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Grazing Rights: Statehood or Serfdom

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By Laura Hage Perkins- Historians think they may have settled the question of how the west was won, but what happens when the east controls the conversation? It is with great frustration that I read article after article by seemingly intelligent folks who claim to have some insight on the “Bundy v BLM standoff.” The controversy has certainly raised some very interesting questions. Is the rancher on welfare? Does the government own too much of the western land? Did westerners acquiesce over all power and control to the federal government in order to obtain Statehood?

When you travel west and pass the 98th meridian you enter the land of open range, where mile after mile becomes the unseen property of the cowboy. Somewhere in those arid miles is a herd of cattle drifting from clump of desert grass to desert shrub. It lives its peaceful existence in the company of other critters that water from clear springs and creeks flowing out of the canyons, hidden but vital for all who survive out there. The arid west would not respond to the plow. Farming could not tame the sandy alkali soil. Nor could it rely on rain from above or find rivers to reach all its acres. The cowboy instead became the land’s steward. He faithfully dug out the springs, keeping the water fresh. He irrigated what he could reach with its snow water streams into rich grassy meadows, and experienced the wonder of the desert as it opened up its value to the rancher and miner tucked away into the crooks of canyons and valleys.

The west wasn’t tamed by the eastern farmer and it wasn’t understood by the politician either. Western Land Law didn’t erupt out of the traditions of the east. It adapted a system used by the old Spaniards to give the most opportunity to the most pilgrims while not diminishing the vast resources the desert had yet to yield. We in the west are most often misunderstood through the lens in which we have been seen. Our history, our laws, and our culture is judged, studied and defined through the eastern paradigm. Many who try to explain western conflicts such as Cliven Bundy versus the BLM taut some knowledge in federal ownership or the states’ submission to the federal government for inferior statehood, or even worse, call out the original rugged American individual, the cowboy, as a man on the dole in the form of western welfare . But it really isn’t that sordid or complicated. It is simply different. When the sky does not rain, the land is barely fit for survival, a wasteland. In fact the very first people to move west skipped through the arid west pushing for the western slope of the Cascades and Sierras, convinced there was nothing that could be done to make the desert palatable for life.

We were fortunate then in our forbearers’ example. The Spaniards recognized the importance of claiming not land but water. They also recognized that although cattle could graze effortlessly between water holes using the land with little trouble, other uses could be engaged in without interfering with the life of the cow and the economics of the cowboy. Where else in the world could one man own the use of water and forage for his cattle in the size and scope of Rhode Island and still leave the land open for other uses. Spanish land law gave property to the person who could put the land to use, without closing the land from others. In my country (Nevada) we ranged our cattle under the full protection of state law while another could mine the rich ore like gold or silver from the soil and the others still could enjoy annual wildlife hunts and recreation in the same parcel. All this existed because the state defined property without giving one user full title to the land. Full title was instead given in the water. The eastern model of title is a piece of property that has the right of exclusion to anyone else from the sky to the center of the earth with the minor exceptions of utility easements and ‘right of ways’ over the surface. We in the west have this traditional form as well, but most of the vast desert was claimed by the water. We used the model of the prior appropriation use, and we intentionally left the land open to be settled further in any other statutorily defined and accepted use.

It is unfortunate that the eastern politicians and opportunists did not respect this custom. From almost the first ratification of western land laws in Congress there was an eager endeavor to extricate the user from the land and insert federal power in its place. We accepted the passage of the Forest Reserves Act and the Taylor Grazing Act with the understanding that our rights would be upheld with the inserted caveat that recognized our prior existing rights. We defined and insisted in our State statues the submission of federal agencies to State Law and State Jurisdiction. These were all rights proven in the courts and accepted even by the Federal Government in laws such as the Act of July 26, 1866. We became states with the acknowledgement that full title on the desert lands did not transfer, but all prior appropriated rights (separated from the public domain), were acknowledged. This was done in full faith that the federal government would concede their remaining possession to be in reality a miniscule percentage of the vast open range lands and forests, and would continue to encourage disposal in a multi-user approach on the land. In fact, with all the power in the water, and the water protected by the states, westerners did not think there was much the federal government could do. We were wrong.

Today as one travels pass the 98th meridian, instead of seeing just the wild open range of the cowboy a person is greeted with sign after sign welcoming one to the “Public Lands”, a term defined in a court of law as land with no rights attached. One is led to believe that the land belongs to the American people, and that if there are any users of the land they are living on a type of government welfare. Clearly this is not the reality the Spaniards envisioned, nor was it the reality lived by those who settled the land and applied for statehood. On every ranch in the west the county collects a property tax on the range used by the rancher. When a rancher dies, his heirs pay a very heavy inheritance tax to the IRS on “all the land” used by his cattle. In fact, under the state law every water owner has a deed filed in the State Water Engineers Office that can be bought, sold, and abandoned by its owner. This is not government welfare but clear ownership recognized by the State, verified by the County, and capitalized on by the IRS. The western states did not agree to statehood at the cost of relinquishing 80-90% of the territory back to the government. Those lands were settled, and more importantly, open to more settlement by additional users if the secondary user could cohabitate with the prior user without interfering with a preexisting right.

The BLM and Forest Service have been in violation of that agreement. When they started interfering with Mr. Bundy they violated not just Mr. Bundy’s legally prior appropriated and historic claim to the water and the use of the land, but they ignored the Sovereignty of Nevada State Law to define property, ignored Federal law recognizing pre-existing rights, ignored the Constitution of the State of Nevada that defined the federal agencies as subordinate owners with no law enforcement jurisdiction, ignored the Nevada Statutes regarding the proper due process of cattle confiscation, and ignored the clear procedure delineated in the courts to apply for a writ of execution to initiate a warrant IF Mr. Bundy was obligated by the courts to surrender his cattle.

We have had our history, law and regulations re-written by men who never left the comfort of their universities and political offices to study the actual real development of the west into a unique American experience. Instead we hear of the famous range wars and gun fights, Indian wars and railroad barons. All of these stories were famous enough to make it east, but not descriptive enough to explain the real story. The real story was in the settlement of the land and the respect the cowboy and others generated as the desert unlocked its mysteries to a people patient and courageous enough to find it.

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

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