KLEPPE v. NEW MEXICO

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Argument of Randolph

Chief Justice Warren E. Burger: We will hear arguments next in 74-1488, Secretary of Interior against New Mexico.

Mr. Randolph you may proceed whenever you are ready.

Mr. Randolph: Thank you, Mr. Chief Justice and may it please the Court.

This case is on direct appeal from the judgment of a Three-Judge District Court for the District of New Mexico, declaring the Wild Free-Roaming Horses & Burros Act of 1971 unconstitutional and enjoining the Secretary of Interior from enforcing that Act.

The issue in the case is whether the Congress had authority under the Constitution to pass that federal legislation.

The suit was begun in this case by the State of New Mexico, its Livestock Board and Director and one private individual on March of 1974.

The complaint alleged facts relating to a particular incident involving 19 burros which I deal with shortly.

More generally, the complaint charged that the Federal Act was interfering with the New Mexico Livestock Board’s administration of their Estray Law, Estray meaning a stray domestic animal.

That as a result of that interference, the State of New Mexico was being deprived of constitutional rights and then numbers were enumerated, including the Tenth Amendment.

That Congress had no authority to pass this piece of Federal legislation, because the complainant alleged, the animals in question, the wild horses and burros were not damaging or molesting, I think the term is used in this complaint, the federal land, and also because of the particular burros in question were nonmigratory.

The Act, I should give a short description of, deals with as the Title indicates Wild Free-Roaming Horses and Burros found on federal land.

The statute defines these animals as all unclaimed and unbranded horses and burros on the public lands of the United States.

The statute further defines public lands to mean only those federal lands administered by the Bureau of Land Management of the Department of Interior and the Forest Service of the Department of Agriculture.

That is not an insubstantial quantitative acreage.

About 300 million acres is encompassed within the administration of those two federal agencies.

However --

Chief Justice Warren E. Burger: You all have wild burros on them?

Mr. Randolph: However, the forest service only has about 5% of all the wild burros comprised on these two areas of land, 95% is controlled of the burros and wild horses are on BLM land.

Chief Justice Warren E. Burger: BLM Land, Bureau --

Mr. Randolph: BLM, yes.

The Act directs the Secretaries to manage and protect --

Justice Potter Stewart: Well, how about the private land?

Mr. Randolph: There is nothing in the record that indicates, as far as I am aware, of how many burros are on private land or how many horses.

I suppose one would have to, first of all, take a population count, but this only deals with wild --

Chief Justice Warren E. Burger: Can you shoot them in private land?

Mr. Randolph: Sorry.

Chief Justice Warren E. Burger: Can you shoot them on private land?

Mr. Randolph: I suppose if they are your burro and they are your horse.

Justice Byron R. White: He is asking if the law covers private land, and it does?

Mr. Randolph: It does for a wild horse or wild burro, which is defined as an unclaimed or unbranded wild horse or burro on public land.

If that animal strays on to private land, the Act provides that the owner of the private land may call either the BLM or an agent of the Secretary of the Agriculture, and ask that the animal be removed, in which case the particular federal officer must remove the animal.

Section 4 of the Act provides though, however, in no case shall the individual kill the animal that strays onto the land.

Justice Potter Stewart: Well, what is its practical effect, if a private land owner sees a wild burro on his land who has been, in his opinion, damaging his own crops and his own stock and depriving his own stock of food and all these other things that are alleged in the amicus brief, and just decides to pick-up his rifle and shoot him and there is no proof that that burro has ever been on public land?

Mr. Randolph: (Inaudible) Federal criminal.

Justice Potter Stewart: But on the other hand if it can be proved that burro had ever set foot on public land, then what?

Mr. Randolph: Well, the Act provides that it deals with the wild horses and burros that are an integral part of the federal public land.

I do not think that --

Justice Potter Stewart: These are not flora, these are fauna?

Mr. Randolph: I do not -- I realize that.

I do not think that that means that simply because an animal sets foot on federal public land that he becomes an integral part of it, but before I get too deeply into this let me just make one point.

That issue is not involved in this case.

These burros that were taken in this litigation or involved in this litigation were first of all found on federal land when they were seized.

The complaint filed by the State of New Mexico, by the State Livestock Board and by the private individual, does not make any allegations relating to the question whether these burros were on private land or not on private land.

It does not make a point of that, but so far as the evidence shows, the burros were totally on public land.

There is a statement on Page 4 of the appellee’s brief that says the record indicates that these burros spend a majority of time on private land.

The reference in the brief is to I believe at Page 46 and 48, support for that statement in the record.

Justice Byron R. White: Did they support for the statement that they interfere with the lessee's property on public land?

Mr. Randolph: Well, there is an allegation in the complaint that they damage -- they do not damage the public land, therefore --

Justice Byron R. White: How about my question?

Mr. Randolph: The lessee's property, the lessee of public land I would suppose.

Justice Byron R. White: Yes.

The lessee (Inaudible) supplemental feeding that he puts and brings on the public land?

Mr. Randolph: Well, as far as this case is concerned, maybe I will give a factual statement.

Justice Byron R. White: Let us just say that wherever you are grazing cattle on the public land, you carry salt under the land.

You frequently carry on supplemental feeding on to the land, and you find out that some wild burros are eating up your supplemental feeding.

Now, is there some evidence to that effect in this record or not?

Mr. Randolph: There is evidence that these burros were eating protein blocks, but let me say that that is not Mr. Justice White a usual practice for all the grazing -- within Taylor Grazing Act.

I think the Bureau of Land Management at least has informed me that supplemental feeding is something that is frowned upon usually.

You are not supposed to -- as well salt, and the reason for that is, because the burros and horses then tend to browse more than they otherwise would which is damaging to public land in a way that it would otherwise not.

Well, that is active or not, I do not know.

But in this particular case, the burros that were involved here were seized from one Mr. Kelley Stephenson’s ranch in New Mexico, in the South Central part of New Mexico, and the case arose as follows: While Mr. Stephenson, a New Mexico cattle rancher, was visiting BLM offices and dropped by to talk to a number BLM officials, he was told by them that they had seen 25 burros around an area called Taylor Well.

Now, Taylor Well is on federal land and Taylor Well is a joint watering spot for this particular rancher and another rancher.

