United States v. Park ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-35886
Plaintiff-Appellee,
v.  D.C. No.
CV-05-00213-EJL
RON PARK; MARY PARK,
OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
April 11, 2008—Seattle, Washington
Filed August 11, 2008
Before: A. Wallace Tashima, M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.
Opinion by Judge McKeown
10281
UNITED STATES v. PARK 10283
COUNSEL
Syrena Hargrove, Assistant United States Attorney (argued);
Thomas E. Moss, United States Attorney; Alan G. Burrow,
Assistant United States Attorney; Boise, Idaho, for the
plaintiff-appellee.
10284 UNITED STATES v. PARK
Linda Louise Blackwelder Pall (argued), Law Office of Linda
Pall, Moscow, Idaho, for the defendants-appellants.
OPINION
McKEOWN, Circuit Judge:
Ron and Mary Park own and operate a dog kennel, Wild
River Kennels, on property along the Clearwater River in
Idaho. Their property is subject to a scenic easement that was
granted to the United States, which prohibits commercial
activity but permits livestock farming. In this appeal, we are
asked to determine the unusual question whether dogs are
“livestock.” Despite a gut inclination that the answer might be
“no,” resolution of the issue is not so clear, thus precluding
summary judgment at this stage of the proceeding. As it turns
out, the term “livestock” is ambiguous at best and much
broader than the traditional categories of horses, cattle, sheep,
and pigs.
I. BACKGROUND
In 1973, Earl and Iona Monroe, the owners of a plot of land
along the Middle Fork of the Clearwater River in Idaho,
including a two-acre tract known as Tract 160A, granted the
United States a scenic easement in accordance with the Wild
and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287.1 The stated
purpose of the easement is to allow the U.S. Forest Service
“to administer such land to protect the scenic, recreational,
geologic, fish and wildlife, historic, cultural, and other similar
values [of the region] and to prevent any developments that
1
The Wild and Scenic Rivers Act is meant to preserve “selected rivers
of the Nation which, with their immediate environments, possess outstand-
ingly remarkable scenic, recreational, geologic, fish and wildlife, historic,
cultural, or other similar values . . . in free-flowing condition” for the ben-
efit of current and future generations. 16 U.S.C. § 1271.
UNITED STATES v. PARK 10285
will tend to mar or detract from their scenic, recreational, geo-
logic, fish and wildlife, historic, cultural, or other similar val-
ues . . . .” Toward that end, the easement provides, in relevant
part, that:
2. RESTRICTIONS ON LAND USE BY GRANT-
ORS:
a. The lands within the easement area shall not be
used for any professional or commercial activities
except such as can be and are, in fact, conducted
from a residential dwelling without outside alteration
of the dwelling.
...
c. The Grantors, their heirs and assigns, retain the
right to use the easement for general crop and live-
stock farming and for limited residential develop-
ment consistent with applicable State and local
regulations. . . .
Ron and Mary Park purchased Tract 160A in 1989. At the
time there was a chicken coop on the property. The Forest
Service approved modifications that the Parks wished to make
to some of the existing buildings and also approved the addi-
tion of horse stalls. In 1990, the Parks received approval to
use a portion of their home as a craft and hobby shop. A year
later, the Parks received approval to run a bed and breakfast
from their home. In 1997, they began advertising that they
were offering a dog training and kennel business, Wild River
Kennels, on the property.
In early 1998, the Forest Service notified the Parks that
their dog training and kennel business violated the terms of
the easement. According to the Forest Service, the kennel was
an unauthorized commercial activity and there were new
structures associated with it that had been built without prior
10286 UNITED STATES v. PARK
approval. The Parks met with the Forest Service to discuss
the dog kennel, but did not resolve the issue. Several years
later, the dispute remained unsettled. In 2003, the parties
exchanged letters on the matter, but, again, did not come to
a resolution.
The United States filed suit in 2005. On cross-motions for
summary judgment, the Parks argued that their dog kennel
constituted “livestock farming,” which is specifically permit-
ted by the terms of the easement. The government contended
that, under Idaho law, dogs are not livestock.
The district court held that the easement terms were “unam-
biguous,” stating that “[r]egardless of how broadly one
defines livestock farming, the Parks’ activities do not fall
within its terms.” The court did not look to any particular
source to define “livestock farming,” but commented that the
government’s citations to Idaho law “further yield support for
its interpretation.” The district court granted summary judg-
ment in favor of the government and ordered the Parks to
cease their commercial operation and remove any associated
structures or convert them to non-commercial use.2 The
court’s order that the Parks remove or convert the structures
was stayed pending this appeal.
