ET AL. The waters owned or controlled by Appellants Allan and Smith, upon which their individual allotments were based, were considered as class 2 in competition with full time water of other applicants. These waters were considered to have in the aggregate additional water value above that necessary to support all livestock which could properly use their respective allotments. The mechanics used in allocating Federal range in a water base district is to designate on a map the location of all of qualified full time waters listed in applications of competing applicants and to draw circles from, those waters on the basis of a five-mile radius (the standard service area adopted by the District as being proper for grazing the Federal range from a stock water). Where the circles from competing waters overlap, the arcs are drawn from the intersecting points of the circle so as to divide the Federal range equidistant from the two competing waters. The boundaries of areas thus delineated are modified to form boundaries of a grazing area on a practical and usable basis. The boundaries are also further modified where a natural barrier exists which would inhibit normal grazing operations of livestock from a given qualified water. The District Manager followed this standard procedure in making the allocations of Pakoon to the competing applicants. Max Layton was awarded an area of approximately 3,200 acres in the northwest portion of the Special Rule Area on the basis of his ownership or control of the water known as the Black Knoll Tank. Intervenors Layton and Cloyd H. Brinkerhoff were awarded an adjacent area of approximately 4,700 acres in the northeast portion on the basis of their ownership or control of a water known as End of the Pipeline. Appellant Anderson and Intervenors Esplin, the Brinkerhoffs and Heaton Brothers were awarded an area of approximately 43,900 acres in the central portion of Pakoon on the basis of ownership and control of water designated as Upper and Lower Wells. Appellant Eldon L. Smith was awarded an area of approximately 53,700 acres in the southern portion on the basis of his ownership or control of Grapevine Springs, Whiskey Springs, Seven Springs, Gyp Wash Reservoir, Tasi Springs, Pigeon Reservoir and Upper Pockets. One water listed by Smith, Yates Tank, was not considered because it was not in serviceable condition at the time of the lifting of the Special Rule. Appellants Allan were awarded an area of approximately 1,780 acres on the northeast border of their previously allotted area of use and an area of approximately 2,110 acres on the southwest border based upon two waters, Wayne's Well and Allan's Lower Well. One of the Allan waters Pakoon Springs, was not considered in the adjudication because a ridge between it and the Pakoon Area constituted a natural barrier impeding the movement of livestock. Two portions of the Pakoon Area were unallotted because they were not within the service area of a qualified water. The appellants objected to their areas of use thus designated. Their appeals set forth objections in very general terms. At the hearing, the Government and the appellants agreed that the following issues were raised by their various appeals: Appellant Anderson: 1. Whether Appellant Charles C. Anderson and Intervenors Heaton Brothers, Esplin, and the Brinkerhoffs are entitled, under the Grazing Regulations, to the exclusive use of the Pakoon Area lying north of their designated area of use. (This would include the area of use assigned to Intervenor Layton and Intervenor Brinkerhoff Estate and part of the area assigned to Appellants Allan.) (Tr. 11). 2. Whether Appellant Anderson is entitled to change his operation from sheep to cattle and to have a cattle allotment (Tr. 12, 13). Appellants Allan: 1. Whether the District Manager followed the procedural requirements of the Grazing Regulations in the award of grazing privileges to Delbert and George Allan (Tr. 17,18). 2. Whether the District Manager was arbitrary and capricious in awarding grazing privileges and an area of use to Delbert and George Allan (Tr. 18, 19). Appellant Smith: 1. Whether Eldon L. Smith had been awarded all of the Federal range which was in the service area of his base waters as may be modified by competing waters (Tr. 24, 25). 2. Whether any parties, other than Layton, the Allans, and Smith, have grazing privileges within the Pakoon Area (Tr. 25, 26). 3. Whether the District Manager was arbitrary and capricious in awarding grazing privileges to Eldon L. Smith (Tr. 25, 26). The hearing examiner found that the class 1 preference of the base waters of Smith and the Allans had been satisfied by the award to them of individual allotments pursuant to an agreement entered into by their predecessors, the Yateses, in April 1949. He then held that appellants, in any event, could not now raise the issue as to the class 1 demand of their base waters because they had not appealed from decisions restricting them to the use of the allotments agreed upon. He pointed out that the grazing regulation provides that base property qualifications in whole or in part will be lost for failure for any two consecutive years to include the entire base qualifications in an application for a license, permit or renewal (43 CFR 