B-132774, OCT. 9, 1957

B-132774, OCT. 9, 1957

TO HONORABLE LEWIS L. STRAUSS, CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

THE GENERAL MANAGER OF THE ATOMIC ENERGY COMMISSION, BY LETTER DATED JULY 29, 1957, WITH ENCLOSURES, REQUESTS OUR DECISION CONCERNING SEVERAL QUESTIONS INVOLVING CLAIMS FOR COMPENSATION UNDER THE ACT OF JULY 9, 1942, 56 STAT. 654, AS AMENDED BY THE ACT OF MAY 28, 1948, 62 STAT. 277, 43 U.S.C. 315Q, FOR LOSSES OF GRAZING RIGHTS AND PRIVILEGES IN THE COMMISSION'S NATIONAL REACTOR TESTING STATION, IN SOUTHEASTERN IDAHO. IS STATED IN ATTACHMENT "A" OF THE LETTER THAT THE IDAHO OPERATIONS OFFICE ANTICIPATES THE SUBMITTAL, IN THE NEAR FUTURE, OF A NUMBER OF THESE CLAIMS AND THAT TWO HAVE NOW BEEN RECEIVED.

THE GRAZING RIGHTS IN QUESTION, ON PUBLIC LANDS WHICH NOW COMPRISE IN PART THE COMMISSION'S NATIONAL REACTOR TESTING STATION, WERE GRANTED PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 28, 1934, 48 STAT. 1269, AS AMENDED BY THE ACT OF JUNE 26, 1936, 49 STAT. 1976, 43 U.S.C. 315 315O-1, COMMONLY KNOWN AS THE TAYLOR GRAZING ACT. THESE PUBLIC LANDS ARE COMPRISED OF LANDS WITHDRAWN PURSUANT TO VARIOUS PUBLIC LAND ORDERS WHICH PROVIDED, INSOFAR AS HERE PERTINENT, THAT THE LANDS THUS WITHDRAWN MIGHT BE USED FOR GRAZING PURPOSES UNDER THE TAYLOR GRAZING ACT AT SUCH TIMES AND IN SUCH MANNER AS MIGHT BE AGREED UPON BY THE COMMISSION AND THE SECRETARY OF THE INTERIOR. ON APRIL 10, 1950, THE COMMISSION AND THE BUREAU OF LAND MANAGEMENT ENTERED INTO A MEMORANDUM OF UNDERSTANDING TO ESTABLISH THE TERMS GOVERNING CONTINUED GRAZING ON THE NATIONAL REACTOR TESTING STATION. THIS MEMORANDUM PROVIDED, AMONG OTHER THINGS, THAT THE BUREAU WOULD CANCEL ALL TEN-YEAR GRAZING PERMITS TO THE EXTENT THEY WERE DEPENDENT UPON THE FEDERAL RANGE COVERED THEREBY AND ISSUE IN LIEU THEREOF TEMPORARY LICENSES FROM YEAR TO YEAR TO THE THEN LICENSEES AND PERMITTEES, OR THEIR SUCCESSORS IN INTEREST, TO THE EXTENT OF THE GRAZING CAPACITY OF THE USABLE AREA NOT NEEDED BY THE COMMISSION. ALL LICENSES IN THE FUTURE WERE TO BE TEMPORARY LICENSES FROM YEAR TO YEAR, WITH NOTICE THEREIN THAT THEY WERE SUBJECT TO CANCELLATION OR ADJUSTMENT AT ANY TIME AS NEEDS MAY REQUIRE. PURSUANT TO THE MEMORANDUM OF UNDERSTANDING, THE BUREAU OF LAND MANAGEMENT, IN 1950, CANCELED THE 27 TEN-YEAR PERMITS THAT WERE OUTSTANDING AT THAT TIME, AND ALSO 43 OTHER PERMITS ALL OF WHICH WERE FOR TERMS OF LESS THAN TEN YEARS AND WRITTEN TO EXPIRE IN JUNE 1953. TEMPORARY ONE-YEAR LICENSES WERE ISSUED IN LIEU OF THE CANCELED PERMITS AND THE HOLDERS THEREOF HAVE EACH RECEIVED A TEMPORARY ONE YEAR LICENSE THROUGH THE PRESENT. ALSO, TEMPORARY ONE-YEAR LICENSES WERE ISSUED TO 14 OTHER GRAZERS WHO BEFORE 1950 HAD BEEN GRAZING ON THE LAND UNDER ONE-YEAR PERMITS. THE COMMISSION, ON THREE SEPARATE OCCASIONS--- IN MAY 1950, APRIL 1953 AND JANUARY 1957 (EFFECTIVE MARCH 1, 1957/--- ESTABLISHED "NO TRESPASSING" AREAS WITHIN THE STATION FROM WHICH GRAZERS WERE EXCLUDED. NO REDUCTIONS WERE EFFECTED BY THE BUREAU OF LAND MANAGEMENT IN THE NUMBER OF ANIMALS OR IN THE NUMBER OF GRAZING MONTHS BECAUSE OF THE 1950 AND 1953 EXCLUSIONS. HOWEVER, DUE TO THE 1957 EXCLUSION, THE BUREAU HAS TAKEN AND IS NOW TAKING ACTION TO REDUCE THE GRAZING PRIVILEGE OF A NUMBER OF LICENSEES. IT IS STATED THAT ALTHOUGH NONE OF THESE REDUCTIONS WILL DESTROY THE FULL GRAZING PRIVILEGES OF ANY OF THE GRAZERS, IT IS POSSIBLE THAT CERTAIN GRAZERS MAY DISCONTINUE OPERATIONS AFTER THE REDUCTIONS HAVE BEEN MADE. THE REDUCTIONS ARE NOT, HOWEVER, BEING MADE EFFECTIVE UNTIL THE DATES OF RENEWAL OF THE TEMPORARY ONE-YEAR LICENSES.

