DIAMOND BAR CATTLE COMPANY

It has been reported to me the NM Livestock Board did not vote on the MOU, because it was not on the agenda. As a result, the MOU stands as signed by Mr. Manzanares.

The attorney for the Paragon Foundation was there, and it is my understanding a lawsuit will be filed against the Board.

Also at the meeting, board member Joe Delk asked that a letter be sent to the U.S. attorney, containing a series of questions. Mr. Delk was told that the letter would be sent, after review by the Attorney General. The following is the proposed text of the letter:

The New Mexico Livestock Board respectfully submits this letter to the attorneys for the Forest Service in the matter of Laney v. USA.

The Board’s purpose is to foster an atmosphere of cooperation and to increase understanding of the legal questions involved. It is the intention of the New Mexico Livestock Board to strictly adhere to its obligation under the law. The NMLB entreats all parties to refrain from action during this exchange of letters.

The NMLB asks that the attorneys for the Forest Service answer the following questions in sufficient detail and in a manner that would facilitate understanding by a group of non-attorneys. Most of the questions that have caused concern to the Board will probably seem simplistic and off point to individuals engaged in the legal profession. But if you could help us understand the context and meaning of the Court’s opinion, perhaps our members could work our way around the margins to the core of the decision. We are possessed of the Court’s opinions and in our limited understanding the decisions raise more questions than they answer. In this vein, we ask that you resist simply citing the Court and instead address the concern behind the question. Also, we ask that legal terms be substituted with plain language wherever possible.

1. Please explain the extent of the jurisdiction of the Court in this case. What evidence did the Court permit? What were the limits of the evidence? Did the Court consider or allow anything beyond the Forest Service regulations?

2. Cite exactly the authority under which the Court orders the impoundment and removal of the Laney’s cattle.

3. In Fort Leavenworth Ry.Co. v. Lowe, Minnesota v. Bachelder and Woodruff v. Mining Co. and others the Supreme Court has consistently held that without a specific grant of jurisdiction from the State the United States is no more than a mere proprietor over lands within the State. Why would the Forest Service be more than a mere proprietor in this case? Is the Gila National Forest a federal enclave? (Note: As dealt with in Woodruff v. Mining Co. the “disclaimer clause” in the New Mexico Enabling Act would not qualify as a grant of jurisdiction.)

4. If, as we read, the Forest Service is no different than any other land owner in New Mexico, why wouldn’t Garland v. Wynn apply wherein the Supreme Court stated, “The Courts of a state must determine the validity of title to land within the state, even if the title emanates from the United States or if the controversy involves the construction of federal statutes.”

5. Why wouldn’t Printz v. United States apply in this situation? In Printz the Supreme Court stated, “We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the states officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the State’s officers, or those of their political subdivisions, to administer, or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

6. In one document produced by the Court it stated, “The United States has authority, pursuant to 36 CFR § 262.10 and the common law of trespass, to remove and impound unauthorized livestock from National Forest Lands and need not seek or obtain a court order to do so.” We covered the CFR regs in questions 1, 2 and 5. This question involves “the common law of trespass”. In Coyle v. Oklahoma and Pollard v. Hagan the Supreme Court held that states hold “sovereignty and jurisdiction over all the territory within [their] limits, subject to the common law, to the extent that [they] possessed it before [they] ceded it to the United States.” Why wouldn’t the Court’s citation of the “common law of trespass” tend to support the Laney’s point that their vested rights need to go to a State Court?

7. In the Federal Land Policy and Management Act, The Public Rangelands Improvement Act, The Forest Management Act and the Wilderness Act all together contain over a dozen disclaimers making the legislation subject to “valid existing rights” that go right to the controversy in this issue. Why don’t these “valid existing rights” deserve a court hearing according to Garland v. Wynn?

8. The Laneys, in fact, have declared theirs is a “vested right” which is, (according to Stockley v. United States, Wyoming v. United States and Writh v. Branson) a superior right to a “valid existing right”. Did the Court consider the “vested right” claims of the Laneys that predated the establishment of the Gila National Forest?

9. What is the nature and extent of the servient estate over which the Forest Service is a proprietor?

10. Is there any order of any Court that directly orders or compels the New Mexico Livestock Board to do anything that does not conform to its statutory responsibility? If so, cite precisely.

11. Is there any order of any Court that directly orders or compels the New Mexico Livestock Board to do anything beyond its statutory jurisdiction? If so, cite precisely.

12. Is there any order of any Court that directly orders or compels the New Mexico Livestock Board to treat the Forest Service any differently than any other landowner in New Mexico? If so, cite precisely.

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Ranchers Protest Court Order Allowing Cattle Seizures

About 100 ranchers appeared before the New Mexico Livestock Board Friday to protest a court order that allows the federal government to seize cattle that wander into the Gila National Forest.

A court order issued in December gave the federal government the right to impound cattle owned by New Mexico rancher Kit Laney, who owns property near the national forest.

Cattle from Laney's ranch, Diamond Bar, often graze in the Gila Forest, which is protected by the federal government.

The ranchers who crowded in front of the New Mexico Livestock Board said they were upset about the court order.

In addition, they said they are angry at the land board's chairman signed a memorandum of agreement saying the board understands the federal order and will abide by it.

"We feel like the attorney general's office steamrolled the chairman and he signed it, and their own bylaws don't allow it," one rancher complained.

The ranchers said the land board should be fighting for their rights, not for the federal government.

The board's lawyer said the agreement follows a federal judge's order and does not advocate for either party involved in the legal dispute.

A land board member drafted a letter to the attorney general Friday asking for more information about the memorandum of understanding before members approve it.

Laney's attorney said a contractor is on Diamond Bar now and is impounding cattle.

There is a problem, however. No survey has been completed to determine where Laney's land ends and the federal government's property begins, officials said.

Copyright 2004 by TheNewMexicoChannel.com.


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March 4, 2004

Marcia Andre, Supervisor
Gila National Forest
U.S. Department of Agriculture Forest Service
3005 E. Camino del Bosque
Silver City, New Mexico 88061 FAX: (505) 388-3204

Dear Supervisor Andre:

I am writing on behalf of the membership of the New Mexico Cattle Growers’ Association (NMCGA) to express concern and request extreme caution regarding the ongoing situation between the U.S. Forest Service (USFS) and the Diamond Bar Allotment. We are well aware that there is legal action involved and that there are court orders in place guiding your actions, at least in part.

However, we are extremely concerned about the highly inflammatory manner in which the USFS appears to be approaching the situation. We understand that there are some 16 USFS law enforcement officers (LEOs) supplemented by search dogs patrolling the area. While some security might be necessary, forces of this size and nature are an invitation to conflict. This sort of attempt at fear and intimidation may only antagonize anyone who happens to be in the area.

Furthermore, given the recent moisture the area has received, we are seriously concerned about the impact of all of this activity on muddy roads and ultimately water quality.

Finally, we are hearing rumors that threats are being made by the livestock community against the USFS and/or its contractors. We have certainly counseled caution in this area. While we know that you have no more direct control over the rumor mill than we do, we believe that you can exert some control over the participation in it by employees under your direction. Not only are such statements counter-productive to a peaceful resolution to the current situation, but also they may be actionable under the law.

Thank you in advance for your consideration of our requests for restraint on behalf of the USFS. This situation can end without conflict, but only if all parties concerned act responsibly and with respect for the rights and feelings of others.

Sincerely,


Caren Cowan
Executive Director