United States v. Fuller

PETITIONER: United States
RESPONDENT: Fuller
LOCATION: Allegheny County District Court

DOCKET NO.: 71-559
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 409 US 488 (1973)
ARGUED: Oct 18, 1972
DECIDED: Jan 16, 1973

ADVOCATES:
Frank Haze Burch - for respondents
Harry R. Sachse - for petitioner

Facts of the case

Question

Media for United States v. Fuller

Audio Transcription for Oral Argument - October 18, 1972 in United States v. Fuller

Warren E. Burger:

We’ll hear arguments next in 71-559, United States against Fuller.

Mr. Sachse?

Harry R. Sachse:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the Court of Appeals for the Ninth Circuit.

The issue presented by the case is the following: when the Government condemns land for public project, must it pay for the value added to the land by a permit to graze cattle on adjacent public land, and I can refine that one step further; when that permit is admittedly a revocable permit that the Government can revoke without payment of compensation.

The factual situation in which the case arose is the following: Government determined that it was necessary to build a dam as a flood-control project on the Bill Williams River in Arizona, an area that is subject to flash floods.

Mr. Fuller owned three tracts of land in the vicinity of this project.

It was the total -- about 1,280 acres.

It was necessary for the Government to take two of those tracts that totaled 920 acres.

It was not necessary for the Government to take the third and third tract was not taken.

In connection with his land, Mr. Fuller for a number of years had been using 30,000 acres of federal grazing land to graze his cattle in it.

He used that land under permit issued under Section 5 of the Taylor Grazing Act of 1934.

Section 5 permit, now, I will talk about in a little more detail later, is a revocable permit that by statute does not create any right, title or interest in the public land.

Harry A. Blackmun:

Mr. Sachse, does it have a term stated however even though it is revocable?

Harry R. Sachse:

The term is not stated in the statue except that it cannot exceed 10 years as an administrative regulation and practice.

The permits are issued year by year.

The permit has to be reissued each year.

They are customarily reissued to the same person and had them the year before, but the permit is for one year.

Harry A. Blackmun:

There isn't any formal procedure for termination, isn’t it or is there?

Harry R. Sachse:

If -- I think there is a formal procedure for termination and to this extent that if a man applies for the permit for a second year and the Government determines not to grant the permit the second year, the Government will allow him to -- it will state its reasons why the permits not being granted and will allow him to state his reasons why he thinks the permit should be granted.

It's not -- the Government won’t deny a permit just out of hand, but the permits are revocable and often when the property is needed for another purpose or the property hasn’t been properly used are revoked.

Now, there’s a peculiarity of this case that needs to be kept in mind.

The Government did not revoke Mr. Fuller’s grazing permit when it took these two tracts of land.

The reason it didn’t do so is that it didn’t take his third tract of land and he was free to continue to use this permit in connection with the third tract of land.

In Arizona, the basis for having a grazing permit is having sufficient water for the cattle that roam on the federal land to use on the private land and he had sufficient water apparently on his third tract of land and so far as we know, Mr. Fuller is still using this permit.

William H. Rehnquist:

And it’s your contention, I take it that the department -- was it, agriculture or interior?

Harry R. Sachse:

It’s interior.

William H. Rehnquist:

The Department of the Interior will not take a jaundiced view of the renewal of his permit because he has less fee land now than he did before?

Harry R. Sachse:

That's correct.

It has not done so as far as I understand.