43 U.S.C. 315Q PROVIDES AS FOLLOWS:

"WHENEVER USE FOR WAR OR NATIONAL DEFENSE PURPOSES OF THE PUBLIC DOMAIN OR OTHER PROPERTY OWNED BY OR UNDER THE CONTROL OF THE UNITED STATES PREVENTS ITS USE FOR GRAZING, PERSONS HOLDING GRAZING PERMITS OR LICENSES AND PERSONS WHOSE GRAZING PERMITS OR LICENSES HAVE BEEN OR WILL BE CANCELED BECAUSE OF SUCH USE SHALL BE PAID OUT OF THE FUNDS APPROPRIATED OR ALLOCATED FOR SUCH PROJECT SUCH AMOUNTS AS THE HEAD OF THE DEPARTMENT OR AGENCY SO USING THE LANDS SHALL DETERMINE TO BE FAIR AND REASONABLE FOR THE LOSSES SUFFERED BY SUCH PERSONS AS A RESULT OF THE USE OF SUCH LANDS FOR WAR OR NATIONAL DEFENSE PURPOSES. SUCH PAYMENTS SHALL BE DEEMED PAYMENT IN FULL FOR SUCH LOSSES. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO CREATE ANY LIABILITY NOT NOW EXISTING AGAINST THE UNITED STATES.'

THE USE OF PUBLIC LANDS FOR GRAZING PURPOSES IS A PRIVILEGE WHICH IS WITHDRAWABLE AT ANY TIME WITHOUT PAYMENT OF COMPENSATION, AND IT IS BECAUSE OF THIS AND THE RESULTING NONCOMPENSABLE HARDSHIPS CAUSED BY THE WITHDRAWAL FROM GRAZING USE OF PUBLIC LANDS THAT THE STATUTORY PROVISION WAS ENACTED FOR THE PAYMENT OF COMPENSATION FOR LOSSES SUFFERED. SEE UNITED STATES V. COX, 190 F.2D 293; OSBORNE V. UNITED STATES, 145 F.2D 892.

THE DECISIONS REFERRED TO AND FACTUAL CIRCUMSTANCES OUTLINED TOGETHER WITH OTHERS SET FORTH IN DETAIL IN THE GENERAL MANAGER'S LETTER AND ENCLOSURES HAVE RAISED SEVERAL QUESTIONS UPON WHICH HE ASKS OUR ASSISTANCE. THESE QUESTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED.

"QUESTION NO. 1: DOES 43 U.S.C.A. SEC. 315Q REQUIRE THAT A CLAIMANT (THE WORD "CLAIMANT," AS USED IN THESE QUESTIONS, REFERS BOTH TO THE PERMITTEES WHOSE PERMITS WERE CANCELED IN 1950 (AND REPLACED WITH TEMPORARY ONE-YEAR LICENSES) AND THE LICENSEES WHOSE ONE-YEAR LICENSES HELD PRIOR TO 1950 WERE SUCCEEDED ANNUALLY WITH TEMPORARY ONE-YEAR LICENSES) HAVE A PERMIT OR LICENSE WHICH HAS BEEN OR WILL BE CANCELED IN ORDER FOR HIM TO BE ENTITLED TO COMPENSATION?