Mr. Stephenson, the rancher in question here, had a six-month permit to graze about 40 head of cattle as a winter pasture in this particular area.

That was the first, apparently Mr. Stephenson knew about the burros around Taylor Well.

As a matter of fact, he said he was surprised because although he had been in the area for 29 years and had seen burros in the Foothills to the east, he had never seen them around this particular well.

At that point, as far as Mr. Stephenson knew, the burros and the cows were getting along, there was no harm, whether they are eating his protein blocks or not.

The Bureau of Land Management certainly did not know, at least all they have was a photograph of the burros standing around the well.

Now, Mr. Stephenson returned to his ranch and confirmed the presence of the burros, but rather than calling up the Bureau of Land Management, after he allegedly, as the complaint says found that the burros were molesting the cows, rather than doing that, he called the New Mexico Livestock Board.

Now, Mr. Justice White, you mentioned the problem of the burros perhaps interfering with the cows.

There is a provision in the regulations that the Bureau of Land Management has promulgated under the Wild Horses and Burros Act.

Justice Byron R. White: I did not say anything about interfere with the cows.

I asked you, whether they are eating up some property in the --

Mr. Randolph: They were interfering with property and the cows are the ranch’s property.

Justice Byron R. White: And as evidence that they were in this record?

Mr. Randolph: They were eating protein blocks.

Justice Byron R. White: The usual or not, they were eating up his protein blocks?

Mr. Randolph: That was it; they were eating his protein blocks.

But if they were in -- but the allegations in the complaint are that they were molesting his cattle, I do not know whether the complaint even talks about protein blocks or salt blocks or whatever; the complaint says that they were molesting his cattle.

The regulations of --

Chief Justice Warren E. Burger: (Inaudible) from the cattle as molesting them, is it not?

Mr. Randolph: I would not characterize that as molesting.

Well, it seems to me that the direct physical contact which is I think what he was claiming and pushing them aside and so on and so forth.

And --

Justice William H. Rehnquist: If evidence of eating the protein blocks came in without objection, presumably the complaint is deemed amended, is it not?

Mr. Randolph: I do not question the relevance of that.

I am saying that the argument and the contention was not based on that particular fact and I do not think the case rests on it in one way or the another.

I do not think the constitutionality of this Act rests on whether these burros were eating protein blocks or not.

Justice Byron R. White: Were they found on private property?

Mr. Randolph: In this case, they were found on public property.

Justice Byron R. White: And apparently, you would think it would make no difference because they were found on private property or not.

Mr. Randolph: Constitutionality of one provision of this act which is not a question.

You may turn on that question but that is not an issue that the District Court dealt with in any way.

In any event, there is a regulation as I was going to say from the Bureau of Land Management that provides the problem animals shall be removed from an area if they interfere with wildlife or if they interfere with livestock or they interfere with individuals.

But rather than asking the Bureau of Land Management after the rancher returned, the rancher called in the New Mexico Livestock Board which is composed of seven individuals who according to state statute must adequately represent the livestock industry in the state and also must be engaged in the livestock business.

Justice Potter Stewart: Is there any allegation that he first asked the Federal authorities to please remove these?

Mr. Randolph: There was an allegation; the testimony is as follows on that question.

I asked the Bureau of Land Management official, what they do if the cows and donkeys do not get along.

He said and I think I am quoting this almost exactly, if the cows interfere with the burros, the cows have to go.

That is in the appendix.

The New Mexico livestock --

Justice Potter Stewart: Under the law, the private landowner could have requested or if the private landowner had requested the Federal authorities to remove the burros, it was incumbent upon the Federal authorities to do so, was it not?

Mr. Randolph: That is right.

But he is -- Mr. Stephenson is not a private landowner as far as this land is concerned.

The closest piece of Mr. Stephenson’s private land --

Justice Potter Stewart: Permitee under the Taylor Act?

Mr. Randolph: Yes, he is permitee under the Taylor Act, having a six-month grazing permit using this area for 40 head of cattle for winter pasture.

On the map, that is included in the appendix, the closest piece of property to the area where the burros were seized, that is in private ownership.

Mr. Stephenson’s ownership is two-and-a-half miles away from the Taylor Well.

The quadrants on that map are each one a square mile.

That is in the appendix.

The New Mexico Livestock Board has said administers, what they call the State Estray Law and this law provides that any horse or burro running at large on the public or private land of the state, in the state is considered an Estray, a stray domestic animal.

Apparently obviously, the New Mexico Livestock Board construes public land as including not only state land, but also Federal land and the Act provides, the New Mexico Act provides that a person having knowledge of that Estrays, may upon getting the authorization of the Livestock Board, simply round them up so long as he shifts them to the nearest railroad depot for turning over to an official with the New Mexico Livestock Board.

Another way that Estrays can be impounded is by the Livestock Board itself and that is what happened in this case.

Now, I should point out to the Court something that I discovered only in preparation for this case and that is that the New Mexico Estray Law was amended after the decision in this case.

The definition of what is an Estray was changed from, “instead of any horse, burro, mule, etcetera, running at large on public or private lands” it was changed to “any livestock or buffalo found running at large on public or private lands.”

We do not think that changes the outcome of the case at all.

Obviously there is --

Unknown Speaker: (Inaudible)

Mr. Randolph: After they get them they are supposed to be disposed of according to the directions of the Livestock Board.

In this case, the 19 burros were seized and impounded and then taken by truck to Roswell, I hope I pronounced that correctly, New Mexico and sold at the public auction.

The proceeds of the sale, the amount of the sale was not shown in the record, the proceeds of the sale are paid to the New Mexico Livestock Board.

One of the appellees in this case, appellee Foster purchased three of the burros.

The records does not show who purchased the other 16.

Justice William J. Brennan: (Inaudible) Purchase to what purpose?

Mr. Randolph: Well, the record does not show what the other sixteen were purchased for and --

Justice William J. Brennan: What I was trying to find and get at is, do they dispose them and kill them or something?

Mr. Randolph: Well, they could be used for dog food, they could be use fertilizer, they could be use as pets, and they could be used for donkey basketball teams.

Justice William J. Brennan: The Federal Act is to preserve those species?

Mr. Randolph: That is right.

