What, exactly, are Public Lands? (Note:
If you read just one property rights article this year, this should be
the one. Through a thoughtful read, the words and knowledge of Wayne
Hage will enhance your understanding of property rights and its
associated definitions and case law.
If one has property to which they have rights and claims – i.e., such
as range rights, including, but not limited to, water, forage, ditch
rights, roads and access -- their property is, by definition, not
public lands. The U.S. Supreme Court defined public lands in Bardon
v Northern Pac. R. Co. 12 S.C. 536, 539 (1892), cited 133 times
and never overturned in whole or in part. It was last cited in Watt
v Western Nuclear, Inc., 462 U.S. 36 (1983). The U.S. Supreme
Court said: “It is well settled that all land to which any claims or
rights of others have attached does not fall within the designation of
public land.” Bardon v Northern Pac. R. Co. 12 S.C.
536, 539 (1892). The question must now be asked, by definition as above,
are the grazing lands referred to in the new Bureau of Land Management [BLM]
grazing regulations http://www.blm.gov/grazing/final/ really
public lands, or do they have rights and claims of others attached? If
the rights and claims of others are attached, the regulations do not
apply, because the grazing lands are not public lands. The government
has been able to claim more and more authority over landowners by mere
assertion. Government has simply defined most western ranchers out of
the question by saying grazing allotments are public lands. This is the
crux of what Wayne Hage sought to teach people in the west in his last
years. It is hard for folks to believe, because they don't want to
believe that the government would seek to deceive them. The fact is that
government is guilty of deceit by definition. We must get to the point
of understanding before we can effectively protect and defend private
property rights.)
By E. Wayne Hage Pine Creek Ranch Tonopah, Nevada Over
the past half century, no term or phrase has caused more confusion in
the western land debate than the term “public lands”. On the one
hand, the rancher is told by the Bureau of Land Management or U.S.
Forest Service that these lands are “public lands” and he owns no
property rights in his grazing land and only has a conditional privilege
to graze by virtue of his grazing permit issued by the agency. On the
other hand, if the rancher dies, his heirs must pay an inheritance tax
on what the Internal Revenue Service says are his property rights in his
grazing lands. In
understanding this confusion and deriving a solution, it is instructive
to observe what the courts have said on this matter. “The
words ‘public lands’ are not always used in the same sense. Their
true meaning and effect are to be determined by the context in which
they are used, and it is the duty of the court not to give such a
meaning to the words as would destroy the object and purpose of the law
or lead to absurd results. United States v Blendaur, 128
F. 910, 913, 63 C.C.A. 636.” In
common usage we see the term “public land” used to describe a
variety of lands from national parks to wildlife refuges, grazing lands
and virtually any land or site to which the public may have access. This
broad-umbrella definition basically includes all lands or sites in which
the United States has an interest and has been widely applied to
rancher’s grazing allotments. A
review of United States Supreme Court opinions where the issue involved
lands of the public domain shows us that the term “public land” has
a definite and fixed meaning. In Bardon v Northern Pacific Ry. Co.
12 S Ct 856, 145 US 535, 538, 36 L Ed 806, the Court stated: “It is
well settled that all land to which any claims or rights of others have
attached does not fall within the designation of public land.” In
Northern Pacific Railroad Company v Wismer, C.C.A. Wash.,
230 F. 591, 593, the Court held that “public lands are lands open
to sale or other disposition under the general laws, lands to which no
claims or rights of others have attached.” The
primary origin of this confusion can be traced to the publication of the
report of the Public Land Law Review Commission in 1968.
