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 —–
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.
SEPTEMBER 15, 1998