New group says grazers partial owners in federal lands in Colorado
December 7, 2016
Lorene Bonds, a southwestern Colorado rancher whose home place sits about 60 miles from the four corners wasn't ready to give up grazing rights passed down from her great-grandfather.
After visiting with Dr. Angus McIntosh about a year ago, her determination to defend her grazing rights was renewed.
Her local forest ranger had informed her in April of 2015 that her family was required to swap one of their three grazing allotments in the San Juan National Forest for a different one, and take a 44 percent cut in cattle numbers.
"They said if you do everything accordingly you could possibly regain your numbers."
“They (feds) try to confuse ranchers into thinking that they are merely permittees on public lands.” Angus McIntosh, executive director of Grazing Allotment Owners Association
She was at a loss as to how to deal with the orders.
"The allotment we were on was started by my great-grandfather. I had grown up on it. My family was on it before the U.S. Forest Service was even established."
Bonds met McIntosh at a meeting a few months later and says she learned a few things about her rights.
"He talked about units, preference rights. On my mom and dad's paperwork it said we had preference rights. We requested a meeting with the forest ranger, and asked one of our state senator's staff to accompany us. We showed them what the law said, and we said 'no we aren't going to do this.' And they decided to go with the laws instead of what they felt were their laws."
Bonds said preference rights are given to ranchers who were first established homesteaders in an area. "In other words, the homesteaders that were using the land for stock-raising prior to the USFS established a 'preference' to the grazing allotment over individuals just moving into the area. They had a 'first right' to a grazing allotment on the Forest Service land before any newcomers or 'free grazers.'"
Bonds said the allotment swap hasn't been spoken of again.
McIntosh, the executive director of a new organization called Grazing Allotment Owners Association said a couple of historic court cases lend credence to his theory that grazers are partial owners, not renters of their allotments.
"Grazing allotments are private property – they are split estates. The government owns the mineral rights and the commercial timber rights and the rancher owns valuable land for grazing and stock water rights," he said. The Supreme Court has also referred to the rancher's right as "limited fee title," he said, which includes all of the improvements, stock water rights, and forage.
"Based on U.S. v New Mexico, a 1978 Supreme Court decision, they (the ranchers) own the stock water rights, based on Kinney Coastal Oil v. Kieffer, they own the surface estate," said McIntosh. "Also in Watt V. Western Nuclear, a 1983 Supreme Court Decision, the split estate concept is confirmed."
The ranchers own the surface rights, starting with the Stock Raising Homestead Act of 1916, he said. "That's why ranchers can buy or sell those allotments and they have been able to for 100 years. It was the basis for grazing allotments when they created the resettlement projects in the great plains that are now called national grasslands. Those were actually established as 'resettlement projects.'"
Even the term "public land" is not used correctly, McIntosh believes.
"The definition – the original definition – was land that belonged to the United States that was open to entry and disposal."
In 1920 Congress changed that legal definition because it had disposed of all these western lands as grazing allotments. "Now the definition after 1920 was land – and interest in land – that belonged to the United States and was open to entry and disposal. The reason for that distinction is because Congress created a split estate – so it was no longer talking about disposal of land but land 'or interest in land' and under these grazing allotments, the rancher owns grazing rights, the U.S. owns mineral rights."
One of McIntosh's main goals in forming the new organization was to teach these basic principles to ranchers. "We want to educate ranchers on property rights so they cannot be taken advantage of by these federal agencies."
By serving as the Colorado director for the group, Bonds hopes to help teach other ranchers some of the things she's learned. "Perhaps we can fill people in, get them excited that they truly do own something."
McIntosh said even many federal employees working in the land agencies are not aware of grazers' rights, and in early October, he was walking from office to office in Washington, D.C., to share information with agency staff.
"Most people do not understand that a grazing allotment or range allotment is actually a real property interest," he said.
The ranchers who once grazed livestock on and around the Malheur Refuge in Oregon, for example, should have, at the very least, been given just compensation for their lost grazing rights. "The ranchers were flooded or burned out. They were forced out. They didn't know what their rights were. The Bureau of Land Management and U.S. Fish and Wildlife Service got away with it. The only problem is that the federal government cannot acquire land by adverse possession. They must pay you for it in order to acquire title because of the eminent domain law.
"That's what they've been trying to do throughout the west for the last 40 years because there is a general lack of knowledge on the part of the western ranchers," McIntosh said. "They try to confuse ranchers into thinking that they are merely permittees on public lands."
Even the charges the BLM brought against Steven and Dwight Hammond for burning about 140 acres of their BLM grazing allotment should never have been, Montana RAO director Maxine Korman said.
18 U.S. Code 1855, says, "Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States . . . shall be fined under this title or imprisoned not more than five years, or both." The exception states, "this section shall not apply in the case of a fire set by an allottee in the reasonable exercise of his proprietary rights in the allotment."
Korman believes the Hammonds were the excepted allottee in that case.
Brandon Jensen, an attorney with the Budd-Falen law office of Cheyenne, Wyoming, isn't so sure.
After a quick glance at the law, he said the term "allottee" generally refers to Indian allotments, not grazing allotments, but he didn't further research it.
Korman also pointed out some federal lands grazers pay property taxes, which she believes is further evidence of the ranchers' ownership of the grazing right. Montana does not impose such a tax.
Bonds said her family pays a possessory tax in Colorado, and while it is much lower than the property taxes on their private land, the state does collect it to be used for the same purposes as private property taxes.
Jensen agrees with the RAO directors that grazing allotments should not be taken by the federal government without due process but he's not on board with the eminent domain part of the argument.
"On a BLM allotment you are entitled to due process but you don't have any ownership in the land," he said. "If you have violated the terms of your permit it can be taken from you in whole or in part without giving you any compensation.
"You don't own it, you have a right to that permit and that comes with rights and due process but you don't own it they way we normally use the word 'own.'"
But he referred to "grazing rights," saying they do add value to the private land to which they are connected.
As for the movement by some western states to transfer management of federal land to the states, Jensen said federal law would have to change for that to be legal, and he doesn't believe there is enough support in Congress to accomplish it.
Bonds has already organized a couple of RAO meetings locally. Only about 20 people showed up to the first meeting, but more recently about 150 local ranchers joined her to hear McIntosh speak.
"My big goal," Korman said, "is to try to get these ranchers to realize, 'look you are not leasing a grazing allotment.'" She explained that, with court rulings to back her up, she believes she owns the surface estate for agriculture or stock raising. "We're trying to be very clear. We're not claiming every interest from the center of the earth to the sky. We're not even claiming the soil. But we own the rights and options to use the surface."
The former New Mexico State University researcher and former Texas A & M University professor of agricultural economics and natural resource economics, Dr. Angus McIntosh has sixteen years of federal service. He has worked under the U.S. Department of Agriculture's Natural Resource Conservation Service as a range management specialist, served in the U.S. Forest Service and more recently spent time as a research assistant and then was employed within extension. For the past 20 years, he has, on the side, consulted with ranchers on property rights issues.
For the past four or five years, he's worked for a group called Land and Water Foundation USA but just recently formed the new ROA, which consumes his time now.
"I'd been talking to ranchers over the last year or two and one of the people who really encouraged me to start this and has really helped me is Chuck Sylvester, he owns several allotments in Wyoming and was the general manager of the National Western Stock Show for 30 years." McIntosh said that Chuck and his wife Roni formed the LAW group and also helped him get ROA off the ground.