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Who owns "public" land?

By Henry Lamb
web posted December 1, 2003

Nearly 100 ranchers gathered in Farmington, New Mexico, recently to listen to Wayne Hage, and his wife, former Congresswoman Helen Chenoweth-Hage, explain how the "public" land on which their cattle graze may not be "public" at all. The U.S. Court of Federal Claims found, in Hage v. United States, that the ranchers, not the federal government, may be the true owners of the property referred to as "public" land.

Environmental organizations, and agencies of the federal government, have been trying to rid the West of cattle for decades. The Hage decision demonstrates that the "ownership" of the forage, water, and migration routes, may actually belong to the ranchers, and not to the government.

The doctrine of "prior appropriation" governed land and water acquisition in the West long before there was a United States. This doctrine means that the first person to find water, and put it to beneficial use, had the exclusive right to use the water and the adjacent land and forage sufficient to maintain the livestock the water would support.

The Treaty of Guadalupe Hidalgo, signed in 1848, decided the boundary between Mexico and the United States. Article Eight of this treaty declares that citizens living within the area assigned to the United States, would "retain all the property they possess without their being subjected, on this account, to any contribution, tax, or charge whatever."

Virtually every land law enacted since this treaty contains language that protects the existing rights of those who "possess property" as the new laws enter into force.

For half a century, there was no thought or question about whether the federal government owned the land on which the ranchers grazed their cattle. The feds got involved to help resolve conflicts among the ranchers who claimed grazing rights on the same land. Since grazing rights flowed from the prior appropriation of water rights, access to water became the basis for establishing the extent of grazing rights.

In the late 1800s, the federal government established a mechanism for adjudicating these conflicts. Based on established and recorded rights to water, the adjudicators developed a way to measure the forage that would be required to support the cattle that could be supported by the available water. This measure was called AUM Animal Units per Month. An AUM represents the forage required by a cow and a calf for one month. Conflicts among the ranchers were resolved by the federal adjudicators, who awarded an appropriate number of AUMs to each rancher involved in the dispute, and surveyed and defined the geography in which the cows could graze.

These AUMs and the defined territory became the "allotments" attached to the water rights of the ranchers. Both the right to the water, and to the forage, and access (rights of way) to the forage, were already owned by the ranchers. The allotments were simply the adjudicated division of pre-existing rights of the ranchers. The ranchers were required to pay a fee to the government, for the cost of this adjudication.

This simple process of adjudicating the existing rights of ranchers, evolved, to enlarge the fee to cover not only the adjudication costs, but to also provide a portion to local government, and to create a "range improvement fund," which could be used by the ranchers to help defray the cost of capital improvements to the range.

Environmentalists, and in recent years, the federal government have ignored these historical facts, and have held that the land and water in the West belong to the federal government, and may be used by the ranchers only with the permission of the government, expressed through the allotment of AUMs for which the ranchers pay.

This new interpretation of the ownership of "public" land was imposed on Wayne Hage a decade ago, when his cattle were taken by the government and sold, because Wayne did not have the permits the government said were necessary. The government has gone on a rampage in recent years, to remove cattle from the West, using the same assumptions and techniques against ranchers whom the feds say are "trespassing" on federal land.

The Hage case may pull the rug, floor, and foundation from the government's efforts to exercise control of land that it may not own, after all. In his ruling in the Hage case, Judge Loren A. Smith said, "...the Court is not of the Opinion that the lack of a grazing permit that prevents access to federal lands can eliminate Plaintiff's vested water rights...that predate the creation of the permit system."

Ranchers who can demonstrate a clear chain of title to water rights and the adjacent forage may well, in fact, own the "public" land which the federal government claims.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.

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