It’s been in the news that Washington career lobbyists and globalist insiders in the D.C. “swamp” want ranchers to believe that they have no rights.
Recently, the Range Allotment Owners Association (RAO), an association of Western ranchers that own Grazing Allotments and Range Units on split-estate land in the 17 Western States, was attacked in the press by the Public Lands Council (PLC), the National Cattlemen’s Beef Association (NCBA), and state affiliates of those organizations (such as the Colorado Cattlemen’s Association).
Ethan Lane, Executive Director of PLC (and Public Lands Coordinator for NCBA), appeared to have led the attack. With what we discerned as inaccurate information, he included a letter signed by several attorneys who claim themselves as being champions of Western ranchers. Their collective statement had so much mis-characterization, deception and outright fabrication that it was difficult to know how to immediately respond. Fortunately, many of the Western ranchers who know me and Chuck Sylvester, and belong to the RAO, began responding through Facebook and letters to the various livestock publications that had printed what can only be described as PLC’s error ridden work.
First among the respondents was Chuck Sylvester, co-founder of RAO. In his letter cut and pasted following, Chuck explained how it was a personal attack against his founding an organization that represented him as an Allotment Owner.
Trent Loos, renowned Radio Host and farmer, immediately got Ethan Lane on his radio program, Loos Tales. By the time Trent finished questioning him, Ethan had backpedaled to the point where he said he agreed with 95% of what I have been teaching ranchers in my seminars for the past 16 years.
Yes, I am used to personal attacks by anti-ranching groups and the environmental left. So I usually just ignore their ranting, distortions and outright lies.
However, because this attack came from allegedly credible national organizations, I decided a formal response was essential.
A quick qualifier: I have been involved in Western Allotment Owner’s property rights issues for 37 years, have been an Allotment Owner myself for 33 years, and am widely known throughout the Western States as an outspoken public supporter of rancher’s property rights.
I am a court admitted subject matter expert, a policy research analyst, and a statute and policy educator. If I did not use this as an opportunity to “educate” people on these statutes and policies I would be condoning inaccuracies, and layering on to the significant harm Western ranchers have been subjected to for over 40 years.
A steady stream of misinformation, spewed out of the Washington DC insiders made up of career lobbyists and globalists who partner through MOU’s with the Bureau of Land Management and Forest Service, has nearly decimated our Allotment Owners.
Exactly how have these globalist-controlled Washington insiders helped the Western split-estate ranchers? They haven’t! By any measure, the number of Allotments, Allotment Owners, number of head of livestock or number of AUMs used for stockraising in the Western Livestock Industry, have been cut by approximately 60% in the last 40 years.
Point of clarification: Never at any time has the Range Allotment Owners Association or myself stated that we represent the “public land” rancher. It is precisely this one erroneous misrepresentation that has been the cause of so many Western ranchers being forced off their Allotments for over 40 years.
The term “public land” has a well-established and undeniable legal definition. Neither I, nor the PLC get to pick what that definition is. Only Congress and the US Supreme Court get to define that term.
During the settlement period from 1776 to 1920 “public lands” were “lands open to entry and disposal upon which there were no rights or claims” (see Words & Phrases and cases cited therein).
“Most enduringly, public lands have been defined as those lands subject to sale and other disposal under the general land laws” (Utah Div. of State Lands v United States, 482 US 193 (1987)).
By legal definition, there are NO private rights on “public lands;” and there never has been.
However, once land was opened to settlement, occupied, improved and had a possessory right or claim established, it was no longer “public land” because it was no longer “unoccupied.” Now it had private rights attached to it that prevented anyone else from settling on the land (see Frisbie v Witney, 76 US 187 (1869), Atherton v Fowler, 96 US 513 (1877), Hosmer v Wallace, 97 US 575 (1878), Rector v Gibbon, 11 US 276 (1884), Cameron v United States, 148 US 301 (1893)).
During the settlement period bona-fide ranch settlers, occupied, improved and possessed the Western rangelands with the intent of permanent settlement. Through their settlement and improvement, ranchers established “possessory property rights.” This gave them a valid claim or color of title to the land. These lands were thereafter called “entered unpatented lands” or “entries.” The settlers in occupancy were called “entrymen” or “bona-fide settlers”.
Under a series of post-Civil-War statutes, Congress sanctioned and confirmed the water rights, ditches, canals, roads, (1866, 14 Stat 253), reservoirs (1870, 16 Stat 218), improvements (1874, 18 Stat 50), forage/grazing use (1875, 18 Stat 482), timber use (1878, 20 Stat 88), and State/Territorial possessory range rights (1885, 23 Stat 321) of these bona-fide stockraising settlers (or “entryman”) on the Western ranges. See Atherton v Fowler, supra, Griffith v Godey, 113 US 89 (1885), Brooks v Warren, 13 P. 175 (1886), Comm. Natnl. Bank of Ogden v Davidson, 22 P. 517 (1889),Wilson v Everett, 139 US 616 (1891), Cameron v United States, supra, Lonergan v Buford, 148 US 581 (1893), Swan Land & Cattle Co. v Frank, 148 US 603 (1893), Grayson v Lynch, 163 US 468 (1896), Ward v Sherman, 192 US 168 (1904), Bacon v Walker, 204 US 311 (1907), Bown v Walling, 204 US 320 (1907), Curtin v Benson, 222 US 78 (1911),Omaechevarria v Idaho, 246 US 343 (1918).
Rancher’s property rights were so well established by 1909, it was virtually impossible for the United States to grant a homestead or mining patent to any applicant that did not infringe on some valid existing claim.
