PRIMER ON PUBLIC VS. FEDERAL LANDS

 

 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).