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

• Author: Stimpert, Marc

1. 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.

2. OPPORTUNITIES LOST

   1. 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 as the natural right of those individuals who actually tilled the land:

      Hunters and herders had no need of private property in land; but when agriculture became the settled life of men it soon appeared that the land was most fruitfully tilled when the rewards of careful husbandry accrued to the family that had provided it. Consequently--since there is a natural selection of institutions and ideas as well as of organisms and groups--the passage from hunting to agriculture brought a change from tribal property to family property; the most economical unit of production became the unit of ownership. As the family took on a more and more patriarchal form, with authority centralized in the oldest male, property became increasingly individualized, and personal bequest arose. Frequently an enterprising individual would leave the family haven, adventure beyond the traditional boundaries, and by hard labor reclaim land from the forest, the jungle or the marsh; such land he guarded jealously as his own, and in the end society recognized his right, and another form of individual property began. (9) These principles applied equally to the grazing of livestock in arid regions. Blackstone explains:

      The article of food was a more immediate call, and therefore a more early consideration. Such, as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, "because he had digged that well." And Isaac, about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace. (10) Blackstone's venerable example illustrates the application of labor to create a property right. Abraham pastured his flocks in arid lands, where water for his livestock was scarce. Through his labor in digging a water well and using the well to water his livestock, he obtained a recognized property interest, an interest which was later inherited by his son Isaac. Abraham's property interest arose not from mere possession of the land, but from the labor he invested in creating and using the water well, which in turn allowed him to use the surrounding pasture lands.

      The legal principles which allowed Abraham to create a property interest in his well, labor and use, are embodied in the rule of capture. "Capture" is defined as an "[a]ct of catching or controlling" something. (11) Abraham used his labor to "catch" and "control" groundwater by digging a new well, (12) and then used the water to water his livestock. In other words, labor and use captured a natural resource. In Pierson v. Post, (13) the court held that "possession" and therefore ownership of a fox required actual capture of the fox, through "industry and labor," as opposed to mere pursuit of the fox. (14) While the latter involved the "industry and labor" of pursuit, the former put such labor to use by actually capturing and using the fox pelt. Thus, the rule of capture, as applied in the Pierson case, necessarily required labor and use, (15) which in turn created or "captured" the property right. (16)

      The creation of property through labor, use, and capture was further refined with the doctrine of "beneficial use." Water law in the Western United States is governed by the law of "prior appropriation," meaning priority of water use based on those who use water in a manner beneficial to society. (17) For example, if a certain quantity of water is diverted annually from a given stream to water livestock, and the use was the first "beneficial" use of that particular stream, then the use constitutes a vested water right superior to all subsequent beneficial uses. (18) The purposes of beneficial use include the promotion of useful labor and the prevention of waste. (19) State law (20) may recognize livestock water rights in springs, wells, diversions, and in water taken directly from the stream by livestock. (21) Livestock water rights cannot be taken by the government without due...