Opinion
On petition for rehearing. For original opinion see 333 P.2d 471.
Rehearing denied.
[134 Mont. 464] LOUCKS, District Judge (dissenting).
I joined with Mr. Justice Angstman in a dissent, from the majority opinion. I wish to record my dissent from the order denying appellants' petition for a rehearing.
The majority opinion approves a confiscation of property of the appellant Hardy and denies the appellants' rights secured to them under the due process clause of the State Constitution, Const. art. 3, Sec. 27 and the Fourteenth Amendment to the Constitution of the United States.
The affirmance of the interlocutory decree of the district court approves acts of the referees on partition which, in my opinion, were in violation of the Act of Congress of June 28, 1934, (43 U.S.C.A. Sec. 315 et seq.) known as the Taylor Grazing Act and the federal regulations issued pursuant to that Act.
The referees could not lawfully partition the lands held under Taylor Grazing permits and they were so instructed by order of the district court.
Section 3 of the Taylor Grazing Act (43 U.S.C.A. Sec. 315b) provides in part:
'The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees. * * * So far as consistent with the purposes and provisions of this chapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this chapter shall not create any right, title, interest, or estate in or to the lands.'
[134 Mont. 465] Regulation 43 C.F.R. 161.7 provides:
'A transfer of a base property, whether by agreement, operation of law, or testamentary disposition, will entitle the transferee, if otherwise properly qualified, to all or to such part of a license or permit as is based on the property transferred, and the original license or permit will be terminated or decreased by such transfer.'
The Regulation 43 C.F.R. 161.2 defines the priority period as the 5-year period immediately preceding June 28, 1934, and requires the Federal range to have been used with the base land or water during that period.
The base lands must be commensurate. Thus 43 C.F.R. 161.6(c)(1) provides:
'No license or permit will be issued to any applicant unless he is able to show that he possesses adequate feed to support his licensed or permitted livestock during the period of time for which they are to be off the Federal range.'
The record does not disclose that the fee lands as partitioned by them were the commensurate base lands for the respective federal permit lands which the referees recommended for allotment to the respective parties.
There is nothing in the record to show that the Federal Grazing lands recommended for allotment to Hardy would be transferred to him alone.
Whether the permit lands could actually be allotted as the referees recommended under the federal statute and regulations is a matter entirely beyond the control of the referees.
The referees should not be permitted to assume that will be done which they were forbidden to do. That is, they may not appraise the permit lands upon the animal unit basis, recommend the allotment of the permit lands, and then arbitrarily add 75 percent of the value of the permit lands recommended for allotment to one of the parties to the estimated value of adjoining fee lands allotted to that party when they cannot lawfully partition the permit lands.
In arbitrarily adding to the value of fee lands a separate [134 Mont. 466] and independent value of permit lands, the referees adopted an illegal method of evaluation condemned in many cases where questions of value were involved. United States v. Jaramillo, 10 Cir., 1951, 190 F.2d 300; United States v. Meyer, 7 Cir., 1940, 113 F.2d 387; Morton Butler Timber Co. v. United States, 6 Cir., 1937, 91 F.2d 884; Atlanta Terra Cotta Co. v. Georgia Ry.s&s Electric Co., 132 Ga. 537, 64 S.E. 563.
Plaintiff Ivins and defendant Hardy each admittedly owned an undivided one-half interest in 107,362.97 acres of deeded land. They likewise had equal rights to revocable grazing privileges on 14,890.25 acres under permit from the Federal Government. The referees recommended that the permit lands be allotted 2,178.24 acres to Ivins and 12,712.01 acres to Hardy. Thus Hardy was charged with a dollar valuation of $43,464.24 on account of federal permit lands recommended for allotment to Hardy in excess of the permit lands recommended for allotment to Ivins. Hardy's share of deeded land is thus proportionately decreased and Ivin's share is increased.
To give to these revocable grazing privileges a value equivalent to 75 percent of the value of lands of equal carrying capacity owned in fee and then to allot six times as much of this permit land to Hardy as is allotted to Ivins, effects a confiscation of property of Hardy without due process of law.
Due process of law means more than 'due procedure'. As the United States Supreme Court said in State of Washington ex rel. Oregon R.s&sNav. Co. v. Fairchild, 224 U.S. 510, 524, 32 S.Ct. 535, 538, 56 L.Ed. 863, 868:
'For the guaranty of the Constitution extends to the protection of fundamental rights,--to the substance of the order as well as to the notice and hearing which precede it. 'The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation."
ANGSTMAN, Justice (concurring).
[134 Mont. 467] Having disagreed with the majority opinion filed herein, I concur in the result stated by Judge Loucks in expressing disapproval of the order denying appellants' petition for rehearing.