2
As a separate issue, the government challenged whether the kennels
and other buildings were constructed in accordance with the procedures
set forth in the easement. Finding material factual disputes, the district
court denied summary judgment on this point. Although the district court
granted only partial summary judgment, according to the district court
docket, the case was erroneously terminated by the court’s ruling. The par-
ties, however, obtained a Rule 54(b) certification of judgment to permit an
appeal. See Fed. R. Civ. P. 54(b) (permitting a district court to certify that
a judgment as to one or some of the multiple claims presented is a final
judgment if it “expressly determines that there is no just reason for
delay.”). We understand the district court’s order that the kennel structures
be removed or converted to a non-commercial use to be addressing the
Parks’ continued operation of their dog kennel, and not an order that
reflects a decision with respect to whether the construction of the kennels
was authorized.
UNITED STATES v. PARK 10287
We review de novo the district court’s interpretation of a
scenic easement. Racine v. United States, 858 F.2d 506, 508
(9th Cir. 1988). We disagree with the district court and con-
clude that the term “livestock,” as used in the easement, is
ambiguous, and we reverse the grant of summary judgment.
II. ANALYSIS
A. LIVESTOCK FARMING
[1] We generally follow state law to resolve property dis-
putes, such as this issue of interpretation of an easement3 See
Cortese v. United States, 782 F.2d 845, 849 (9th Cir. 1986).
Under Idaho law, courts construe a deed that conveys an
interest in property to “give effect to the real intention of the
parties.” Benninger v. Derifield, 129 P.3d 1235, 1238 (Idaho
2006). Only if the language of the deed is ambiguous does the
court look beyond the four corners of the deed to extrinsic
evidence. Id. (internal citations omitted). “Interpretation of an
unambiguous conveyance instrument is a question of law to
be settled by its plain language.” Neider v. Shaw, 65 P.3d 525,
530 (Idaho 2003). “Ambiguity exists only if language of the
conveyance instrument is subject to conflicting interpreta-
tions.” Id.
In a recent case, the Idaho Supreme Court addressed the
question of an ambiguous easement. Mountainview Landown-
ers Coop. Ass’n, Inc. v. Cool, 86 P.3d 484 (Idaho 2004). The
easement granted Mountainview Landowners Cooperative
Association the right to access a beach area on the Cools’
property for “swimming and boating.” These terms were not
3
There is a “limited exception” to this rule “for cases in which relevant
state law is hostile to a congressionally declared program of national
scope.” Cortese, 782 F.2d at 849. Although the protection of the Middle
Fork of the Clearwater River in Idaho is part of a congressional program,
the application of Idaho law to interpret the easement is not hostile to this
program. See United States v. Little Lake Misere Land Co., 412 U.S. 580,
594-97 (1973).
10288 UNITED STATES v. PARK
defined in the easement. Id. at 487. The Idaho Supreme Court
held that there was a “latent ambiguity over the term swim-
ming.”4 Id. It observed that applying the strict definition of
swimming found in the dictionary— “to propel oneself
through water”— “could lead to illogical results” because it
would exclude dangling one’s feet in the water as well as pre-
vent parents from acting as a lifeguard for their children. Id.
(quoting WEBSTER II NEW RIVERSIDE DICTIONARY (1984)). The
court further noted that there was not a uniform definition of
swimming across dictionaries and that some definitions
included “diving.” Id. Because “more than one definition and
interpretation of swimming exists,” the court held that the
term was ambiguous. Id.
[2] The Idaho Supreme Court’s analysis guides our own.
The scenic easement permits the Parks to engage in “livestock
farming,” but does not define this term. Still, we have no dif-
ficulty concluding that the district court erred in holding that
“livestock,” even broadly defined, could not include dogs.
[3] The term “livestock” stems from the Middle Ages,
when it was used as a measure of wealth or to refer to prop-
erty that could be moved, particularly to a market for trade.
Online Etymology Dictionary, http://www.etymonline.com
(last visited July 25, 2008). Later, the term began to be used
in a more limited sense to describe cattle. Id. Today, the dic-
tionary definition of “livestock” is sweeping, capturing every
type of domesticated animal. For example, Merriam-
Webster’s Collegiate Dictionary defines “livestock” as “ani-
mals kept or raised for use or pleasure; esp: farm animals kept
for use and profit.” MERRIAM-WEBSTER COLLEGIATE DICTIO-
NARY 728 (11th ed. 2003). The Oxford English Dictionary is
4
As the court explained, “ ‘[a] latent ambiguity is not evident on the
face of the instrument alone, but becomes apparent when applying the
instrument to the facts as they exist.’ ” Mountainview Landowners Coop.