The Commission, established in 1964, was ostensibly created to review
and clarify the status of all land laws relating to the public domain. In
the Commission’s Report, national forests, national grasslands,
grazing districts, minerals, water recourses, wildlife habitat, outdoor
recreation, etc; are all discussed within the context of the terms
“public land” or “public domain.” This broad, all inclusive, and
essentially political definition is in direct conflict with the lawful
definition held by the United States Supreme Court: “lands to which no
right or claim of another has attached”. The
bulk of the western lands to fall under the “umbrella” definition
are lands originally withdrawn from the public domain under the Forest
Reserve Act, and known today as national forests. An even greater land
mass was withdrawn from the public domain under the Taylor Grazing Act,
and designated grazing districts. Virtually
all national forest lands and grazing districts have rights attached in
the form of vested water rights. Most of these water rights are for
livestock watering purposes, giving the owner of the vested water right
a fee (the inheritable right to use) in the land serviced by the stock
water. It is this fee, based on the ownership of the water right, upon
which the Internal Revenue Service assesses an inheritance tax at the
passing of an estate from a deceased owner to his heirs; even though the
underlying title to the land itself, with all its minerals, remains in
the United States. A
rancher’s grazing allotment, where he owns the water rights and the
inheritable right to use the lands serviced by that water, is clearly
land to which rights or claims of another have attached. Just as
clearly, these lands cannot be public lands as defined by the United
States Supreme Court. Grazing allotments are clearly not
lands “available for disposal under the general land laws.” The
discord in western land jurisprudence arises from the use of the term
“public land” by the federal land management agencies in its broad,
political sense, to characterize a rancher’s grazing allotment. They
then attempt to invoke regulatory authority, which only applies to
public lands when defined in the lawful sense. The agencies then demand
that a rancher have agency permission to utilize his own water rights
and grazing lands. If
land of the United States is, in fact, “land available for disposal
under the general land laws, lands to which no right or claim of another
attaches,” then the Secretary of Agriculture or Interior has plenary
power to exercise the authority granted by Congress under Article
4, Section 3, Clause 2 of the Constitution for the United States of
America. "The
Congress shall have power to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the
United States; and nothing in this Constitution shall be so construed as
to prejudice any claims of the United States, or of any particular
state.” If
Congress has made rules and regulations, which resulted in “rights and
claims of another” attaching, then certainly, those property rights
greatly restrain the power of the Congress and the Secretaries of
Interior and Agriculture, relative to those lands. Congress
did, in fact, create many land disposal laws, some of which resulted in
the acquiring of the fee (the inheritable right to use the land) in
association with vested water rights. Successful
arguments, relative to ranchers grazing allotments, must clearly make
the distinction between public land and fee land. (Hage v US)
Too often the rancher and his counsel have fallen into the trap created
by the use of the term “public land”, by the United States. By
failing to rebut the use of the term “public land” the rancher has
essentially stipulated that he has no rights to defend. The opponent
then can invoke Article 4, Section 3, Clause 2 and the myriad grazing
regulations from the Code of Federal Regulations to defeat the rancher. It
is imperative to properly assert title to fee lands, based on the
ownership of vested water rights, and to consistently rebut any use of
the term “public lands.” The argument can then be confined to the
issue of property rights. Regulations of the agencies under a grazing
permit are not relevant to vested water rights and fee lands unless the
owner of those rights chooses to subordinate his property to agency
control. Related,
recommended reading: Bardon v.
Northern Pac. R. Co., 145 U.S. 535 (1892) Link to the Case Preview: http://supreme.justia.com/us/145/535/
Link to the Full Text of Case: http://supreme.justia.com/us/145/535/case.html
Article
4, Section 3, Clause 2 (U.S. Constitution)
The Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States; and nothing
in this Constitution shall be so construed as to Prejudice any Claims of
the United States, or of any particular State. 1.
Records
of the Federal Convention 2.
Levi
Lincoln, Governor of the Northwest Territory, 2 February 1802 3.
St.
George Tucker, Blackstone's Commentaries 1:App. 283--86, 1803 5.
Johnson
& Graham v. M'Intosh 6.
James
Kent, Commentaries 1:360--61, 1826 7.
American
Insurance Co. v. Canter 8.
