Riparian versus Prior Appropriation Water Doctrine

Institutionalized Crown oppression

Riparian versus Prior Appropriation Water Doctrine

Grazing fees and Tom Foolery management of the Commons

By Stephen L. Wilmeth

 

            The vision of camouflaged shooters pointing loaded weapons and releasing attack dogs on Nevada ranchers should be burned into the souls of Westerners.

I am saddened by the actions of my government.

In a time we are simply trying to exist, we are reminded there is no safe harbor in the unifying action by a national leader. We cannot expect this president or his cadres of avant-gardesmen to look us in the eye and convince us things are going to get better. We must assume the only path we have lies within our unity and the belief in the sovereignty of our states.

My disgust extends to the sorry state of investigative reporting and the inability to reveal facts. Listening to all news outlets has been underwhelming, and the realization Washington has little grasp of the matters of rural destruction in the West is just an added burden of fact.

We are outside looking in.

Primer on ownership

New Mexican Dick Manning revealed to the modern West the ownership paradigm that protects our personal property rights under the management of the federal landlord. That owner owns 61% of all the lands west of the 100^th Meridian and controls as much as 17% more. The federal agencies do not exist to promote the robust health of the 11 western states. On the contrary, the natural resource based West has prevailed in spite of the federal government.

A review of ownership paradigms is necessary. One is based on land, and the other is based on water.

The lands east of the 100^th Meridian were settled under the theme of land ownership. In that Riparian Doctrine, the title holder of land had the exclusive rights of utilization of the water associated with the land. As such, land was the driving resource value and the prevailing principle of ownership. That system, derived in Anglo Saxon Europe and understood by congress, was associated with European rainfall accumulations.

The original ownership of lands west of the 100^th Meridian was impacted by western arid land conditions. There was never an abundance of water and water became the driving resource value. Under that system, the title holder of water had the right to acquire the use of as much land as was necessary to put that water to beneficial use. That ownership system became known as Prior Appropriation Water Doctrine. That approach evolved under the Spanish, and, subsequently, the Mexican governments who controlled great swaths of the arid West prior to the Mexican-American War.

The Treaty of Guadalupe Hidalgo, signed in 1848, ended that war and set the terms and conditions that conveyed the territory that now makes up the states of California, Nevada, Utah, most of New Mexico and Arizona, and parts of Wyoming and Colorado. It was from that treaty and the agreement by the United States to transition the conquered populous into the union that doctrine was recognized. The United States wisely chose not to disturb the system of property law which predated the settlement of the union and chose instead to adopt the Prior Appropriations Water Doctrine as law in 1866.

It was Manning who became the practical expert of the Treaty. His study revealed the basic ownership tenets, set forth in the document, that are now used to defend Westerners in federal attempts to evict them from heritage lands. It was also from that genesis Wayne Hage was able to prevail in his battle to defend at least part of his “rights and claims” associated with his ownership of water resources.

Years before his death and any litigation results, Hage clarified his understanding of public lands as it relates to such “rights and claims” when he said, “The term “public lands” has been erroneously applied to these lands.”

“I say erroneously because the United States Supreme Court held in Bardon v. Northern Pacific Railroad Company that “lands to which rights and claims of another attach do not fall within the classification of public lands,” he continued. “Rights and claims of ranchers to water rights and grazing easements (range rights) cover virtually all these lands (thus) according to the U.S. Supreme Court, the ranchers’ grazing allotments cannot be public lands.”

Manning and Hage proved the West has rights, but, Hage, in his marathon legal battle, proved water is the prevailing right in the absence of land title.

The new Crown

In 1837, the western states were on the verge of revolt because the United States had neglected a most basic promise of the American experiment. The Founders knew it was paramount to vest the citizenry in private property in order to solidify the underlying principles of the rebellion. No longer experienced in King George tyranny, though, new generation leadership in Washington chose not to reduce national debt and accelerate the self reliance of the new states. It chose to become a grand land baron.

The leadership of Ohio, Missouri, Illinois, Louisiana, and Florida prevailed, however, and the federal government disposed of public land and relinquished title. Those states flourished similarly to the original colonies.

Texas demanded land ownership as a condition of its entry into the union. California, Utah, Nevada, New Mexico, Arizona and others were promised the same thing. In fact, they have similar Enabling Act language as Ohio which was prepared to leave the union unless the United States addressed the disposal promise.

Yet Congress, even more generations removed from King George tyranny, held its multilayered chin high and denied the disposal of public lands in the other states. It assumed the very role that ultimately cost the King his colonies.

The consequences are huge. The West is becoming an ever expanding welfare state. Corrupting transfers of wealth must be maintained to create any semblance of equal footing. When states like New Mexico rely on federal transfers for nearly 40% of its budget, the states east of the 100^th Meridian ought to be furious.

The process that delivered ‘grazing fees’

Ranchers are far too removed from the origination of the subject of grazing fees to debate the subject with authority. Grazing fees grew out of the dynamic directly relating to the inability to create permanent wealth in the federally land dominated West. Federal lands ranchers were always constrained by reliance on lands that did not belong to them. The problem was both philosophical and real. In order to capitalize investments on lands that did not provide solid collateral, the idea of contributing to a fund for critical conservation projects was born. That was what was promised, but what resulted was at best a modified outcome.

In 1934, the Taylor Grazing Act (TGA) was crafted with the idea that chaos on federally dominated western ranges could be reduced if there was a method to consolidate generalship. The destructive management of the commons was about ready to prompt the eruption of a modern range war. In trade for that objective, ranchers conceded the guidance of their checkerboard ranches (federal, state, and privately owned lands) to the federal government. The vehicle for the concept was the grazing permit.

In return, the government was allowed to become the active partner in range improvements. If the rancher declined to sign the grazing permit, he could not participate in the fund, but, just as importantly, the federal government would not gain authority to manage his private property rights which include water rights.

After being cast into the typical congressional horse trading process, those TGA permits became mandatory fees and assured purposes for stabilizing the ranching community became shared uses. The secretary could apply the money to conservation projects as promised, or could simply deposit the funds into the Treasury which was then supposed to distribute only 12.5% of the collections to the state. The state legislature then decided how to spend the majority of the receipts. Regulatory drift further altered the concept and reduced the effectiveness and the original intent of the conservation funding.

In its role as the New Crown, the federal government created this debacle.

If its stewardship had remained true in spirit and intent in the disposal of public lands for the good of the union upon new state entry, the two doctrines would have been overlaid, merged, and each would have enforced the sanctity of the other. Now, western states must resort to defensive tactics to fend off the heritage cleansing promulgated by the federal land agencies and the environmental front.

It is a constitutional nightmare.

Stephen L. Wilmeth is a rancher from southern New Mexico. “The failure in the Hage case to prove grazing rights do exist amplifies two basic constitutional issues. The first is the dismissal of citizenry sovereignty when the federal government assumes the role of the New Crown. The second is the perpetuation of institutionalized oppression. That oppression in the post war era was defined as share cropping. The term in the modern era is federal lands ranching."