Counterpoint: opportunities lost and opportunities gained: separating truth from myth in the western ranching debate.

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Counterpoint: opportunities lost and opportunities gained: separating truth from myth in the western ranching debate.

I. INTRODUCTION II. OPPORTUNITIES LOST A. A Historical Perspective of the Rule of Capture B. A Brief History of Western Grazing C. Why the Rule of Capture Failed to Secure Rangelands in Fee Simple III. OPPORTUNITIES GAINED A. Introduction: The Concept of Preference B. Grazing on Land Administered by the Forest Service C. Grazing on Land Administered by the Bureau of Land Management D. Due Process Applied to Grazing Rights E. Summary: Grazing Rights in a Nutshell IV. SEPARATING TRUTH FROM MYTH A. Grazing and Western Rangeland Ecosystems B. The Cultural and Economic Value of Western Ranches V. CONCLUSION I. INTRODUCTION

Western cowboys were among the first American pioneers. Spanish settlers began grazing domestic livestock in what is now New Mexico over 400 years ago, before Jamestown was colonized or the Pilgrims arrived in Plymouth. With the treaty of Guadalupe Hidalgo in 1848, Spanish ranches became a part of the United States. The United States adopted the Spanish custom of "open range," allowing settlers and nomadic herders unlimited access to graze public rangelands. The Spanish custom had worked well for 250 years, so long as ranches remained uncrowded. However, the westward expansion of America soon filled Western states and territories with cowboys, cows, shepherds and sheep, all hoping to secure a maximum share of open range grazing. The result was disastrous infighting and overgrazing. Congress's open range policy was ultimately eliminated with the passage of the Creative Act of 1891, (1) the Organic Act of 1897, (2) and the Taylor Grazing Act of 1934. (3) These Acts led to apportionment of federal land grazing rights to ranching settlers owning private land and water resources who were best able to utilize adjacent and interspersed federal rangeland. In this way, Western ranches developed into distinct, sustainable ranching units, which included a combination of private homestead land, private rangeland, private water developments, and federal land grazing rights. In this form, Western "federal land" ranches have persisted for over 100 years.

The environmental movement has recently created an anti-grazing movement. Vowing the complete elimination of grazing on federal land and the small amounts of public land, this dedicated group of advocates has flooded the courts with lawsuits seeking to reduce or eliminate grazing, lobbied lawmakers to repeal laws granting grazing rights, pressured federal agencies to curtail grazing, and inundated the public with anti-grazing propaganda. Law professor Deborah Donahue is a vocal anti-grazing advocate. (4) In her law review article, Western Grazing: The Capture of Grass, Ground, and Government, (5) she applies a "capture metaphor" to the legal, political, cultural and economic aspects of grazing on federally controlled Western rangelands. She argues that Western ranchers have created a "cowboy myth" to "capture" the law, politics, science, and public perception supporting grazing rights. She concludes that there is no legal, scientific, cultural or economic basis to allow the continuation of grazing on federal rangelands.

This article partially agrees with Professor Donahue on one premise: the "rule of capture" allowed ranchers to capture grazing rights. Unlike Professor Donahue, however, this article concludes that the rule of capture is a positive legal principle, rooted in American jurisprudence and designed to reward the industrious, creative labor of American citizens. The rule of capture was fully applied to homesteaders, farmers, miners and water users, allowing these groups to completely capture private property rights, but was only partially applied to ranchers, allowing ranchers to capture the conditional right to graze public lands. While ranchers were not allowed to fully obtain fee title, they did obtain a powerful set of constitutionally protected entitlements which cannot be arbitrarily eliminated. Grazing rights constitute a substantial property interest. This article also demonstrates that grazing does not harm and Western ecosystems, and is culturally, economically, and environmentally beneficial. Based upon this examination of law and science, there are significant legal, scientific, cultural, and economic reasons to support and protect federal land grazing rights and the rural ranching way of life.

II. OPPORTUNITIES LOST

A. A Historical Perspective of the Rule of Capture

In the beginning, when humans were scarce and their needs were few, property law was a natural law based on individual possession of common resources. (6) As humans increased, their corresponding needs for common resources in a given area began to exceed the supply of such resources. (7) As a natural response to scarcity, property law developed additional elements, rewarding not only physical possession of the resource, but also the labor involved and the use to which it was put. (8) For example, individual ownership of land suitable for agriculture developed...

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