Jump to Navigation
Jump to Content

United States v. Gardner

ELR Citation: 26 ELR 20670
Nos. No. CV-N-95-328-DWH, 903 F. Supp. 1394/(D. Nev., 10/02/1995)

The court holds that cattle grazers that willfully and illegally grazed their livestock in the Humboldt National Forest in Nevada have not acquired vested grazing rights through the common-law common of pasturage doctrine, have trespassed, and do not properly assert the common-law necessity defense to the trespass claim. The court first holds that the United States owns the land at issue pursuant to the Treaty of Guadalupe Hidalgo with Mexico. The court then holds that title to the public lands did not automatically transfer to Nevada under the equal footing doctrine at the time it joined the Union. The doctrine does not require that all states be given equal political rights and sovereignty, and only transferred to states title to tidelands and submerged lands underlying inland navigable waterways. The federal government, under the Property Clause of the U.S. Constitution, may retain or reserve the public lands, and pass laws for their regulation. The court holds that the grazers did not acquire a vested grazing right through the common-law common of pasturage doctrine. Historically, grazing has been a mere privilege, not a right. The grazers trespassed by willfully allowing their livestock to graze in the Humboldt National Forest without a legally required grazing permit. The grazers may not use the necessity defense to trespass, because they do not satisfy the defense's four elements, they challenge federal ownership of the lands, and they provided an insufficient offer of proof to support the defense.

Counsel for Plaintiff
Brian L. Ferrell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Glade Hall
105 Mt. Rose St., Reno NV 89509
(702) 324-6447