And as a result of that because of their protection, the United States through the United States Attorney’s Office, when it found out about the burros, demanded their return from the New Mexico Livestock Board.

They did not discover this until after the sale had taken place which was one week in February at 1974, after the burros were rounded up.

When the United States demanded return of the burros, this suit followed.

Now, our principal argument in this case is that the Act is a valid exercise of Congress’ power under the Property Clause of the constitution.

That provides the Congress shall have power to make all needful rules and regulations respecting the territory or other property belonging to the United States.

Congress did not legislate, however, on the basis that these animals, roaming the Federal lands, were owned by the United States.

The senate report specifically says that these animals are owned by no one individual, but they are owned by the people of the United States at large and we do not make that claim in this case.

Rather our claim is and our argument that the regulation, the regulatory authority over these animals is derived from Congress' power to make needful rules as the constitution says, respecting the Federal Public land.

Justice William H. Rehnquist: Well, you are not here urging that the senate committee's view is correct as a matter of law, are you, that the burros anywhere in New Mexico are owned “by the people at large?”

Mr. Randolph: We do not press that contention one way or the other Mr. Justice Rehnquist.

We say, regardless, the Congress legislates in great many ways and legislates with respect to great many things, they do not own and we say that Federal Government does not own.

We say that it does not matter whether these burros are owned, if they are on Federal Public land or a part of it and Congress can legislate.

That is hardly a new startling proposition and one of the cases that --

Chief Justice Warren E. Burger: O suppose the rancher shoots them on his own private land after he has been unable to chase them off.

Where is the jurisdiction under the Public Lands Act and clarify that for me?

Mr. Randolph: Well, we think it is from the necessary proper clause that there are areas and I suppose the Stephenson Ranch is just one indication, where -- which comprises about 8000 acres of Federal land that he has the rights to accept the permit to graze there and interspersed, there are few thousand acres of private land and state land.

We think Congress in order to preserve these animals on the public domain could protect them the moment -- from being shot, the moment they stepped off into a parcel that was not part of the public domain.

Of course the animal, a farmer or the rancher can protect against that I suppose by fencing his property, if he wishes them not to cross there.

Justice Byron R. White: The question on private land is any different with respect to these burros than it is with respect to deer and an elk insofar as the state purports to tell a landowner do not shoot elk out of season or do not shoot deer out of season, even if you find them on your own land?

Mr. Randolph: The – well with respect to -- if the state does that with the respect to state land, and state does that with the respect of Federal land as well, we think it is a different question because we are deriving not, Federal government is deriving its power from the fact of ownership of the Public land, whereas the state in the cases like Geer and others is dealing with a kind of a general police power to provide the health and welfare of its citizens.

Justice Byron R. White: If the question is whether or not a landowner is free to shoot game on his own land under the --

Mr. Randolph: Well, I was going to speak to that right directly Mr. Justice White which deals with the power of an individual over his land and I was going to say that the authority that is being suggested here by Congress, that is being put forth in the Wild Horses and Burros Act is hardly a new startling proposition.

One of the cases that has been cited by the appellee is Geer versus Connecticut and if you read Geer, the court points out that as far back as the Sixth Century in the ancient Rome, in the Institutes of Justinian, it was recognized that a landowner has the right to prevent others from killing game on his land and that is what Congress has, as far as the part of the Act is at issue here, provided.

Justice Potter Stewart: What is so called feral animal’s though?

Is it claimed that these are feral animals?

Mr. Randolph: Yes, they are feral.

Justice Potter Stewart: These are just horses and donkeys that have run off from some rancher’s property?

Mr. Randolph: A feral animal usually refers to an animal that --

Justice Potter Stewart: Feral animals are wild animals, an indigenous wild undomesticated animal?

Mr. Randolph: Usually one that had been domesticated is a feral animal.

Justice Potter Stewart: (Inaudible) I may remember (Inaudible) feral, wild?

Mr. Randolph: It means wild, but it usually is used to refer to one that had prior -- previously been domesticated, but beside from that, and we think the proposition; that Congress can control these animals on the Federal land is hardly open to doubt.

Congress could and this Court has recognized in the case called Light versus the United States that prevent anyone from coming onto the public land at all.

It could build a fence around all 300,000,000 acres of the public domain.

It could charge anybody coming on there with trespassing, it has that authority.

We think it also could provide a gatekeeper that says if you come on to the public land, you shall not kill the animals that are there.

If Congress can do that and I think that is clear from the prior decisions of this Court, we think it has the lesser power to say that if you come on, do not destroy the animals that are using the public domain and have used it for hundreds of years.

Do not destroy them, do not molest them, do not harass them, do not capture them, and take them away.

That is all this Act does.

The District Court’s opinion states that Congress could not protect the wild horses and the wild burros because they were damaging the Federal public land, it is the way the District Court put it.

We find this rather strange proposition.

It would mean that if they are damaging the Federal Public land, then Congress could protect them or if they were benefiting the Federal Public land I suppose then Congress could destroy them.

That we submit really does not make very much sense and certainly the framers of the constitution did not intend we think, the Property Clause to be read that way.

Now, I notice that in the -- because I pointed out the complaint of the Appellees suggested that Congress could not legislate because these animals do not damage the Federal Land.

Now, they argue in their brief that Congress’ legislation is unconstitutional because these animals do in fact damage the public land.

The statute that is in question here was enacted by Congress we think in a great tradition of the Property Clause.

Congress found that these animals were components of the Federal land and that is the fact that could not be disputed.

The animals, at least these equine animals, were found on the North America continent as long as millions of years ago.

They disappeared ten thousand years ago and were reintroduced, Congress and studies that were before Congress, show by Spanish conquistadors in the early 16th Century.

They have been roaming the western plains ever since, but one thing that we do not argue and the Congress did not labor under the illusion that they were protecting an endangered species.

As a matter of fact, the evidence shows that these wild horses and burros are not really separate species from domestic animals at all.

There is some contrary evidence before Congress, I do not think that these committee reports credited that.

Justice Byron R. White: (Inaudible) suppose under the Property Clause of the United States could condition a Taylor Grazing lease on the lessees not shooting burros or seizing burros, (Inaudible) off its land?

Mr. Randolph: We think so or any other animal for that matter or stray cats for that matter I suppose as they came on to the Federal land.

