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IN THE DISTRICT COURT OF THE UNITED STATES
IN AND FOR THE DISTRICT OF ARIZONA
| UNITED STATES OF AMERICA, | ) |
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| Complainant, | ) | No. E-156-Prescott |
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| V. | ) |
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| ) | FINDINGS OF FACT: |
| C.D. McCauley as County Attorney | ) | CONCLUSIONS OF LAW; |
| of Navajo County, State of Arizona, | ) | DECREE GRANTING PERPETUAL |
| and L.D.Divelbess, as Sheriff of | ) | INJUNCTION. |
| Navajo County, State of Arizona. | ) |
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| Defendants. | ) |
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This cause coming on before the Court this 7th day of
April, 1931, and the same being submitted for final hearing, the United
States being represented by George E. Wood, Assistant United States
Attorney, and E. S. French, District Law Officer of the Department of
Agriculture, and the defendants being represented by Arthur T. LaPrade,
Assistant Attorney General of the State of Arizona, and C. D. McCauley,
County Attorney of Navajo County, Arizona, and it appearing by
stipulation of counsel made in open Court on behalf of the defendants
that the Closing Order of the Secretary of Agriculture made on the 7th
day of November, 1929, and which is in words and figures, as
follows:
"DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C.
"Whereas, a number of wild horses of unknown
ownership are grazing on the Sitgreaves National Forest; and
"Whereas, these horses are consuming forage necessary
to domestic livestock, are overgrazing the ranges, and causing an extra
expense to established permittees;
"Now, therefore, by virtue of the authority vested in
the Secretary of Agriculture by the Act of Congress of February 1, 1905
(33 Stat., 628), amendatory of the Act of June 4, 1897 (30 Stat., 11),
I, R.W. Dunlap, Acting Secretary of Agriculture, do make and publish the
following order for the occupancy, use, protection and administration of
the Sitgreaves National Forest:
"1. The Morgan sheep allotment and the Buck Spring
allotment of the Sitgreaves National Forest are hereby closed to the
grazing of horses for the period December l, 1929 to November 30, 1930;
and the Pinedale Cattle and Horse range, the Linden Horse and Cattle
allotment, the Showlow Cattle and Horse allotment, and the Lars Petersen
and James Petersen allotments of the Sitgreaves National Forest are
closed to the grazing of horses for the period April l, 1930 to March
31, 1931, except those used in connection with operations on the
National Forest or by the Traveling public.
"2. Unless the horses grazing on the Morgan sheep
allotment and the Buck Springs allotment are removed on or before
November 30, 1929, and those grazing on the Pinedale Cattle and Horse
Range, the Linden Horse and Cattle allotment, the Showlow Cattle and
Horse allotment, and the Lars Petersen and James Petersen allotments by
March 31, 1930, Forest Officers are hereby authorized to dispose of them
in the most humane manner.
"in Witness Whereof, I have hereunto set my hand this
7th day of November, 1929.
R.W. Dunlap, Acting Secretary of Agriculture."
was in fact regularly made, issued and published
according to law, and that the sane by supplemental order of the
Secretary of Agriculture has been duly extended in effect to and
including June 30, 1931, and further that said closing order is a legal
and valid order in so far as it applies to wild horses of unknown
ownership and further, that C.D. McCauley is the duly elected, qualified
and acting County Attorney of Navajo County, State of Arizona, and that
as such official and in his capacity as such officer he would, if not
restrained by order of this Court, attempt to and would prosecute any
Forest Officer who wilfully, unlawfully, and maliciously killed, wounded
or maimed any branded horse of known ownership on the Sitgreaves
National Forest in Navajo County, whether running at large or not, and
that L.D. Divelbess is the duly elected, acting and qualified Sheriff of
Navajo County, Arizona, and unless restrained would arrest said Forest
Officers.
FINDINGS OF FACT
Predicated upon the foregoing stipulated facts the
Court makes and finds the following findings of fact:
1. That the Closing Order of the Secretary of
Agriculture made on the 7th day of November, 1929, as hereinbefore set
forth was in fact regularly made, issued and published according to law,
and that the same by supplemental order by the Secretary of Agriculture
has been duly extended in effect to and including June 30, 1931.
2. That said Closing Order is a legal and valid order
in so far as it applies to wild horses of unknown ownership.
