168 F.3d 1209 (10th Cir. 1999), 97-2140, Diamond Bar Cattle Co. v. United States

Docket Nº:97-2140.
Citation:168 F.3d 1209
Party Name:DIAMOND BAR CATTLE COMPANY, a New Mexico partnership; Laney Cattle Company, a New Mexico partnership, Plaintiffs-Counter-Defendants-Appellants, v. UNITED STATES of America; Dan Glickman, Secretary of the United States Department of Agriculture; Jack Ward Thomas, Chief of the U.S.D.A. Forest Service, Defendants-Counter- Claimants- Appellees. Nationa
Case Date:February 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1209

168 F.3d 1209 (10th Cir. 1999)

DIAMOND BAR CATTLE COMPANY, a New Mexico partnership; Laney

Cattle Company, a New Mexico partnership,



UNITED STATES of America; Dan Glickman, Secretary of the

United States Department of Agriculture; Jack

Ward Thomas, Chief of the U.S.D.A.

Forest Service,




National Wildlife Federation, Gila Watch, New Mexico

Wildlife Federation; Rio Grande Chapter of Trout

Unlimited; Wilderness Watch, Intervenors.

No. 97-2140.

United States Court of Appeals, Tenth Circuit

February 23, 1999

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Larry G. Patton, Luna, New Mexico (R. Lar Thomas, Albuquerque, New Mexico, with him on the brief), for the appellants.

Elizabeth Anne Peterson, Department of Justice (Lois J. Schiffer, Assistant Attorney General; John J. Kelly, United States Attorney; John W. Zavitz, Assistant United States Attorney; Robert L. Klarquist and Margo D. Miller, Department of Justice, with her on the brief), for the appellees.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Diamond Bar Cattle Company and Laney Cattle Company appeal the district court's entry of summary judgment in favor of the United States. On appeal, plaintiffs contend the district court erred in finding plaintiffs had no private property right to graze their cattle on federal lands without a Forest Service permit, and in finding plaintiffs liable for trespass based on use of federal lands for cattle grazing without a permit. We affirm.

Kit and Sherry Laney are the owners and operators of Diamond Bar Cattle Company and Laney Cattle Company. The Laneys and their predecessors in title have used the lands at issue for cattle grazing since 1883. The companies historically have grazed their cattle on government lands by obtaining grazing permits. The first such permit was issued to plaintiffs' predecessors in title in 1907. More recently, the Forest Service issued a ten-year term grazing permit in 1985 allowing Laney Cattle Company to graze cattle on the 27,926-acre "Laney allotment" within the Apache National Forest. The Forest Service issued a similar permit in 1986 to Diamond Bar Cattle Company for grazing on the 146,470-acre "Diamond Bar allotment" within the Gila National Forest. Although the Forest Service notified the companies several times of upcoming expirations of the permits, neither company renewed its permit and the permits expired by their terms in 1995 and 1996. Each company offered to pay the requested grazing fees and negotiate a permit that recognized the companies' "valid existing rights." 1

Plaintiffs allege they are the owners of a vested water right that was obtained through prior appropriation before 1899, when the United States withdrew from the public domain the land that became the Gila National Forest and Apache National Forest. Plaintiffs claim this water right includes an inseparable right to graze the lands that comprise their allotments. Plaintiffs do not claim title or other real property interest in the land itself; rather, they assert a private "possessory" property right that entitles them to use of the water and range for the purpose of raising livestock. Plaintiffs contend their long-standing private property right was acquired

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under New Mexico law, obviating the need for plaintiffs to obtain grazing permits after the land was withdrawn from the public domain. The Forest Service denied any such private property rights existed and advised plaintiffs that refusal to complete permit applications would result in accumulation of unauthorized use fees, removal of plaintiffs' cattle from government property, and initiation of a civil trespass action against plaintiffs.