I think Congress said in the Taylor Grazing Act, here use our land to graze cattle.

We want our land to be used by cattle.

All they said in this Act is “and we also want our land to be used by horses and burros” and they wanted an interfere with that.

Chief Justice Warren E. Burger: And it reduces the land for the grazing land, does it as matter of economics?

Mr. Randolph: Well, that would only be true if the burros were taking up or the horses were taking up and grazing in an area where the cattle would otherwise graze in, but the proportions of that, we are talking, the latest count was 40,000 horses and I believe 10,000 burros in a report that Congress on the Federal Public land, over 300,000,000 acres, so we are not --

Chief Justice Warren E. Burger: You brought that up before they are on sporadically over the 300,000,000; they are concentrated in certain (Voice Overlap)

Mr. Randolph: Most of them are in Nevada, most of the horses are in Nevada, but in the State of New Mexico, the census was a total of approximately a 104 burros on the Federal Public lands and 64 of them were claimed by individuals.

The claims are still being processed.

They claimed that they owned them and they had just been set out.

If their claims are accepted, they have to pay a trespass fee to let the animals back.

The Congress also found that as I said that these were not special species that most probably they have escape has been turned out within the last century or even during the depression when farmers and ranchers pulled up stakes and left for the cities.

Justice William H. Rehnquist: What is the estimated life of a burro?

Mr. Randolph: They can live as long as 60 years.

They live very, very long.

There is a place in England I think that has an old age burro at home or something, but I do not know.

One of the things that Congress was startled about is that not only studies have been done on that on the burros and on there lifespan --

Justice William H. Rehnquist: So that a burro that had been turned in the depression as a mere infant would now be about 40 or 45?

Mr. Randolph: It will be alive today, that is right [Laughter]

Justice Potter Stewart: (Inaudible) for this case?

Mr. Randolph: Sorry?

Justice Potter Stewart: You must have drawn the straws for this case.[Laughter]

Mr. Randolph: And I lost.[Laughter]

Justice John Paul Stevens: Mr. Randolph, I may have missed it, but have you discussed your theory of how the government has the power to exercise jurisdiction over the burros while they are on private land?

I thought you said earlier in your argument that they were not burros on private land, but (Voice Overlap).

Mr. Randolph: These burros were not.

These burros were not found on private land.

The only -- there is two pieces of testimony in this record.

One is the rancher said, we have shown a map of this area and he said, they are all over the public -- they are all over that area.

Well, part of that area has interspersed private land.

The other thing he says is cattle are free to roam all over the area and that is the only evidence in this record, but I like to get just one other point out.

Justice John Paul Stevens: Or is it completely irrelevant, the question that they are getting on private lands?

Do you contend the United States --

Mr. Randolph: For the purpose of this case it is.

Justice John Paul Stevens: I see.

You do not argue that the United States has the power to regulate the burros when they are on private land?

Mr. Randolph: We do not think that is an issue in this case.

Nobody has claimed it.

Nobody has briefed it.

Nobody has argued it.

It has not been in the District Court.

It was not in part of the complaint.

The facts underlying the case do not show that if it ever came up then I think it might be a proper issue.

We would claim it is.

Justice Potter Stewart: (Inaudible) the statute do purport to control --

Mr. Randolph: Section 4.

Justice Potter Stewart: -- what people can do to burros and the wild horses that is on private land?

Mr. Randolph: That is right.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: Now before us and all we have now is the basic power of Congress to enact this legislation generally?

Mr. Randolph: And as far as that is concerned, I said this was the legislation, we think in a great tradition.

The Congress close -- the Bill has originated from committees are off the Property Clause.

The Bills originated from committees and Congress that are composed in nearly all western representatives of western state.

This is unusual legislation and passed unanimously.

The notion that it upsets a great tradition of the State is rather surprising I think.

If there is a tradition of controlling these animals, it is the tradition of the Indian tribes and the United States Calvary Remount Service controlling the animals, not the traditional State control.

The governor of Nevada, I find that the amicus briefs by State of Nevada filed here, the governor of Nevada wrote a letter that the both houses of Congress supporting this particular piece of legislation.

The --

Chief Justice Warren E. Burger: (Inaudible) and deer and buffalo, would there be any question about the power of the Federal government to protect them from being chopped on public or private land?

Mr. Randolph: Well, on private land, I think there is.

I think it has to be related to the public land.

If they live all they lives on and stepped --

Chief Justice Warren E. Burger: What the Congress did, but what their power would be, and most states have game laws which limit the time when you can --

Mr. Randolph: (Inaudible)

Chief Justice Warren E. Burger: -- pheasants, and ducks and a lot of other things and that does not mean you can shoot the pheasants if they come on your farm, does it?

Mr. Randolph: I do not think so.

I am not sure depending upon the state.

Chief Justice Warren E. Burger: No, there is a -- no state would have jurisdiction or would the state have jurisdiction to have its game laws reach the public lands of United States?

Mr. Randolph: They do.

Chief Justice Warren E. Burger: They do?

Mr. Randolph: Traditionally, the federal public land, the game in the Federal Public land is controlled by the state game laws while the habitat is managed by the Federal Government.

That is only because of the Federal government is letting the usual customary traditional course to take place.

Chief Justice Warren E. Burger: That is not because of any lack of power related to --

Mr. Randolph: No, not at all.

The Federal Government could and in fact has with respect to wild life refuges and with respect to the bird sanctuaries said that state game laws shall not apply.

These animals shall not be killed at any time.

The mule deer in the area that we are talking about here in the Federal Land in New Mexico, the quail can still only be shot I would suppose if someone gets a state hunting license and goes out there.

Justice John Paul Stevens: In the first or second sentence of the Three-Judge Court opinion, they say these burros were wondering on private land.

Do you say that finding is clearly erroneous?

Mr. Randolph: No, what I was responding to is the contention that they spend the majority of their time on Federal or on private land and also the contention that this particular rancher saw these burros on private land.

I do not think that there is anything in the record.

They may have wondered --

Justice John Paul Stevens: Let me just be sure that I understand.

Are you saying that finding is clearly erroneous?

Mr. Randolph: No.

Justice John Paul Stevens: So, then we must assume that these 19 burros were on private lands and that is what the (Voice Overlap)

Mr. Randolph: No, I am sorry, I misunderstood it.

