PRIMER ON
PUBLIC VS. FEDERAL LANDS
By Dr. Angus
McIntosh 2017
After decades of involvement in Allotment Owner's issues, I'm used to
attacks by the anti-ranching environmental-left, and usually just ignore their
“Fake News”. However, not addressing the
real difference between “public lands” and “allotments” would hurt ranchers
more than they already have been by the misinformation spewing out of the
Washington DC “swamp”. Exactly how have
these globalist-controlled, career lobbyists and Washington insiders (partnered
by MOUs with the BLM and USFS) helped the Western split-estate ranchers over
the last 40 years? They haven't. By any measure (number of Allotments, number
of Allotment Owners, number of head of livestock, or number of AUMs used for
stockraising) Western Allotment Owners have been reduced by approximately 60%
over the last 40 years.
Never has RAO or myself stated that we represent “public land”
ranchers. It's precisely this one
erroneous misrepresentation that is truly “dangerous” to ranchers and has
caused many to be forced off their Allotments in the past 40 years. The term “public land” has a well-established
legal definition. Only Congress and the
US Supreme Court get to define that term (not I nor the PLC). During the settlement period (up until 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 the 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”. However, once land was opened to settlement,
occupancy, improvement and had a possessory right or claim established it was
no longer “public land” because it was no longer “unoccupied”, but now 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)). These
lands were thereafter called “entered unpatented lands” or “entries” and the
settlers were called “entrymen” or “bona-fide settlers”. Under a series of post-Civil-War
statutes, Congress sanctioned and confirmed rights of possession, water rights,
ditches, canals, roads, (1866, 14 Stat 253), reservoirs, pipelines, flumes,
(1870, 16 Stat 218), improvements, (1874, 18 Stat 50), forage/grazing use
(1875, 18 Stat 482), timber use, (1878, 20 Stat 88), State/Territorial range rights,
fences, (1885, 23 Stat 321), 160 acre livestock reservoir sites, forage, and
improvements (1897 29 Stat 484) 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).
With the Reclamation Act of 1902 (32 Stat 388) Congress began disposing
of land under the “Unit Policy” which granted “an amount of land sufficient for
the support of a family” rather than arbitrary 160, 320, or 640 acre amounts (Irwin
v Wright, 258 US 219 (1922)). By 1909, it was difficult to grant homestead
or mining patents that did not infringe on some rancher's valid existing
rights. The West was covered with
rancher's water rights, easements, improvements, entries, and land use rights
which Congress had already statutorily recognized and granted. At the same time the political demand for
coal and oil to fuel the Navy was running high against land disposal (United
States v Midwest Oil, 236 US 459 (1915)). There was constant turmoil
between Western ranchers, mineral companies, and federal bureaucrats in the
newly formed US Forest Service.
In a speech to Congress in 1909, President 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 corruption and usurpation by career bureaucrats resulted in
legislation providing for a joint Congressional Investigation of the Department
of Interior, and the Department of Agriculture, Bureau of Forestry (36 Stat
871). The investigation resulted in
enactment of key split-estate policy statutes: Pickett Act of 1910/1912 (36
Stat 847, 37 Stat 497), Act for the Relief of Settlers (incorporating the
Enlarged Homestead Acts) (37 Stat 267), Agricultural Entry of Mineral Lands Act
(38 Stat 509), Reclamation Land District Act (39 Stat 506), and the
StockRaising Homestead Act (39 Stat 862).
By an 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 in para materia resulted in the perfection
of ranchers surface titles to their “entered” range 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, the Mineral Leasing Act and the
1923 Act for the Relief of Settlers (42 Stat 1445).
Adoption of the split-estate land disposal policy necessitated
redefining “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, StockRaising Homestead Act 1916, Mineral leasing Act 1920) 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 ranchers
construct improvements worth $1.25 per acre, occupy the land for 5 years and
have an approved “plan or plat map” (Irwin v Wright, supra). 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 Act and the
StockRaising Homestead Act. A cursory
reading of the “permit” provisions of the Forest Service Organic Act (30 Stat
32), the Mineral Leasing Act Section 20 (41 Stat 437), Taylor Grazing Act (48
Stat 1269) and the Granger Thye Act (64 Stat 82) reveals the intent of Congress
was to protect the rights of the stockraisers while regulating 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). See United
States v Grimaud, 220 US 506 (1911), Curtin v Benson, 222 US 78
(1911), and Hatahley v United States, 351 US 173 (1956).
“Public lands” continued to be “lands and
interest in land open to sale and disposal” after Allotments were
adjudicated and the only kind of entry or disposal that could be made
thereafter was a mining claim, mineral lease or timber sale. This remained the law until October 23,
1976. By FLPMA (90 Stat 2743) and NFMA
(90 Stat 2949), Congress changed “public land” to the current definition 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 that ranchers still owned their property 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).