Ass’n, 86 P.3d at 487 (quoting Matter of Estate of Kirk, 907 P.2d 794, 801
(Idaho 1995)).
UNITED STATES v. PARK 10289
in accord and defines “livestock” as “animals, esp. on a farm,
regarded as an asset.” THE CONCISE OXFORD DICTIONARY OF
CURRENT ENGLISH 797 (9th ed. 1995).5 Even Black’s Law Dic-
tionary defines “livestock” broadly as “domestic animals and
fowls that (1) are kept for profit or pleasure, (2) can normally
be confined within boundaries without seriously impairing
their utility, and (3) do not normally intrude on others’ land
in such a way as to harm the land or growing crops.” BLACK’S
LAW DICTIONARY 953 (8th ed. 2004); see also Levine v. Con-
ner, 540 F. Supp. 2d 1113, 1116 (N.D. Cal. 2008) (analyzing
the dictionary definitions of the word “livestock” and observ-
ing that “the scope of domestic animals used or raised on a
farm can potentially extend to guinea pigs, cats, dogs, fish,
ants, and bees.”).
[4] Despite the broad definitions in the dictionaries, we rec-
ognize that “livestock” has been used to describe a more lim-
ited set of animals such as cattle, horses, and pigs. The
government calls our attention to § 25-1101 of the Idaho
Code, which limits “livestock” to a narrow set of animals,
namely, “cattle, horses, mules, or asses.” Idaho Code § 25-
1101. That section, however, pertains to brands and identifi-
cations affixed to the hide of an animal. Not surprisingly, this
provision is not the only one in the Idaho Code that defines
“livestock:” § 25-3601 states that cassowary, ostrich, emu,
and rhea are “livestock” and § 25-3701 adds fallow deer, elk,
and reindeer to the list. Idaho Code §§ 25-3601, 25-3701.
5
The Parks urge us to follow the definition of livestock that the bank-
ruptcy court applied for purposes of bankruptcy in In re Maike, 77 B.R.
832 (Bankr. D. Kan. 1987). In Maike, the bankruptcy court commented on
the evolving nature of livestock operations that allowed farmers to con-
tinue to produce a profit from their land. Id. at 835-36. It declared that
“[w]hile an analogy to a cattle feedlot can be carried only so far, if feeding
and maintaining other people’s cattle for ultimate resale is a farming oper-
ation, the same services performed with respect to dogs should also be
considered farming.” Id. at 839. Despite its superficial applicability, the
bankruptcy court’s understanding of farming and livestock in the context
of providing bankruptcy protection does not shed light on how the parties
intended to interpret the word “livestock” when the easement took effect.
10290 UNITED STATES v. PARK
[5] Idaho is not alone in having a statutory definition of
“livestock” that identifies certain specific animals as “live-
stock.” A cursory survey of case law and federal and state
statutes uncovers multiple definitions of “livestock” that
include particular subsets of domestic animals. For example,
federal regulations under the Fair Labor Standards Act define
“livestock” to include “cattle, sheep, horses, goats, and other
domestic animals ordinarily raised or used on the farm,” but
notes that “[t]urkeys and domesticated fowl are considered
poultry and not livestock.” 29 C.F.R. § 780.328. Turning to
state law, the Court of Appeals of Michigan has observed that
Michigan law defines “livestock” as “horses, stallions, colts,
geldings, mares, sheep, rams, lambs, bulls, bullocks, steers,
heifers, cows, calves, mules, jacks, jennets, burros, goats, kids
and swine, and fur-bearing animals being raised in captivity.”
People v. Bugaiski, 568 N.W.2d 391, 392 (Mich. Ct. App.
1997) (citing Mich. Comp. Laws § 287.261(2)) (emphasis
omitted). In Iowa, “livestock” is defined as “cattle, horses,
sheep, goats, swine (other than feeder swine), or any other
animals of the bovine, equine, ovine, caprine or porcine spe-
cies.” Iowa Admin. Code r. 21-66.1(1). The Iowa Code also
includes “all species of deer, elk, and moose raised under con-
finement or agricultural conditions for the production of meat,
the production of other agricultural products, sport, or exhibi-
tion” as “livestock.” Id.