They were -- it is not disputed in this record that these burros were on public land when they were seized, they were on public land, when they were discovered.

Justice John Paul Stevens: Private lands when the man made his complaint?

Mr. Randolph: They may have been on private land when they were found.

Justice John Paul Stevens: The court so found that you contest that finding?

Mr. Randolph: No, I do not dispute that.

Justice John Paul Stevens: So that we must assume for purposes of decision that they had been on private land?

Mr. Randolph: At sometime, but how long, what majority is -- what amount of time and when?

Justice John Paul Stevens: It is while they were on his private land, do you contend that the United States had jurisdiction over them?

Mr. Randolph: We would contend that he could not shoot them while they -- if they walked across by the --

Justice John Paul Stevens: The Federal Statute?

Mr. Randolph: That is right, but that is not issue now we think.

They were found on Federal Public land, they were discovered on Federal Public land.

How much time they spent on the piece of private property and they were taken from Federal Public land by state agents, who came along without any permission from the Bureau of Land Management.

Justice Potter Stewart: You have in mind the statement that -- which Justice Stevens is referring, the first sentence of the second paragraph, of the opinion on this case.

Mr. Randolph: Yes.

Justice John Paul Stevens: The controversy involved here began when a New Mexico rancher, Kelley Stephenson discovered several unbranded and unclaimed burros wondering on his private land and you concede that --

Mr. Randolph: If that -- I thought it said on public lands.

Justice Potter Stewart: No, that is in common and also on public land, but he was referring to the clause that comes before the comment?

Mr. Randolph: If there was a period after that, I would say that that is clearly erroneous and not supported by the record.

He found these burros; he discovered these burros when he visited Bureau of Land Management Office where they showed them a picture of them around the Taylor Well which is all in Federal public property.

Justice Potter Stewart: Wondering on his private land that is what it says and that is the clause to which Mr. Justice Stevens is referring.

Justice William H. Rehnquist: But that is still -- is it not still consistent with your idea that by time he complained and the New Mexico people actually came to get them, they were then on public land?

Mr. Randolph: Yes, how much time they spent on any private land within his -- that was owned by him or any body else I suppose is not shown by the record.

For all I know, that statement they were found on, I think they were referred to his private land?

Justice Lewis F. Powell: (Inaudible) could not have been some other burros?

Mr. Randolph: No, I do not think that there is any way really to tell the difference between one or the other, at least there is nothing --

Justice Lewis F. Powell: There were more than 19 burros in that part of New Mexico, I would assume?

Mr. Randolph: According to and surprisingly enough, according to the Bureau of Land Management on the Federal Lands of New Mexico, there is a total of about a 100 burros, wild burros, that is all and out of them, 64 are claimed by private individuals as having owned them even though they maybe unbranded, so very few in New Mexico.

Justice Lewis F. Powell: Like in to the effect that the two million in the country --

Mr. Randolph: There were two million horses at one time within the western plains of the United States.

Those numbers dwindled.

The Congress found it down to the 20,000 by 1971.

Justice Lewis F. Powell: Is there anything in the lease Mr. Stephenson had that touches on the subject, mentioned the burros at all.

Mr. Stephenson --

Mr. Randolph: This particular permanent is not in the record; it is not in the record.

Now, I have asked the Bureau of Land Management.

The only thing so as far as I am aware is that there are regulations now in the works that would say that if a rancher leasing Taylor Grazing Act land from the government to graze, violates the Wild-Horses Act that his lease can be canceled.

So far as I am aware now, that is not written into his permit.

Justice John Paul Stevens: You were suggesting that when we decide this case, we need not to tell a rancher who finds burros on his own private lands whether he should follow the Federal procedure, calling the Federal people or call for the state procedure following a state procedure, that is a question we will save for some other case?

Mr. Randolph: That is right.

If it ever comes up and the only way it will come up is if -- if a rancher -- I might say that practice of having animals going to private land, wait until you get some official person to remove them is a traditional practice in the west.

If you look at the New Mexico Estray Law, even a private landowner in New Mexico cannot say he sees a stray animal that comes onto his land, he cannot take the gun out and shoot it.

He is prohibited from doing that.

He has got to call up the New Mexico livestock, would not get their permission to come out and take it away which is precisely what the Federal Act does.

Justice John Paul Stevens: Yes, but it makes a difference.

He violates Federal Law, if he does that and then we do not tell him whether that is constitutional or not?

Mr. Randolph: That is right.

I do not think that is an issue in this case.

Chief Justice Warren E. Burger: Mr. Harris

Argument of George T. Harris, Jr.

Mr. George T. Harris, Jr.: Mr. Chief Justice and may it please the Court.

We are in agreement with the counsel as to the single question that we are faced with and that is whether or not the subject Wild Horse Act exceeds the powers of Congress under the Property on the Commerce Clauses and we are in basic agreement I think with him on the factual recitation that he gave with one or two minor exceptions which I think I must first address.

The common misconception among people who have not lived in the west or the southwest and had to do with the ranching industry was expressed by counsel here this afternoon in the argument, drawing the distinction as he did between the BLM land, public domain and the fee land.

These burros, if Your Honors may please, were found on Kelley Stephenson’s ranch.

He, for 19 years have been a rancher in New Mexico in this particular area, where he had, as you will see from page 81 of the appendix on the plot, where he had a relatively small ranch for that area which consisted of these 8000 acres of BLM land, but combined with that was about 3000 acres of his own private deeded fee land and another 1000 acres of state leased land, that comprises his ranch.

As you will see, it bounded on --

Justice Byron R. White: (Inaudible) this land I suppose would be Taylor Grazing land?

Mr. George T. Harris, Jr.: That is correct.

Yes.

Justice Byron R. White: A common way of referring to your ranch?

Mr. George T. Harris, Jr.: Yes sir.

And his --

Justice Byron R. White: The state found on your ranch, you do not know whether it was found on the Taylor Grazing land or (Inaudible)?

Mr. George T. Harris, Jr.: That is correct, except that, this record also contains the testimony of Kelley Stephenson about these burros in general from which I think you might well --

Justice Byron R. White: (Inaudible) all it says whether they -- when the first found them, they were -- did he ever find them on his fee land?

