ALFORD ROOS 1 Decided June 28, 19382 PUBLIC LANDS GRAZING GRAZING DISTRICTS-APPEALS. The determination of the boundaries of grazing districts, and additions to and modifications of such districts, are matters committed wholly to the discretion of the Secretary of the Interior by section 1 of the Taylor Grazing Act, and no appeal will lie from recommendations for such determinations. PUBLIC LANDS GRAZING LICENSES-RENEWALS. A grazing license, being purely temporary in its nature, cannot constitute a bar to the authority of the Secretary of the Interior to adjust the boundaries of grazing districts, regardless of the fact that such adjustment may prevent the renewal of a license to one whose livestock unit is pledged as security for a loan. PUBLIC LANDS-DIVISION OF INVESTIGATIONS-REPORTS. Reports of special agents involving controversies under the Taylor Grazing Act are confidential and not subject to inspection by claimants, attorneys, or the public. CHAPMAN, Assistant Secretary: On July 23, 1935, Alford Roos filed an application for a grazing license under the provisions of the Taylor Grazing Act for 30 head of cattle and three horses on certain described tracts in Ts. 17 and 18 S., R. 12 W., N. M. P. M., New Mexico, lying within the exterior boundaries of New Mexico Grazing District No. 3, as at that time established. On July 1, 1936, the regional grazier granted a license to Roos to graze 22 head of cattle and two horses from July 1 to December 31, 1936, on an allotment embracing parts of Secs. 29, 30, 31, and 32, T. 17 S., R. 12 W., and Sec. 6, T. 18 S., R. 12 W., N. M. P. M. In considering Roos' application for a 1937 license the regional grazier, by a notice dated April 17, 1937, first informed Roos that the advisory board had recommended as follows: Class 1 applicant for 22 cattle. From January 1, 1937, to April 30, 1938. On public range allotment as described in license of July 1, 1936. Nonuse license for 14 CYL. The Advisory Board recommends that your temporary public range allotment be fenced at the earliest practicable date. It will be necessary that you apply to the Division of Grazing, Box 575, Albuquerque, New Mexico, for a permit to construct and/or maintain improvements on your public range allotment. Important that application for permit be approved by chairman of your Advisory Board. Roos appears to have protested, for reasons which are not disclosed by the record, and the regional grazier, on April 23, 1937, notified him that the following recommendation of the advisory board had been adopted as his decision: 1 Motion for rehearing denied October 25, 1938. 2 Not released for publication in time for inclusion in Volume 56 I. D. June 28, 1938 That the recommendation of the Advisory Board dated April 17, 1937, be sustained. However, T. 17 S., R. 12 W., in which your public range allotment is located, has been recommended for elimination from the Grazing District. Roos appealed and the case was set for hearing. A hearing was held June 16, 1937, before an examiner of the Division of Grazing, at which time it was agreed that the sole issue was whether or not the boundaries of District No. 3 should be adjusted so as to eliminate therefrom the lands in T. 17 S., R. 12 W. Testimony was offered and on June 18, 1937, the examiner rendered findings of fact and a decision, sustaining the decision of the regional grazier and recommending that the said township be eliminated from the district. The township was eliminated from the district on April 29, 1938. Roos has appealed. None of the rules promulgated pursuant to the Taylor Grazing Act (act of June 28, 1934, 48 Stat. 1269), as amended by the act of June 26, 1936 (49 Stat. 1976), has made provision for a hearing on the issue involved in this case. The determination of the boundaries of grazing districts, and additions thereto and modifications thereof are matters committed wholly to the discretion of the Secretary of the Interior by section 1 of the Taylor Grazing Act, and the rules and regulations make no provision for appeals from recommendations for such determinations. Notwithstanding this, however, the matter has been carefully considered in the light of the showing submitted by appellant. There is no evidence that the elimination of the township was improper or that any injustice to or hardship on the appellant has resulted therefrom. It appears that the appellant is fully cognizant of his opportunity to apply for a lease under section 15 of the act. In his appeal, Roos alleges that he has obtained a loan from the Resettlement Administration (now the Farm Security Administration) in the amount of $500, the loan running for a period of five years and being secured by the pledge of his "livestock unit," and that the elimination from the grazing district of the township in which the greater part of his allotment is located, thus obviating the possibility of the renewal of his grazing license on the same area, is in violation of that part of section 3 of the act which provides: that no permittee complying with the rules and regulations laid down by the Secretary of the Interior shall be denied the renewal of such permit, if such denial will impair the value of the grazing unit of the permittee, when such unit is pledged as security for any bona fide loan. This point was not raised by Roos at the time of the hearing although it appears that the loan had been obtained before that time. No testimony was offered regarding the loan and hence the attempt to raise the question by way of appeal is belated and would not require its consideration by the Department. However, even had the question been in issue and had testimony in regard thereto been properly presented, it would be of no benefit to the appellant. It will be noted that the above-quoted clause of section 3 merely deprives the Secretary of the right to deny the renewal of a permit under certain conditions. Roos has never held a permit but has had a mere temporary license. In the early stages of the administration of the Taylor Grazing Act it was recognized that, before it would be desirable to issue permits within grazing districts, a considerable amount of preliminary work would be necessary. Range conditions needed to be studied, the various factors necessary to be considered in connection with the proper use and administration of the several grazing districts remained to be determined, rules for the granting of grazing privileges needed to be formulated, and the establishment of grazing districts and the proper boundaries thereof were still to be accomplished. It was recognized that all of these things could not be done in a time sufficiently limited to permit of the granting of permits for the grazing seasons immediately ensuing. Yet it was also recognized that to deny the use of the public range to livestock operators until such time as these administrative details were worked out, would result in undue hardship on stockmen and retard the accomplishment of the purposes of the act. Accordingly, temporary licenses, of