THE BUNDY STANDOFF—A
CENTURY OF ABUSE
Michael S. Coffman, Ph.D
June 17, 2014
Part IV—The U.S. Constitution Trumps the Northern Core’ Plans
The 1891 Forest Reserve and General Revision Acts were passed by powerful lobbying by the Northern Core and corrupt politicians in Congress. The goal of the two Acts was to strip Western Resource Users of their property rights and states of their constitutional right to receive all federal land upon becoming a state as per the U.S. Constitution. In 1907 their plans seemingly failed when they slammed headlong into the Constitution.
Colorado v. Kansas, 1907 Supreme Court Decision
In 1906-07 the Forest Service and the northern core ran into a brick wall. Following the Forest Reserve Act’s passage in 1891, Colorado began using more and more of the water from these reserves, just as was intended by the conspirators. This threatened Kansas and Kansas sued. It went to the U.S. Supreme Court. The Kansas v. Colorado Supreme Court’s decision May 13, 1907 stated:
The government of the United States is one of enumerated powers; that it has no inherent powers of sovereignty; that the enumeration of the powers granted is to be found in the Constitution of the United States, and in that alone; that the manifest purpose of the Tenth Amendment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and that if, in the changes of the years, further powers ought to be possessed by Congress, they must be obtained by a new grant from the people. (Italics and underline added)
In other words, the federal government has no sovereign right to the water in the West. It was declared unconstitutional. Also, the land belonging to the national government within the states is subject to the law of those states. Additionally, the only control of the waters of an interstate stream by congress is in respect to the question of navigation, not how it was used by the state or the users. Those rights, as clearly stated in the 10th Amendment belonged to the people or the state. Finally, the state has full jurisdiction over all lands and non-navigable streams within its borders and that it (the state) may determine which law shall govern with respect to such lands and waters…
“The attempted usurpation of federal power by congress and the executive departments growing out of the federal possession of public lands is properly rebuked and nullified,” according to the Pueblo Chieftain. The northern core financiers/industrialists, USDA (Agriculture), USFS (Forest Service) and American Forestry Association all conspired to pull off one of the greatest land thefts ever, but failed. The case did not touch on grazing rights, so that remained, and still does, in a legal quandary. The Court’s decision on water rights, however, was a severe blow to the conspirators’ plot to take over the West as a feudal fiefdom.
Remember, the 1848 Treaty of Guadalupe Hidalgo gave the existing settlers and future owners absolute property rights defined in the grants given them by Mexico over the land they were using. It was quite similar to the Preemption Act of 1841 that was strengthened by the Act of 1866 (see Part I). The U.S. government did not even begin to administer the new territory until many years later and the ranchers continued to operate as if nothing had changed. It hadn’t at that time.
The Forest Reserve Act of 1891 radically changed that balance by quietly revoking the Preemption Act of 1841. Grazing fees laws were enacted in the Organic Act of 1897, and while it was unpopular it did strengthen the prior rights of the ranchers. Additionally, everything remained the same because the government did not begin to fully enforce the Reserve Act and Organic Act until around 1900. That’s when the northern core, in direct collaboration with the US Forest Service and American Forestry Association actively conspired to usurp all water rights on the reserves, using the1991 Forest Reserve Act as the legal basis.
When the northern core/Forest Service/American Forestry Association lost the Colorado v. Kansas Supreme Court case, the conspirators went into a panic, even suggesting the Forest Service ignore the Supreme Court’s decision. Hage found quote after quote where the conspirators were in utter dismay.For instance, in a letter to Chief of the Forest Service, Gifford Pinchot on May 23, 1907, General William J. Palmer, point man for the northern core could not believe “that the Court intended its decision to be so far reaching…” Acting law officer of the Forest Service, G. S. Arnold, asked in a June 24, 1907 letter to Dr. Will, Secretary of the American Forestry Association: “I am under the impression that the interpretation of the case…is rather too broad, so far as it admits restrictions upon the absolute government control of the water upon Government Land.”