4115.2–1(e) (9)). Furthermore, he said, the regulation also provides that no adjudication of any license or permit will be made upon the claim of an applicant with respect to the qualifications of the base property where such qualification or allotment has been recognized and a license or permit issued for a period of three consecutive years or more. (43 CFR 4115.2-1(e) (13)). Under either of these provisions, he concluded, the appellants are precluded from challenging the adequacy of their allotments to satisfy the class 1 demand of their properties. He then held that an applicant does not acquire a right to use a particular portion of the federal range on the ground that he has used it in the past. He next dismissed the appellants' objection to awarding class 2 grazing privileges to Anderson, Esplin, Heaton Brothers and the Brinkerhoffs on the basis of the upper and lower wells drilled in 1959. He said there was no logical reason why the challenged waters could not compete on an equal basis. He then considered the several water sources offered as qualified base water which the range manager had refused to accept. He agreed that Smith had not presented any evidence to show that either "Ed's Tank" or "Lower Pockets" was qualified or full time water, while the Government's evidence proved that "Ed's Tank" was not in serviceable condition at the time of the lifting of the Special Rule. As to the Allans, he also found that the manager properly refused to assign ET AL. a service area to "Pakoon Springs", which would compete with Lower Well for a small area of range, because it was separated from the Pakoon grazing area by a sharp decline which formed a natural barrier. He then held that Anderson was properly denied an individual allotment carved out of the community allotment but concluded that there was no reason why Anderson could not change his operation from sheep to cattle. On appeal, the Bureau of Land Management dismissed Smith's appeal and affirmed the hearing examiner's decision as to the other parties. The appellants assert that the allocation of grazing privileges denies them a preference right based on their past use of the area. The decisions below correctly pointed out that a grazing permittee has no right to any particular area of the federal range, absent an arbitrary or capricious allocation, so long as his base qualifications are satisfied. Thomas Ormachea and Michael P. Casey, 73 I.D. 339 (1966). As to preference right, the statute and the regulation give equal weight to owners of water as to owners of land. 43 U.S.C. sec. 315(b); 43 CFR 4111.3-1 (c), (d). The appellants can show no better right than the other parties to privileges based on class 2 water nor have they offered any evidence that the allocation was arbitrary or capricious. The Allans allege that they did not receive an equitable portion of the area made available for allocation upon the revocation of the Special Rule. They point out that they were awarded only 3,800 acres whereas the others were awarded up to 53,700 acres. They also contend that the "sheep operators" were permitted to develop the wells on which their claim to grazing privileges depend very late in the life of the Special Rule, and that they and Layton were denied the right to develop additional water before the Special Rule was terminated. These assertions are vague and general. Appellants do not contend that there was no authority to permit wells to be developed in the Special Rule area, but only that the drilling was allowed over their protests. Their assertion that they were denied an opportunity to develop additional water resources is based only on an informal conversation with the range manager, who said such a move by the Allans would cause tension in the area (Tr. 817-818).5 The Allans also assert that the use of a five mile service area is contradicted by the testimony that the cattle drifted naturally' much further. The five mile rule, however, is based upon the general practice in the district that has been accepted as a guide in allocating grazing privileges. The fact that at certain times of the year cattle 5 This and similar references are to the transcript of the hearing. may go further when forage conditions or the availability of water in temporary water holes are favorable does not invalidate the use of an average radius based upon the usual behavior of cattle (Tr. 46, 47, 55, 246, Ex. G-17, pp. 4, 5). Finally the Allans urge, as does Smith, that their base waters are entitled to class 1 privileges in the special rule area, or, in other words, that their class 1 preference had not been satisfied by the award of individual allotments to their predecessor. Perhaps the clearest expression of what was intended to be accomplished by the establishment of individual allocations in the Special Rule area is found in the memorandums from the Acting Regional Administrator to the Director and from the Director to the Secretary recommending the special rule (Exhibit A-7). In the first, dated November 10, 1949, the Acting Regional Administrator wrote: There is transmitted a proposed special rule for the consideration of the Secretary under the provisions of the Federal Range Code for grazing districts (43 C.F.R., Sec. 161.5) with respect to seasonal grazing use in