Plaintiffs initiated this action on April 1, 1996, seeking a declaration that plaintiffs are the valid lawful owners of (1) "sufficient permanent living water for the proper maintenance of the cattle owned by Diamond Bar and Laney," and (2) "valid vested existing rights in the range for cattle raising purposes on the lands upon which Diamond Bar and Laney are located." 2 Appellants' App., Doc. 1 at 4. Plaintiffs also asked the court to declare the Department of Agriculture and the Forest Service had "no jurisdiction over the rights to the water and in the range now held by Diamond Bar and Laney," and to permanently enjoin the Forest Service from "interfering with the valid existing rights to water and in the range for cattle raising purposes." Id. at 14. The United States counterclaimed to recover damages from plaintiffs for trespass and unauthorized grazing use and to enjoin plaintiffs "from unauthorized and unlawful use of property owned by the United States for livestock grazing purposes." Id., Doc. 2 at 10.

In entering summary judgment for the United States, the district court held plaintiffs obtained no legal right of possession or use merely because their predecessors historically grazed cattle on the land. Nor did the court find it material that plaintiffs' water rights may have long been vested under New Mexico law, stating: "[W]hether Plaintiffs own certain water rights ... does not change the fact that such rights do not deprive the Forest Service of its statutory authority and responsibility to regulate the use and occupancy of National Forest System lands for livestock grazing through the issuance of grazing permits." Id., Doc. 9 at 15. The court enjoined plaintiffs from grazing livestock in the Gila and Apache National Forests until they obtained authorization from the Forest Service. 3

Standard of Review

We review a grant of summary judgment de novo, applying the same legal standard used by the district court. Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Sundance, 139 F.3d at 807.

Federal Regulation of United States Lands

Article IV of the United States Constitution provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The Supreme Court has characterized Congress' power under the Property Clause to regulate the public lands as "without limitations." United States v. City and County of San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 84 L.Ed. 1050 (1940). Pursuant to this expansive grant of authority, Congress passed the Organic Administration Act of 1897, which authorized reservation of lands as national forests and directed the Secretary

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of Agriculture to issue rules and regulations concerning such forests. See 16 U.S.C. § 551. 4 Since then, Congress has passed numerous additional statutes directing that grazing in national forests be by permit only. See, e.g., 16 U.S.C. § 580l ("The Secretary of Agriculture in regulating grazing on the national forests ... is authorized, upon such terms and conditions as he may deem proper, to issue permits for the grazing of livestock for periods not exceeding ten years and renewals thereof."); 43 U.S.C. § 315b; 43 U.S.C. § 1752.

As early as 1906, the Secretary of Agriculture promulgated a regulation requiring that any person seeking to graze stock on national forest land first obtain a permit from the Forest Service. See United States v. Grimaud, 220 U.S. 506, 509, 31 S.Ct. 480, 55 L.Ed. 563 (1911). In upholding the Secretary's authority to issue this regulation, the Supreme Court iterated that an "implied license" to graze on public lands existed "so long as the government did not cancel its tacit consent." Light v. United States, 220 U.S. 523, 535, 31 S.Ct. 485, 55 L.Ed. 570 (1911). The fact that historically the government may not have objected to use of public lands for grazing was never intended to "confer any vested right on the complainant, nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes." Id.

The "implied license" theory discussed in Light was articulated by the Supreme Court as early as 1890, see Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 33 L.Ed. 618 (1890), and has since been cited dominantly in cases reaffirming that use of public lands for grazing is not a right but a privilege. See, e.g., Osborne v. United States, 145 F.2d 892, 896 (9th Cir.1944) ("It is safe to say that it has always been the intention and policy of the government to regard the use of its public lands for stock grazing, either under the original tacit consent or, as to national forests, under regulation through the permit system, as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation."); Healy v. Smith, 14 Wyo. 263, 83 P. 583, 587 (Wyo.1906). In Omaechevarria v. Idaho, 246 U.S. 343, 352, 38 S.Ct. 323, 62 L.Ed. 763 (1918), the Court stated unambiguously, "Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used." This principle categorically refutes plaintiffs' assertions that their predecessors obtained a vested water right that included a right to graze public lands. Any grazing of cattle on public lands by plaintiffs' predecessors was permitted by an implied license, which is merely a "personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein, and is...

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