February 2003

By Wayne Hage

Nevada Rancher

Elko, 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 Bureau of Land or U.S. Forest Service tells the rancher that these lands are "public lands" and he owns no property rights in his grazing land and has only 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 vs. 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 ranchers' grazing allotments.

A review of 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 vs. Northern Pacific Ry. Co., 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." (Bardon vs. Northern Pacific Ry. Co., 12 S Ct 856, 145 US 535, 538, 36 L Ed 806)

In Northern Pacific Railroad Company vs. Wismer, 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." (Northern Pacific Railroad Co. vs. Wismer, C.C.A. Wash., 230 F. 591, 593)

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 Supreme Court: "lands to which no right or claim of another has attached."

The bulk of 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 landmass was withdrawn from the public domain under the Taylor Grazing Act and designated as 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 IRS 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 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.

The agencies attempt to invoke regulatory authority that only applies to public lands when defined in the lawful sense, and 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 secretaries of Agriculture or Interior have plenary power to exercise the authority granted by Congress under Article 4, Section 3, Clause 2 of the Constitution of 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 that 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 vs. U.S.) 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 assert title to fee lands properly, based on the ownership of vested water rights, and to rebut consistently 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 by stipulating his grazing allotment is "public land."

For questions on this article please contact:

Ramona Morrison

Secretary/Treasurer

Nevada Live Stock Association

775-424-0570

rhmorrison@bww.com