the type granted to Roos, were issued. Such a license, being purely temporary in its nature for the reasons set out, cannot constitute a bar to the authority of the Secretary to adjust the boundaries of grazing districts, regardless of the fact that the livestock unit in connection with which the license is granted may have been pledged as security for a loan. The fact that a license and not a permit was issued is notice in itself that the desirability of retaining the lands in question under the grazing district may have been in doubt. If at the time of the granting of the license to Roos, all details relating to the administration of the district had been worked out, and the allotment to him had been properly determined, there would have been no reason why a permit and not a license should not have been issued. However, only a license, carrying with it all of the uncertainties of duration, was issued, and the license as such was accepted without complaint. Roos cannot, therefore, be heard to complain if action is taken by the Secretary, authority for which is expressly committed to him by the act, and freedom for the exercise of such authority was contemplated by the issuance of the temporary license. Even though it were true that the above-quoted provision of section 3 did prohibit the action complained of and the renewal of a license to Roos were mandatory, there is nothing to assure him of the renewal of his license on the identical lands heretofore allotted to him. June 28, 1938 The case does not require an answer to the question of whether there could be an adjustment of the boundaries of a grazing district so as to eliminate therefrom the lands allotted under a permit and where the livestock unit dependent on the allotment is pledged as security for a bona fide loan. Accordingly, the appeal is dismissed without prejudice, however, to Roos' right to apply for a continuation of his allotment in T. 18 S., R. 12 W., and for a lease of the allotted lands in T. 17 S., R. 12 W., under section 15 of the act, or for a license within the present boundaries of District No. 3 commensurate with the loss of allotted lands through the elimination of T. 17 S., R. 12 W., from the district. Before concluding, a further point which is not necessarily related to the issues heretofore discussed merits comment. With the appeal there is submitted what is styled "Exhibit G" wherein Roos sets out in chronological order the history of this case from the time of filing of his original application up to and including the hearing of June 16, 1937. In this exhibit Roos alleges that Special Agent Horace Wilcox, of the Division of Investigations, made an investigation and a report concerning a grazing trespass involving the appellant and one Vigil, that Roos requested the regional grazier to furnish him with a copy of Wilcox's report but that the request was refused, and that the refusal was affirmed by the Acting Director of Grazing, but that on April 12, 1937, an official of the Division of Grazing * did then and there instruct the Regional Grazier and the custodians of the Grazing Division's files at Deming to give Appellant full and complete access to the complete file and to copy so much thereof as he desired; and Appellant did then and there open said files and did copy, in part, so much of said files as he could in a limited time, including the report of Wilcox [Italics supplied.] * * * * * * * In a letter dated October 16, 1908, and approved by the First Assistant Secretary, from the Commissioner of the General Land Office to Messrs. Clark, Prentiss, and Clark, attorneys in Washington, D. C. (38 L. D. 464), it was stated that on and after September 1, 1907, letters, press-copies, reports, or other papers on file in the Field Service Division (now Division of Investigations), or related to any case or matter referred to or pending in such division, excepting such papers as are technically a part of the application or entry, or such papers as may be a part of the pleadings in any case, should not be subject to inspection by claimants, attorneys, or the public. No reason appears why the above rule is not fully as applicable to reports made by special agents of the Division of Investigations involving controversies under the Taylor Grazing Act as to controversies arising under other public land laws. In order that the Department can be fully and intelligently advised by its agents of the existing facts in the various cases on which investigations are 593212-45- -4 ordered, the special agent must at all times feel free to set out and discuss all pertinent matters coming within his observation without fear that his statements will be openly disclosed to any curious party. Oftentimes facts are disclosed to the agents by persons who may be subject to embarrassment if the source of the disclosure is made known, but who nevertheless are willing to assist the agents in their investigations. In fairness to these persons and in order that they will not be deterred from rendering such assistance by a fear that the source of the information thus obtained will later be disclosed, the reports of the agents should be treated at all times as strictly confidential and should not be held open to inspection by unauthorized persons. In the future, therefore, reports by agents of the Division of Investigations which for any reason may be in the files of the Division of Grazing should be open for inspection only by Government officials or agents who need or are required to examine such reports in connection with their official duties. Appeal dismissed. IMMUNITY OF THE UNITED STATES FROM OPERATION OF Opinion, March 14, 1939 ALASKA RAILROAD RAILROAD HOSPITALS-ACTION TO RECOVER DEBT DUE THE UNITED STATES FOR SERVICES-TERRITORIAL STATUTE OF LIMITATIONS. Authority for the construction and operation of hospitals by the Alaska Railroad was contained in the act of March 14, 1912 (38 Stat. 305). An Alaska Railroad hospital is a United States institution. An obligation incurred for services rendered by a railroad hospital constitutes a debt due the United States, action for the collection of which is not barred by the statute of limitations of the Territory of Alaska. KIRGIS, Acting Solicitor: My opinion has been requested on the question as to whether actions to collect accounts due for services rendered by an Alaska Railroad hospital are barred by the statute of limitations of the Territory of Alaska in the event that such actions are not instituted within the prescribed time. The facts indicate that there are outstanding accounts in the name of Mr. Carl Robinson for hospital services which were rendered during the years 1930 and 1931 in the sums of $113 and $163, and that the General Manager of the Alaska Railroad has been advised by the United States Attorney for the Third Division, District of Alaska, that these debts have been outlawed by the statute of limitations of the Territory. It is stated further by the General Manager that there are other outstanding accounts. |