Joseph
Story, Commentaries on the Constitution 3:§§ 1317--22, 1833 http://press-pubs.uchicago.edu/founders/tocs/a4_3_2.html
Hage
v. U.S. http://www.stewardsoftherange.org/hage_v_us/hagedecision2002.pdf
January 29, 2002 (35 pages; 529 KB) http://www.stewardsoftherange.org/hage_v_us/preliminary-opinion.asp
November 5, 1998 http://www.stewardsoftherange.org/casecitations/hagevus96.pdf
(18 pages; 2.63 MB) The Finish Line in Sight for Landmark Hage v. U.S. - Closing Arguments Heard in Takings Case for Nevada Rancher
October
31, 2004
It’s
been nearly fourteen years since Nevada rancher, Wayne Hage and his late
wife, Jean, filed their takings case against the United States. On
Thursday, October 21, 2004, ranchers from at least five states crowded
into the small courtroom and spilled out into the hallway to hear the
closing arguments in this landmark case being heard by Judge Loren Smith
of the U.S. Federal Claims Court. Reno,
Nevada (PRWEB) – It’s been nearly fourteen years since Nevada
rancher, Wayne Hage and his late wife, Jean, filed their takings case
against the United States. On Thursday, October 21, 2004, ranchers from
at least five states crowded into the small courtroom and spilled out
into the hallway to hear the closing arguments in this landmark case
being heard by Judge Loren Smith of the U.S. Federal Claims Court. Wayne
Hage is no stranger to the courts. From the time Hage purchased Pine
Creek Ranch in 1978 until he filed the takings case in 1991, Hage spent
countless hours fighting the BLM and the Forest Service over his water
and grazing rights. The mission of the government agencies was clearly
to reclaim the use of the federal lands that Hage had permits on, by
whatever means necessary, including fencing off Hage’s springs and the
eventual confiscation of his cattle. During
the three weeks takings trial held in Reno last May, Judge Smith heard
how Hage purchased the property rights when he bought Pine Creek Ranch
and how he created additional property rights through range
improvements. The evidence proved that Hage had patented parcels of land
totaling about 7,000 acres, water rights in seven streams confirmed by
the Nevada state engineer, underground water located all over the ranch,
1866 ditch rights-of-way which were purchased with the ranch for
conveyance of water for irrigation and stock and range improvements such
as water tanks, pipes and troughs, fences, spring improvements, ditches,
corrals, cow camps, roads and trails. Throughout
the first trial, the Judge also heard how the government’s actions
harassed and interfered with Hage to the point at which this profitable
ranch was no longer a viable economic operation. Without notification,
the Forest Service introduced a small herd of elk onto one of Hage’s
primary grazing allotments in 1979. By 1990, the allotment was overrun
by the ever-growing elk herd and Hage’s allotment numbers had been
either cancelled or suspended to the point at which the allotment was
unusable for the ranch’s livestock operation. On
the brink of bankruptcy, Hage filed suit in 1991, choosing to fight for
his constitutional rights. In an earlier case, the Court found that Hage
did, in fact, own the rights to the water, the ditch rights of way and
the forage adjoining the ditches. Based on that decision, the Courts
must now decide whether the government took those rights from Hage and
if so, how much compensation Hage is due for the takings. A
summary of the value of the ranch, as presented by Hage’s attorneys,
was $23,979,000, which includes $12,000,000 for the water rights alone.
The government suggested a value of $1,500,000, slightly more than what
Hage paid for the ranch over twenty-five years ago. Hage’s attorney
pointed out that should the government acquire the ranch at their
suggested price, they would have an immediate gain of $12,000,000 in the
20,000 acre feet of water alone. Judge
Smith issued an admonition to counsel to explore every possibility of a
settlement and scheduled a telephone conference to discuss such on
November 18, 2004. If no settlement is announced, or if counsel cannot
report any real possibility of settlement, Judge Smith will then begin
to put together his decision in this historic case. Ranchers
and other landowners across America are anxiously awaiting the outcome
of this historical case as many have similar circumstances facing
aggressive environmental agendas and federal agency policies that
threaten their property rights and for some, their livelihood. A complete case history and detailed trial reports are available online at http://www.stewardsoftherange.org
Contact Information:
Margaret
Byfield, Stewards of the Range http://www.stewardsoftherange.org
512-365-8038
http://pdfserver.prweb.com/pdfdownload/173264/pr.pdf
Watt v.
Western Nuclear, Inc., 462 U.S. 36 (1983) Link to the Case Preview: http://supreme.justia.com/us/462/36/
Link to the Full Text of Case: http://supreme.justia.com/us/462/36/case.html
U.S. Court Judgments http://www.stewardsoftherange.org/FedLand/fedland-timelineusc.htm |