Tuesday, April 15, 2014

Nevada Rancher Has No Claim to Federal Land and Grazing

By Ralph Maughan and Ken Cole
Originally published on Wildlife News 4/15/2014

In the acrimonious case of Cliven Bundy, it is important that folks understand a bit about the history of the U.S. public lands.

Cliven Bundy, the rancher whose cattle were rounded up and then released by the BLM over the weekend, claims that his family has used the land in question since 1880 but the Nevada Constitution pre-dates this by 16 years. When Nevada became a state in 1864, its citizens gave up all claims to unappropriated federal land and codified this in the state’s Constitution. The Nevada Constitution states:

“Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; …..”
If Bundy “owns the land then where is the deed?  Where are the records he paid property taxes?

It’s not his land.

Bundy also claims that it his “right” to graze these BLM public lands.  This is not the case. The Taylor Grazing Act of 1934 specifically states that the issuance of a grazing permit does not confer any right to graze or right to own the land. The Taylor Grazing Act is the granddaddy of the U.S. laws governing grazing on federal land. “Taylor” was a rancher and a congressman from Colorado, hardly someone to want government tyranny over ranching.
So far as consistent with the purposes and provisions of this subchapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands.
In Public Lands Council v. Babbitt the U.S. Supreme Court upheld the new grazing regulations promulgated by the Department of Interior under former Secretary of Interior Bruce Babbitt to conform to Federal Land Policy and Management Act of 1976 (FLPMA) and found:
The words “so far as consistent with the purposes . . . of this subchapter” and the warning that “issuance of a permit” creates no “right, title, interest or estate” make clear that the ranchers’ interest in permit stability cannot be absolute; and that the Secretary is free reasonably to determine just how, and the extent to which, “grazing privileges” shall be safeguarded, in light of the Act’s basic purposes. Of course, those purposes include “stabiliz[ing] the livestock industry,” but they also include “stop[ping] injury to the public grazing lands by preventing overgrazing and soil deterioration,” and “provid[ing] for th[e] orderly use, improvement, and development” of the public range.
He has no “right” to graze it.

The federal courts have struck down every challenge Bundy has made about his claims, and has issued not one, but two, court orders to remove his trespass cattle. It’s not his land and he has no right to graze it.

The simple truth of the matter is that Bundy is a freeloading, welfare rancher who has an inflated sense of entitlement. It also appears that he and his supporters’ use of threats and intimidation likely violated several federal laws. Inasmuch as they used (such as pointed) weapons to cause the government back down, it can be considered an armed insurrection.

What about Bundy’s claim that his forebears bought the land he is now accused of trespass grazing upon?  This land was once Mexican land, and was won by the United States after the Mexican-American War. It is part of what is known as the “Mexican Cession.” All of Nevada, California, Arizona and most of New Mexico were part of the Cession. Much of this land was privatized under various grants and laws such as the Homestead Act and the Desert Lands Act, plus mining claims. Several million acres were granted to Nevada for state lands, but those lands that were not privatized have always been Mexican lands or United States lands owned by the U.S. government.

Before the Taylor Grazing Act, these government lands were called “the public domain.” They could be privatized, as mentioned, under the Homestead Act and such, but the acreage allowed per homesteader was limited to 160 acres. There were no 158,000 acre homestead privatizations and certainly no 750,000 acre privatizations. Livestock owners ran their livestock freely without a permit on the public domain. They didn’t even need a home base of property (a ranch). The result was disaster because the operator to find green grass and eat it first won out, promoting very bad grazing practices. That was the reason for Taylor Grazing Act — ranchers and others could see the public domain system led to disaster on the ground. Therefore, the more powerful ranchers with “base” private property received grazing permits. This got rid of the landless livestock operators.

Taylor Grazing was administered on the ground by the U.S. Grazing Service. Now, ranchers with grazing permits had to pay a grazing fee to use their permits. Bundy’s ancestors probably got one of these grazing permits, but they most certainly did not buy the land. That was not possible. The public domain was not for sale and ranchers generally did not want it. After all, if they owned it, they would owe local property tax.

In 1948 the Bureau of Land Management was created by executive order of President Truman to replace the Grazing Service. The Service had been defunded in a dispute between the House and the U.S. Senate. The BLM has since been affirmed by law rather than a mere executive order. It is supposed to manage the public lands for multiple uses and for sustained production (“yield”) of renewable resources such as grass. As before, you need a grazing permit for cattle, sheep, goats, or horses to legally graze. It is a privilege, not a right, and this has been firmly stated by the U.S. courts.

Hopefully, this explains why Bundy’s assertions are wrong. It is too bad that few citizens are taught public land law or history in high school or college. We think it is vital for everyone to know these things because these are in a real sense your lands, held in trust by the government. Yes we know the government often does a poor job. They did in Bundy’s case by letting this go for 20 years. He should have been gone before the year 2000.
End of story.