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U.S. Supreme Court


246 U.S. 343

No. 102.

Argued Dec. 20, 1917.
Decided March 18, 1918.

[246 U.S. 343, 344]   Messrs. Frank P. Prichard, of Philadelphia, Pa., and S. L. Hodgin, of Twin Falls, Idaho, for plaintiff in error.

Messrs. T. A. Walters and William Healy, both of Boise, Idaho, for State of Idaho.

Mr. Justice BRANDEIS delivered the opinion of the Court.

For more than forty years the raising of cattle and sheep have been important industries in Idaho. The stock feeds in part by grazing on the public domain of the United States. This is done with the gove nment's acquiescence, without the payment of compensation, and without federal regulation. Buford v. Houtz, 133 U.S. 320, 326 , 10 S. Sup. Ct. 305. Experience has demonstrated, says the state court, that in arid and semi-arid regions cattle will not graze, nor can they thrive, on ranges where sheep are allowed to graze extensively; that the encroachment of sheep upon ranges previously occupied by cattle results in driving out the cattle and destroying or greatly impairing the industry; and that this conflict of interests led to frequent and serious breaches of the peace and the loss of many lives. 1 Efficient policing of the ranges is [246 U.S. 343, 345]   impossible; for the state is sparsely settled and the public domain is extensive, comprising still more than one-fourth of the land surface. 2 To avert clashes between sheep herdsmen and the farmers who customarily allowed their few cattle to graze on the public domain near their dwellings, the territorial Legislature passed in 1875 the so-called 'Two Mile Limit Law.' It was enacted first as a local statute applicable to three counties, but was extended in 1879 and again in 1883 to additional counties, and was made a general law in 1887.3 After the admission of Idaho to the Union, the statute was re-enacted and its validity sustained by this court in Bacon v. Walker, 204 U.S. 311 , 27 Sup. Ct. 289. To avert clashes between the sheep herdsmen and the cattle rangers, further legislation was found necessary; and in 1883 the law (now section 6872 of the Revised Codes) was enacted which prohibits any person having charge of sheep from allowing them to graze on a range previously occupied by cattle. 4 For [246 U.S. 343, 346]   violating this statute the plaintiff in error, a sheep herdsman, was convicted in the local police court and sentenced to pay a fine. The judgment was affirmed by an intermediate appellate court and also by the Supreme Court of Idaho. 27 Idaho, 797, 152 Pac. 280. On writ of error to this court the validity of the statute is assailed on the ground that the statute is inconsistent both with the Fourteenth Amendment and with the act of Congress of February 25, 1885, c. 149, 23 Stat. 321 (Comp. St. 1916 , 4997-5002), entitled 'An act to prevent unlawful occupancy of the public lands.'

First. It is urged that the statute denies rights guaranteed by the Fourteenth Amendment, namely: Privileges of citizens of the United States, in so far as it prohibits the use of the public lands by sheep owners; and equal protection of the laws, in that it gives to cattle owners a preference over sheep owners. These contentions are, in substance, the same as those made in respect to the 'Two Mile Limit Law' in Bacon v. Walker, supra; and the answer made there is applicable here. The police power of the state extends over the federal public domain, at least when there is no legislation by Congress on the subject. 5 We cannot say that the measure adopted [246 U.S. 343, 347]   by the state is unreasonable or arbitrary. It was found that conflicts between cattle rangers and sheep herders on the public domain could be reconciled only by segregation. In national forests, where the use of land is regulated by the federal government, the plan of segregation is widely adopted. 6 And it is not an arbitrary discrimination to give preference to cattle owners in prior occupancy without providing for a like preference to sheep owners in prior occupancy. 7 For experience shows that sheep do not require protection against encroachment by cattle, and that cattle rangers are not likely to encroach upon ranges previously occupied by sheep herders. The propriety of treating sheep differ- [246 U.S. 343, 348]   ently than cattle has been generally recognized. 8 That the interest of the sheep owners of Idaho received due consideration is indicated by the fact that in 1902 they opposed the abolition by the government of the free ranges. 9  

Second. It is also urged that the Idaho statute, being a criminal one is so indefinite in its terms as to violate the guaranty by the Fourteenth Amendment of due process of law, since it fails to provide for the ascertainment of the boundaries of a 'range' or for determining what length of time is necessary to constitute a prior occupation a 'usual' one within the meaning of the act. Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other states. 10 This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U.S. 373, 377 , 33 S. Sup. Ct. 780; Miller v. Strahl, 239 U.S. 426, 434 , 36 S. Sup. Ct. 147. Furthermore, any danger to sheep men which might otherwise arise from indefiniteness, is removed by section 6314 of Revised Codes, which provides that:

___ occupied said lands under the land laws of the United States, claiming title thereto, in good faith.

An examination of the federal act in its entirety makes it clear that what the clause quoted from section 1 sought to prohibit was merely the assertion of an exclusive right to use or occupation by force or intimidation or by what would be equivalent in effect to an inclosure. That this was the intent of Congress is confirmed by the history of the act. The reports of the Secretary of the Interior upon whose recommendation the act was introduced, the reports of the committees of Congress, and the debates thereon indicate that this alone was the evil sought to be remedied,12 and to such action only does its prohibition appear to have been applied in practice. 13 Although Idaho had, by statute, excluded sheep from portions of the public domain since 1875, no reference to the fact has been found in the discussion which preceded and followed the enactment of the federal law, nor does any reference seem to have been made to the legislation of other states which likewise excluded sheep, under certain circumstances, from parts of the public do- [246 U.S. 343, 352]   main.14] And no case has been found in which it was even urged that these state statutes were in conflict with this act of Congress.

The Idaho statute makes no attempt to grant a right to use public lands. McGinnis v. Friedman, 2 Idaho (Hasb.) 393, 17 Pac. 635. The state, acting in the exercise of its police power, merely excludes sheep from certain ranges under certain circumstances. Like the forcible entry and detainer act of Washington which was held in Denee v. Ankeny (decided March 4, 1918) 246 U.S. 208 , 38 Sup. Ct. 226, 62 L. Ed. --, not to conflict with the homestead laws, the Idaho statute was enacted primarily to prevent breaches of the peace. The incidental protection which it thereby affords to cattle owners does not purport to secure to any of them, or to cattle owners collectively, 'the exclusive use and occupancy of any part of the public lands.' For every range from which sheep are excluded remains open not only to all cattle, but also to horses, of which there are many in Idaho.15 This exclusion of sheep owners under certain circumstances does not interefere with any rights of a citizen of the Unite States. Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used. Buford v. Houtz, supra. It is because the citizen possesses no such right, that it was held by this court that the Secretary of Agriculture might, in the exercise of his general power to regulate forest reserves, exclude sheep and cattle therefrom. United States v. Grimaud, 220 U.S. 506 , 31 Sup. Ct. 480; Light v. United States, 220 U.S. 523 , 31 Sup. Ct. 485. [246 U.S. 343, 353]   All the objections urged against the validity of the statute are unsound. The judgment of the Supreme Court of Idaho is


Mr. Justice VAN DEVANTER and Mr. Justice McBEYNOLDS dissent.


[ Footnote 1 ] Sweet v. Ballentyne, 8 Idaho, 431, 447, 69 Pac. 995; Pyramid Land & Stock Co. v. Pierce, 30 Nev. 237, 353-255, 95 Pac. 210. Report of National Conservation Commission, 1909, Vol. III (60th Congress, 2d Session, Senate Doc. No. 676) p. 357. Conference of Governors (1908) p. 143.

[ Footnote 2 ] The land area of Idaho is approximately 53,346,560 acres (U. S. Census [246 U.S. 343, 1910]   Vol. VI, p. 401), of which 20,000,000 acres were specifically classified as grazing lands (Report of Secretary of Interior [ 1890] Vol. I, p. XCI). In 1883 about 50,000,000 acres still formed a part of the public domain. 'The Public Domain,' by Thomas Donaldson (1884) pp. 528, 529, 1190. On July 1, 1914, there were still unappropriated and unreserved 16,342,781 acres. Report of Department of Interior (1914) Vol. I, p. 207. The population of Idaho in 1880 was 32,610; in 1910 it was 325, 594.

[ Footnote 3 ] Acts of January 14, 1875; February 13, 1879 (Laws 1879, p. 58); January 31, 1883 (Laws 1883, p. 71); Revised Statutes 1887, 1210 et seq. The first session of the territorial Legislature convened December 7, 1863. Idaho was admitted to the Union July 3, 1890.

[ Footnote 4 ] Revised Codes of Idaho 1908, 6872:

[ Footnote 5 ] The advisability of regulation by some system of leasing or licensing has been repeatedly recommended to Congress, and bills to that end have been introduced, but none has been enacted. Report of Department of Interior (1902) Vol. I, pp. 167-175; Congressional Record, Vol. 35 ( 1901-02) pp. 291, 1048; Report of Public Lands Commission, Senate Doc. ( 1905) 58th Congress, 3d Session, no. 189, pp. XX-XXIII, 5-61; Congressional Record, Vol. 40 (1905-06) pp. 54, 1164; Letter from the Acting Secretary of Interior, House Doc. No. 661 (March, 1906); Report of Department of Interior (1907) Vol. I, pp. 78-81; Congressional Record, Vol. 42 (1907-08) p. 14; Report of Department of Interior (1908) Vol. I, p. 15; Action of the American National Live Stock Association Relative to the Disposition of the Unappropriated Public Lands of the United States (1908); Report of Department of Interior (1911) Vol. I, p. 9; Congressional Record, Vol. 48 (1911-12) p. 69; Hearings before the House Committee on Public Lands on H. R. Bill 19857 (1912); Report of Department of Interior (1912) Vol. I, p. 5; Congressional Record, Vol. 50 (1913) p. 2365; Vol. 51 (1913- 14) pp. 939, 3814; Report of Department of Agriculture (1914) pp. 8-10; Hearing before a Subcommittee of the House Committee on Public Lands on H. R. 9582, February 12, 1914, pp. 7, 8; 'Practical Application of the Kent Grazing Bill to Western & Southwestern Grazing Ranges,' address by J. J. Thornber before the American National Live Stock Association, Denver, Colo ., January 22, 1914; Report of Department of Agriculture (1915) p. 47; Congressional ecord, Vol. 53 (1915-16) p. 21; Report of Department of Agriculture (1916) pp. 18, 19.

