Miller v. Miller

SHEPARD, Chief Justice,

concurring in part and dissenting in part.

The district court in the instant case held that under the provisions of I.C. § 25-2402, the herd district was invalid only as to that portion of public lands administered by the *421BLM, but that the district was otherwise effective. The majority opinion parallels the dissent of Bistline, J. in Benewah County Cattlemen’s Association, Inc. v. Board of County Commissioners of Benewah County, 105 Idaho 209, 668 P.2d 85 (1983), and holds in Part I of the instant case that the entire herd district is invalid due to the inclusion of the BLM land, thus effectively overruling Benewah.

The district court herein, and in my view correctly, relied upon Benewah. The majority herein suggests that the instant case can be readily distinguished from Benewah. I disagree. In Benewah the Court examined a county ordinance prohibiting livestock from grazing on property other than that of the owner, which applied throughout Benewah County. In Benewah the appellant cattlemen argued, “that since the ordinance does not expressly exempt the areas of incorporated cities within the boundaries of the county ... it constitutes an attempt by the county to exercise authority over lands located within incorporated cities and is thus void.” The Court stated:

We agree with appellants to the extent that the ordinance is without force and effect within the limits of the incorporated municipalities located in Benewah County. However, as noted in this Court's recent decision in Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), such does not invalidate the ordinance nor make it ineffective in the balance of the county. See also Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949). Id. at 212, 668 P.2d 85.

Hence, I see no rationale by which the instant case can be distinguished from Benewah.

Just as in Benewah I would hold that the ordinance of Bannock County is not in conflict with other general laws of the state:

We hold first that the legislature has not preempted the field of livestock control as asserted by the appellants; secondly, even assuming some legislative exercise of livestock control, we hold that the extension or amplification of that control by county ordinance is not prohibited in the absence of constitutional or statutory provisions clearly evidencing intent on a state-wide basis to permit livestock to freely roam and graze regardless of the ownership or the character of the lands. Id. at 213, 668 P.2d 85.