Posted on 03/17/2004 7:49:12 PM PST by NMC EXP
Many western ranchers found out over the past decade that if they want their private rights protected, they must stay out of federal court. After a painful crash-course in federal courthouse procedure, ranchers learn very quickly that the only obligation a federal judge has is upholding the sanctity of bureaucracy, and the regulation that backs it. The second lesson learned is that a federal judge will seldom do research on behalf of the individual in court, and nearly always rubber-stamps whatever red tape a federal agency wishes to have the force of law. The fact that most public officials take an oath to uphold the constitution when they take office has no more effect on their decisions than wedding vows have on a Hollywood marriage.
Kit and Sherry Laney found out the hard way that their constitutional rights have no bearing in federal court. After spinning their wheels for the better part of a decade, in and out of the U.S. Forest Service administrative process, then the federal courts system, all they have to show is a family and business that has been left in near shambles, and a contempt of court ruling. Even after more than a decade of watching their private rights take a beating, the Laneys remain dedicated to fighting the federal government for those rights, and their home.
The argument is simple enough, they are ranchers claiming private property rights, not to the federal land where the ranch is based, but to the fee interest in the surface of the land on a ranch that predates the existence of the U.S. Forest Service.
It's no secret that ranchers own water rights on federally administered land. There are myriad state laws that validate private ownership of water on western lands administered for grazing. The big secret is what is attached to the water rights on these lands and how much authority federal agencies have to regulate access to those rights. The USFS claim is, that unless there is a current gazing permit, a contract that the rancher signs, there are no private access or use rights to the land. That permit has become so burdensome that it is no longer a cooperative annual operating plan; it is now accompanied by annual operating instructions, as if the USFS knows better how to run a cow operation than a professional cowman. Under such a permit, the agency is authorized by the rancher to regulate each and every aspect of the private business, and the rights on the land are systematically revoked. Congressional statute doesn't back that claim, and the Laneys, among others, are challenging the false notion that ranchers own nothing on federal lands.
Background
In early 2002, Nevada rancher Wayne Hage prevailed in the U.S. court of claims over a claim similar to the one that the Laneys are using. Since that decision, the cat has jumped out of the bag, and western ranchers are coming to realize that these allotment-based ranches are more complex than originally thought.
A vested right to access these lands was traditionally handed down to each rancher who ever held title to the ranch. Territorial law, and later, congressional statute, gave the settlers of these lands authority to put the waters to beneficial use, and carve a ranching business, and rights of way, for grazing livestock. Over the course of the past 100 years, most of the supporting statutes have been lost in the minds of the agency, and not incorporated into their regulatory process. Over the years, even the ranchers forgot they owned something on the land.
Baloney
The Laneys purchased the ranch in good faith. Knowing that upland waters were the key to keeping cattle dispersed throughout the ranch, and improving the grazing conditions, they sought and received a signed Memorandum of Understanding from the USFS allowing the improvements for water supply in the uplands. This MOU was a required condition for the purchase of the ranch. By 1995, the USFS revoked the MOU, succumbing to pressure from the same environmental extremists who now claim the Laneys' cattle are harming the riparian areas. The Agency then cut the number of cattle the Laneys could run, by nearly three-quarters. The Laneys' permit came up for renewal and they refused to sign the permit the USFS offered, saying it revoked their private rights in the water, and access to the land. Instead, they offered the agency a permit that recognized those rights. The USFS refused to acknowledge this permit as a viable option, and through the regulatory process, began forcing the Laneys off their ranch. The Laneys fought the decision in court. The Forest Service, and a federal judge, disagreed with the Laneys' interpretation of the law, and in 1996, ordered the Laneys to remove their cattle. The Laneys were forced off the ranch, and out of their own home, for seven years.
From 2001 through 2003, Kit and Sherry repeatedly applied for the minimum permit the agency's own Environmental Impact Statement allowed the allotment to graze. They were denied. They then had the allotment inspected by range and riparian specialists to determine if it was in good enough condition for grazing. The experts issued a report stating that the allotment was in good-to-excellent shape. The Laneys then used the report to again apply for a 300-head permit. Again, they were denied, not just twice, but three separate times. The USFS claimed that the ranch, which historically, and scientifically, was capable of running nearly 1200 head of cattle, could no longer be authorized for a mere 300 head, and no valid reason was ever given. The Laneys then chose to return to their home, with their livestock - but without a permit. They believe this is a property dispute, and the USFS is just another landowner.
Intestinal Fortitude
Once they chose to access their private fee interest in the land, they filed their deeded fee interest in the three county courthouses where the land is located. Those filings were accepted, and the Laneys paid property taxes on the fee interest property, effectively avoiding the administrative process of the USFS.