[ Footnote 6 ] National Forest Manual (1913) pp. 13, 28; Hearing before House Committee on H. R. 9582 and H. R. 10539, on Grazing on Public Lands (1914) p. 73; Grazing in Forest Reserves, by F. Roth, Yearbook of Dept. of Agriculture (1901) pp. 333, 338, 343; Grazing of Live Stock on Forest Reserves, by Gifford Pinchot, Report National Live Stock Association (1902) pp. 274, 275.

[ Footnote 7 ] In the prolonged discussion of the proposal to correct the abuses of 'open range' by leasing government grazing lands, the propriety of safeguarding 'rights' as determined by priority of occupancy and use has been generally insisted upon. See Conference of Governors (1908) p. 347; Report of Department of Interior (1902) p. 174; Report of Public Lands Commission, Senate Doc. (1905) 58th Congress, 3d Session, No. 189, pp. 14, 60 (par. 13); National Forest Manual June 4, 1913, pp. 53, 58.

[ Footnote 8 ] Reports of the Department of Interior (1898) Vol. I, p. 87; (1899) Vol. I, pp. XX, 105-112; (1900) Vol. I, p. 390; (1901) Vol. I, p. 127. Utah (1853), Laws 1851-1869, chap. 60, p. 90; Washington, Laws 1907, p. 78; Arizona, Penal Code 1913, 641. See statutes cited, infra, in note 14.

[ Footnote 9 ] Hearings before House Committee on Public Lands on Leasing Grazing Lands (1902) 57th Congress, 1st Session, pp. 76-77.

[ Footnote 10 ] Montana, Laws 1871-72, page 287, 87, makes it a crime to drive stock from a 'range' on which they 'usually' run; North Dakota, Laws 1891, p. 123, deals with 'customary range'; Arizona, Penal Code 1913, 637, with 'range'; Colorado, Courtright's Statutes, 6375, with 'usual range'; Texas, Penal Code Annotated 1916, art. 1356 (1866), with 'accustomed range.'

[ Footnote 11 ] 'An act to prevent unlawful occupancy of the public lands.

[ Footnote 12 ] Reports of Department of Interior (1882) Vol. I. p. 13; (1883) Vol. I, pp. XXXII, 30, 210; (1884) Vol. I, pp. XVII, 17; (1885) Vol. I, p. 205; Letter of Secretary of Interior (1884) Senate Ex. Doc. (1883-84) No. 127; Report of House Committee, 48th Congress, 1st Session (1884) No. 1325; Report of Senate Committee, 48th Congress, 2d Session (1885) No. 979; Congressional Records, Vol. 15 (1883-84) pp. 4768-4783; Vol. 16 (1884-85) p. 1457.

[ Footnote 13 ] United States v. Brandestein (D. C.) 32 Fed. 738, 741; Reports of Department of Interior (1885) Vol. I, p. 44; (1886) Vol. I, pp. 30-41; ( 1887) Vol. I, pp. 12, 13; (1888) Vol. I, p. XVI; (1901) Vol. I, p. 92; ( 1902) Vol. I, pp. 11, 172, 173, 306; (1903) Vol. I, pp. 18-19; (1904) Vol. I, pp. 20, 367; (1905) Vol. I, p. 20; (1908) Vol. I, p. 15; (1915) Vol. I, p. 226.

Compiled Statutes, 4997-5002, notes.

[ Footnote 14 ] Statutes resembling the Idaho 'Two Mile Limit Law' have been passed in a number of the Western states. Arizona, Act Feb. 12, 1875, Compiled Laws 1864-77, p. 561; Penal Code of Ariz. 1913, 639; Colorado, Courtright's Colorado Statutes, 6377 (1877); Nevada, Revised Laws 1912, 2317 (1901), 2319 (1907); California, Statutes 1869-70, p. 304.

[ Footnote 15 ] Compare U. S. Census (1910) Vol. VI, p. 390; Report, Department of Agriculture (1914) p. 148.

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