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Diamond Bar Cattle Co. v. United States

ELR Citation: 29 ELR 20602
Nos. 97-2140, 168 F.3d 1209/(10th Cir., 02/23/1999)

The court holds that two cattle company owners do not have a vested private-property right to graze their cattle in the Apache and Gila National Forests without a U.S. Forest Service permit. The owners argued that because their predecessors-in-title obtained a valid, vested water right under New Mexico law through prior appropriation, they were entitled to an inseparable right to use the adjacent federal rangeland without a permit. The court first holds that while certain New Mexico statutes purport to grant possessory interests in the public domain lands that may be enforceable against nonfederal claimants, no New Mexico statute grants a property interest in federal lands that may be enforced against the, United States. The New Mexico statute relied on by the owners has not been interpreted to bestow a private-property right to graze on the public domain if one has a concomitant right to the water on the proposed grazing range. Rather, the statute purports only to limit access to the public domain for grazing purposes to those individuals who have first obtained a valid water right sufficient to maintain the cattle to be grazed. Long-standing New Mexico case law supports this conclusion. Further, the owners' claim of a private-property right superior to that of the United States ignores a New Mexico statute that delineates a recording and notice procedure for those who take possession of any lands being a part of the public domain of the United States. This statute specifically limits the right of possession as against other persons except the United States and those holding titles from the United States.

The court next holds that the Mining Law of 1866 cannot fairly be read to recognize private-property rights in federal lands, regardless of whether proffered as a distinct right or as an inseparable component of a water right. Virtually every attempt like the owners' to expand the reach of the Mining Act to include federal recognition of private-property rights in federal land has been soundly rejected. At best, the owners possess a valid water right that is protected by the Mining Act. However, the United States has not acted to take the owners' water rights, has not denied access to the water, and has not sought to divert the owners' use to a governmental purpose. The owners contend that their water right is of little utility if their cattle have no place to graze, but the owners were fully apprised of the consequences of failing to renew their permits.

The court then holds that the owners do not now hold and have never held a vested private-property right to graze cattle on federal public lands. At the time the owners' predecessors began ranching, grazing on the public domain was a privilege tacitly permitted by the government by an implied license. This license was revocable at the government's pleasure and conferred no right in the owners or their predecessors to graze a specific allotment of land. The court further holds that the district court acted properly in enjoining the owners from further unauthorized grazing, in assessing unauthorized use fees, in directing the removal of the owners' cattle, and in finding the owners in trespass of federal lands. It is not disputed that the allotments are located on national forest lands, where grazing is by permit only. Nor is it contested that the owners grazed cattle on these allotments without a permit.

Counsel for Plaintiffs
R. Lar Thomas, Larry G. Patton
The Thomas Law Firm
4520 Montgomery Blvd. NE, Ste. 5, Albuquerque NM 87109
(505) 266-9916

Counsel for Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tacha and Baldock, JJ.