"ELABORATION: THE STATUTE PROVIDES, IN RELEVANT PART, FOR COMPENSATION TO "PERSONS HOLDING GRAZING PERMITS OR LICENSES AND PERSONS WHOSE GRAZING PERMITS OR LICENSES HAVE BEEN OR WILL BE CANCELED.' DO THE PERSONS ENTITLED TO COMPENSATION UNDER THE STATUTE CONSTITUTE A SINGLE CATEGORY OR TWO CATEGORIES? THAT IS, DOES THE STATUTE PROVIDE (A) FOR COMPENSATION TO PERSONS HOLDING GRAZING PERMITS OR LICENSES WHICH HAVE BEEN OR WILL BE CANCELED OR (B) FOR COMPENSATION TO (I) PERSONS HOLDING GRAZING PERMITS OR LICENSES WHO, FOR WHATEVER REASON, ARE PREVENTED FROM GRAZING THEIR ANIMALS AND (II) PERSONS WHOSE GRAZING PERMITS OR LICENSES HAVE BEEN OR WILL BE CANCELED? YOUR ATTENTION IS INVITED TO THE FEDERAL RANGE CODE FOR GRAZING DISTRICTS, AT 43 C.F.R. SEC. 161.15 (G) (3), WHICH STATES THAT COMPENSATION WILL BE PAID FOR CANCELLATION OR PREVENTION OF USE OF GRAZING PRIVILEGES.'

IT IS NOTED IN THE ELABORATION QUOTED ABOVE THAT EMPHASIS IS PLACED UPON THE WORDS "FOR WHATEVER REASONS," AND IN THIS CONNECTION IT SHOULD BE POINTED OUT THAT THE STATUTORY AUTHORITY FOR PAYMENT OF COMPENSATION FOR LOSSES SUFFERED EXTENDS ONLY TO INSTANCES WHERE THE USE OF LANDS FOR GRAZING HAS BEEN PREVENTED BY ITS WITHDRAWAL FROM SUCH USE FOR "WAR OR NATIONAL DEFENSE PURPOSES.'

WITH SPECIFIC REFERENCE TO QUESTION NO. 1, IT IS OUR VIEW THAT TWO CATEGORIES ARE INCLUDED WHICH CONSIST OF (1) PERSONS HOLDING GRAZING PERMITS OR LICENSES WHOSE PRIVILEGES UNDER THE PERMIT OR LICENSE ARE CURTAILED FOR WAR OR NATIONAL DEFENSE PURPOSES, AND

(2) PERSONS WHOSE GRAZING PERMITS OR LICENSES HAVE BEEN OR WILL BE CANCELED FOR SUCH PURPOSES. A HOLDER OF A PERMIT OR LICENSE WHO IS PRECLUDED DURING THE TERM OF HIS LICENSE OR PERMIT FROM USING HIS GRAZING PRIVILEGE, IN WHOLE OR PART, SUCH AS BY THE POSTING OF "NO TRESPASSING" SIGNS, WOULD BE IN NO DIFFERENT POSITION INSOFAR AS DAMAGES ARE CONCERNED THAN IF HIS PERMIT OR LICENSE HAD BEEN FORMALLY CANCELED. CF. UNITED STATES V. COX, 190 F.2D 293, 296. THEREFORE, AND IN VIEW OF THE UNAMBIGUOUS LANGUAGE IN THE ACT, QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE.

"QUESTION NO. 2: IS A CLAIMANT ENTITLED TO COMPENSATION UNDER 43 U.S.C.A. SEC. 315Q IN CASES WHERE A "NO-TRESPASSING" AREA IS ESTABLISHED WITHIN THE GENERAL AREA WHERE HE HAS BEEN ENTITLED TO GRAZE, EVEN THOUGH THE BUREAU OF LAND MANAGEMENT HAS NOT REDUCED THE NUMBER OF ANIMALS WHICH HE IS ENTITLED TO RUN OR THE NUMBER OF MONTHS IN WHICH HE IS ENTITLED TO RUN THEM?

"ELABORATION: DOES THE ABSENCE OF AN ENFORCED REDUCTION BY THE BUREAU ESTABLISH CONCLUSIVELY THAT THE REMAINING LICENSED LAND (OUTSIDE THE "NO- TRESPASSING" AREA) IS SUFFICIENT TO SUPPORT THE SAME NUMBER OF ANIMALS (FOR THE SAME NUMBER OF MONTHS) AS WERE PERMITTED PRIOR TO THE ESTABLISHMENT OF THE "NO-TRESPASSING" AREA SO THAT THE CLAIMANT MAY NOT BE DEEMED TO HAVE SUFFERED ANY LOSS? OR SHOULD EXTRINSIC FACTORS BE CONSIDERED, SUCH AS THE TYPE OF LAND INCLUDED IN THE ,NO TRESPASSING" AREA, ITS LOCATION WITH RESPECT TO THE CLAIMANT'S OTHER GRAZING LANDS AND BASE OF OPERATIONS, THE ECONOMIC EFFECT OF THE EXCLUSION ON THE OVER-ALL GRAZING OPERATIONS OF THE CLAIMANT, ETC. ? CAN THE VERY ESTABLISHMENT OF A "NO-TRESPASSING" AREA, IN THE ABSENCE OF A REDUCTION IN EITHER THE NUMBER OF ANIMALS OR THE NUMBER OF GRAZING MONTHS, BE CONSIDERED A ,PARTIAL" CANCELLATION OF THE LICENSE (SINCE THE AREA COVERED BY THE "NEW" LICENSE IS LESS EXTENSIVE/? "

