Grazing Rights & Eminent Domain

The United States v Fuller set forth the rule of non-compensability for government permitted grazing rights. These are cases in which the federal government leases land to adjacent ranchers who are then allowed to use the land for grazing purposes.

Recently an organization has claimed grazers are effectively partial owners of the federal lands. This would run contrary to the precedent of sovereignty existing since the Magna Carta. One only need to look at the Public Land and Resources Law Review article which concludes the gazing rule a departure from eminent domain. To the contrary, the notion of sovereignty does still exist, even though this blogger would prefer it did not.

One thing is for certain. If the rules on permits change and provide for the temporary use to create compensability, the federal government will lease no land at all.

“Bonds said the allotment swap hasn’t been spoken of again.

McIntosh, the executive director of a new organization called Grazing Allotment Owners Association said a couple of historic court cases lend credence to his theory that grazers are partial owners, not renters of their allotments.

“Grazing allotments are private property – they are split estates. The government owns the mineral rights and the commercial timber rights and the rancher owns valuable land for grazing and stock water rights,” he said. The Supreme Court has also referred to the rancher’s right as “limited fee title,” he said, which includes all of the improvements, stock water rights, and forage.

“Based on U.S. v New Mexico, a 1978 Supreme Court decision, they (the ranchers) own the stock water rights, based on Kinney Coastal Oil v. Kieffer, they own the surface estate,” said McIntosh. “Also in Watt V. Western Nuclear, a 1983 Supreme Court Decision, the split estate concept is confirmed.”

The ranchers own the surface rights, starting with the Stock Raising Homestead Act of 1916, he said. “That’s why ranchers can buy or sell those allotments and they have been able to for 100 years. It was the basis for grazing allotments when they created the resettlement projects in the great plains that are now called national grasslands. Those were actually established as ‘resettlement projects.’”

Even the term “public land” is not used correctly, McIntosh believes.

“The definition – the original definition – was land that belonged to the United States that was open to entry and disposal.”

In 1920 Congress changed that legal definition because it had disposed of all these western lands as grazing allotments. “Now the definition after 1920 was land – and interest in land – that belonged to the United States and was open to entry and disposal. The reason for that distinction is because Congress created a split estate – so it was no longer talking about disposal of land but land ‘or interest in land’ and under these grazing allotments, the rancher owns grazing rights, the U.S. owns mineral rights.”

Click here to read more.