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