A CATEGORICAL YES OR NO ANSWER CANNOT BE GIVEN TO QUESTION NO. 2 INASMUCH AS PAYMENT MAY ONLY BE MADE UNDER THE PROVISIONS OF 43 U.S.C. 315Q FOR LOSSES SUFFERED. IF, FOR EXAMPLE, THE ESTABLISHMENT OF A "NO TRESPASSING" AREA RESULTS IN INADEQUATE FORAGE FOR THE NUMBER OF ANIMALS WHICH THE CLAIMANT IS ENTITLED TO RUN DURING THE TERM OF HIS LICENSE AND NECESSITATES SUPPLEMENTAL FEEDING OR THE PROCURING OF ADDITIONAL GRAZING LANDS, IT WOULD APPEAR CLEAR THAT THE CLAIMANT WOULD HAVE A PROVABLE LOSS FOR WHICH COMPENSATION MAY BE PAID. QUESTION NO. 2 IS ANSWERED ACCORDINGLY. IN REGARD TO THE QUESTIONS SET FORTH IN THE ELABORATION, THE ABSENCE OF AN ENFORCED REDUCTION IS NOT VIEWED HERE AS ESTABLISHING CONCLUSIVELY THAT NO LOSS WAS SUFFERED AND THE CONSIDERATION IN THE ELABORATION, THE ESTABLISHMENT OF A "NO TRESPASSING" AREA DURING THE PERIOD COVERED BY THE LICENSE COULD PROPERLY BE CONSIDERED AS A PARTIAL CANCELLATION OF THE LICENSE FOR WHICH COMPENSATION MAY BE PAID IF LOSSES ARE INCURRED AS A RESULT. HOWEVER, THE COMPENSABLE LOSSES ARE THOSE SUSTAINED DURING THE PERIOD FROM CURTAILMENT OF THE GRAZING PRIVILEGE TO THE DATE OF EXPIRATION OF THE LICENSE ONLY AND DO NOT ENCOMPASS LOSSES WHICH MAY BE SUSTAINED AFTER EXPIRATION OF THE PERIOD OF THE LICENSE EXCEPT TO THE EXTENT THAT SUCH LOSSES MAY PROPERLY BE CONSIDERED TO HAVE BEEN INCURRED DURING THE PERIOD OF THE LICENSE.

"QUESTION NO. 3: IS A CLAIMANT ENTITLED TO COMPENSATION UNDER 43 U.S.C.A. SEC. 315Q IN CASES WHERE A "NO-TRESPASSING" AREA IS ESTABLISHED WITHIN THE GENERAL AREA WHERE HE HAS BEEN ENTITLED TO GRAZE AND THE BUREAU OF LAND MANAGEMENT IMPLEMENTS SUCH ACTION BY REDUCING (IN THE CLAIMANT'S SUCCEEDING LICENSE) EITHER THE NUMBER OF ANIMALS WHICH THE CLAIMANT IS ENTITLED TO RUN IN THE REMAINING LICENSED LAND (OUTSIDE THE "NO- TRESPASSING" AREA) OR IN THE NUMBER OF MONTHS IN WHICH HE IS ENTITLED TO RUN THEM, OR BOTH?

