DIAMOND BAR CATTLE COMPANY

Ranching On The Front Lines

When the USFS began implementing the impoundment of the Laney's cattle, the local law stepped in. Cliff Snyder, Catron county Sheriff, was one player who took his oath of office seriously. Acting in the best interest of the residents of his county, many of whom had suffered livestock losses at the hands of the USFS, contributing to long-term damage to the county's economic structure, the Sheriff issued a letter tothe USFS. He informed them that they would not violate state law in impounding the livestock, and if they did, he would arrest anyone caught rustling the cattle. Due to the Sheriff's ultimatum, the full story on the ranch dispute was finally made available to the contractors hired to gather the cattle. Those contractors promptly quit.

Rusty McCorkell was one of them

Rusty and his sons are contract cattlemen the agency hires to gather feral livestock throughout the region. He says he was put off the job that could have paid him over a hundred thousand dollars when he heard the Laneys argument. Rusty says the agency didn't provide him with all the information he needed to make a clear decision when they put out the contract. Rusty says, "I want the Laneys to win this, If the shoe was on the other foot, I would want the chance to see this through."

When Rusty called the contracting officer and told them he wanted out, he was initially threatened with legal recourse. Though the USFS has since apologized to McCorkell for the muscling he received, they did make a feeble attempt to convince him that he had been threatened by the Laneys, suggesting that was the reason he quit. Rusty is very clear that he wanted no part of ruining the Laneys chances to win this argument once and for all. While Rusty feels the USFS has been a fair employer in the past, and will work for them again, he hasn't changed his mind on accepting the contract. The USFS is still on the hunt for a cowman with enough ability to impound the Laney cattle.

For his courage in supporting the state constitution and rural community, Sheriff Snyder was advised by the New Mexico Attorney General, to allow state law to be broken and to facilitate the impoundment of the Laney cattle. If he chose to continue on the current course, he was subject to arrest by federal marshals.

New Mexico is a sovereign state, and the duly elected sheriff of a county is the highest law enforcement official within a county. The sheriff has law enforcement powers exceeding that of any other state or federal official. Yet, The New Mexico Attorney General has allowed the Catron county sheriff to understand he will receive no support from the state if he protects the people in his county and forces the federal agency to comply with the state laws.

The Attorney General's office, has in effect, approved and embraced the enforcement of a court decision that does not compel any agency of the New Mexican government to treat the Forest Service differently from any other landowner. The Tenth Circuit Court only authorized the Forest Service, under its regulations, to impound and remove the Laney livestock. But, they are still subject to State laws. Just as the truck that hauls the cattle to the sale will have to have a license and obey the speed limit, so too will the Forest Service have to adhere to the State laws for seizing another's property. And that will require a trip to a State Court to prove the title to the land the Forest Service says the Laneys are trespassing on....

Forest Service finds contractor, closes Laney allotment

The U.S. Forest Service found a contractor to remove cattle from the Diamond Bar Allotment in Catron County, N.M..

Kit and Sherry Laney are the ranchers who lost their ability to graze on land in the Gila and Apache national forests when a federal judge ordered their cattle removed from the property on Dec. 23, 2003.

The Forest Service shut down all access to the allotment last Friday to prepare for the removal. That was about two weeks after the scheduled removal was delayed because the initial contractor was rumored to have backed out.

"We want to make sure the gathering, removal and impoundment of the unauthorized livestock is done in the most safe and efficient manner for everyone concerned," Gila National Forest public information officer Andrea Martinez said. The forest's Web site indicates that the cattle will be shipped to Los Lunas, N.M., for eventual sale.

Martinez told the Courier on Thursday that a contractor was found. She said the contractor wants to work under the condition of anonymity due to the recent amount of media attention the case has received.

"The new contractor has asked us to keep his name confidential, and we're going to honor that," she said.

The case received more media attention after Catron County Sheriff John Snyder faxed a letter to the Forest Service saying that allowing the removal would violate New Mexico State law. In the letter he says his duty to uphold New Mexico's Constitution obligated him to stop the removal.

Since the letter was published, Martinez said she met with Snyder and Catron County Commissioner Ed Wehrheim to ensure compliance with the removal.

On Feb. 19, the Laneys sent out a press release stating that they will file legal action after the removal takes place.

"We will file legal action in a state court of proper jurisdiction against all individuals, whether Forest Service personnel, its contractor personnel, livestock auction personnel, or New Mexico State officials, who are involved in the decisions and/or actions to round up, haul, and/or sell our cattle," the last line of the release said. The beginning of the release explains the Laneys' legal reasoning for the action.

