DANIEL MARTINEZ---USFS

For background and previous posts on this issue go here, here, here, here and here.


SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF GREENLEE

DATE: NOVEMBER 28, 2005
JUDGE: Monica L. Stauffer CLERK: Cheryl Bowen


_________________________
Case No. CV2005-030 Petition for Emergency Permanent Injunction

DANIEL G. MARTINEZ
Petitioner
v.
Frank Hayes, Daryl Bingham,
Aaron Baldrige, Kent Ellis,
Tom Palmer, Elaine Zieroth
and their accomplices individually,
jointly and severally
Respondent(s)
_________________________


Dear Honorable Court:

This petition is emergency in nature because the impoundment of Petitioner’s cattle is causing Petitioner irreparable harm. The taking of Petitioner’s cattle is unlawful as set forth in Petitioner’s Affidavit attached and fully incorporated herein by reference thereto as “Affiadavit”. The Respondents have notified the undersigned that Respondents are going to sell Petitioner’s cattle in Clayton, New Mexico on November 23, 2005 at 11:00am, (Letter and Notice attached). To the best of Petitioner’s knowledge Petitioner’s cattle are still in Respondents’ possession. If this emergency injunction is not granted Petitioner will suffer irreparable harm and damage if the cattle are sold as the cattle are going to be scattered all over the country and Petitioner will never be able to recover them. Petitioner will be put to unnecessary hardship and expense and will damage Petitioner in a manner that cannot be adequately compensated by money alone in that Petitioner will never be able to recover the time that those cattle have been out of Petitioner’s possession and control nor will Petitioner recover the time and effort it will take to locate and attempt to retrieve the cattle.

It is unlikely that Frank Hayes, Daryl Bingham, Aaron Baldrige, Kent Ellis, Tom Palmer, Elaine Zieroth or their accomplices will prevail on the merits of this petition as the Respondents took the cattle without a warrant, court order or opportunity to defend given to the undersigned before the cattle were taken, the taking is unlawful as set forth in the “Affidavit”, and constitutes a taking of Petitioner’s “property” as described in the “Affidavit” without due process or just compensation.

Petitioner requests a permanent injunction against Frank Hayes, Daryl Bingham, Aaron Baldrige, Kent Ellis, Tom Palmer, Elaine Zieroth or their accomplices/employees from selling or transferring the undersigned’s cattle and from entering the undersigned’s property without a warrant or court order or the written permission of the undersigned.

Petitioner further requests that the Court issue an Order to the appropriate law enforcement official to immediately seize and take possession of the cattle and restore them to Petitioner’s possession, or in the alternative order Respondents to immediately and forthwith return the cattle to Petitioner. Petitioner is not an attorney nor highly trained in the law and requests any superficial imperfections of this petition be excused. Petitioner reserves the right to amend this petition as needed.

Wherefore for the good cause show in this Petition and “Affidavit”, I Daniel Gabino Martinez Petitioner herein moves this court to issue this emergency permanent injunction to prevent any further irreparable damage to Petitioner.

__________________________________________
Daniel Gabino Martinez

AFFIDAVIT IN SUPPORT OF PETITION
FOR EMERGENCY PERMANENT INJUNCTION

Santa Fe County )
) ss:
New Mexico )


BEFORE ME________________________, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC in and for the State of New Mexico, appeared Affiant, Daniel Gabino Martinez being upon oath administered by me, and having personal knowledge of the facts herein, affirms the following to be true, correct, and certain under penalty of perjury in accordance with the laws of the State of New Mexico that;


1. I, Daniel Gabino Martinez, Affiant herein whose current address is 585 Camino Montebello, Santa Fe, New Mexico 87501 state that I am of legal age, competent to testify, have personal first hand knowledge and believe that the truths and facts herein are true, correct, complete, certain, not misleading. Affiant declares the facts set forth in the attached Petition for Emergency Injunction are true, correct, complete certain, and not misleading.

