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Diamond Ring Ranch, Inc. v. Morton

Citation: 6 ELR 20637
No. No. 75-1201, 531 F.2d 1397/(10th Cir., 02/04/1976)

The Tenth Circuit, reversing the district court, upholds the power of the Bureau of Land Management (BLM) to revoke grazing licenses, but affirms the lower court's approval of suspension of the revocation in this case, since the licensee's spraying of a herbicide on federal lands caused no real harm. Plaintiff contracted with a private pilot to spray the herbicide 2,4-D on sagebrush on both the plaintiff's ranch and on federal lands on which plaintiff held a grazing permit, without BLM approval and without distinguishing to the pilot private from public land. About 300 acres of private land and 3,600 acres of federal land were sprayed. The evidence shows that no substantial harm to the federal land occurred.

The Taylor Grazing Act, 43 U.S.C. §315a, ELR 41406, gives the Secretary of the Interior broad power to administer the lands included within the grazing districts authorized by the Act. Included in the Secretary's power are, in addition to the $500 criminal sanction imposed by §315a, the power to suspend or revoke licenses granted under the Act. This interpretation is supported by consistent administrative interpretation to this effect, 43 C.F.R. §§4113.1, 9239.3-2, and amendments to the Act without alteration of this power. Classification and Multiple Use Act, 43 U.S.C. §1411, ELR 41408. See Red Lion Broadcasting Co. v. FPC, 395 U.S. 367, 381-82 (1968). Further supporting this proposition is that grazing licensees do not enjoy an interest in the subject land, but merely a revocable license. United States v. Fuller, 409 U.S. 488 (1973). The court does not reach the argument that NEPA creates an independent source of power to invoke sanctions on licensees.

Administrative decisions should not be set aside by a reviewing court if they are supported by substantial evidence. In this case, both the Hearing Examiner and the Interior Board of Land Appeals determined that the plaintiff's spraying decision was willful. Plaintiff's ignorance of the regulation requiring BLM permission for such spraying, 43 C.F.R. §4112.3-1(e), is no excuse, especially since its license specified that the licensee must obey all applicable laws and regulations. Certainly, the plaintiff knew which of the land to be sprayed was its own and which was public land. The district court erred in voiding the administrative decision that plaintiff's decision was willful.

While the Act makes no provision for judicial review, such review is allowable under §10(b) of the Administrative Procedure Act, 5 U.S.C. §703. See Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975). In this case, the Board of Land Appeals enlarged the sanction imposed by the Hearing Examiner from suspension of revocation to complete revocation of the license. Since the Board was concerned mainly with upholding the power of the Secretary to revoke grazing licenses, and in view of the insubstantial harm to the public land caused by the violation, the Board's modification of the sanction was an abuse of discretion. The district court correctly set aside the Board's action as arbitrary. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971); Camp v. Pitts, 411 U.S. 138 (1973).

The district court's judgment is reversed in part, affirmed in part, and remanded to adopt the findings of the Hearing Examiner and vacate those of the Board of Land Appeals.

The full text of this opinion is available from ELR (11 pp. $1.50, ELR Order No. C-1069).

Counsel for Plaintiff
Claude W. Martin
Brown, Drew, Apostolos, Barton & Massey
Suite 512
Petroleum Bldg.
Casper WY 82601
(307) 265-9210

Counsel for Defendant
Neil T. Proto
Lands & Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-3888

Doyle, J., for himself, Seth & Holloway, JJ.