Mr. George T. Harris, Jr.: No, I think he did not testify and nor is there any evidence in the record as to these particular burros that, that was true.

What he did say was that during the 19 years he had been there, he had known some eight or 10 of these wild animals.

Justice Byron R. White: (Voice Overlap) those burros he never knew (Voice Overlap)

Mr. George T. Harris, Jr.: No sir, he did --

Justice Byron R. White: -- whatsoever that these burros were ever found on his fee land?

Mr. George T. Harris, Jr.: We will admit that Your Honor, that is absolutely correct.

Justice William H. Rehnquist: Then, the District Court is wrong in that sense that Justice Stevens quoted to Mr. Randolph?

Mr. George T. Harris, Jr.: I think not, Your Honor.

I do not admit that they were wrong because of the statement I was about to make about the testimony in the record from which I think the Three-Judge Court might well have drawn a reasonable inference that these were the donkeys that have been seen in the past back up on the foot hills on his fee land.

If you will start -- I think it is at about 47 on the record where he talks about having seen wild donkeys over to the east in the foot hills on his fee land.

He said that is mostly where they run because that is the better land and that is where they stay.

On these particular ones, the first time they were seen was at the Taylor Well that was spoken off and that was in fact on BLM land and they were seized by the Livestock Board there.

I think counsel has adequately set forth the facts in response to some questions propounded to him about his having first made a complaint to the BLM people about the molestation of his cattle by these donkeys and his unsuccessful attempt to do something about it through BLM, which necessitated his then going of course to the state authorities under our state Estray Laws for relief which he got.

Because in accordance with our State Laws, they picked them up and sold them at the public auction as they have done I suppose since the statehood in New Mexico, a practice that is common throughout the western states.

The point has already been made about the extension of this Act onto private land.

It covers not only public land.

It specifically covers private land in several particulars.

Justice Byron R. White: You do not suggest that this case raises that issue?

Mr. George T. Harris, Jr.: Yes I do, Your Honor.

Justice Byron R. White: Why is that?

Mr. George T. Harris, Jr.: Well, I do it because this whole controversy arose out of more than just these 19 donkeys.

Justice Byron R. White: What the issue -- what the complaint was about was that this arose out of the fact that these 19 burros were taken from public land and sold?

Mr. George T. Harris, Jr.: Yes, Your Honor, that is correct.

But at page 66 of the appendix, you will find a part of a series of correspondence between one of the plaintiffs in this case Mr. Lee Garner, who is the director of Livestock Board pointing up the real controversy, that the State of New Mexico is having with the Federal government, particularly to BLM with respect to the Wild-Horse Act.

In the very first paragraph he points out what the state's position is with respect to these animals that are found running either on private land or on public domain.

He claims ownership on behalf of the State of New Mexico of all of them.

That is an issue in this case notwithstanding what government counsel has to say about the narrow limited issues in the case.

Justice John Paul Stevens: Just so I have it in mind, you brought a Three-Judge Court complaint seeking a declaratory judgment that the whole statute is unconstitutional?

Mr. George T. Harris, Jr.: That is correct.

Justice John Paul Stevens: The question about the 16 animals and all the rest, really goes to your standing to attack the entire statute just rather than, you are not appealing a condemnation or anything like that?

Mr. George T. Harris, Jr.: No sir.

I am not concerned particularly with respect to these limited numbers of animals.

I am concerned with the Act itself and so was my declaratory judgment complaint and that was the basis I think of the decision of a Three-Judge Federal Court who struck it down.

It was on the basis that there was no power given by the constitution to Congress under either the Property or the Commerce Clauses to regulate as they did here completely and absolutely the control and in effect for all practical purposes, indeed the ownership of animals.

Justice William J. Brennan: (Inaudible) on that first paragraph you referred us to page 66 that the state has ownership of these animals and whether they are on Federal Land or on private land or on state land --

Mr. George T. Harris, Jr.: Indeed, Your Honor.

Justice William J. Brennan: -- the Federal Government has no power regulation?

Mr. George T. Harris, Jr.: That is indeed our contention and has been throughout and was the in effect the holding of the Three-Judge Federal Court in New Mexico.

Justice William H. Rehnquist: Mr. Harris, if you will turn to your complaint, the appendix at page 7 where you have paragraphs six, seven, eight all refer to what happened to Kelley Stephenson on or about the 20th day of January 1974, on these particular burros.

Mr. George T. Harris, Jr.: Yes sir.

Justice William H. Rehnquist: I would think that you really do not have the standing to challenge the whole sweep of the Act unless you can point a factual situation such as this where there has been an actual conflict, and where someone has actually been harmed?

Mr. George T. Harris, Jr.: Well, of course, I think the record does disclose an actual conflict between the State Government and the Federal Government in this area, including the letter I just made reference to Mr. Garners, as to who has the jurisdiction and the right to regulate and control these wild animals.

The state contends that it does.

Now, it is true that these allegations in those particular paragraphs are limited to that factual setting, but that was simply background material to point up what the controversy was which we think is justiciable concerning which we sought a declaratory judgment on the constitutionality of the entire Act.

Justice Byron R. White: But, does not the United States say that whoever owns the burros, in one of their answers anyway, is whoever owns the burros, the United States can certainly keep people from taking the burros from the public property?

Mr. George T. Harris, Jr.: The United States contends that and we deny that --

Justice Byron R. White: I know you deny it.

Mr. George T. Harris, Jr.: Yes sir, they do contend that.

Justice Byron R. White: But if we agree with the United States on that issue, would we need to go any further?

Let us assume we agree to the United States that whoever owns the burros, the United States may present their being taken from the public land?

Mr. George T. Harris, Jr.: Yes sir.

Justice Byron R. White: Now, is that -- would the case be over then?

Mr. George T. Harris, Jr.: No sir.

I think not.

Justice Byron R. White: Why not?

Mr. George T. Harris, Jr.: Well, because I think you must, well of course, perhaps it would be what you must look at to determine that question is whether or not, there was a constitutional authority.

Justice Byron R. White: In fact, they well -- that maybe so, but the Act also covers burros on private land?

Mr. George T. Harris, Jr.: Yes sir, it extends to private land.

Justice Byron R. White: And you want that adjudicated too?

Mr. George T. Harris, Jr.: We do, Your Honor.

