Understanding Cliven Bundy’s struggles
By Laura Hage Perkins- As an old rancher’s daughter and by necessity a sagebrush historian, I have become forcibly reminded at how little people know about legal land conflicts in the west. Mr. Cliven Bundy and the BLM have put the whole conversation in the news and there is surprisingly little understanding on the part of political commentators and legal analysts. However, there is a very important piece of science that everyone forgets. How do you settle and work the land if it never rains and never snows?
The west was settled first on water. Without water there was no way to survive on the land. Claim to title always involved claiming water first, then using it to establish claim on the land, because the claim to land was always through being able to prove beneficial use. These land claims were done one of two ways: The first was the traditional 160 acre patent that people quickly built their homestead on. This included a separate claim to creeks or springs that could support and water the 160 acres. The second was to claim just the water and whatever use easement was attached to the water for the purpose of proving beneficial use. There were grazing easements, mining easements, logging easements, etc. In this way a person could use the land without excluding others from other easement rights. Because the arid west wasn’t as suitable for exclusive farming, ranching became the prevailing permanent economic use. It cohabitated easily with a lot of other permanent and temporary easements and it revolved around the controlling factor, water.
When a territory became settled, statehood ensued. The transfer of sovereignty went from the US Government to the state. The state became the sovereign law governing body over the land. Its laws defined what the people determined as property. For example, in the State of Nevada, stock water rights are defined and protected under law. The State Water Engineers Office has the charge of keeping accurate records and of each separate water owner and adjudicates the water as a matter of fact. However, the full title to the land outside of the water could not be transferred to the individual people because there was no exclusive deed to pass. So the government held a type of title back as the land could not be totally transferred to its individual owners. It was still land that could be settled by other uses. At the creation of the BLM and Forest Service the land agencies claimed dictatorial power over any land that did not have property rights attached. This excluded all farms, ranches, mines, logging, roads, etc. In fact it left very little for the federal government to do except transfer title from one user to the next as each put the land under state law into use.
At this time the ranchers had their cattle dispersed around their waters but were not divided into separate grazing allotments. Cattle ranchers ran their cattle in common, often doing biannual cooperative roundups for the branding and selling of cattle. The federal agencies then took on the task of adjudicating the grazing easements to the proper water owner. They worked with the State Water Engineer to determine who had title to the water, and who had historical use, to come to a definition of each ranchers grazing allotment. Because this process was full of people trying to get their cut, a system had to be devised to distinguish people with rights of title vs free grazers etc. So they developed a system of permits that were issued to anyone who had a reasonable claim to their own separate grazing allotment. Because some people tried to purchase large amounts of cattle to skew their historical use on the land for a larger cut, a formula was developed to determine the carrying capacity of the land called animal units per month, AUM’s, allotting this number to each rancher with a claim. The land agencies thus worked with the Water Engineers Office, and the rancher to determine the size, scope, and boundaries of these grazing allotments. The grazing fees paid with the permits during the many years of this process became the money pooled to build the fences between the allotments. Once this adjudication was complete there was no longer a legal reason to hold a permit. Unfortunately, whether because the ranchers preferred the presence of the government, (in some districts they were welcomed, others they were not), or because the government was looking for a way to cloud title, the agency permit system never left. Ranchers continued to pay for the permit and the money was used to further improve the range. Up to the 1970’s ranchers would buy and sell allotments without regard to the land agencies presence. Many on the land could still clearly remember the original adjudication process, and many were very clear about what they owned.
Today, the issue is sadly very clouded and confusing. The government will sue the rancher for trespass on federal land if he doesn’t get a grazing permit. If he does get a permit, he ends up enduring regulatory harassment and excessive loss of freedom to use the range. In some cases the government attempts to give those permits to other ranchers or declare the range for a so called endangered species. This is done behind the intimidating force of the federal government and despite the clear ownership of the water by the rancher on the allotted range.
If I were to look for the motive behind this current dispute, I would look for who in the west wants to own the water.
Laura Hage Perkins
Laura Hage Perkins is the daughter of Wayne Hage who recently won the most significant land-use case in the 20th century in the western US.
Wayne Hage fought the government in the federal courts of Nevada for over 20 years. Not only did the judge award Hage some $13 million dollars for the government’s having taken his water and grazing rights, but the judge also declared that the government was responsible for the legal costs.
It was a landmark decision.
Laura Perkins now lives in Brevard, NC