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February/March 2007
Volume I; Issue 1
Special Report:
Trans Texas Corridor

Colvin Files Motion for Rehearing
Western Grazing Case Must be Reversed
By Fred Kelly Grant

Ben Colvin’s rights have been dealt a solid body blow by the Federal Circuit Court of Appeals in Washington D.C. Colvin filed a takings case based on the government’s actions evicting him from his grazing allotment and impounding his cattle. The trial court dismissed the complaint. Colvin appealed. In a year’s end decision, the Court of Appeals affirmed the dismissal.

Colvin’s attorneys have strongly attacked the decision, charging that the Court overlooked and misapprehended critical points of law. Counsel, who have successfully guided Hage v. United States past the point at which Colvin’s case was dismissed, launched their attack in a Motion for Rehearing. The Motion requests that either the panel of three judges who issued the case rehear the issues, or that the court rehear the case en banc, which means that the entire court rehear the case.

Ben Colvin is a long-time member of Stewards of the Range and a long-time advocate for the existence of private property rights in grazing on federal lands. As featured in a special article in Cornerstone some years ago, Colvin is a family rancher whose base property is a 520 acre cattle ranch in Nevada. He grazed the Montezuma allotment of federal grazing land, which comprises 625,000 acres.

Colvin applied for a grazing lease in 1969 and the BLM granted it in 1970. The lease was renewed in 1989 for a ten year period. But, in February, 1995 Colvin did not pay the annual grazing fee because he was frustrated by the BLM’s refusal to control the Wild Horses dominating the allotment, as required under the Wild Horses and Burros Act. A month later the BLM issued a trespass notice. In 1997, the BLM issued notice of termination of the lease and assessed trespass damages. But, Colvin continued to graze until the BLM ordered his cattle removed. The BLM also cancelled range improvement permits and issued a decision that all such improvements be removed, except for those “facilities necessary to exercise…water rights…established pursuant to Nevada law.”

Colvin filed a takings claim in 2003, asserting that the government had taken his water rights and ranching operations, range improvements, and that the government breached a contract with him. The government moved to dismiss, and without a trial of the facts, the Court of Claims granted the motion.

On appeal, the Federal Circuit affirmed the dismissal. First, the Court found that the Colvin allotment, the Montezuma, has been the continuous property of the government since 1848 when it was granted to the US under the treaty of Guadalupe Hidalgo. The Court found that since the ground had always been the property of the US, it was subject to the Property Clause in the United States Constitution, which states that the Congress shall “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Based on this reasoning, the Court determined that grazing on the allotment always had been founded on a privilege extended by the government. The Court found no taking of Colvin’s water right by simply cancelling his grazing privilege, finding no inherent right to graze appurtenant to his water right.

Having found that Colvin’s water rights, established under Nevada law, do not contain or create the right to graze, and therefore, “no governmental action restricting Colvin’s ability to graze on federal land can affect its water right in a manner,” which creates basis for a claim under the Fifth Amendment.

The attack on the decision through the Motion to Rehear, points out that the decision “impacts” and harms “water rights associated with approximately 20,000 federal grazing permits” in the west. The Motion states: “…the case is exceptionally important to ensure that these valuable property rights are properly protected. Setting this precedent will conclusively determine the valuable property rights of these ranchers and resolve this dispute that could be ruinous for the entire livestock industry.”

The strength of the challenge to the decision is shown through the opening of the support argument for the motion, which asserts that the Court either overlooked or misapprehended legal principles. Counsel argues that the Court has misapprehended the status of the lands by claiming that the allotment stayed in the ownership of the US from the time it was granted under the Treaty. They set forth, in detail, the all too familiar argument that the land in this allotment was “withdrawn” from the public lands when Colvin established vested property rights under Nevada law and confirmed by the Mining Act of 1866. All the grazing management acts of Congress passed since 1866 contain protection of those vested property rights.

