United States v. Chester Fuller and Maxine Fuller (939.62 Acres of Land, More or Less, Situatedin Yuma and Mohave Counties, State of Arizona)
442 F.2d 504
9th Cir.
1971
Check Treatment

*1 agent was, effect, $5,000 pay- final made the

the time he argument fact overlooks

ment. undisputed the Govern- At scheme. did not initiate ment this working with inception not Itkin was its Government, $5,000 the final only repeated after payment made Furthermore, Wenger. requests Kilkenny, J., dissented. Wenger re- on the to take action refused payout quested date extension of the paid. until such sums

the loan ei- did not initiate

Since Government final or the a whole ther scheme as entrapment.

payoff, Unit- there (2d Weiser, ed States v. toas both of conviction

appellants affirmed. America, STATES

UNITED Plaintiff-Appellant, Fuller and Maxine

Chester FULLER less, (939.62 land, sit- more acres Counties, in Yuma and Mohave uated Defendants-Appel- Arizona), State of

lees.

No. 23932. Appeals, Ninth Circuit.

April

Rehearing Denied June (argued), Dept, Edmund Clark B.

Justice, C., Washington, D. Richard Alleman, Burke, Atty., U. Richard S. S. Atty., Kashiwa, Asst. Asst. U. Shiro S. Atty. Phoenix, Ariz., Gen., plaintiff- appellant. (argued), Kramer, Frank Burch Cracehiolo,

Roche, Burch, & Streich Phoenix, Ariz., defendants-appellees. ELY, KILKEN- Before WRIGHT NY, Judges. *2 5Q5 Judge: WRIGHT, condition of and the land could A. EUGENE graze year his the cattle round. appeal a condemnation in is an profitable jury opera- It a stable and a on action from entered lands, only compensa- Without the fee fixing $350,000 just tion. the as verdict raising totalling practical steers, use would be taking tracts of tion the two purchased annually, would which be jurisdiction fat- has This court 920 acres. up until tened the desert feed appeal dried and On under 28 U.S.C. § then sold. States, we affirm. the United by the land- jury land taken was used The district The court instructed the Fuller, owners, part of a and Mrs. as as follows: Mr. * * 44,768-acre composed “* operation of: ranch has [Reference been made grazing permits to held the defend- 1,280 acres land fee public on ants land. You are instruct- 12,027 land acres state leased permits ed that such are mere licenses federal domain leased may which pensable revoked be and are not com- the under However, you as such. if Grazing (43 highest should determine that the 315b) 31,461 acres U.S.C. § property use of best the taken is a use 44,768 TOTAL acres conjunction permit lands, in you may with those take those into con- In the instituted States arriving your sideration in at value of proceeding acquire in eminent domain to subject land, keeping the in mind the parcels fee title to of the Fullers’ two possibility they may be with- land, totaling 920 At no time acres. any drawn cancelled time with- prior during pendency the to or of obligation out constitutional condemnation action the Fullers’ were * * * compensation therefor. exclusive, grazing permits revocable on fixing the fair market value public revoked, nor lands were such being compensa- fee land taken lands included in the condemnation awarded, you tion to be are not to tion. any compensation award defendants government’s theory It was land owned the United determining in market of fair value or the of Arizona.” State taken, the base lands fee consideration witnesses Government fixed the value given to should be use to which such $135,000. condemned land at might conjunction put be lands in with testimony valuation of the landowners adjacent public domain covered lands $682,000 $985,000. it fixed grazing permits. federal tended, Fuller con- jury $350,000. awarded hand, on the other that since highest (to- and best use his fee lands The trial court’s instruction to the gether with state and federal leased jury in accord with the rule Unit- lands) ranch, of a use was that cattle Jaramillo, ed States F.2d 300 of the leased federal domain lands In a factual situation determining the should be considered in us, almost identical to the case before fair market value of lands. his fee Appeals for the 10th Circuit said: engaged large-scale Fuller was in a operation year-round judicial

