In short, Cliven, by refusing to sign any grazing agreement, RETAINED his families rights accumulated over decades, while all the other ranchers gave away those accumulated rights in trade for a grazing permit.
For those still confused by the media
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Cliven Bundy is right exactly right:
Cliven Bundy is right exactly right:
Mr. Cliven Bundy's ranch contains split-estate property rights. Which
include 1.) water rights 2.) rights of way, 3) range improvements, 4) grazing
value/forage crops 5.) patented homestead or mining claims used as headquarters
or shipping points. Each one of these rights is a real property right; that
cannot be taken without due process and just compensation. These rights were
developed from prior Spanish/Mexican agricultural water law. (Hutichins 1971,
Hage 1989)
To properly phrase
Mr. Bundy's Range Rights and vested water rights are protected by local
law, custom, and decisions of the court as recognized, sanctioned and confirmed
by Congress in Revised Statute 2339, commonly known as the Act of 1866. These
range rights/ vested water rights are protected by 18 federal statutes starting
with the Act of 1866 and ending with the National Forest Management Act NFMA of
October 22, 1976.
As time went by the State began to appropriate the vested water rights and
protect these range rights. "At the time that the Forest Service began to
adjudicate allotments, issue grazing permits, and charge grazing fees in
National Forests it was held by the U.S. Supreme Court that state laws for the
general appropriation of water could not be over ridden by Congress in
exercising its power to make rules and regulations respecting disposal of the
public lands (Kansas v. Colorado 1907, California v. United States 1978 and
cases cited therein). (McIntosh and Fowler, pg 21)
It is common knowledge throughout the West that ranches on federal
rangelands have been treated as private property interests in the open real
estate market for more than a hundred years (Griffith v. Godey 1885, Wilson v.
Everett 1891, Grayson v. Lynch 1896, Ward v. Sherman 1904). (McIntosh and
Fowler, pg8)
Even the Internal Revenue Service recognizes that federal land grazing
allotments used as part of a split-estate ranch are inheritable, taxable
property estates ( Shufflebarger v. Commissioner 1955, Vaugham v. Commissioner
1961, Rudolph Inv. v. Commissioner 1972, Estate of O' Connell v. Commissioner
1978, Ueker v. Commissioner 1983.) (McIntosh and Fowler pg 8)
According to the Forest Service Organic Act 1897 and the Taylor Grazing Act
of 1934 "the creation of a grazing district or the issuance of a permit... shall
not create any right, title, interest, or estate in or to the lands." (McIntosh
and Fowler, pg 29)
In reference to Section 4 Taylor Grazing Act
"Likewise, the federal statutes pertaining to grazing permits or
cooperative agreements, state that those instruments are optional, and
discretionary programs. Numerous court decisions have held that permits are
revocable and can be canceled at any time (apparently by either party, prior to
development of the authorized improvement). Practically, all statutes
specifically referring to grazing permits state that the issuance of such
agreements grants no right, title, or interest in or to the underlying lands."
( McIntosh and Fowler pg 31)
Recent decisions by the United States Court of Federal claims ( Hage v.
United States, 1996 and 2002), determined that if the requirement to obtain a
grazing permit is so burdensome as to deprive a rancher of his property, then he
could not be required to obtain the permit. This reasoning is in complete
harmony with the decision of the United States Supreme Court in Curtin v.
Benson, (1911) ( McIntosh and Fowler pg 29)
I would like to credit DRAFT RITF REPORT no. 56 Property Rights on Western
Ranches: Federal Range land Policy and a Model for Valuation by Dr. McIntosh and
Dr. Fowler.
The Nevada engineer issued this report regarding the estate of Wayne E.
Hage vs the Forest Service, Bureau of Land Management pg 24 and pg 25 "However,
he further recognized that existing water rights that pre-date any water rights
that may be claimed pursuant to the implied reservation of rights doctrine are
superior to any reserved rights of the federal government."
STATE OF NEVADA OFFICE OF THE STATE ENGINEER
ORDER OF DETERMINATION
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE
RIGHTS IN AND TO THE WATERS OF
MONITOR VALLEY-SOUTHERN PART ( 140-b)
NYE COUNTY, NEVADA
R. MICHEAL TURNIPSEED, P.E.
STATE ENGINEER
SEPTEMBER 15, 1998