That is a part of the case.

Justice Byron R. White: As Justice Stevens says, it is in the case?

Mr. George T. Harris, Jr.: Yes sir.

Justice Byron R. White: Or suggested or asked --

Mr. George T. Harris, Jr.: Let me point up --

Justice William H. Rehnquist: Before you leave that Mr. Harris, let me ask you one more question.

I suppose it is not enough for the State of New Mexico or for its Livestock Board simply do not want to have something adjudicated.

In order to get a declaratory judgment as to the full sweep of a Federal Statute, you got to show that it has a direct and immediate impact on you and somewhere at least on some of your clients.

You cannot just say that we disagree with the theory on which the statute is enacted?

Mr. George T. Harris, Jr.: Yes sir.

And we think, we have had shown that here, if Your Honor please, in that under State Law, we went in under our Estray Laws and we took possession of these animals while they were on the public domain, animals that we admitted were unbranded and unclaimed, and therefore, fit the definition under Section 2 of this Act as wild burros and we sold them in violation of the specific penalty provision, Mr. Lee Garner did as the director of the Livestock Board, thereby subjecting himself to the $2000.00 fine and imprisonment for violation of Section 8 of the Act.

We think that does make a justiciable controversy with respect to the Act's validity.

Justice William H. Rehnquist: You can certainly get an adjudication on what law governs that factual situation.

My question is whether you can go beyond that and say “and now, there are a lot of other provisions of the law that are not relevant to what Lee Garner did or these nineteen burros but we want them decide it to?”

Mr. George T. Harris, Jr.: I am sorry.

I am not sure I am following here.

Justice William H. Rehnquist: For instance, the taking of burros on private land or either claimed by the United States Government that it may regulate who may take and who may not take burros from concededly fee land, not lease land, not public land, but fee land.

Mr. George T. Harris, Jr.: Yes sir.

Justice William H. Rehnquist: That really is not raised by what happened to Kelley Stephenson?

Mr. George T. Harris, Jr.: Well, we think that it is in the sense that the Three-Judge Federal Court had before it evidence from which and I mentioned this a moment ago, I think they could reasonably have inferred that these animals were at one time on his fee land and may have gotten over on the public domain at the time they were noticed, at the time they were picked up, that is where they were.

Now, that brings me to the point I was going make about how this Act has been extended to cover private land by looking at the difference between the definition in the Act itself as to what is a wild horse or a wild burro and the regulations which have been promulgated by the secretaries under it.

The definition of the Act is in Section 2 (b) “all unbranded and unclaimed horses and burros on public lands of the United States,” but the definition contained in 4710.05 of the Secretaries Regulations promulgated under that go a great deal further.

They say that it means “all unbranded non-claimed horses and burros and their offspring that have used public lands on or after December 15, 1971 or,” and this is an important phrase, “or that do use these lands as all or part of their habitat” and I am saying to you that these animals on this record fit within that last category.

That they are animals that were on his ranch presumably on his fee land that came on to the Federal Land that could well have gone back to his fee land.

Justice William H. Rehnquist: But the government did not have to rely on that regulation?

Mr. George T. Harris, Jr.: That is correct.

Yes, it is true.

Now, the --

Justice William J. Brennan: I suppose your premise as I understood it that the state owned fee land, the state is the owner of these animals?

Mr. George T. Harris, Jr.: That is true.

Yes sir.

Justice William J. Brennan: And your premise is that, that being true, the Federal Government has absolutely no power whatsoever under the Commerce Clause or the Property Clause --

Mr. George T. Harris, Jr.: True.

Justice William J. Brennan: -- to enact this statute as applied to animals owned by the state?

Mr. George T. Harris, Jr.: Yes sir.

Justice William J. Brennan: And it would not matter whether the issue that was there and factually it is true here that they were on private land, the public land or only on one or the other --

Mr. George T. Harris, Jr.: That is true.

Justice William J. Brennan: -- if that is true then you win the case?

Mr. George T. Harris, Jr.: Yes sir.

And that is true where you are talking about horses or burros or elk or deer, or whatever, that is our position.

Justice Lewis F. Powell: Mr. Harris.

Mr. George T. Harris, Jr.: Yes sir.

Justice Lewis F. Powell: In that connection, let us assume for the moment that the government fenced in say 10,000 acres of its own land with fences so high that the burros could not leap it or get out of it, would the state have authority in your view that the state owns these burros to compel the government to take the fence down out or at least allow the burros to leave?

Mr. George T. Harris, Jr.: Indeed, that is our position.

We think that the state would certainly have that authority under the decided cases of this Court respecting ownership of game animals.

We think that is true.

Yes sir.

Justice Byron R. White: As you -- you have same answer -- do you have the same answer for deer?

Mr. George T. Harris, Jr.: Yes sir.

Justice Byron R. White: Do you think that, that really means that the state owns them whether they are owners (Voice Overlap)

Mr. George T. Harris, Jr.: To the extent that --

Justice Byron R. White: -- or that they are not owned by anybody?

Mr. George T. Harris, Jr.: To the extent that anyone can own game, the state does.

That is what this Court held in Geer.

Justice Byron R. White: Do you mean something more and that the state has power to regulate the hunting or killing of them?

I think that --

Mr. George T. Harris, Jr.: I mean --

Justice Byron R. White: I take it that you mean to actually own the animals themselves?

Mr. George T. Harris, Jr.: They exercise all of the rights of ownership that we know of.

Justice Byron R. White: Your authority for the fact that the state owns the animals rather than just having the power to regulate the taking of them?

Mr. George T. Harris, Jr.: Geer was not the first case.

Geer came down 80 years ago.

Twenty years before that there was the Virginia case that is --

Justice Byron R. White: The wild animals -- that these are wild animals --

Mr. George T. Harris, Jr.: The deer -- that is here.

Deer and elk --

Yes sir.

Well, I think neither of them involved wild animals.

Geer involved the grass, ruffled grass, and quail and so forth, but that was indeed the holding of the Geer case.

Justice Potter Stewart: Toomer against Witsell said that was a legal fiction?

Mr. George T. Harris, Jr.: Yes, but they said this about it and I am glad you brought it up because they say it is a legal fiction expressive in a legal shorthand of the importance to its people that a state have the power to preserve and regulate the exportation of an important resource.