This reaction of the conspirators is bizarre. The question must be asked; why were they so shocked? The Colorado v. Kansas decision was based on the U.S. Constitution, which forbade the exact thing northern core tried to pull off by force and massive expenditures of money. This group was so powerful that their perception of reality was, in fact, disconnected from reality. Psychiatrists have noted this “disconnect” phenomenon by true progressives (this does not include liberals; liberals have a different ideology than progressivism) since the 1800s. As explained in Part VI, the same thing appears to be happening today with progressives and could partially explain the BLM’s extreme overreach against Bundy.
Although the Forest Reserve Act supposedly withdrew the preemption laws of 1830 and 1841, the preexisting Treaty of Guadalupe trumped that portion of the Act; at least in the states originating from the treaty. The Court’s ruling in Colorado v. Kansas threatened the Forest Service’s newly acquired control over livestock grazing.The Court ruled that the state, not the Forest Service had jurisdictional authority over the rangeland. The northern core and Forest Service, lost the battle, but had no intention of giving up control over the forest reserves. The Service did grudgingly comply with the Court’s decision, without formally acknowledging it. At the same time, it began devising methods to weaken the decision.
Ironically, the Forest Service didn’t start with lawsuits against ranchers, but with carrots and goodies. While seeming to support the ranchers, the Service began to conduct a very deceptive sleight of hand to trap ranchers into binding contracts, according to Hage. “The Forest Service and its supporters,” said Hage, “worked diligently during this period to the preemptive property rights challenge by winning over stockmen to their side by giving the stockmen who held valid prior rights claims a privileged position in securing and expanding grazing permits.” It worked.
Discussion of preemptive rights all but disappeared by the now privileged class of stockmen. The U.S. Forest Service also sweet-talked the stockmen into forming live-stock associations. This allegedly gave ranchers a “big say” over the grazing programs, when in fact they were probably not under federal jurisdiction at all, but had sweeping powers granted by the state by Colorado v. Kansas. In turn, the newly minted states, being dirt poor, didn’t have the money or inclination to begin administering the grazing lands. The Forest Service stepped into the gap. Without the states claiming states’ rights over grazing, grazing was in legal limbo. The ranchers, of course, didn’t understand that and thought the Forest Service had become their allies.
The only thing required of the ranchers to get the benefits was to sign a contract with the Forest Service through their live-stock association.Low cost grazing permits helped them establish their prior rights.The contract gave the ranchers “advisory” status with perks with the Forest Service, when, in fact, the Forest Service most likely didn’t have any authority in the first place. Deceived, the ranchers loved it. For years they had good working relationships with the Forest Service.
When the Forest Service began to use the term prescriptive rather than preemptive in contracts the ranchers didn’t mind because the two words had the same legal meaning. Then the Forest Service began to exchange “prescriptive” to “prescription.” Ranchers apparently didn’t notice this change in the Forest Service contracts. Prescription terminology is right out of the philosophy of the forest reserves. Says Hage; “It is a denial of the prior appropriation water doctrine and the holding of the U.S. Supreme Court that grazers have an implied license to use the federal lands.”
The ranchers found out the hard way that they were taken to the cleaners. Advisory boards do not have any legal force, and gradually the Forest Service began to tighten the screws on the ranchers. They were bound by the contract to adhere to the Forest Service’s prescriptions (i.e. management plans, grazing allocations, number of cattle, etc.)
Then came the lawsuits. Initially, the Forest Service used three obscure court cases; United States v. Tygh Valley Co., September 26, 1896; Dastervignes v. United States, March 2, 1903; and Dent v. United States, March 26, 1904 as the precedent in the U.S. District Court. Each of these three cases established their precedents before the 1907 Colorado v. Kansas Supreme Court case that denied the Forest Service’s water rights and established state sovereignty over the reserves. Nonetheless, the Forest Service used the cases as precedent. They skirted the 1907 Supreme Court decision by staying away from the grazing rights issue.
In an essay entitled “The Legal Aspect of the Grazing Problem” dealing with early grazing decisions based on these three decisions, Colorado Judge Ethelbert Ward specifically stated that these were essentially civil cases “by injunction” to prevent damage to property, “and would apply to the individual as to the United States. They are founded upon the law of the land, and do not depend upon rules and regulations.” In other words, the issue was about damage to property, not grazing rights. Nonetheless, the cases were used as if they included grazing rights. They got away with it and grazing rights precedent in case law was established. Ward was attempting to expose the fraud being used by the Forest Service to claim jurisdiction over grazing using these three very inappropriate cases.