"The Federal District Court Order requiring the removal of our cattle is limited to the 'national forest system lands.' We again give notice that our cattle are not ranging on national forest system lands, but rather on our undisputed privately owned vested fee interest (estate) in the lands within our ranches. Therefore, we are in compliance with the court orders. Also, the Forest Service has no jurisdiction to authorize either its personnel, its contractor personnel, or New Mexico public officials to remove our cattle in violation of New Mexico state law. Our cattle cannot be lawfully and legally rounded up, hauled and sold without a transfer of ownership to another party. It will, therefore, be an illegal action for a brand inspector or livestock board member to transfer ownership of our cattle to the Forest Service without our consent."

The concept of who is responsible for the land is an issue of argument between the opposing parties.

Michael Robinson of the Center for Biological Diversity (a conservation group) said the Laneys are not grazing on private property, but are grazing on national forest land.

He made his comment in reference to a previous article from the Courier, which stated, "Kit and Sherry Laney are ranchers in Catron County, N.M., and recently lost the ability to graze on their private property."

Robinson said in an e-mail to the Courier about the quote, "This is in error. Their private property is not the subject of any of the many court rulings they have lost. Rather, areas depicted on maps for a century as 'Gila National Forest' and 'Apache National Forest' have been judged by the courts to be Gila National Forest and Apache National Forest; not private property. This mistake is inflammatory and assumes as fact the position of one of the parties to this conflict, despite all the court rulings to the contrary."

Several ranchers disagree with Robinson by referring to the Hage v. United States decision.

Bunny Dryden sent the Courier an article from the February 2004 edition of Arizona Cattlelog, the official publication of the Arizona Cattle Growers Association. In the article, writer Henry Lamb referred to the Treaty of Guadalupe Hidalgo (1848) and the use of federal adjudicators to resolve quarrels between ranchers over land and water rights.

Lamb said the adjudicators helped define animal units per month (AUMs) per ranch.

He wrote, "These AUMs and the defined territory became the allotments attached to the water rights of the ranchers. Both the right to water and to the forage, and access (rights of way) to the forage, were already owned by the ranchers."

Lamb said the ranchers paid the adjudicators "range improvement funds" and adjudication costs. He said, "Environmentalists, and in recent years, the federal government, have ignored these historical facts, and have held that the land and water in the West belong to the federal government, and may be used by the ranchers only with the permission of the government, expressed through the allotment of AUMs for which the ranchers pay. This new interpretation of the ownership of 'public' land was imposed on Wayne Hage a decade ago, when his cattle were taken by the government and sold, because Wayne did not have the permits the government said were necessary."

Lamb says the government uses this argument to go on a "rampage" against ranchers and suggests that the Hage ruling could halt decisions, such as the rulings that have gone against the Laneys. Lamb quotes Judge Loren A. Smith (from the Hage case) who said, "The court is not of the opinion that the lack of a grazing permit that prevents access to federal lands can eliminate Plaintiff's vested water rights... that predate the creation of the permit system."

Robinson is quick to point out the repeated decisions the Laneys have lost, despite their arguments. He said the Courier changed the meaning of one of his statements from a previous article. The quote that Robinson sent the Courier was, "The Tenth Circuit Court of Appeals ruled against them in 1999. Now, their unauthorized livestock are again destroying precious streams and their vegetation and wildlife owned by all Americans; hundreds of square miles of some of the most beautiful and wild country in the lower 48 states."

An editing decision caused the Courier to remove this phrase: "The Tenth Circuit Court of Appeals ruled against them in 1999." Instead, a reference to Robinson's comments in July preceded the word "Now."

The article from the Courier also referred to the ability to graze on public lands as "grazing rights."

Robinson referenced the 1999 ruling from the Tenth Circuit Court of Appeals and noted that it said neither the Forest Service nor the language in the decision refers to "grazing rights." He said the use of this term is the Laneys' opinion, not fact.

"The correct term is 'grazing privileges,' " Robinson said. "Furthermore (regarding the same passage), there is nothing precedent-setting about the decision. The precedent was set in the 1911 Supreme Court Case of Light v. United States. Since then, the Supreme Court has repeatedly reaffirmed that ruling (most recently in Public Lands Council v. Babbitt in 2000)."

The Laneys have been fined $64,000 by the government for damages by the illegal grazing, as was deemed and upheld by the courts, he said. Robinson sent the Courier a copy of the ruling from the case.

The ruling documents unauthorized grazing use rates and how they apply to the Laneys. It also notes that the Laneys do not contest the actual calculations of the damage but with the concept of the damage itself. The reason $64,000 is not a final number of damages is explained on page four of the ruling: "The United States notes that it cannot calculate the final damages for unauthorized grazing until all trespassing livestock have been removed, counted and categorized. Additionally, the amount of damages to restore areas on which livestock have trespassed cannot be ascertained until the resource damages assessment has been completed. The United States contends this will take several weeks."

To contact John Kamin, call 428-2560 (ext. 240) or e-mail him at johnk@eacourier.com