Chief Justice Warren E. Burger: A parent's patriarch is a legal fiction too, is it not?

Mr. George T. Harris, Jr.: Yes sir.

Chief Justice Warren E. Burger: And this is really an ownership of like the parent's patriarch, it is ownership for the benefit of all the people?

Mr. George T. Harris, Jr.: Yes sir, but it is the people of the state in accordance with the decision in Geer --

Chief Justice Warren E. Burger: In the states?

Mr. George T. Harris, Jr.: And Lacoste which came along later and in Toomer?

Justice Thurgood Marshall: You say that the State Mexico could take these donkeys over to the Federal Property and kill them?

Mr. George T. Harris, Jr.: Yes sir, because I think the Act is unconstitutional and void as violative of the Tenth Amendment in that, there is no power given to the Congress by our constitution either under the Property Clause or the Commerce Clause to regulate animals which we own.

Justice Thurgood Marshall: You have a right to go into this man’s private property and take his deer and shoot?

Mr. George T. Harris, Jr.: The state?

Justice Thurgood Marshall: The State of Mexico?

Mr. George T. Harris, Jr.: Yes sir.

We indeed think that the state has that right.

Justice Thurgood Marshall: Just go in and kill all that?

Mr. George T. Harris, Jr.: Yes sir, on wild animals.

Justice Potter Stewart: How about on a national park?

Mr. George T. Harris, Jr.: That is an incompletely different category because there you dealing with the different categorization of Federal Land.

You are dealing with lands that have an effect been withdrawn either by Act of Congress or by session from the state of Federal Land.

Justice Potter Stewart: That is read differently for that kind of land?

Mr. George T. Harris, Jr.: Yes sir.

I think definitely the situation is different.

There in most instances you have the consent of the state to the regulation by the Federal Government of the animals on the national parks.

It is a completely different situation.

Chief Justice Warren E. Burger: (Voice Overlap) so that is ---

Mr. George T. Harris, Jr.: The Migratory Game Act, if I can address that for just a moment, involves or did involve basically the same argument that we got here with our donkey case.

Way back in 1914, I think was the first Federal Court decision that came out of the State of Arkansas.

U.S. against Shauver which is cited in the briefs that involved a 1913 Federal Act called the Migratory Bird Act and the Federal court there in Shauver struck it down as violative of the constitution and incidentally both the Property clauses and the Commerce clauses were relied upon by the government for their authority to pass that Migratory Bird Act.

That case was not appealed and that decision was not looked up by this Court.

A year later in the State of Kansas, another Federal district court did exactly the same thing.

They said that the Property Clause and the Commerce Clause is no authority to Congress to pass a Migratory Bird Act and they did it on the basis of ownership of game.

Then in 1916, just a year after that, there was a treaty entered into between Great Britain and United States, involving the protection of Migratory Waterfowl between Canada and United States and Mexico.

That was a treaty and following that, Congress passed another Act called the Migratory Bird Treaty Act which was the subject of the litigation in Missouri against Holland in 1920 in which it was held that the Congress did have authority to pass that, but it was the treaty making authority which gave it to them.

It was not the Property Clause which has been rejected in these two earlier Federal Court cases nor it was the Commerce Clause, it was the treaty power.

That is not involved in our case.

We do not have Migratory fowls.

As a matter of fact, the Three-Judge Federal court so held and that we are not talking about a migratory situation with these animals.

They tend to stay in one area.

They do not migrate from state to state and certainly not from country to country as do the waterfowl.

I think those cases support our view in this case.

I think the two earlier Federal District Court cases are exactly, the theory that we are asserting to this Court in this case.

That the Property Clause and the Commerce Clause do not give Congress authority to regulate in area that has since statehood, since the nationhood, has belonged exclusively to the states, that is a right to manage their game animals.

Now, I have not touched the Commerce Clause nor was that discussed I think at length at all for that matter by a counsel for the government.

The Commerce Clause as the lower court also found that is embodied in its opinion here, was not relied upon by a Congress in this case.

There are no congressional findings at all with reference to it.

It is not mentioned anywhere in the Act.

There is not anything in this record and incidentally the Federal Governments had the right to make a record and to put on evidence in this case and they declined to do so.

There is no evidence in this case or anywhere in this record as to any burdens of any kind that would be imposed upon interstate commerce in this case with respect to these animals.

That simply is not in the case and the lower court so held that the Commerce Clause was not involved.

As a matter of fact, the Act itself expressly bases its provisions upon the Property Clause by simply saying and this I think is a novel theory that these animals are a part of the land that is the fallacy, the false premise upon which the whole argument of the government in this case is based and it is asserted in a very short sentence on page 9 of the government's reply brief where they say “These animals are part of the public domain.”

They base their whole Property Clause argument upon the fact that these animals are part of the land.

Every case that they cite in their brief pertains to situations where either number one, the case is concerned with a disposition or some control of the lands itself or something that is related directly to it and a part of it, the Ashwander case, TV Authority case, concerned Government bans on electrical energy.

They fell in that category of cases in their briefs are they fell in the category of protecting the government's land against damage and no one has any quarrel with it.

Certainly the government has the right to do so, but all their cases are directed to that proposition.

They do not cite a case nor have we found one which stands for this new and novel proposition that wild animals are a part of the Federal soil, and therefore, under our Property Clause, we have the right to the exclusive regulation and the management and the ownership of them.

We think that the Federal Court was right and it is willing any reversal of that is going to have, I think a catastrophic effect with respect to all 50 of the states as to their game regulation provisions and certainly to the western states where as here, Nevada who is represented here at the counsel table today.

There are some 86% of the lands within its state boundaries that belongs to the Federal Government and in my state where more than a third of it does are or Alaska where 90 plus % of it does.

It is going to have a staggered effect upon not only the game management in all those states, but a tremendous economic impact upon the cattle in the ranching industries in all those states and particularly the western states whereas here as suggestion was made by counsel, all they got to do is put a little drift fence across the middle of their ranch and protect their fee lands from these donkeys and that just is not a practical solution to the problem.

There being no constitutional authority to Congress under either these clauses, we think that the lower court's judgment must be affirmed.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Harris.

Thank you, Mr. Randolph.

Case is submitted.