DIAMOND BAR CATTLE COMPANY

Allotment to be closed before roundup, impoundment

Gila National Forest officials say they’re closing the Diamond Bar allotment to the public this weekend.

The closure will allow a contractor to prepare for a roundup and impoundment of all cattle on federal land used by the ranch.

A contractor who would round up more than 400 cattle from the Diamond Bar was found during the past week. The preparations will include bringing in equipment, corrals and other necessities.

The closure of the allotment includes shutting several roads and trails that lead in and out of the range lands.

Ranchers Kit and Sherry Laney have said they will not interfere with the contractors’ roundup, but they say they will monitor the event.

They contend the roundup is illegal because they own a vested fee interest in areas the federal government claims to control.

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Contact: Paragon Foundation, Inc.
505-434-8998


Press Release
2/26/2004

For Immediate Release

The continuing conflict between ranchers Kit and Sherry Laney and the United States Forest Service (USFS) is taking on even broader implications. Already to some observers the Laney case overshadows a major constitutional showdown between state and federal government on jurisdictional issues as well as criminal liability.

The USFS has been attempting to remove the Laneys and their cattle from the Gila National Forest near Silver City, New Mexico for over ten years. The USFS cites federal regulatory authority over the national forest as the basis of their removal demand. Environmental groups, such as the Forrest Guardians of Silver City, support the removal of the trespassing ranchers on public lands.

In a court battle, which has spanned a decade, the Laneys have countered that they own vested stock water rights in the area under state law, which fore-dates the creation of the Gila National Forest in 1907. They argue that their stock water rights were granted for the express purpose of livestock grazing which gives them an inheritable right to use the land which the federal government cannot extinguish without payment of just compensation. The Laneys cite long-standing and recent court decisions to support their claim. The grazing rights, according to the Laneys were never part of the National Forest and therefore not subject to USFS regulation. The Laneys cite long standing US Supreme Court decisions which hold that “land to which rights or claims of another attach is not pubic land.

The USFS and environmentalists on the other hand, cite numerous court cases supporting the USFS authority to regulate grazing in the National Forest.

The question which appears to be emerging, is one of property tights under state law as opposed to regulatory authority under federal law. USFS regulations are under the jurisdiction of the federal government. In simple terms, can federal regulation extinguish property rights created under state law?

The controversy has led supporters of the Laneys to demand that the local sheriff, District Attorney and State Attorney general support the Laneys in the protection of their property. Environmental groups, on the other hand, have demanded that the USFS enforce the grazing regulations applicable to the National Forest and remove the Laneys even by force if necessary.

The United States Supreme Court decision in U.S. v New Mexico, 1978 would appear to support the Laney’s claim to stock water rights. The US Supreme court decision in Curtin v Benson, 1911 would appear to support the Laney’s claim of prior existing rights to graze. A recent US Court of Federal Claims decision would be persuasive in upholding Laney’s claim to prior existing grazing and water rights. The IRS has historically recognized the ownership of inheritable rights in forest grazing allotments for inheritance tax purposes.

One of the problems that appears to be emerging is the existence of Memorandum of Understanding (MOU) between the USFS and the state agencies, such as the Brand Board, whereby the state agencies have agreed to allow federal regulation to go Unchallenged in property disputes involving ranchers. These MOUs also may involve Local sheriffs, District Attorneys and even the State Attorney General.

Constitutional scholars and jurists throughout the country have observed that a major constitutional conflict is emerging out of the Laney case. If federal rules and regulations can be used to extinguish grazing and water property rights created under state law without compensation, then no property would be safe from federal regulatory seizure.

A recent ruling out of the Federal District Court in Wyoming has held that where government agency employees have collaborated with environmental groups to destroy property rights, those employees can be tried as individuals under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The issue is not a small one according to some observers. G.B. Oliver, Executive Director of the Paragon Foundation, a supporter of the Laneys, points out that currently throughout the west there are about 200 million dollars in actual or potential taking claims outstanding against the United States over the same issue. Former congresswoman and property rights advocate, Helen Chenoweth-Hage commented that the states and local governments who have signed MOUs with the federal government unilaterally abrogate ranchers property rights, are setting themselves up for joint liability for the taking of rancher’s property rights. The cost to local and state governments would be devastating, she said.

The USFS and environmentalists currently show no sign of relenting. The USFS is continuing to press forward with a Federal District Court action to remove the Laneys and their livestock. The Forest Guardians have served notice on the USFS that if the USFS fails to act, the environmentalists will take measures to evict the Laneys. It would appear that a major constitution crisis is emerging in the remote ranches of southwestern New Mexico, which could have a major impact on property owners throughout the country.