The agency didn't take kindly to being ignored and went to the Tenth Circuit Court and asked that the Laneys be held in contempt of court over the 1996 ruling that stated they may own the water, but they must have a permit to graze their cattle on the public land.
The Laneys advised the court that based on new information, their argument had changed since the 1996 ruling. The new argument was based on the fact that they were accessing their own fee interest property, not the public lands. The federal court and the USFS do not have the jurisdiction to regulate their business, since their fee lands were based on vested rights that predate the USFS.
The Judge issued a contempt of court ruling in December of 2003 without considering the new information and without looking at the Laneys chain of title that verifies their vested rights. The fee interest argument was ignored. Certainly, the federal Judge had authority to authorize the removal of cattle from any federal land (public, national forest, etc.) but not from rights of way, easements, or other types of fee land that placed cattle on their federal grazing allotment. Clearly, these rights exist, and clearly, the Laneys claims are valid, however, the sticking point is that the federal courts simply do not have to consider anything but federal regulations.
A fee interest right and a grazing allotment is, in effect, a private property right; property is not subject to federal jurisdiction through a regulatory process at the hands of a federal agency. The Laneys feel that as long as the federal courts refuse to acknowledge them as private citizens, and continues to think of them as permittees, their private rights will never be addressed.
Backing Your Brother's Play
When the USFS began implementing the impoundment of the Laney's cattle, the local law stepped in. Cliff Snyder, Catron county Sheriff, was one player who took his oath of office seriously. Acting in the best interest of the residents of his county, many of whom had suffered livestock losses at the hands of the USFS, contributing to long-term damage to the county's economic structure, the Sheriff issued a letter tothe USFS. He informed them that they would not violate state law in impounding the livestock, and if they did, he would arrest anyone caught rustling the cattle. Due to the Sheriff's ultimatum, the full story on the ranch dispute was finally made available to the contractors hired to gather the cattle. Those contractors promptly quit.
Rusty McCorkell was one of them
Rusty and his sons are contract cattlemen the agency hires to gather feral livestock throughout the region. He says he was put off the job that could have paid him over a hundred thousand dollars when he heard the Laneys argument. Rusty says the agency didn't provide him with all the information he needed to make a clear decision when they put out the contract. Rusty says, "I want the Laneys to win this, If the shoe was on the other foot, I would want the chance to see this through."
When Rusty called the contracting officer and told them he wanted out, he was initially threatened with legal recourse. Though the USFS has since apologized to McCorkell for the muscling he received, they did make a feeble attempt to convince him that he had been threatened by the Laneys, suggesting that was the reason he quit. Rusty is very clear that he wanted no part of ruining the Laneys chances to win this argument once and for all. While Rusty feels the USFS has been a fair employer in the past, and will work for them again, he hasn't changed his mind on accepting the contract. The USFS is still on the hunt for a cowman with enough ability to impound the Laney cattle.
Shooting Down the Sheriff
For his courage in supporting the state constitution and rural community, Sheriff Snyder was advised by the New Mexico Attorney General, to allow state law to be broken and to facilitate the impoundment of the Laney cattle. If he chose to continue on the current course, he was subject to arrest by federal marshals.
New Mexico is a sovereign state, and the duly elected sheriff of a county is the highest law enforcement official within a county. The sheriff has law enforcement powers exceeding that of any other state or federal official. Yet, The New Mexico Attorney General has allowed the Catron county sheriff to understand he will receive no support from the state if he protects the people in his county and forces the federal agency to comply with the state laws.
New Mexico is a state of a different color in the west and the near 50/50 split seen on the political scene of the nation can be duplicated on a smaller scale in New Mexico. Despite the poverty in the rural communities, most rural New Mexicans are of a conservative nature. The Governor and Attorney General are not supporters of rural residents and agricultural interests.
The Attorney General's office, has in effect, approved and embraced the enforcement of a court decision that does not compel any agency of the New Mexican government to treat the Forest Service differently from any other landowner. The Tenth Circuit Court only authorized the Forest Service, under its regulations, to impound and remove the Laney livestock. But, they are still subject to State laws. Just as the truck that hauls the cattle to the sale will have to have a license and obey the speed limit, so too will the Forest Service have to adhere to the State laws for seizing another's property. And that will require a trip to a State Court to prove the title to the land the Forest Service says the Laneys are trespassing on.
The federal statutes the Forest Service operates under contain more than a dozen instances where Congress declared, in law, that nothing in the Act would destroy "valid existing rights." The battle in New Mexico over valid rights that predate the new-federal-scheme-of-the-day - whether it's the valid existing rights of the tribes, the valid existing rights of the community land grants, the prior appropriation of water, or water and forage rights by ranchers - require an Attorney General who is dedicated to the rule of law and the dual Sovereignty the Supreme Court has declared in many decisions.
