Volume 3, Number 8 - May 22, 2003
brought to you online by Pinedale Online
Securing your property outlined
Former Idaho U.S. Congresswoman Helen Chenoweth Hage joined her husband and Nevada rancher Wayne Hage in telling about 110 Wyomingites that they need to set aside what they think they know about property rights and not assume public lands grazing allotments are actually public lands in which they possess no rights.
The Hages spoke in an all-day seminar last Saturday in Lander, at a forum sponsored by People for Wyoming, People for the USA and the Wyoming Farm Bureau Federation. Attendees included ranchers, state legislators, county commissioners and sheriffs from Wyoming, as well as a few from Utah and Idaho.
Helen Chenoweth Hage explained that Wayne Hage and his wife Jean (now deceased) purchased central Nevada's Pine Creek Ranch in 1978, and were soon approached with an offer to buy the ranch from the National Park Service, but the offer was only for about a third the price the family had just paid. When Wayne questioned the price difference, Hage said agency officials responded that the government price was based on the purchase of the patented lands only, since all the other land in the ranch was public land that the federal government already owns.
Hage declined to sell the place, but thought he could develop a cooperative working relationship with federal officials, but Helen said last week, "The government continued to harass them ... Try as they may, they couldn't satisfy the government."
Hage said the United States Forest Service distributed photos of Hage's federal grazing allotment showing that the forage had been depleted and the rangelands damaged by his bad range practices. Hage was cited for 72 grazing violations in a 107-day period, including one for having one staple out on a four-strand barbed-wire fence.
"That's the kind of harassment that went on," Hage said, noting that the photographs were taken in December when standing forage wasn't available.
Federal officials confiscated Hage's cattle, sold them at their own market, kept the money from the sale and sent the bill for the gather to the Hage family, Hage said.
"It was a paramilitary exercise," Hage said, involving helicopters, military trucks and armed personnel. "When you have a paramilitary gather, it's expensive."
Wayne Hage filed suit in the U.S. Court of Federal Claims for the taking of his property when federal officials cancelled his grazing permits. Federal officials in turn charged him with a federal felony for cutting brush within his ditch right-of-way on federal land. Hage was found guilty, but the Ninth Circuit Court of Appeals reversed the ruling.
Hage reported that her husband has spent 11 years in litigation with federal officials and has won every decision regarding property issues in the U.S. Court of Federal Claims. This is the federal court with jurisdiction to hear property issues involving a federal conflict. Hage said her husband's case focused on the question of ownership of the federal grazing allotments. While the federal government claimed it owned the allotments, Hage explained: "If these are public lands, there has been no taking. If there are not public lands, there has been a taking." The final decision from the court on the property phase of the case said the Hages owned the allotments from border to border, she said.
Dr. Angus McIntosh of New Mexico State University said ranchers need to recognize that a grazing permit is not a property right, but an inceptive license required before a property right can be appropriated, constructed or developed. Once the right is developed, it becomes a vested property right and the permit becomes irrelevant, he said.
McIntosh argued that when viewed this way, a rancher is an owner of a federal grazing allotment, not a renter, so the ranch is not a leasehold. He said payment of the grazing fee is not a rent payment, since 25 percent of the fee goes to the state or county as an assistance grant because the land can't be taxed, 25 percent of the fee is an administrative charge, and the remaining 50 percent goes to a trust fund that must be spent on range improvements that belong to the rancher.
The private property rights that ranchers hold on their federal allotments fall into five categories, McIntosh said, including water rights, rights of way, forage rights, range improvements and patented parcels.
"It doesn't matter that the federal government has the title," McIntosh said. "It is not generally known that ranchers own water rights, rights of way and forage on their allotments," McIntosh said, with many of those rights granted in early legislation that went into effect long before modern day land management agencies were created.
McIntosh has developed a model for valuating ranches that recognizes each of these five property rights and also addresses the "highest and best use" of the parcels.
Wayne Hage repeatedly emphasized that a property right "is a set of invisible rights, claims and options" that is only as good as the force of law and justice to protect them. Hage said when the federal government took his ranch, what it took was his ability to use the ranch.
Hage quoted Thomas Sewell: "Neither property, nor the value, is a physical thing. Property is a set of defined options. It is that set of options which has economic value. It is the options, not the physical thing, which are the property."
Hage said the problem isn't a lack of money to hire lawyers to fight environmentalists trying to run ranchers off the range.
"The real problem is we don't know what we own," Hage said. The solution is for ranchers to research and create the chain of title to their ranches. He said in some cases, ranchers have discovered they owned more parcels of land than they previously were aware of. Such research should focus on tax and mortgage records, water and range adjudications, etc.
Hage said in his case, his water rights and other rights on federal land were found to predate the agency attempting to require him to have a grazing permit.
"You see the implications of this decision?" Hage questioned. The court also found that Hage had vested water rights on all the springs and creeks within the allotments, not just irrigation ditches.
Hage said the federal claims court decision termed his grazing allotments "fee lands." It is the fee lands that are included in the Internal Revenue Service taxes in estate tax assessments - the "inheritable right to use" these fee lands, Hage said.
Hage's daughter, Ramona Hage Morrison, said IRS estate taxes are based on appraisals of allotment forage rights and range improvements, among other criteria.
Hage said he didn't go into court arguing about his grazing permit on federal land, but instead argued that the federal government took his property, which it has a right to do, so the issue is narrowed to what property was taken and what compensation must be provided.
Helen Chenoweth Hage advised ranchers not to go into federal district court and argue about federal rules and regulations. Instead, federal claims court is the proper jurisdiction, drawing the focus to a property dispute.
She advised ranchers not to enter court agreeing that they are grazing on public lands by virtue of a grazing permit.
"That's why we lost in (Public Lands Council v. Babbitt)," she said. "That's why we continue to lose, because we stipulate we're grazing on public lands."
Wayne Hage agreed, stating, "If you stipulate you're on public lands, you've lost the case."
Hage said while the government tries to assert title to the land by asserting control of the land, these are not public lands, citing a U.S. Supreme Court case which said, "It is well settled that all land to which any claims or rights of others have attached does not fall within the designation of public land."
Helen Chenoweth Hage concluded: "Unless they keep up the myth of public land, they don't have any work ... It's simply a propaganda tool.
"Are your allotments public lands? No," she said. "No wonder the government petitioned the court to shut us up.
"The Code of Federal Regulations does not apply to you if you are not grazing on public lands," she said.
Hage said: "We've got to stand up and say this is wrong." She said private property rights "are gifted by God, but protected by us."
Husband Wayne Hage advised the group of ranchers, "Never start a fight until you're ready to finish it." He suggested the chain of title work be completed before action is contemplated.
"Then you may be in a position to say: 'I don't want your permit anymore. These are my lands,' " he said.
There is considerable controversy in certain legal circles about the significance of the Hage decision, and the case is expected to continue into next year. While the property portion of the case appears complete, the compensation portion will be decided next.
Meanwhile, Helen Chenoweth Hage said the "latest caper" by federal officials was to petition the federal claims court in an attempt to get the Hages' seminars shut down, which she said the judge "quietly denied."
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