3. That C.D. McCauley is the duly elected, qualified
and acting County Attorney of Navajo County, State of Arizona, and that
as such official and in his capacity as such officer he would, if not
restrained by order of this Court, attempt to and would prosecute any
Forest officer who wilfully, unlawfully and maliciously killed, wounded
or maimed any branded horse of known ownership on the Sitgreaves
National Forest, Navajo County, whether running at large or not, and
that L.D. Divelbess is the duly elected, acting and qualified Sheriff of
Navajo County, Arizona and unless restrained would arrest said Forest
officers.
CONCLUSIONS OF LAW.
From the foregoing findings of fact the Court makes
the following conclusions of law:
l. That the complainant is entitled to a perpetual
injunction enjoining and restraining the defendants, and each of them,
their and each of their deputies, assistants, agents, employees,
successors and all persons acting for them or in their behalf, from
interfering with complainant and its officers in disposing of wild
horses as herein defined, of unknown ownership as herein defined, found
upon the Sitgreaves National Forest in Navajo County, Arizona, and from
arresting complainant's said Officers, from prosecuting them, or
otherwise interfering with them in the discharge of their official
duties under the Closing Order made and promulgated by the Secretary of
Agriculture, as extended, for the disposal of wild horses of unknown
ownership in trespass on said National Forest.
2. That within the contemplation of said Closing
Order a wild horse is an undomesticated animal or a domesticated animal
living in a wild state,
3. That a horse of unknown ownership under said
Closing Order is an animal, the ownership of which is unknown to the
Forest Officer executing the said Closing Order, and the ownership of
which by the exercise of reasonable diligence the Forest Officer is
unable to ascertain.
4. That Complainant, through its officers, is
authorized to dispose of by shooting if necessary, any wild horse of
unknown ownership, as herein defined, whether branded or not, found in
trespass on the National Forest running at large on the forest after
said range has been closed by the Secretary of Agriculture to the
grazing of wild horses of unknown ownership as. herein defined and
reasonable notice has been given thereof.
DECREE GRANTING PERPETUAL INJUNCTION
WHEREFORE, IT IS ORDERED. ADJUDGED AND DECREED that a
Writ of Perpetual Injunction be, and the same is hereby granted, and the
Clerk is hereby directed to issue the same restraining and enjoining the
defendants, C.D. McCauley, as County Attorney of Navajo County, Arizona,
and L.D. Divelbess as Sheriff of Navajo County, Arizona, their deputies,
assistants, and employees, successors and all persons acting for them,
or in their behalf, from interfering with complainant, and its officers
in disposing of wild horses, as herein defined, of unknown ownership, as
herein defined, found upon the Sitgreaves National Forest, in Navajo
County, Arizona, and from arresting complainant's said officers, from
prosecuting them, or otherwise interfering with them in the discharge of
their official duties under the Closing Order made and promulgated by
the Secretary of Agriculture, as extended, for the disposal of wild
horses of unknown ownership in trespass on said National Forest.
That within the contemplation of said Closing Order a
wild horse is an undomesticated animal or a domesticated animal living
in a wild state.
That a horse of unknown ownership under said Closing
Order is an animal, the ownership of which is unknown to the Forest
Officer executing the said Closing Order, and the ownership of which by
the exercise of reasonable diligence the Forest Officer is unable to
ascertain.
The Complainant, through its officers, is authorized
to dispose of, by shooting if necessary, any wild horse of unknown
ownership, as herein defined, whether branded or not, found in trespass
on the National Forest running at large on the forest after said range
has been closed by the Secretary of Agriculture to the grazing of wild
horses of unknown ownership as herein defined and reasonable notice has
been given thereof.
It is ordered that the parties bear their own
costs.
Let a copy of this Decree and of said Writ of
Perpetual Injunction be served upon the said, C.D. McCauley and L.D.
Divelbess.
Dated at Phoenix, in said District, this 9th day of
April, A.D. 1931.
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F. C. JACOBS
F. C. Jacobs, Judge, United
States District Court, In and
for the District of Arizona. |
| Approved as to form: |
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C. D. McCauley
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FILED
April 9. 1931
J. LEE BAKER, Clerk
United States District Court
for the District of Arizona.
By: H. F. Schlittler, Deputy Clerk
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Arthur T. LaPrade
Attorneys for Defendants. |
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