cattle known aas “In the determination of ranch, possible just “cow-calf” made compensation because fair value as for the taken, highest were prof- fee lands situated at the con- land and most Cheap fluence of reasonably two rivers. water was use for itable which available, may considered, and the adaptable fee had been ‘not cleared, They irrigated. necessarily value, cultivated and as the measure planted grasses prospect alfalfa and other to the full but extent rely did not Fuller on have of demand for such use affects meaning property owners within the value while market omitted.) (Citations Fifth Amendment from the lawful privately but held/ ap- power inter- rights, privileges exercise of a which All easements riparian always considered ests of owners have purtenant thereto should *** subject. Thus, estimating value or com- been its fair *3 taking being constitutionally obligated paid, to pensation into to be being may compensation, possibility of their the count also the navigable resulting obliga- change a the course of discontinued * * * stream, impair p. or otherwise at 302. tion.” Jaramülo destroy riparian to or a access owner’s point, Recognizing Jaramülo in that is * * * navigable waters, even government of that the rule the submits though ripari- of the market value the wrong with is and inconsistent that case substantially dimin- an owner’s land Rands, v. 389 U.S. that of United States Rands, 389 ished.” United States v. (1967). 121, 265, 19 88 L.Ed.2d 329 S.Ct. 122-123, at 88 S.Ct. U.S. navigational case. a servitude Rands was compensa- that There the Court held the Similarly, in States v. Twin riparian private lands fast ble value City Co., 222, Power 350 U.S. government by did not include taken 259, (1956), L.Ed. the dominant 100 240 special port as since the its value a site navigational entitle servitude was held to right to the navi- had access owner government land without to condemn gable legally pro- waters which could hydro- considering special as value a its against tected as United States. electric site. of the rationale A examination careful government as- is correct in its navigational and servitude cases of the provision sertion that the constitutional regarding grazing legislation the federal interpretation subsequent and court gives for rise to a basis distin- regulate naviga- Congress to authorized by upon guishing the cases relied pri- ble streams to the total exclusion Rands, government. said: Rands, rights. vate v. United States a confers “The Commerce Clause 121, 265, 123, 88 L.Ed.2d S.Ct. unique position upon the Government However, Congress legislates when navigable in connection with waters. rights recognizes special in a manner that regulate power com- ‘The to commerce waters, navigable privileges in then or purpose, prehends the control that government required compensate to necessary, of all and the extent rights, not- for the of such destruction navigable waters of the United States Congress withstanding had the fact that ** they purpose this are For pri- power to exclude constitutional nation, property public and sub- of the rights completely. United States v. vate legislation ject requisite all the supra, City Co., 350 U.S. Twin Power Philadelphia, Congress.' Gilman 225, 76 S.Ct. 259. L.Ed. 96] [18 Wall. 724-725 Grazing study regulate Act power A of the (1866). navi- Congress gation upon conclusion leads confers Niaga- its exercised less than constitutions./ FPC a ‘dominant servitude/ recognized power Corp., lands and over ra Mohawk Power against rights parties special third and 686] 98 L.Ed. S.Ct. [74 Unlike (1954), itself. sometimes the extends to the entire which servitude, some navigational are there and stream bed ordi- stream below rights privileges private highwater proper bestowed nary ex- mark. justify protected the Act which power is not an invasion of this ercise rights which uses to the conclusion any private property in the grazing dedicated are underlying it, lands are federal or lands stream public uses of damage unlike the undiminished not result does sustained navigable taking riparian streams. property from from permits exist, example, “they something For the Act creates section 3 are * * * latter real value and section 15 lands. The which have their disconnected, non-contiguous Congress.” tracts in an are source enactment of the grazing by saying dis- which are not contained The court concluded lands, here, permit protected against tricts. involved holders can Section 3 grazing wrongful are located within districts interference the United Secretary rights statutory privi- are administered States with the leges through system preferential represented by permits. Interior long permits. as as These run govern- Thus it can be seen that years permit ten holders have Taylor Grazing ment’s control over right preferential 43 U.S.C. renewal. lands is not the same as absolute con- 315b. § enjoyed navigational trol under ser- vitude. *4 any Though in- does not create Act themselves, distinguish-

terest it does There is the lands another basis for recog- ing navigational “grazing privileges require rep- that servitude cases acknowledged adequat- City. nized and shall be resented Rands and Twin In ly safeguarded” government. 43 those cases the issue was whether government Canyon Sheep pay Red 315b. See should additional com- U.S.C. § 308, Ickes, 27, pensation App.D.C. po- F.2d Co. 69 98 v. the theoretical value (1938). uses, e., port hydro- 314 tential i. sites operation. electric Actual investments grazing permits While are unre had not There no con- was occurred. voked, grantor par neither nor third gressional policy development of use and ty may In interfere with their exercise. navigable part private waters as a fact, government has an affirmative enterprises. commercial obligation safeguard adequately. then) government In situations where the States, Oman United v. 179 F.2d 738 requested private help has investment develop navigable waters, and utilize “Other held these courts have that government pay then the had to has permits rights ju- subject conferred “going upon concern” value condemna- Arizona, protection. dicial In Monongahela Navigation tion. v. Co. grazing permits holder of similar States, 312, 622, 148 said to be entitled to an action of tres- (1893). Monongahela 37 463 In L.Ed. pass against encroaching ranchers. government had to both for locks Sumrall, 526, Garcia v. 58 Ariz. 121 government’s and a dam at the in- built opinion P.2d 640. Even in the Os- vitation. case, supra borne v. United [Osborne purpose Graz States, Cir., 892], implied 9 145 F.2d ing develop towas and stabilize the ‘highly permits these would be By providing western cattle business. private persons’. valuable as between regulated * * protection grazing * use and jn Rec[ Canyon Sheep Co. rights, helped improve 308, App.D.C. case [69 98 F.2d 27] changes the use of the land as did the that, rights was held whatever which effected use of the river in cruing permits under the be denomi- Monongahela. The difference between they nated, equitable entitled to were degree. our case that is one protection.” p. Oman was, therefore, improper It Seaton, U.S.App.D. not In McNeil 108 jury for the trial (1960), court to allow the C. conjunctive consider the held use of the fee court that a district new permit lands, long jury so applied as the rule could not to one who had possibility permit during pri- to consider the first admonished obtained his permits ority might period established withdrawn the Act. any holding, compensation. time so without the court said that while argu- remaining government’s rely on merit. ments Some are distinguishable because are cases which the hold- permits were cancelled seeking compen- ers of the answered are sation.1 Other contentions Jaramillo, decision we are with which

in accord.

Affirmed. Judge

KILKENNY, (dissent- Circuit

ing) : Rands, I believe L.Ed.2d S.Ct. (1967), controls on the federal and that lower court

should be reversed. Judge,

Tuttle, a dis- filed *5 senting opinion. also, Cir., 413 F.2d

See SHIPYARDS, AEROJET-GENERAL INC., corporation, and The Home In demnity Company, corporation, Plain tiffs-Appellants, O’KEEFFE, etc.,

William M. Defendant- Appellee.

No. 29265. Appeals, Fifth Circuit.

April 23, 1971. States, 1. Osborne v. and 395 F.2d 892 L.Ed.2d 128 89 S.Ct. (9th 1944). States, Cir. 23 L.Ed.2d Acton Gray, 1968), (9th Cir. F.2d 349 den. Mollohan v. cert. States, Clifton v. United