ICOW gather Nov 8-9
Independent Cattlemen of Wyoming (ICOW) met at the Ramada Plaza Nov. 8 and 9 to learn some new techniques to help them sustain their ranching operations. The first speaker, Justin Benfit from Wyoming Game and Fish department, explained to the group how the agency has worked hard in the direction of developing partnerships with landowners.
The second speaker, Dr. Angus McIntosh, presented several laws (and subsequent cases) that explained “public lands”. They have not been fully listed here, but are available upon request. The story begins in the early days of the United States with the vast amounts of land west of the Appalachian Mountains, which were claimed by several states and Indian tribes. When they finally gave up their claims, the result of Article 4, Section 3, Clause 12 of the Constitution said: Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory and other property belonging to the United States. That Territory mentioned is referred to most commonly as “public lands.” Next, property rights were created from “public land” by the John Locke principle of mixing labor, time and effort with natural resources. This Lockean principle runs through all the “public land” laws of the United States.
After the Act of March 3, 1853, a settler, by “right of occupation and cultivation” (Lockean principle) was able to acquire legal title from the United States. Congress conveyed land by two documents: a land patent or a government survey map. As the United States doubled in size in land mass, it wanted to encourage settlement while retaining mineral rights. The policy was to grant 160-320 acres of agricultural land for “right of occupation and cultivation” on that mineral land. Congress disposed of “public lands” by a classification system to railroads, states and settlers. By “public land” it has long been settled to mean “such land as is open to sale…under general laws. All lands to which any claims or rights of others have attached does not fall within the designation of ‘public lands’ “ (Bardon v. N.P.R.R, 1892). As of today, there is very little, if any remaining “public land” in the lower 48 that has not had someone mix labor, time and effort with natural resources, creating a property right, technically leaving no “public land” in the United States.
Going back, however, between 1853 and 1891, Congress adopted a split-estate land disposal policy that changed the definition of public land. From 1910-1920, it enacted several remedial statutes to incorporate this policy into law. In the arid, mineral region West of the 100th Meridian, Congress granted split-estate property to settlers. These statutes granted and confirmed surface occupancy rights, water rights, easements, grazing rights, improvement rights, mineral rights, and timber use rights among others. Several cases from Curtin v Benson, 1911 to Watt v Western Nuclear, 1983 affirmed this. Once the appropriation or improvement was made, or an approved survey map was returned (if required), the property right was perfected and could not be taken by later executive branch action. (Several cases from Altherton v Fowler, 1877 to Ickes v Fox, 1937). The Act of March 3, 1890 “validated” all “occupancy” on land West of the 100th Meridian.
The “grazing fees” paid today is not for a rent or lease of said land. It was established that 25 percent goes to state/county in lieu of taxes (PILT) for roads and schools, 25 percent is an administrative charge for survey/services, and 50 percent is a voluntary, refundable contribution for the construction of range improvements. Ranchers are allotment owners, not renters.
FLPMA protected all of the “land use rights” previously granted by acts of Congress such as brand, water rights, grazing, fences, as under the Laws and Ordinances of the State of Deseret, which included Wyoming. By 1885, all Western states and territories had enacted similar range and water laws. And that’s where we stand today.
If you are interested in learning more about ICOW and R-Calf USA please see their websites. icowwy.org , r-calfusa.com
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