Nevada Trespassing Rancher Loses in Court Against BLM

[JoseCuervo]

It is amazing what issues people will fight in Nevada. Some guy grazes his cattle on MY PUBLIC LANDS and doesn't pay. And when the BLM impounds his cattle, he sues the State becauses the Brand Inspector signed the cattle over to the state.

S'pose this all could have been avoided, if the rancher just cooperated with the BLM, paid his lease, and took good care of MY PUBLIC LANDS?

Grazing decision pleases both sides
RANCHERS, FEDERAL GOVERNMENT EACH CLAIM 'VICTORY' IN CONFISCATION CASE


RENO - A judge may have raised more questions than answers with a recent ruling sought by Nevada agriculture officials caught in the middle of a dispute between state ranchers and federal land managers who confiscated their cattle.

Washoe County District Judge Janet Berry dismissed the unusual case brought by state Attorney General Brian Sandoval on behalf of the Nevada Department of Agriculture and its brand inspector.

Berry denied the state's request for a "judicial confirmation" ruling on whether the brand inspector acted properly in 2001 when he certified the U.S. Bureau of Land Management owned cattle it seized from a rancher accused of repeatedly trespassing on federal land.

The Nevada Live Stock Association and other state's rights activists who dispute federal jurisdiction over the lands say state law reigns supreme and that the brand inspector had no power to sign over ownership of the livestock to the federal government.

In a 12-page opinion Aug. 27, the judge agreed with the attorney general that the state may enter into agreements with the U.S. government, but she said she has no jurisdiction over federal action taken under those agreements.

Berry said it would be a violation of the Nevada Constitution's separation of powers between the executive and judicial branches of government for her to offer the "judicial confirmation."

"The court finds there is no justifiable controversy in the present case ... (which) arises from a request by the state to retroactively confirm its actions," Berry wrote. She suggested members of the livestock association "call upon their elected representatives to address, through legislation, the important concerns of Nevada ranchers."

The various parties involved in the ongoing dispute disagree about the meaning of the ruling, with some claiming at least partial victory. None is admitting defeat.

The two entities most at odds - the BLM and the livestock association - insist they are happy with the outcome.

"The judge did what we had expected her to do," said Bob Abbey, in charge of BLM operations in Nevada. "There was no controversy here so there was no reason for this to be brought before the court."

Ramona Morrison, an officer of the livestock group, said the state had been counting on the judge to take some political heat off Sandoval and the brand inspector, James Connelley.

"This does not give them the judicial blessing they were seeking, and we are thrilled about that," said Morrison.

Gina Session, deputy state attorney general, said Berry's decision broke little ground.

"She didn't really rule on anything. She doesn't really tell the state they are doing anything wrong or that we have to do anything different," Session said.

Berry said during a hearing in December she would consider only whether the state had the authority - as the ranchers claim - to block the confiscation by refusing to certify the BLM's legal possession of the cattle after it seized 62 animals from rancher Ben Colvin in 2001.

The ranchers said Colvin should have been allowed a state court hearing to argue why the BLM has no authority to confiscate cattle accused of grazing on BLM land without a federal permit.

"It defies cowboy logic that the BLM was able to take our own brand department into partnership with them and use an unconstitutional cooperative agreement to ... rustle the very cattle they were formed to protect,'' said David Holmgren, a group member and Nevada rancher also at odds with BLM over his own cattle.

The BLM maintains it has the authority to seize cattle administratively - without a court order or any other judicial review - after a rancher accused of repeated trespassing is notified of the offense, warned about the consequences and notified of plans to impound the cattle.

"They are saying the notice of trespass and the notice of impoundment serves as due process," Morrison said.

In Colvin's case, BLM officials said they had warned him since 1995 that he was violating federal law and his cattle could be confiscated for back fees the BLM totaled at more than $70,000.

After Berry's ruling, the Nevada Department of Agriculture said the judge's decision recommended federal agencies secure a court order before the state issues a brand inspection certificate - something the livestock group sought.

But Session and Abbey said they did not interpret it that way, and state Agriculture Director Don Henderson later said his agency was re-examining the ruling's ramifications.

Abbey said he is aware of concerns that "the existing agreement does not give a chance for those affected by the impoundment to have their day in court." But he said the Interior Board of Land Appeals hears administrative appeals regularly, including some from Nevadans who have used the process to fend off impoundments.

"While they may not like that option, it is an opportunity to go before an impartial judge and present their case as to why they think it is wrong," Abbey said.

Abbey said he plans discussions with Henderson about the "possibility of renegotiating the existing agreement."

"At this point in time, we still have an agreement in place we intend to use," Abbey said. "We have an administrative remedy for dealing with trespass on federal lands."

Morrison said her group might seek legislation to clarify the impoundment process.

"There is nothing wrong with the Nevada brand law, but if it needs to be spelled out that you need a court order, it might be discussed," she said.

Session said Berry outlined procedures in other states, indicating they provide more opportunity for ranchers to fight impoundments.

"If we were going to follow her suggestion that we could do more, the one thing we could do more is ask that the BLM provide us with a court order," she said.

Session said she understands BLM's position.

"Their federal law doesn't require them to obtain a court order. All this takes place on federal land," she said.

Henderson said he will approach BLM "with a group consensus of where we need to go" after he meets with the attorney general's office and consults with the livestock industry.

"There is some criticism that the state is not taking a big enough role in determining whether the federal government is acting within their legal authority," he said.

 

[Ithaca 37]

Those welfare ranchers gotta lotta nerve!