the Pakoon Area of the Arizona Strip Grazing District. The Pakoon Area has long been recognized and used as a sheep range for intermittent short periods in the Spring during favorable years. It is a rough broken desert area in the southwest corner of Arizona District 1. Perennial vegetation is principally unpalatable black brush and assorted desert shrubs. In years of favorable precipitation annual weeds provide good sheep grazing for periods of from 2 to 6 weeks. The area does not contain livestock water, consequently is suitable for sheep use only during the time when succulent green weeds are available. This type of sheep use antedates the establishment of the grazing district. At one time it was decided that grazing privileges within the Pakoon Area should be adjudicated on a land base because of the lack of water to service the area. A careful study has convinced us that at this time there are no base lands which can qualify as "dependent by use" or "dependent by location" for grazing privileges in the Pakoon Area without seriously disrupting the existing livestock industry of the district. Since the establishment of the Arizona Strip Grazing District, grazing privileges in this area have been allowed under temporary licenses, generally on the basis of priority of use, without consideration of either land or water as base property. We have had numerous discussions with the Advisory Board during the past 3 years relative to the need for a special rule, and have exhausted all possibilities of administering the area under the Code without a special rule. The proposal we are now submitting will, in our opinion, stabilize as far as possible and practicable such grazing use of the area as has been recognized through the issuance of temporary licenses since the establishment of the district. The area described in Advisory Board resolution of June 10, 1949, makes a substantial reduction from the original Pakoon Sheep Area to eliminate any possible competition with existing base properties. The Director on March 23, 1950, after summarizing that memorandum said: ET AL. The Advisory Board has recommended the special rule and in its resolution of June 10, 1949, described the area to be administered thereunder which area has been substantially reduced from the Pakoon Allotment to eliminate any possible competition with the existing base properties * * *. (Italics added.) These memorandums make it clear that the Special Rule area was considered to be an area not subject to class 1 rights and that the class 1 rights of the adjacent cattlemen had been taken care of in their individual allocation." Since the allotments were unfenced, the Yateses were allowed a normal drift of cattle from their allotment into the adjacent Special Rule area. The allocation and the normal drift were intended to satisfy all of the Yates' class 1 rights. Wayne Yates testified that he had accepted the range line agreement as representing the full qualified demand for Pakoon Springs in which the Allans operate (Tr. 298). They accepted this determination over a long period of years and they or their successors cannot now challenge it. The grazing regulation precludes a grazing licensee from demanding a readjudication of grazing privileges after they have been held for three years (43 CFR 4115.2–1(e) (13)(i)). The regulation applies not only to formal adjudications made pursuant to 43 CFR 4110.0-5 (r), but also to "adjudications" made on the basis of available information and adhered to over a long period of time. Malvin Pedroli et al., 75 I.D. 63, 68, 69 (1968). There remain the objections to the application of the rule for determining service areas and to the recognition of water sources on which the application of the rule is based. The Allans objected to the service area assigned to Pakoon Springs. The hearing examiner pointed out that the line used to set off the Allans' area from the Pakoon grazing area follows a sharp decline, which constitutes a natural barrier to the movement of cattle. It is, he said, halfway between Pakoon Springs and the Lower Well, the competing water, and is a natural division point. The Allans have not pointed out any error in this reasoning, and we find none. Smith, in turn, contends that a reservoir known as "Ed's Tank" and another water source known as "Lower Pockets" were incorrectly refused recognition as qualified base water. The district manager testified that neither one was in a serviceable condition as a water source on the day the Special Rule was revoked. (Tr. 119, 120, 126, 923, 1133.) In a letter dated August 29, 1961, to a realty company, the Acting District Range Manager, Owen S. Wright, said that the base class 1 waters were satisfied prior to setting up the Pakoon Special Rule area. (Yates file) Again, in a summary of minutes of a meeting held on July 29, 1960, to discuss the division of the Special Rule area on a class 2 basis, at which Yates and his son-in-law, Gentry, were present, the District Manager wrote: "Mr. Gentry brought up the subject of the Yates base water and ask[ed] why there was no 5 mile radius applied. It was pointed out that Mr. Yates' class 1 allotment was adjudicated by agreement and that he was given the range he requested at the time * (Yates file) See also Tr. 108, 109. * |