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Independent Cattlemen of Wyoming Host Successful Convention

Written by Terry Henderson

The Independent Cattlemen of Wyoming (ICOW) held its 11th annual convention in Casper, Nov. 3-4.

Among some of the notable speakers was Dr. Angus McIntosh who spoke on the issue of public lands. Dr. McIntosh is an admitted expert witness – a distinction which is determined by the judges, not the individual – in six federal courts. He told ICOW attendees that an allotment, such as is designated on Bureau of Land Management (BLM), Forest Service (FS) or grasslands, is a legally recognized property right. The word “allotment” is analogous to homestead.

Our property rights definition originated with John Locke in the Second Treatise of Government during the birth of our nation. It is the basis for all our general land laws in the United States. The concept of property rights predates our Constitution.

Essentially, those property rights were defined as someone adding their labor and input to a piece of property, to make it their own, such as, for example, if a fellow goes out into the untitled, unclaimed land such as we had in the early years of our nation in a forest and cuts down some trees. He uses the trees to build a nice little cabin. The cabin is recognized as his. Thus, someone else is not able to simply walk in and say, “I claim possession of this cabin.”

The first man’s labor and effort are recognized as having created the cabin, therefore it belongs to him. The Atherton v. Fowler doctrine (1877) followed this precept – if you are already in possession, nobody else can take possession of it, as per the Fifth Amendment, which says, “nor shall private property be taken for public use without just compensation.”

Because of this concept, Congress passed several land laws, such as the Homestead Act(s), Pre-emption Act, Mining Act, Desert Land Act, Reclamation Act, etc. It states in our United States Constitution in Article 4, Section 3, Clause 2 that only Congress has the power to dispose of public land. The legal definition of public land is that land which has no rights or interests attached to it.

Technically, by legal definition, Wyoming has no public lands, although we do have some federal lands as listed in Article I, Section 8. Wyoming does have federally managed land with multiple interests attached to them. Because there are interests attached to these lands, they cannot simply be sold outright, as many local residents fear today, should that management be turned over to the state.

The Supreme Court has declared that public land is land open to entry and settlement upon which there are no rights or claims. Thus, Wyoming gained a lot of settlement through the Homestead Act, giving a head of a household a set number of acres, depending on what year it was “proved” up on. Because land west of the 100th meridian was much more arid than land to the east, more land was needed to make a living. So, the unit policy was implemented, which allowed land to be added to the homestead to form a unit of a size sufficient for the support of a family. The land had to be lived on and improvements put on the land.

From 1898-1916, Congress adopted a split estate land disposal policy that changed the definition of public lands. “National forests” and “grazing districts” were established as “split-estate” lands under the Pickett Act of 1910-12 and Executive Order 6910 in Taylor Grazing Act grazing districts. The Federal Powers Act of 1920 defined public land as no longer just the land itself but the interests attached to it. The main interests at the time were timber and mining. For example, the forest reserve was created to reserve the timber for the federal government. The Improvement Act of 1874 provided for compensation of improvements. Thus, the surface owner could be compensated for damages from the other land interests such as oil and gas.

Today, many erroneously believe BLM and FS allotment fees are a type of rental payment in exchange for the privilege of grazing livestock. The allotment fee is divided up such that 25 percent goes to the state and county in lieu of taxes for roads and schools, 25 percent is considered an administration charge and 50 percent is a trust fund contribution into the Range Betterment Fund. The fees are not based on any Congressional law, but the attorney general’s opinion at the time.

As a result of this talk and additional information, ICOW is working to create a Grazing Fee Board. Dr. McIntosh hopes that there will ultimately be one in every state to assist allotment owners.