Nevada Revised Statutes §§ 569.440-.450 provide that Nevada is an open-range state. The owner or manager of trespassing livestock is liable for damages to another's property only if the property is enclosed by a "legal fence." There is a process for removing 'estray' and 'feral' livestock, but Cliven Bundy's cattle do not meet the definitions for either category of livestock.
However, a federal court applying and interpreting Nevada common and statutory law in United States v. Bundy, Case No. CV-S-98-531-JBR (RJJ), 1998 U.S. Dist. LEXIS 23835 (D. Nev. Nov. 4, 1998), ruled that Bundy's cattle were trespassing cattle, subject to removal.
(N.R.S. Ch. 568 - Grazing and Ranging - Cooperation with Federal Agencies in Relation to Grazing Lands specifically applies the federal Taylor Grazing Act, 43 U.S.C. § 315 to Nevada land and requires the payment of grazing fees for use of federal property.
N.R.S. § 568.350 makes it unlawful for any person to lead, drive or in any manner remove any domestic livestock which are owned by another person from the range on which they are permitted to run without the consent of the owner. Again, a federal court ruled in 1998, and federal courts have subsequently ruled at least twice by referencing the 1998 ruling, that Nevada's open range laws do not allow Clive Bundy to graze his cattle on the BLM land.
I can rationalize it this way: Nevada state law and federal law require that Clive Bundy enter into a grazing agreement and pay a federal grazing fee to graze his livestock on federal property. Bundy has not paid his grazing fee for 21 years.
At common law, there must be a remedy for every wrong.
I can see two possible remedies for Bundy's failure to enter into a new grazing agreement and to pay a grazing fee. One, to sue Bundy for the $1 million+ the BLM claims he owes. I doubt the BLM wants to put this issue in the hands of a jury. Two, to remove the cattle as the remedy for a wrong.
Thanks.
Yes, I would like to know why the standard state laws for grazing wouldn’t apply, i.e. obligation of a land owner to have a “legal fence”.
We had neighboring property to one of our pastors that was owned by a local man renowned for being the worst type of cattleman. He owned 40 acre plots all over the county, moved his cattle around from one to the other all the time, and never kept up his fences.
His cattle would get out onto our property and he would never respond when called to come get his cattle in and fix his fence.
One summer he decided to plant corn on the other side of the fence from our cattle pastor. Guess what, once those ears started filling in our cattle moved in mass through his 2 wire rusty fence and began feasting on that corn. Dad called him and left a message, “Harry, you need to come out fix your fence, my cattle are moving through it.” Not realizing which fence it was, Harry did his norm and just ignored the call. Within a couple of weeks, the corn was gone.
Later on we had an issue with about a dozen of his cattle that had gotten out and we woke up with them in our garden. When called he said, “I’ll be out in a few days to take care of it.” We ran the cattle down the road about 4 miles and told him the same when he came out (2 weeks later).