Fallini v. Hodel

963 F.2d 275
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 1, 1992
DocketNos. 90-15124, 90-15125
StatusPublished
Cited by4 cases

This text of 963 F.2d 275 (Fallini v. Hodel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fallini v. Hodel, 963 F.2d 275 (9th Cir. 1992).

Opinions

GOODWIN, Circuit Judge:

Joe, Susan, and Helen Fallini operate a cow and calf ranch on approximately 2,700 acres of deeded land in Nye County, Nevada, and hold grazing permits on 657,520 acres of public land in the Reveille Allotment of the Tonopah Resource Area. The competition between domestic cattle and free roaming wild horses for food and water on these public lands has produced folk lore, movies, legislation, and litigation.

The government appeals a judgment in favor of the Fallinis and adverse to the Bureau of Land Management, which is charged with the administration of public lands under the Taylor Grazing Act of 1934, 43 U.S.C. § 315 et seq. (1988) (as amended).1 We must consider whether the Fallinis violated their federal range improvement permit when they installed highway guardrails around one of their water holes to discourage wild horses from grazing the surrounding land. Concluding that they did not, we affirm the district court.

I. BACKGROUND

The Fallini operation, known as the Twin Springs Ranch, depends on the public lands of the Reveille Allotment for grazing during that part of the year in which natural forage is produced on the desert. The Fal-lini permits include the right to develop deep wells at their own expense, but they also provide that the water thus produced be made available to wildlife.

The Fallinis rotate their cattle from one area to another by closing access to one water hole and opening access to another. Virtually all of the usable water within the Allotment is. artificially produced, including Deep Well, the site with which this case is concerned. The central Nevada mountains enjoy minimal rainfall and light accumulations of winter snow. The resulting moisture appears only briefly on the surface, and cattlemen since pioneer times have relied on wells in order to take advantage of the seasonal pasture within the Allotment. With the coming of rural electrification and advanced technology in the 1930s, the development of deep wells made it feasible to graze cattle in areas that had until then been the exclusive habitat of desert wildlife.

In September of 1967 the BLM, pursuant to section 4 of the Taylor Grazing Act, 43 U.S.C. § 315c, issued the Fallinis a range improvement permit, designated Deep Well, authorizing them to maintain and use a stock-watering facility on public lands inside the Allotment.2 The permit at Deep Well — one of several issued to the Fallinis over the years authorizing improvements at the major water sources within the Al[277]*277lotment—allows the Fallinis to make improvements so that nearby grazing lands can be available for cattle grazing.

In 1971 Congress enacted the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340. At that time, according to stipulations by the parties, approximately 130 wild horses roamed within the Reveille Allotment but no wild horses or burros roamed within the vicinity of Deep Well. By 1984, however, approximately 1,800 wild horses inhabited the Allotment, and several hundred of these horses, attracted by the Fallinis’ stock-watering facility, grazed the land surrounding Deep Well.

In late 1983, the Fallinis, without first obtaining BLM approval, installed highway guardrails across the entrances to nine of their water troughs within the Reveille Allotment, including Deep Well. The guardrails were erected at a height and in a manner that would prevent access to the water by wild horses; the guardrails do not bar access by cattle or indigenous wildlife.

On December 23, 1983, the BLM’s manager for the Reveille Allotment issued a proposed decision stating that the installation of the guardrails constituted a modification of the watering facility and violated the Fallinis’ improvement permit because BLM approval had not first been obtained as required by the applicable regulations. See 43 C.F.R. 4140.1(b)(2) (1982). The proposed decision required removal of the guardrails within 15 days and stated that failure to do so would result in cancellation of the Fallinis’ permit. The Fallinis removed the guardrails at every water source except Deep Well and protested the BLM’s proposed decision as it applied to Deep Well. On May 3, 1984, the BLM cancelled the Deep Well permit.

The Fallinis appealed the BLM’s decision to an administrative law judge who found that the Fallinis “have not violated the conditions of the ... permit involved in this case nor any applicable federal regulations.” The BLM appealed to the Interior Board of Land Appeals (IBLA) which reversed the administrative law judge. See Fallini v. BLM, 92 IBLA 200 (1986).

The Fallinis then appealed to the district court. Judge Foley made four rulings: first, the installation of the guardrails did not require prior BLM approval; second, the BLM acted beyond its authority and jurisdiction; third, the BLM’s decision was tainted by improper political influence; and fourth, the BLM’s decision effected a regulatory taking of the Fallinis’ water rights in violation of the Fifth Amendment. See Fallini v. Hodel, 725 F.Supp. 1113 (D.Nev.1989).

II. STANDARDS OF REVIEW

This decision, involving the application of law to facts over which the parties disagree, calls for review without deference to the trial court’s application of law, but with proper respect to the trial court’s determination of the facts. Fed.R.Civ.P. 52(a); United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Final decisions of the IBLA are reviewed under the Administrative Procedure Act, 5 U.S.C. § 706(2). Section 706 states that the reviewing court shall

hold unlawful and set aside agency action, findings and conclusions found to be— ... (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) contrary to constitutional right ...; or (C) in excess of statutory jurisdiction, authority, or limitations....

Id. The scope of judicial review under this standard is narrow, and this court “cannot merely substitute [its] judgment for that of the IBLA.” Baker v. United States, 613 F.2d 224, 226 (9th Cir.1980).

An agency’s interpretation of the governing statute or of its own regulations is entitled to deference, but courts are the final authorities on issues of statutory and regulatory construction. Natural Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir.1987). The applicable standard of review is whether the agency decision “was based upon a consideration of the relevant factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
963 F.2d 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fallini-v-hodel-ca9-1992.