Patricia Madrid, New Mexico's Attorney General, not only lets the lawless Forest Service get away with ignoring New Mexican law, but she is, in this writer's opinion, actually facilitating in the undermining of the valid existing vested rights of a New Mexico citizen. She is the worst kind of Attorney General New Mexico could ever have - a lackey of a federal government that is more concerned with protecting its bureaucracies than in protecting citizens and states rights.
Forcing the state to do the dirty work
State jurisdiction doesn't end with land disputes and a county Sheriff's determination to uphold his oath of office. In Printz v. the United States 1997, the U.S. Supreme Court ruled that the federal government couldn't compel a state to carry out its regulatory programs. Nor can it command a state's officers to carry out those programs. Except for the support of NM state officials, the USFS is back at square one. If the Laneys' claims are valid, there is no jurisdiction under federal regulation to do anything with their livestock. Neither the courts nor the USFS can make the state responsible for implementing the theft of the Laney cattle. In the case of the Laney livestock impoundment, the state can and should, just say no.
What the agency needs is a valid court order from a court with proper jurisdiction in property disputes; they can then force the issue on the state, and demand assistance. Without that court order, state officials can be subject to liability for breaking the law.
Recourse
Because the Laney's claim of a privately held fee interest in the land was never properly addressed in the Federal District Court or the Tenth Circuit, the Laneys don't feel they are subject to an impoundment of their private property, and will prosecute anyone involved in it. All the agency has to do is quiet title the fee interest claim and challenge the Laneys in a property court. So far, they have refused to do so, probably because there is no way for them to win such a case. Interest in fee lands are held by private individuals and the law is very clear on that issue. If the USFS were to try to quiet title the fee interest away from the Laneys they would very likely lose. Until the argument is before the proper court and an order to remove the livestock is issued there should be no impoundment of the Laney cattle.
The Laneys can prove that their rights vested prior to USFS existence. There are at least a dozen Acts of Congress that clearly intend for ranchers on these lands to be able to develop a vested, permanent interest in the land through rights of way, and water access. There are at least a half-dozen State Supreme Court rulings, and even a couple of U.S. Supreme Court rulings that confirm ranches in existence prior to USFS's implementation of the grazing program, held vested rights on the land in question. Those ranches may not even require a permit. Ranches that came into existence after the USFS may still be required to have a permit to make improvements on the land, however, they still own the improvement after it is in place, and the USFS must still compensate when the improvement is taken. Only improvements under the Federal Land Planning Management Act (FLPMA) which was passed in 1976, are subject to USFS jurisdiction. However, depending on state water law, the individual may still own the property attached to the improvement.
Over the years, the USFS has become so confused by the evolving statutes that they have allowed the permitting process to overwhelm the intent of congress. It is questionable whether the process is even legal.
As far as the Laneys are concerned, they didn't leave the permitting process, the permitting process left them when the agency crafted a permit designed to rob them, of their private vested rights in an historic ranch.
Unfortunately, for the Laneys, they live in a state that is squeamish about upholding its own laws. New Mexico's current administration prefers to hold hands with the federal government, when they should be slapping those hands. The New Mexico Governor and state Attorney General, simply cannot afford to allow their contributors to see them as supporting the agricultural industry, even if it is the largest industry in the state.
While the Laney battle would likely prevail in the U.S. court of claims, it is not necessarily the best place to play out this battle. When private rights are chronically, and illegally usurped by federal regulation, it is hardly fair to force private property owners into the court of claims as their only legal recourse. The cost is out of reach for most ranchers and small business owners. Nor is it fair to force the taxpayer to foot the bill when these takings cases are won. However, it seems to be the only recourse for thousands of displaced western ranchers, since the USFS simply will not acknowledge they have limitations under the law. Congress will not make the agencies comply with the intent of the law, and the states will not uphold the rights of their citizens.
The ball is now in the court of state officers, it is up to them to weigh the will of the governor and the questionable advice of the NM Attorney General's office, and decide whether to protect the citizens of the state against an unconstitutional ruling and unfair federal action. Federal decisions should always be based on constitutional principles, regardless of which particular court they come from. Ignoring their basic oath of office to uphold the constitution has relegated honorable judges to mere clerks for federal agencies. A sovereign state should not be willing to follow that example.
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Laura Schneberger lives near the Diamond Bar Ranch, and has followed this battle since the beginning. She maintains a Diamond Bar web site where more details are available.
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