[6] The language in the easement does not provide us with
any more clarity on the meaning of the term. The statement
of purpose neither compels nor eliminates a definition. The
word “farming,” which follows “livestock,” is unhelpful
because “to farm” is simply defined as “to engage in raising
crops or animals.” MERRIAM-WEBSTER’S COLLEGIATE DICTIO-
NARY supra at 454. The government urges us to apply the defi-
nition of “livestock” that is found in § 25-1101, but there is
nothing in the easement that unambiguously points us in this
direction.
[7] The easement did not incorporate provisions of the
Idaho Code by reference in a way that compels us to look to
UNITED STATES v. PARK 10291
the Idaho Code for the definition of “livestock,” as opposed
to considering the plain dictionary meaning. Although the
easement states that the Parks may “use the easement area for
general crop and livestock farming and for limited residential
development consistent with applicable State and local regu-
lations,” the phrase “applicable State and local regulations”
can be read as referring only to the easement’s approval of
“limited residential development,” not to the term “livestock
farming.” See Barnhart v. Thomas, 540 U.S. 20, 26 (2003)
(discussing the rule of the last antecedent).
The government’s reliance on Racine v. United States, 858
F.2d 506 (9th Cir. 1988), is misplaced. The scenic easement
at issue in Racine was specific, stating that “ ‘[w]ith reference
to 36 C.F.R. 292.16(g)(1), it is agreed that only one residence
and one tenant dwelling are authorized within the easement
area.’ ” Id. at 508. We held that the “only consistent reading”
was to allow the structures permitted by § 292.16(g)(1) to be
constructed in the easement area. Id. at 508-09. We could not
ignore the express reference to the regulation, which was
directly incorporated in the provision. The Parks’ easement
lacks similar specificity.
[8] The government’s remaining arguments similarly fail to
lead to the conclusion that “livestock farming” unambigu-
ously excludes dogs. The Idaho Code should provide the defi-
nition of livestock, according to the government, because real
property disputes are governed by state law. But, even though
we apply Idaho law to interpret an instrument of conveyance,
see Benninger, 129 P.3d at 1238, it does not follow that the
definitions of the terms of the easement will be the same as
the definitions given in the Idaho Code. Absent a direct and
specific statutory reference in the easement or even a statutory
provision closely related to the easement, nothing suggests
that the plain meaning of the terms in the easement are
defined with reference to specific Idaho statutory provisions.
The terms must be understood to give effect to the intention
of the parties. See Benninger, 129 P.3d at 1238.
10292 UNITED STATES v. PARK
[9] We are also not convinced that the Parks conceded that
the Idaho Code controls the definition of livestock. The refer-
ences to the Idaho Code in the Parks’ pleadings and in their
summary judgment filings pertain only to the law that should
govern the interpretation of the easement. They expressly
argued against the government’s position that the Idaho Code
should serve as the basis for the meaning of the terms in the
easement.
[10] Finally, in support of its argument that the “regular
use” of the land prior to the easement grant was “crop farming
and cattle and horse ranching,” the government offers extrin-
sic evidence— the Administrative Plan for the property that
was prepared by the Monroes and the Forest Service at the
time of the easement grant and a statement the Parks made in
connection with their motion for summary judgment. Extrin-
sic evidence is admissible only when a term in the easement
is ambiguous and the trier of fact must interpret the ambiguity
in the first instance. See Benninger, 129 P.3d at 1238.
Because the district court granted summary judgment on the
ground that “livestock” was an unambiguous term, no trier of
fact has interpreted the ambiguity and we will not comment
on what the extrinsic evidence may demonstrate.
Given the lack of a uniform definition of “livestock” and
the absence of any guidance within the four corners of the
easement, we conclude that the term is ambiguous and sum-
mary judgment was premature.
B. COMMERCIAL ACTIVITY
[11] The district court held that the Parks’ dog kennel busi-
ness was a prohibited commercial activity. Although the
Parks are running the kennel for profit, this fact does not pre-
clude the operation from also being a permissible livestock
farming use. Farming surely can be undertaken for profit and
the easement expressly states that the grantors, now the Parks,
“retain the right” to engage in “general crop and livestock
UNITED STATES v. PARK 10293
farming.” This right was retained without exception. The
only consistent way to understand the restriction is as prohib-
iting commercial activity except to the extent that it qualifies
as “general crop and livestock farming.”
Because the term “livestock farming” is ambiguous as it is
used in the easement, interpretation of the easement cannot be
resolved on summary judgment. The judgment of the district
court is reversed and we remand for further proceedings.
REVERSED AND REMANDED.