One of the problems facing Colvin and counsel was that the Court did not proceed to a trial at which the local law and custom of Nevada could have been proved. Unlike the Hage v. United States case, the court here decided the issues based only on legal documents, not on the facts developed at trial. And, in deciding the case on legal authorities which were issued after Colvin’s rights had vested, the Court missed the whole point of what the facts and law showed in Hage.

Counsel points out to the Court that it failed to apply a line of cases which make it clear that from the time, at least, when the Montezuma allotment was subjected to Colvin’s water rights, it was withdrawn from the public domain. Colvin’s water rights were vested under Nevada law long before the land became the Montezuma Allotment by adjudication under the Taylor Grazing Act.

From that time on, the lands in the allotment were not subject to withdrawal, which would have extinguished the rights. The Court misunderstood, or misapplied, the Taylor Grazing Act, and ignored the fact that its only relevance to the case was that its own terms confirm and save all existing rights such as Colvin’s. The Property Clause in the US Constitution did not apply to the allotment from the time Colvin’s water rights vested.

Counsel also directs the Court’s attention to the fact that it followed the wrong line of case decisions because it misunderstood or ignored the fact that Colvin had established his rights under Nevada law before the land was withdrawn from the public domain. Colvin’s rights were not based on an “implied license” as the Court found, but on the vesting of those rights under Nevada law and a direct grant of Congressional authority contained in the Mining Law of 1866. Case decisions in Buford v. Houtz, 133 U.S. 320 (1890) and Curtin v. Benson, 222 U.S. 98 (1911) were ignored by the Court, but they support Colvin’s argument that “a claim of vested property rights, even within a national park, could not be defeated by regulatory authority of the United States that prevented their use.”

Counsel also point out that the Court cites Nevada authority, which is not applicable to the facts of the case. “None of the Nevada law precedent cited by this Court in the Opinion address the issue of the Mining Act of 1866 and its invocation of local law and custom as defining the scope of the property right confirmed.”

The ultimate error in the judgment of the court is that it recognizes that Colvin owns water rights, in fact the government acknowledges such right, but does not consider it to be a taking of those rights when the government prohibits him access to the place of use of the rights.

It is unfortunate that a case decided so quickly, and without a trial on the facts, can cloud the issues, which were so carefully tried and decided in Hage v. United States, which awaits a final decision by Court of Claims Judge Smith. Recently, Judge Smith told the parties that they could expect a decision from him before January ended. Perhaps he will see the distinguishing features, which make the Colvin situation altogether different from the Hage facts. At least, perhaps, he will allow counsel an opportunity to point out those distinguishing factors, or wait until the full Federal Circuit Court has the opportunity to reverse the panel’s Colvin decision.

But, not unexpectedly, the government and amicus in Hage jumped right on the bandwagon. The government filed supplemental legal authority in the form of the Colvin decision from the Federal Circuit, the court, which will hear any appeal from Judge Smith’s decision.

Counsel for Colvin has responded to the government’s efforts to convince Judge Smith that Colvin should control his decision in Hage. Their position points out that rehearing has been requested, points out the fact that the Colvin court missed the point made by critical Supreme Court decisions and by federal statutes protecting vested rights once they vested, and points out the factors which distinguish Colvin from Hage.

Ben Colvin has been in the fight for his property rights for a very long time. The existence of his property rights is well documented under the law; his counsel’s arguments as to those rights are sound interpretations of the laws governing the settlement of the west.

But, unfortunately, the Claims Court chose to decide the issues without trial, without the opportunity to present evidence as to the local custom, culture and law of Nevada relating to grazing and water rights. So, the Federal Circuit Court, which hears all appeals from the claims trial courts, decided the case without those facts, and when left with the law without skeletal support, the three judges took the wrong course, missing the entire history of property rights vesting under state law and then being confirmed by federal statutes.

Counsel’s motion and supporting memorandum in Colvin are pointed, direct and clear. The points of misapprehension and misdirection are made so clearly, that if a rehearing is granted the Court’s attention will be specifically focused on the legal principles which have so far guided Judge Smith in Hage.