2. The term “Respondent(s)” means Frank Hayes, Daryl Bingham, Aaron Baldrige, Kent Ellis, Tom Palmer, Elaine Zieroth or their accomplices and any and all persons involved with the seizure of Affiant’s cattle whether their names are know to Affiant or not. The acts described herein occurred in the county of Greenlee, Arizona.

3. On or about January 22, 2004 Affiant purchased property for valuable consideration partially consisting of vested rights. Upon reason and belief the United States received valuable consideration for the property at the time of the original sale and the rights were granted by the United States Congress in 1866. Since that time the rights have passed in chain of title and vested in Affiant as a good-faith purchaser. The rights are property (hereinafter “property”) and the “property” is described in the deed recorded in the Greenlee county recorder’s office at, 2004-0059 and 2004-0129.

4. On or about March 15, 2004 Affiant purchased all livestock bearing the 07 brand recorded in the Greenlee County recorder’s office at 2004-00235 and all livestock bearing the Triangle A brand recorded in the Greenlee County recorder’s office at 2004-00234. hereinafter “chattels”.

5. On or about October 22, 2005 at approximately 8:00 AM PST in Greenlee County Arizona while under force of arms "Respondent(s)" entered Affiant’s “property” without Affiant’s consent, without a warrant, and without a court order. Respondent(s) erected structures, fences, and water tanks. Affiant told "Respondent(s)" they were trespassing on Affiant”s “property” and asked "Respondent(s)" to leave, "Respondent(s)" refused to leave and remained on the “property”.

6. "Respondent(s)" took Affiant’s “chattels” approximately 300 (three hundred) head of Affiant’s cattle bearing the 07 brand, a brand registered with the state of Arizona. The foregoing acts were committed by "Respondent(s)" without a court order, without a warrant, and without notice and opportunity to defend against the seizure given to Affiant.

7. The stolen “chattels” are worth in excess of $250,000.00, Affiant has not been compensated for the “property” or “chattels” and the acts described herein are against the peace, dignity, and commercial prosperity of the people of Arizona. Affiant is not an employee of the United States.


Further Affiant Saith Naught.
As Victim, Witness, and Non-attorney

________________________________________
Daniel Gabino Martinez

Before me_________________________________ a Notary Public in and for Santa Fe County, New Mexico; appeared Daniel Gabino Martinez known and made known to me and did affirm the truth of the facts herein stated and placed his signature on this document on this the 28th day of November (2005) two thousand and five.


My commission expires: __________________________________
Notary Public



November 29, 2005

Matt Wing EXPRESS MAIL#EQ 196764067 US
Cattleman’s Livestock Commission Co.
P.O> Box 58
Dalhart, Texas 79022
(806) 249-5505
(806) 249-4800 FAX
(806) 244-2522


Dear Matt Wing:

It has come to my attention that you have in your possession cattle from Arizona branded with 07 on the left hip. There is NO COURT ORDER OR WARRANT on these cattle. These cattle were unlawfully, impounded and transported out of the state of Arizona without my consent and without proper authority. This is a direct violation of Arizona Statutes. If these cattle were unloaded at Clayton, New Mexico, New Mexico needed to inspect these cattle and they cannot do so without the consent of the owner. These cattle are stolen. The United States Forest Service does not own those cattle; they don’t even own a BRAND!!!

Any sale of these cattle without a Warrant or Court Order would constitute theft and sale of stolen property. You have a responsibility to your buyers to make sure they receive cattle with no problems on the title. Enclosed for your reference is proof of ownership of these cattle, a copy of a temporary restraining order, a copy of the lien on these cattle and a copy of the petition for emergency permanent injunction to the Superior Court of the State of Arizona.

It is unlikely the USFS will prevail on the merits of this petition as the USFS took the cattle without a warrant, court order or opportunity to defend given to
Daniel Gabino Martinez the owner of the cattle.

I respectfully request that you refrain from participating in this unlawful activity and refrain from selling or consigning these stolen cattle.

Sincerely,

_______________________________
Daniel Gabino Martinez