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Alves v. United States

ELR Citation: 28 ELR 20577
Nos. 97-5042, 133 F.3d 1454/(Fed. Cir., 01/12/1998)

The court holds that the Bureau of Land Management's (BLM's) failure to prevent livestock from trespassing on public lands over which a rancher held grazing permits does not constitute a Fifth Amendment taking or a breach of contract. The case arose out of BLM's failure to fully enforce an injunction against the trespass of privately owned livestock on public lands. The court first holds that BLM's failure to prevent the trespass of the privately owned livestock does not constitute a taking under the Fifth Amendment. Neither a grazing preference, which the rancher contends was taken, nor a grazing permit constitutes a compensable property interest. What is compensable is the fee interest only, divorced from other governmentally created rights or privileges appurtenant to the fee. In addition, the rancher fails to show that there has been a regulatory taking of any compensable property interest. The trespass of regulated wildlife does not constitute a regulatory taking, and there can clearly be no taking when whatever acts complained of are those of private parties, not the government. That BLM may have regulatory control over the trespassing livestock does not change the fact that the livestock are properly controlled in the first instance by private owners. Thus, the rancher's complaint is with the private owners. Further, the regulations upon which the rancher relies to establish a governmental taking show that the rancher could not have an investment-backed expectation that could support the establishment of a taking. The regulation clearly states that BLM is under no duty to impound trespassing livestock, but is merely permitted to do so. Moreover, because the trespass was by privately owned livestock, there was no government action involved.

The court next holds that BLM was not in breach of its exchange-of-use agreement with the rancher. The exchange-of-use agreement does not constitute a promise on the part of BLM to abate the trespass of livestock. The specific language of the agreement states that the Secretary of the Interior may regulate the rancher's lands as if they were public lands. The language is discretionary and does not give rise to a governmental duty to abate livestock trespass. In addition, the rancher's attempt to vary the clear meaning of the exchange-of-use agreement in accordance with the parties course of dealing is improper under the parol evidence rule. And even assuming that the course of dealing between the parties is somehow relevant to a government contractual obligation, the rancher presents no evidence concerning how this course of dealing supports an absolute duty on behalf of the government to abate livestock trespass.

Counsel for Plaintiff
Robert T. Moxley
Gage & Moxley
623 W. 20th St., Cheyenne WY 82001
(307) 632-1112

Karen Budd-Falen
Budd-Falen Law Offices
623 W. 2d St., Cheyenne WY 82001
(307) 632-5105

Counsel for Defendant
Tamara N. Rountree
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Mayer* and Rader, JJ.