"ELABORATION: CAN SUCH REDUCTION BE CONSIDERED AS "PARTIAL" CANCELLATIONS OF THE LICENSES? IF THE REDUCTIONS CANNOT BE CONSIDERED AS ("PARTIAL") CANCELLATIONS OF THE LICENSES, CAN THE CLAIMANTS BE CONSIDERED TO BE "PERSONS HOLDING GRAZING PERMITS OR LICENSES" (WHO ARE PREVENTED FROM GRAZING ON FEDERAL LAND BECAUSE OF ITS USE FOR WAR OR NATIONAL DEFENSE PURPOSES) IN VIEW OF THE FACT THAT THE REDUCTIONS DO NOT TAKE EFFECT UNTIL THE NEXT "RENEWAL" OF THE TEMPORARY ONE-YEAR LICENSES? STATED IN ANOTHER MANNER, DOES A FAILURE TO "RENEW" A ONE YEAR LICENSE ON THE SAME TERMS GIVE RISE TO A CLAIM FOR COMPENSATION UNDER THE STATUTE? STRICTLY SPEAKING, IT MAY BE ARGUED THAT A FAILURE TO "RENEW" A ONE-YEAR LICENSE ON THE SAME TERMS (BECAUSE OF THE ESTABLISHMENT OF A "NO-TRESPASSING" AREA AND CONSEQUENT REDUCTIONS IN EITHER THE NUMBER OF ANIMALS OR THE NUMBER OF GRAZING MONTHS, OR BOTH) DOES NOT CONSTITUTE A "CANCELLATION" SINCE THE ONE-YEAR LICENSE WOULD EXPIRE AT THE END OF ITS STATED TERM IN THE ABSENCE OF A "RENEWAL"; AND, BY THE SAME LOGIC, IT MAY BE ARGUED THAT CLAIMANTS WHOSE ONE-YEAR LICENSES HAVE EXPIRED DO NOT CONSTITUTE "PERSONS HOLDING GRAZING PERMITS OR LICENSES.' IS THE RIGHT OF A CLAIMANT (WHO IS A PREFERENCE HOLDER) TO RENEWAL A SIGNIFICANT CONSIDERATION IN THE LAST QUESTION?

UNDER THE FACTS AS RELATED IN THE MANAGER'S LETTER, THE LANDS IN QUESTION WERE WITHDRAWN FOR NATIONAL DEFENSE PURPOSES. WHERE THERE IS A DIMINUTION OF THE FEDERAL RANGE UNDER SUCH CIRCUMSTANCES, THE LICENSE OR PERMIT MAY BE REDUCED PROPORTIONATELY TO THE REDUCTION IN AVAILABLE GRAZING CAPACITY (43 C.F.R. SEC. 161.6 (E) (6) ). IMPLEMENTATION OF THE REDUCTION EFFECTIVE UPON THE ISSUANCE OF A LICENSE FOR THE SUCCEEDING YEAR (AS TO A LICENSEE WHO PRIOR TO 1950 DID NOT POSSESS A PERMIT FOR A LONGER TERM), WOULD NOT INVOLVE EITHER "PERSONS HOLDING GRAZING PERMITS" OR "PERSONS WHOSE GRAZING PERMITS OR LICENSES HAVE BEEN OR WILL BE CANCELED" TO WHOM COMPENSATION IS PAYABLE UNDER THE STATUTE. WHILE UNDER OUR ANSWER TO QUESTION NO. 2 COMPENSATION WOULD BE PAYABLE AS TO LOSSES SUSTAINED DURING THE PERIOD FROM CURTAILMENT OF THE GRAZING PRIVILEGE TO THE DATE OF EXPIRATION OF THE LICENSE, NO COMPENSATION IS PAYABLE BECAUSE OF THE REDUCTION IN THE NUMBER OF ANIMALS WHICH THE CLAIMANT IS ENTITLED TO RUN OR THE NUMBER OF MONTHS HE IS ENTITLED TO RUN THEM UNDER SUBSEQUENT LICENSES WHICH MAY BE ISSUED TO HIM. QUESTION NO. 3 IS ANSWERED ACCORDINGLY. IN REGARD TO THE LAST QUESTION IN THE ELABORATION, WHILE IT APPEARS THAT A PREFERENCE-HOLDER HAS A RIGHT TO RENEWAL AS AGAINST OTHER APPLICANTS FOR THE SAME AREA, SUCH RENEWAL WOULD NECESSARILY BE DEPENDENT UPON THE RANGE BEING AVAILABLE FOR GRAZING. THEREFORE, HIS "RIGHT TO RENEWAL" IS NOT VIEWED AS A SIGNIFICANT CONSIDERATION TO QUESTION NO. 3. AS TO PERMITTEES WHO PRIOR TO 1950 POSSESSED A PERMIT FOR MORE THAN A ONE- YEAR TERM SEE ANSWER TO QUESTION 4.

"QUESTION NO. 4: WHAT BEARING, IF ANY, DOES THE CANCELLATION OF A PERMIT IN 1950 (AND ITS REPLACEMENT BY A TEMPORARY ONE-YEAR LICENSE WHICH HAS BEEN ANNUALLY "RENEWED") HAVE ON A GRAZER'S RIGHT TO COMPENSATION UNDER 43 U.S.C.A. SEC. 315Q?

"ELABORATION: IS THE ANSWER TO QUESTION NO. 4 THE SAME IN THE CASE OF PERMITTEES WHOSE PERMITS WOULD HAVE EXPIRED (HAD THEY NOT BEEN CANCELED) BY THE TIME THE "ADVERSE" ACTION WAS TAKEN AS IT IS IN THE CASE OF PERMITTEES WHOSE PERMITS WOULD NOT HAVE EXPIRED (HAD THEY NOT BEEN CANCELED) BY SUCH TIME?

