Martinez cattle are sold by USFS in Texas

Another chapter in the ongoing saga of a dispute between a rancher and the federal government has been written. Cattle impounded by the U.S. Forest Service were sold at auction in Texas last week.

The grazing allotment dispute between the Martinez family and the Forest Service, which has been simmering on the coals for well over a year, is now in federal court. The Forest Service said the cattle belonging to the Martinez family were illegally grazing on the Pleasant Valley and Hickey allotments in the Clifton Ranger District of the Apache-Sitgreaves National Forest.

The cattle are from the Martinez Ranch, northeast of Clifton. The ranch was owned for decades by Abelardo “Abe” Martinez Sr. and was purchased by his three sons, one of whom is Dan, the family's spokesman. Dan contends the Forest Service is wrong and has acted illegally in the impound action.

He successfully filed a petition for an injunction in Graham County Superior Court in late November that kept the cattle from being sold in Dalhart, Texas, on Dec. 1. However, the case was moved to federal court by a U.S. attorney and the injunction expired.

Forest Service spokesman Bob Dyson said in a Dec. 16 news release that 328 head of cattle were sold at a public auction in Dalhart for “about $159,606” on Dec. 15. He said 12 of the cattle died after they were in Texas.

“There was a two-week delay in selling the animals as a result of an Arizona Superior Court injunction, so the animals stayed at the sale barn longer than anticipated.” Dyson said. “Because of the two-week delay, 10 cows and two calves eventually died despite efforts of the sale barn and its veterinarian to treat the animals with antibiotics. There are still over 30 head scheduled to be sold at the Dalhart facility.”

Dyson said money from sale of the cattle “goes toward offsetting costs incurred by the Forest Service, the State of Arizona and the sale barn for gathering and caring for the cattle and completing brand inspections and ear tagging. If there are any receipts left, then the remaining money goes to the previous owner of the cattle.”

That is unlikely to happen. Clifton District Ranger Frank Hayes said impoundment and other related costs come to about $400,000. He said the amount received for the cattle was affected negatively due to the antibiotic treatments, which had to be disclosed to buyers, who must then wait 30 days before the cattle can be slaughtered.

He said a certified letter was sent to Martinez notifying him of the cattle sale and related facts. He said Martinez was also notified that 37 head of cattle that were still in Arizona were shipped to Dalhart on Dec. 16.

Dyson said the Forest Service tried for over a year to have Martinez remove the cattle from federal land. Dan Martinez, who now owns the Martinez Ranch with his two brothers, adamantly disagrees with the Forest Service and said removal of the cattle is a criminal act on the part of the federal agency.

At the heart of the dispute between the USFS and the Martinezes is a Forest Service requirement of the waiver of a grazing permit by Abelardo Sr. in order to have it reissued to his sons. The permit process would involve a reduction in the number of cattle that can be grazed and affect access to parts of the San Francisco River, Zieroth said.

In late July, Dan Martinez said the Forest Service wanted his father to waive certain rights, and his father refused to do so. He said his father has never been involved in the legal system and the Forest Service is trying to “take advantage of these small ranchers.”

Not so, Apache Sitgreaves Forest Supervisor Zieroth said. She said the matter simply comes down to the fact the Martinezes do not have grazing permits. She said the USFS has tried to work with the Martinezes to resolve the issue, but they have refused to comply. She said the Martinezes' Pleasant Valley allotment grazing permit expired in August 2004.

On July 25, the Forest Service sent the Martinezes notices of intent to impound unauthorized livestock. Dan Martinez faxed a copy of the impound notice to The Copper Era. “Refused for Fraud!” was scrawled in large letters on the notice.

Martinez also said he would not resist removal of the cattle but would take action afterward. “I intend to prosecute criminals,” he said. “There's not even a court order. We haven't seen any legal documents.”

Zieroth said a court order was not necessary to impound Martinez's cattle and the Forest Service followed proper procedure leading up to and during the action. She said, “Under federal regulations, unauthorized livestock must be impounded and removed from federal lands, and if they are not redeemed by the owner of the livestock, they are sold at public auction.”

The Forest Service is relieved “to have completed this phase of the lengthy process in removing the cattle from the National Forest,” Zieroth said in the Dec. 16 news release announcing the cattle sale.

She said, “We have been especially concerned for the health and welfare of the cattle so we were a bit disappointed when the injunction delayed their timely disposition. We can now move ahead to authorize a new grazing permittee for the Pleasant Valley Allotment.”

While the case is in federal court, Martinez apparently intends to have his day in state court in Arizona. On that same day the remaining cattle were shipped from Arizona to Texas, The Copper Era received a faxed copy of a letter from Martinez's attorney, Billy W. Boone, to a livestock commission company representative in Dalhart demanding Martinez's cattle be returned to him or face court action in Arizona.

Boone said in his letter, dated Dec. 12, “Rather than avail itself of the legal channels in Arizona courts to challenge the rights which pre-date the Forest Service, the U.S. Forest Service simply stole the cattle without judicial process nor seeking authority of the courts in Arizona. He said the Forest Service circumvented the law by moving the cattle to New Mexico and then to Dalhart.

“Constantly moving the cattle from jurisdiction to jurisdiction when there are auctions in Arizona should make one sit back and wonder why?” Boone writes. “It certainly does not pass the smell test.”

Boone also says, “As you are aware, by letter from Mr. Dan Martinez, that he is the owner and there is a lien on those cattle for $600,000 that pre-dates the U.S. Forest Service's wrongful seizure of the cattle. Demand is hereby made for the return of Mr. Martinez's cattle. If the cattle are either sold or not immediately returned to Mr. Martinez, you along with the auctioneer company will join the individuals form the U.S. Forest Service as defendants in state court in Arizona.”

He adds, “Please be advised that Mr. Martinez has reported the theft of these cattle to the appropriate authorities in Arizona.”

Recall started

Boone does not say in his letter what “proper authorities” he is referring to. They certainly are not authorities from Greenlee County where the cattle were rounded up and impounded. Greenlee County Attorney Derek Rapier and Sheriff Steve Tucker said the cattle impoundment is a federal matter over which they have no jurisdiction. Their stand has angered some people in Greenlee and a recall of both has been started.

Duncan resident Donald Vandell filed an “application for serial number for recall” on behalf of Americans For Property Rights on Dec. 6 with the Greenlee County Elections Director's Office.

Vandell said in the filings on Rapier and Tucker that both “stood by while U.S. Forest Service employees broke Arizona law.” He said both refused to enforce a provision of the Arizona Constitution that says, “No person shall be deprived of life, liberty or property without due process of law.

In both documents Vandell said, “This property includes cattle. A court order is required to forcibly remove an private property from a citizen of the State of Arizona, United States of America. The U.S. Forest Service has not received a court order from a court in Arizona.”

In a second letter to the editor in today's Copper Era, Rapier reiterates his stand that federal and not local law applies to the case and the county has no jurisdiction in the matter.