(specially concurring).
I concur in the order denying the motion for rehearing.
The motion stresses the fact that the foregoing majority opinion is based upon the erroneous conclusion that the preference right going with the Burke property had been reduced to 43 animal units before he purchased the property. If we assume that the reduction was made after he purchased the property the result would be no different.
As is pointed out in the majority opinion, the Federal Range Code permits a reduction in the range rights when there is a cessation of substantial use of the base property.
Subdivision (4) of section 46-2312, R.C.M. 1947, gives the state District Board broad powers in effecting an increase or decrease in the size of the permits. It gives the District power “To manage and control the use of its range. This power shall include the right to determine the size of preferences and permit according to a fixed method which shall be stated in the bylaws and which shall take into consideration the rating of dependent commensurate property and the carrying capacity of the range, and may be subject to reservations, regulations, and limitations under the terms of agreements between the state *223district and any agency of the United States. It shall also include the power to allot range to members or non-members, and to decrease or increase the size of permits if the range carrying capacity changes.”
And nowhere in the statutes do I find any requirement that notice be given to anyone. It is true that when a permittee makes application to transfer a preference right from one property to another notice must be given. Section 46-2322. The same is true where a permittee is charged with failure to pay the grazing fee, or with a violation of any of the rules and regulations of the state district. Section 46-2322.
But no provision is made for giving notice of a hearing on the matter of reducing the rights. It was evidently the intention of the legislature to leave this matter in the hands of the districts with power to change the size of the permits from year to year depending upon the facts as they appear to the board of directors of the district.
When an interest in the Carnahan ranch was transferred to Burke, section 46-2314 became applicable. That section provides in part as follows:
“When any member shall dispose of a part of the lands or leases owned by him so that another shall become the owner of such lands or leases and acquire the right to membership, then the rights and interest involved shall be determined by the directors of the state district with the approval of the commission. ’ ’
This statute made it mandatory upon a transfer of the Carnahan interest to Burke that the District determine the rights and interests involved.
The district court was warranted on the record in holding that there was no arbitrary or capricious action on the part of the District here.