A PERMITTEE, WHOSE PERMIT FOR MORE THAN ONE YEAR WAS CANCELED IN 1950, IS CLEARLY A PERSON WITHIN THE PROVISIONS OF 43 U.S.C. 315Q ENTITLED TO COMPENSATION FOR LOSSES, IF ANY, SUFFERED THROUGH CURTAILMENT OF HIS GRAZING PRIVILEGES BECAUSE OF WAR OR NATIONAL DEFENSE PURPOSES. THEREFORE HAS A DIRECT BEARING UPON THE RIGHT TO COMPENSATION, AND THE FACT THAT SUCH PERMIT WAS REPLACED BY TEMPORARY ONE-YEAR LICENSES WHICH HAVE BEEN ANNUALLY RENEWED IS NOT VIEWED AS PRECLUDING ADMINISTRATIVE RELIEF UNDER THE STATUTE. HOWEVER, ANY COMPENSABLE LOSSES WOULD NECESSARILY BE DEPENDENT UPON THE CLAIMANT'S HAVING BEEN PREVENTED DURING THE PERIOD FOR WHICH HE HAD A PERMIT FROM USING THE LAND FOR GRAZING PURPOSES. HENCE, A REDUCTION IN GRAZING PRIVILEGES EFFECTED PRIOR TO THE TIME HIS MULTIPLE YEAR PERMIT WOULD HAVE OTHERWISE EXPIRED WOULD BE A MATTER FOR CONSIDERATION IN DETERMINING LOSSES. QUESTION NO. 4 AND THE ELABORATION THEREOF IS ANSWERED ACCORDINGLY.

"QUESTION NO. 5: WHAT BEARING, IF ANY, DOES AN APPLICATION FOR "NON-USE" HAVE ON A CLAIMANT'S RIGHT TO COMPENSATION UNDER 43 U.S.C.A. SEC. 315Q?

"ELABORATION: MUST IT BE ASSUMED THAT ANY REDUCTIONS BROUGHT ABOUT BY AN APPLICATION FOR, AND RECEIPT OF,"NON-USE" ARE ATTRIBUTABLE TO THE ACTION OF THE CLAIMANT HIMSELF SO AS TO DEPRIVE HIM OF ANY RIGHT TO COMPENSATION UNDER THE STATUTE? IS IT A PREREQUISITE TO THE PAYMENT OF COMPENSATION THAT THE REDUCTION BE EFFECTED ON THE INITIATIVE OF THE COMMISSION AND THE BUREAU OF LAND MANAGEMENT? CAN IT BE SAID THAT "USE FOR WAR OR NATIONAL DEFENSE PURPOSES OF THE PUBLIC DOMAIN * * * PREVENTS ITS USE FOR GRAZING" WITHIN THE MEANING OF THE STATUTE IN THE EVENT THAT A CLAIMANT, WITHOUT WAITING FOR ANY ACTION ON THE PART OF THE GOVERNMENT,VOLUNTARILY REQUESTS A REDUCTION IN HIS PERMITTED NUMBER OF ANIMALS OR GRAZING MONTHS? MUST THIS VOLUNTARY ACTION ON THE PART OF THE CLAIMANT BE CONSIDERED AS CONCLUSIVE IN ITSELF OR MAY EXTRINSIC FACTORS BE CONSIDERED, SUCH AS THE ANNOUNCED REASONS FOR THE APPLICATION FOR "NON-USE," WHETHER THE BUREAU OF LAND MANAGEMENT WOULD HAVE EFFECTED THE SAME REDUCTIONS (BECAUSE OF THE ESTABLISHMENT OF THE ,NO-TRESPASSING" AREA) IN THE EVENT THAT THE LICENSEE HAD NOT REQUESTED THEM IN HIS APPLICATION FOR "NON-USE," THE OBJECTIVELY DETERMINED CAPACITY OF THE REMAINING LICENSED LAND (OUTSIDE THE ,NO- TRESPASSING" AREA), ETC. ? "

