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Rethinking What You Thought You Knew About:
"Public Lands"
Part 1
Everyone is familiar with the term "welfare rancher." Those are the folks who most people have been indoctrinated to believe hog the use of 'public land' that rightfully belongs equally to all the people of the United States via the U.S. Government.
Wrong.
It won't happen today or tomorrow or even next year, because it is a subject best ignored or beyond the urban ken of the major media, but one day the public will understand that very little of what they thought of as public land exists in the West. The 'public' has not paid $200,000 or $400,000 to purchase grazing and water rights in the form of an allotment. A Western rancher has.
The facts will eventually emerge once again because one man and his family decided eleven years ago to challenge in court the arbitrary and increasingly vindictive actions of Forest Service personnel after the Hages refused a deal for the Park Service to acquire a particularly desirable piece of their ranch. Finally, accompanied by a fully-equipped and armed SWAT team, the government impounded the Hage cattle, effectively putting the ranch out of business. For many ranchers, that sequence of events signals the end. For the Hages it was only the beginning. Last year they won a court victory for all ranchers whose property rights have been 'taken.'
In a May 31 seminar in Globe, sponsored by the Gila County Cattle Growers, Wayne Hage told his audience of about 300 from four states: "You don't have to go through eleven years. The work has been done for you." He and his wife and daughters then spent the day telling about the amazing things they learned over those eleven years, things that all people should know.
My mother and I attended the seminar. We are not ranchers, nor were many people in attendance. We just wanted to learn, and over the next few weeks readers of the Pioneer will also learn in detail why the federal government is not the only owner of so-called "public lands," and why hikers and bird-watchers and owl-counters, while having access rights, do not have equal ownership rights.
How does the Supreme Court of the United States define public land? Read on.
"The words 'public lands' are used to describe such as are subject to sale or other disposal under general laws:" Southern Pac. R. Co. v. Ambler Grain & Million Co., D.C. Cal., 57 F. 2d 536, 539.
"Public lands' are lands open to sale or other disposition under general laws, lands to which no claims or right of others have attached:" Northern Pac. Ry Co. v. Wismer, C.C.A. Wash,. 230 F 591, 593.
"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:" Bardon v. Northern Pac. R. Co. 12 S. Ct. 856, 145 U.S. 535, 538, 36 L. Ed. 806.
Very little land in the West is legally public land because nearly all of it is partially owned by people in the form of grazing allotments, water rights, legal rights-of-way and property improvements; therefore there are claims on it which, legally speaking, make the designation as public land inaccurate and inappropriate.
What you think of as public land is most likely "split-estate" land.
Because of the landmark Hage case, which established a precedent that will eventually change a century of misrepresentation, one day the term "split-estate land" will be as well known as the terms "welfare rancher" or "public lands" are today. Don't look for it soon. Established habits are hard to break, and new or rediscovered knowledge is slow to emerge.
Repeatedly throughout the 1800s and 1900s Congress sanctioned, confirmed and granted split-estate property rights to settlers in the region west of the 100th meridian. The statutes granted and confirmed water rights, easements, forage and improvement rights, mineral and timber use rights. The Taylor Grazing Act of 1934 confirmed these rights and later The Federal Land Policy and Management Act of 1976 PROTECTED "ALL PRIOR EXISTING WATER RIGHTS, RIGHTS-OF-WAY AND ALL OTHER RIGHTS."
The last two decades have been dominated by a movement intent on obscuring or burying those legal property rights through politics, the courts, the media, our educational institutions and public sentiment. But last year, the U.S. Court of Claims, presided over by Judge Loren Smith, once again confirmed them. His finding:
"This court finds that plaintiffs presented evidence at trial that showed by the preponderance of evidence that the palintiffs and their predecessors appropriated and maintained a VESTED WATER RIGHT in the following bodies of water on the Ralston and McKinney allotments. In addition to certificates of appropriation that were entered into evidence, the plaintiffs also submitted an exhaustive CHAIN OF TITLE which showed that the plaintiffs and their predecessors-in-interest had title to the fee lands where the following creeks and springs are located." (There then followed a long list of creeks and springs).
The Supreme Court has confirmed in numerous cases that: "A vested right is fixed, unalterable, or irrevocable." It is "absolute, complete and unconditional in itself." Also, "a vested right is property which the law protects." A vested right is "a property interest so substantial in character that its destruction or deprivation cannot be justified by the objectives in view."
The public, encouraged by federal land managers, have been led to believe that the land they call public is 100 percent under the jurisdiction of the government and that grazing is only allowed through the tolerance of the government under the "permit" system, that ranchers have no rights or no ownership interest. If this is so, why is it that a grazing allotment can only be purchased from another private individual? And why is it that ranchers pay taxes? Hage said that Nye County, Nevada lost $1 million in taxes when the government shut the ranch down. "One branch of government says you don't have any property and another branch of government taxes you on your property," Hage said.
In the coming weeks, we will explain how lawyers are losing property rights cases for their clients because they take them to the wrong court and should be in the U.S. Court of Claims... how acquiring water rights for urban sale is the driving force behind the destruction of agriculture, and why all producers involved with the federal government should immediately do an exhaustive chain of title search and have copies of every map and document in their portfolio.
Payson.cc © 2003 Carrol Cox
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