The Forest Service made sure the issue of preemptive rights never came up in the early U.S. District Court cases following Colorado v. Kansas, either because they were centered on property damage done by overgrazing, without discussing violations of grazing requirements at all, or the attorneys for the ranchers never brought up prior rights. The cases circled around grazing without grazing actually entering into any decision.
There is one other important court case. In Shannon v. United States. Thomas Shannon, a Montana rancher opened a fence to allow his cattle to stray onto what was then the Little Belt Mountain Forest Reserve. He did not claim prior rights of water ownership, but did challenge the right of the federal government to regulate his livestock grazing on the forest reserve land in conflict with state grazing laws and the police power of Montana. Using precedent favoring the Forest Service from previous court rulings, U.S. District Court Judge William Hunt ruled in favor of administrative rights of the Forest Service on March 18, 1907. This is not surprising. Ranchers almost always lose in District Court.
Colorado Judge Ward (above) strongly disagreed basin his reasoning on the U.S. Constitution, not case law. Ward wrote in his essay:
Aside from exclusive state police regulations, there is another reason why the United States, as a landowner, cannot by rules and regulations, nullify state laws. It is that to these lands the federal government is not more than an individual land holder…. Hence the United States have no better rights than the individual land holder. This, I think, shows the error of Judge Hunt’s decision nullifying Montana Cattle laws.
The [state’s] enabling act is not a relinquishment of state sovereignty, it is only a relinquishment of claim to the title of the public lands; and a pledge not to tax nor to interfere with its primary disposal. Had the enabling act in specific terms relinquished state sovereignty and jurisdiction over public lands, such clause would be absolutely void and unconstitutional. The Supreme Court has so declared. (Italics and bold added)
While the essay is not part of any case law, it once again demonstrates that despite all the confusing smoke and mirrors the U.S. District Court pontificates about federal rights using case law, the federal land ownership claims are fundamentally unconstitutional at the root. That is the basis that Utah, and perhaps very soon, other western states are working to sue the federal government to give them the federal public land they should have received when they became states. These include Wyoming, Idaho, Nevada, Arizona, New Mexico, Colorado and Montana. South Carolina even passed a resolution supporting the transfer of public lands to the western states.
The entire history of these court cases is spelled out by Hage, but is too complex and messy to be repeated here. At the risk of oversimplification the U.S. Forest Service changed the law by sucking the ranchers into contracts and then gradually changing the legal discussion from “preemption” to “prescriptive” to “prescription.” Once “prescription” language was embedded the Forest Service used a series of District Court cases; starting with the three pre-Colorado v. Kansas Supreme Court decisions mentioned above, then using each one to establish precedent for the next. This is called case law, not Constitutional law, and has done unbelievable harm to constitutional intent. Even so, the Forest Service was influenced sufficiently to begin issuing grazing permits only to ranchers who had preexisting rights, excluding those that did not.
Pueblo Chieftain, May 15, 1907, Forest Service Law Office Correspondence,
Record Group 49, Drawer 16, National Achieves. In: Storm over Rangeland,
2. Wayne Hage. Storm Over Rangeland. (Merrill Press, Bellevue, WA, 1989). Pp 167-168.
3. W.J. Palmer to Pinchot, May 23, 1907, and also G.S. Arnold to T.E. Will, June 24, 1907. Both in Forest Service Law Office Correspondence, Record Group 49, Drawer 16, National Achieves. IN: Hage, P. 168-169.
4. Michael S. Coffman. Plundered, How Progressive Ideology is Destroying America. (EPI, Bangor, ME, 2013). Chapter 4.
5. Hage, P. 170.
6. Hage, P. 171.
8. Ibid, P. 170
9. Forest Service Law Office Correspondence RG49, Drawer 16, National Archives. IN: Hage, P. 172.
10. Hage, P. 172.
11. Forest Service Law Office Correspondence RG49, Drawer 16, National Archives. IN: Hage, P. 172.
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