AS EXPLAINED IN THE SUBMISSION,"NON-USE" IS A PRIVILEGE EXTENDED BY THE BUREAU OF LAND MANAGEMENT TO GRAZERS BY AUTHORITY OF THE FEDERAL RANGE CODE FOR GRAZING DISTRICTS. UNDER THE PROVISIONS THEREOF (43 C.F.R. SEC. 161.6 (E) (11) ( WHENEVER A GRAZER, FOR ANY OF THE REASONS GIVEN IN THAT SECTION, DESIRES TO HOLD IN ABEYANCE PART OF HIS GRAZING PRIVILEGES, HE MAY APPLY FOR "NON-USE" AS TO ANY NUMBER, LESS THAN ALL, OF HIS GRAZING ANIMALS. IF HIS APPLICATION IS APPROVED BY THE BUREAU, HE MAY WITHDRAW THE STIPULATED NUMBER OF ANIMALS FROM THE RANGE, AND IN SO DOING HE DOES NOT LOSE HIS PRIVILEGE TO GRAZE THEM IN THE FUTURE AND MAY APPLY AT ANY TIME TO THE BUREAU TO HAVE HIS "NON USE," OR ANY PART OF IT CANCELLED. THE GRAZER IS NOT REQUIRED TO PAY RANGE FEES ON THE NUMBER OF ANIMALS WITHDRAWN.

SINCE IT IS REPORTED THAT A CLAIMANT MAY APPLY AT ANY TIME TO HAVE HIS "NON-USE" APPLICATION CANCELED, AND THEREBY BE ENTITLED TO GRAZE HIS ANIMALS, THE APPLICATION FOR "NON-USE" IS NOT VIEWED AS PRECLUDING COMPENSATION UNDER 43 U.S.C. 315Q NOR REQUIRING A MANDATORY ASSUMPTION AS SUGGESTED IN THE FIRST QUESTION OF THE ABOVE-QUOTED ELABORATION. HOWEVER, A "NON-USE" APPLICATION WOULD RAISE THE PRESUMPTION THAT USE OF LAND WAS NOT PREVENTED BY ITS WITHDRAWAL FROM GRAZING USE FOR NATIONAL DEFENSE PURPOSES, AND THE BURDEN WOULD BE UPON THE CLAIMANT TO OVERCOME SUCH PRESUMPTION--- IT BEING A PREREQUISITE FOR COMPENSATION UNDER THE STATUTE THAT THE REDUCTION BE CAUSED BY WITHDRAWAL OF THE LAND FROM GRAZING USE BY THE GOVERNMENT FOR THE PURPOSES STATED. ALSO, EXTRINSIC FACTORS SUCH AS MENTIONED IN THE ELABORATION WOULD APPEAR PROPER FOR ADMINISTRATIVE CONSIDERATION. QUESTION NO. 5 AND THE ELABORATION IS ANSWERED ACCORDINGLY.

"QUESTION NO. 6: WHAT BEARING, IF ANY, DOES THE STATEMENT (APPEARING IN ALL ANNUAL LICENSES SINCE 1950) THAT "THIS LICENSE IS TEMPORARY, AND * * * IS ALSO SUBJECT TO CANCELLATION OR ADJUSTMENT AT ANY TIME * * *" HAVE ON A CLAIMANT'S RIGHT TO COMPENSATION UNDER 43 U.S.C.A. SEC. 315Q?

"ELABORATION: IF THIS STATEMENT HAS ANY BEARING, DOES IT BAR ALL RECOVERY BY THE CLAIMANT FOR LOSS OF GRAZING USE, OR DOES IT MERELY EFFECT THE AMOUNT OF COMPENSATION?

THE STATEMENT IN THE ANNUAL LICENSES IS A STATEMENT OF THE GENERAL LAW FOR WHICH 43 U.S.C. 315Q PROVIDED AN ADMINISTRATIVE REMEDY, AND THEREFORE HAS NO BEARING UPON A CLAIMANT'S RIGHT TO COMPENSATION AS AUTHORIZED BY SAID PROVISION OF LAW.

"QUESTION NO. 7: IF A CLAIMANT, THROUGH ADMINISTRATIVE ERROR, IS NOT PERMITTED TO GRAZE THE FULL NUMBER OF ANIMALS TO WHICH HE IS ENTITLED, AND, IN A SUBSEQUENT YEAR, THE ERROR IS RECTIFIED AND THE NUMBER OF ANIMALS STATED IN THE CLAIMANT'S ANNUAL TEMPORARY LICENSE IS INCREASED, BUT, BECAUSE OF THE ESTABLISHMENT OF A NEW "NO-TRESPASSING" AREA BY THE COMMISSION IN THE INTERIM, SUCH ACTION DOES NOT INCREASE THE NUMBER OF ANIMALS TO THE NUMBER TO WHICH THE CLAIMANT WOULD OTHERWISE HAVE BEEN ENTITLED, HAS THE CLAIMANT SUFFERED A "LOSS" WHICH IS PROPERLY COMPENSABLE UNDER 43 U.S.C.A. SEC. 315Q?

