only so far as to see whether or not the action complained of is within the statute and not arbitrary or capricious.”

The testimony of Mueller of the Forest Service probably best describes the self-furnished range policy and shows that it is not arbitrary or capricious, and that the District was following established practice and policy.

Mueller testifying:

“Well, the way we have interpreted it on this Carnahan place, in fact we do it on all places, the county land that’s previously testified to, was leased to Mrs. Carnahan, a private lease. However, it was part of the entire picture of the Carnahan ranch and we have always considered it as what we call self-furnished summer range.

“Now, the self-furnished summer range, in all state districts * * * is tó be deducted from class I preference demand. * * * That’s a common practice that we have made. A man may buy a piece of county land. Of course, it’s his deeded land he can do with it as he sees fit. However, it is still, as far as- the records are concerned, summer grass. He may plow it entirely up, but we still detract the carrying capacity as it was on the land from summer range.”

The appellant contends that he is entitled to more animal unit preference rights because he improved his base property. First he has failed to show available range and second he has failed to show actual improvement results. The witness Mueller testified that at the time of the hearing the results were not sufficient to increase his rights. Thus the Commission had sufficient testimony on which to base its findings, and we will not interfere so long as it has not acted arbitrarily, capriciously or unlawfully.

We find that the District and the Commission were not arbitrary or capricious. The appellant Burke knew at the time of his purchase what he was getting. He was satisfied for four years or at least took no steps to show otherwise.

The order of the district court is affirmed, the appeal dismissed.

MR. JUSTICE ANGSTMAN, and THE HONORABLE VICTOR H. FALL, District Judge (sitting in place of MR. CHIEF JUSTICE HARRISON,) concur.