To reaffirm: The West was covered with rancher’s water rights, easements, improvements, and land use rights that Congress had already statutorily recognized and granted.
There was constant turmoil between Western ranchers and federal bureaucrats, particularly in the newly formed US Forest Service. The fact was that under the traditional definition of “public lands,” there were no more “public lands”. In other words, nearly all the land in the West had some valid existing claim attached to it.
In a speech to Congress in 1909, President Theodore Roosevelt proposed the only logical solution, which was to create a split estate. “Rights to the surface of the public land….be separated from rights to the forests upon it and to minerals beneath it, and these should be subject to separate disposal.” Special Message to Congress, Jan. 22, 1909, 15 Messages and Papers of the Presidents 7266.
The United States would retain the mineral estate and the commercial timber while granting a surface fee title to the stockraisers for all agricultural and ranching purposes (Kinney Coastal Oil Co. v Kieffer, 277 US 488 (1928), Watt v Western Nuclear, 462 US 36 (1983).
By 1910 the corruption, abuse and over-reach by federal bureaucrats had become so bad that Congress enacted special legislation to have a full Congressional Investigation of the Department of Interior, Department of Agriculture, and the Forest Service (36 Stat 871). The result of this investigation was the adoption of the split-estate policy and enactment of several key statutes: Pickett Act of 1910/1912 (36 Stat 847, 37 Stat 497), Act for the Relief of Settlers (which specifically incorporated the Enlarged Homestead Acts) (37 Stat 267), and the Agricultural Entry of Mineral Lands Act (38 Stat 509).
By a special Act passed in 1912 (37 Stat 287) Congress “directed and required” the Secretary of Agriculture to classify all land within National Forests open to entry and settlement. These Acts taken together in para materia resulted in the perfection of ranchers surface titles to their Allotments. The split estate policy was fully implemented by the passage of the Mineral Leasing Act of 1920 (41 Stat 437) (Kinney Coastal Oil v Kieffer, supra.). Western National Forests were explicitly included into the language of the Pickett Act and the Mineral Leasing Act.
This change in land disposal policy resulted in the need to redefine the term “public land,” which Congress did in the Federal Power Act of 1920 (41 Stat 1063). “’Public lands’ means such lands and interests in lands owned by the United States as are subject to private appropriation and disposal under the public land laws”.
Since the allotment owner was referred to as the “surface owner” (Agricultural Entry Act 1914 and StockRaising Homestead Act 1916), then the mineral estate and commercial timber is what constituted “public lands” (i.e. “interest in land”). The only requirement to “prove up” on their allotments was that the ranchers construct improvements worth $1.25 per acre.
Similar to the Reclamation Fund established for Irrigation Districts, Congress established the Cooperative Improvement Fund Act in 1914 (38 Stat 43) to provide a cooperative program for constructing the requisite range improvements under the Agricultural Entry of Mineral Lands Act of 1914 (38 Stat 509) and the StockRaising Homestead Act of 1916 (39 Stat 862).
A cursory reading of the “permit” provisions of the Forest Service Organic Act (30 Stat 32), the Taylor Grazing Act (48 Stat 1269) and the Granger Thye Act (64 Stat 82) reveals the intent of Congress was to regulate Allotment Owners grazing only to the extent of protecting the “young growth of trees” and to prevent “soil erosion” (i.e. the government’s reserved mineral and timber interests).
The definition of “public lands” continued to be “lands and interest in land open to sale and disposal.” After Allotments were adjudicated, the only kind of entry or disposal that could be made was a mining claim or lease and a timber sale.
This remained the law up until October 23, 1976 when Congress adopted FLPMA (90 Stat 2743) and NFMA (90 Stat 2949). On that date the definition of “public land” changed to the current definition and has been in place since. The current definition is found on page 3 of the Federal Land Policy Management Act (90 Stat 2746): “The term ‘public lands’ means any land and interest in land owned by the United States within any of the several States and administered by the Secretary of Interior through the Bureau of land Management…” The definition still embraces the split estate nature of the lands. Missing, however, is language expressing that those retained federal interests are open for sale or disposal. Significantly, after passage of FLPMA and NFMA the US Supreme Court ruled thatranchers still owned their water rights within National Forests, and these prior existing rights were not affected by either FLPMA or the Multiple Use Sustained Yield Act (74 Stat 215). See United States v New Mexico, 438 US 696 (1978).
For the benefit of Washington “swamp” insiders who want ranchers to believe that they have no rights, and are tagged as mere “permittees” on “public lands,” we want you to know we have a “deep bench” of legal minds on the side of the Allotment owners. At the close of this clarification, you will find the names of attorneys who are honored to offer their sources of lawful, accurate information that will complete my teachings on statutes and policies.
The Range Allotment Owners Association believes that Allotments owned by ranchers in National Forests and Grazing Districts withdrawn by authority of the Pickett Act, are “split-estate” lands; NOT part of the government’s “interest in lands” as defined by FLPMA and the Federal Power Act. And certainly not a part of the globalist, Washington insider cartel!
Let’s make America great again, by draining the public lands swamp!
Dr. Angus McIntosh
Attorneys for RAO
Mark Pollot, (208) 867-8389 Former Spec. Asst. to the US Att. Gen. for Nat.Res. & Environment
Harriet Hageman, (307) 635-4888 Hageman Law P.C.
Korry Lewis, (307) 635-4888 Hageman Law P.C.
Morgan Philpot, (801) 891-4499
Bret Whipple, (702) 493-6075
Blair Dunn, (505) 750-3060
Roger Roots, (406) 224-3105
Todd Macfarlane, (435) 255-1683