SINCE THERE IS NO LAWFUL BASIS UPON WHICH COMPENSATION MAY BE PAID BECAUSE OF AN ADMINISTRATIVE ERROR UNDER THE CIRCUMSTANCES, STATED, AND INASMUCH AS NO REDUCTION WOULD BE EFFECTED DURING THE TERM OF AN ANNUAL LICENSE BECAUSE OF WITHDRAWAL OF LANDS FOR NATIONAL DEFENSE PURPOSES, THERE WOULD BE NO COMPENSABLE LOSS UNDER 43 U.S.C. 315Q. HOWEVER, SEE ANSWER TO QUESTION 4.

OUR ADVICE IS ALSO REQUESTED WHETHER THE CLAIM, ATTACHED AS EXHIBIT "A" TO THE LETTER OF JULY 29, 1957, IS PROPERLY COMPENSABLE UNDER THE STATUTE. THE AMOUNT OF THE CLAIM APPEARS TO BE BASED PRIMARILY UPON SPECULATIVE LOSSES, I.E., THE VALUE OF THE LOSS IN PERPETUITY OF A PERMANENT GRAZING RIGHT. THE CLAIMANT HAD NO SUCH RIGHT AND IT IS OUR VIEW, AS EXPRESSED IN THE REPLY TO QUESTIONS NO. 3 AND 4, THAT PAYMENT MAY BE MADE ONLY FOR LOSSES SUFFERED WHERE A LICENSEE IS PREVENTED, DURING THE TERM OF HIS LICENSE, FROM EXERCISING FULLY THE GRAZING PRIVILEGES UNDER HIS LICENSE BECAUSE OF USE OF THE LAND FOR NATIONAL DEFENSE PURPOSES. THEREFORE, TO THE EXTENT THE CLAIM IS BASED UPON SUCH LOSSES OF RIGHTS NOT POSSESSED BY HIM IT IS NOT BELIEVED TO BE PROPERLY COMPENSABLE UNDER THE STATUTE.

WE RECOGNIZE THAT THE DETERMINATION OF THE AMOUNT OF THE LOSS UNDER THE STATUTE IS VESTED IN YOUR AGENCY AND WITHOUT BECOMING TOO INVOLVED IN THE DETAILS OF THE CLAIM, IT APPEARS THAT THE CLAIMANT ALLEGES VARIOUS OPERATIONS IN WHICH HE WAS INTERESTED SUSTAINED LOSSES BY VIRTUE OF THE CURTAILMANT OF GRAZING PRIVILEGES UPON ESTABLISHMENT OF NO TRESPASSING ZONES EARLY IN 1953 AND MARCH 1957. MARTIN BROTHERS HAD A SIX YEAR PERMIT WHICH WOULD HAVE EXPIRED ON JUNE 30, 1953, HAD IT NOT BEEN CANCELLED IN 1950 AND SUPERSEDED BY ANNUAL PERMITS THEREAFTER. WHETHER THE SIX-YEAR PERMIT FOR THE PERIOD ENDING JUNE 30, 1953, OR THE ONE-YEAR PERMIT ISSUED FEBRUARY 1952, IS REGARDED AS HAVING BEEN CURTAILED BY ESTABLISHMENT OF THE NO TRESPASSING ZONE IN 1953, THE ONLY LOSSES COMPENSABLE ON ACCOUNT OF THAT ACTION WOULD BE THOSE INCURRED DURING THE PERIOD FROM THE ESTABLISHMENT OF THE ZONE IN THE EARLY MONTHS OF 1953 TO THE DATE OF EXPIRATION OF THE PERMIT WHICH WOULD ENTITLE THE PERMITTEE TO THE MOST PROTRACTED GRAZING USE AFTER THAT DATE.

THE ESTABLISHMENT OF THE NO TRESPASSING ZONE EFFECTIVE MARCH 1, 1957, WOULD ONLY CURTAIL PERMITS IN EFFECT AT THAT TIME. IT APPEARS THAT HENRY S. MARTIN'S PERMIT (ENCLOSURE 22) DATED MARCH 22, 1956, DID NOT GIVE HIM THE RIGHT TO GRAZE ANY LAND SUBSEQUENT TO FEBRUARY 19, 1957, AND HIS PERMIT HOLDER AT THE TIME THE NO TRESPASSING ZONE, EFFECTIVE MARCH 1, 1957, WAS PLACED IN EFFECT AND NO COMPENSATION WOULD BE PAYABLE TO HIM ON THAT ACCOUNT UNDER THE STATUTE.

AS TO THE ORME LAND AND LIVESTOCK COMPANY WHICH WAS FORMED IN 1954, IT TOO APPEARS TO HAVE HAD NO PERMIT IN EFFECT ON THE EFFECTIVE DATE OF POSTING OF THE NO TRESPASSING SIGNS IN MARCH 1957, AND NO COMPENSABLE LOSSES UNDER THE ACT ON ACCOUNT OF THAT ACTION.