UNDERSTANDING AMERICAN PROPERTY RIGHTS
("Online" Studies)
Part 5
SECTION 7 : FEDERAL TERRITORIAL LEGISLATIVE JURISDICTION
EXCLUSIVE FEDERAL LEGISLATIVE JURISDICTION (1) Enumerated powers; (2) "police powers" in the District of Columbia and federal "enclaves"
ARTICLE 1, SECTION 8, CLAUSE 17 of THE CONSTITUTION OF THE UNITED STATES :
Exclusivity of jurisdiction; Federalist Papers on the necessity for exclusivity; history behind the "federal State" of the District of Columbia; contrast with the "temporary" or interim exclusive legislative jurisdiction that accompanied the ceded "western wastelands" east of the Mississippi under the "Property Clause," and the acquired territories of Florida, Louisiana and lands West of the Mississippi under authority of the "Treaty Making and War Powers" and International Law
[SEE ALSO: FEDERAL TERRITORIAL LEGISLATIVE JURISDICTION - Washington, DC; federal enclaves; exclusive and concurrent jurisdiction: April, 1956 Interdepartmental Committee "Study Of Jurisdiction Over Federal Areas Within The States; June, 1957, Interdepartmental Committee Report - "A Text Of The Law of Legislative Jurisdiction" ]
SECTION 8 : "PUBLIC DOMAIN"; "PUBLIC LANDS"; "FEDERAL LANDS"; GRAZING; RIGHTS-OF-WAY
Treaty of Guadalupe Hidalgo; recognition Spanish/Mexican Land Grants; Land Patents - quitclaim national interest, "tribunal judgement" State possessory rights adjudicated, issuance not discretionary, annulment suits subject to statute of limitations except for fraud, enforcement or trust for rightful owner, conclusive evidence of title; "Color of title"; National title by "discovery"; Indian right of occupancy or "Original Indian Title" - tribes unauthorized to convey title; extinguishment of Indian title.
NON-MINERAL CHARACTER OF THE LAND
"Public domain", "Public Land"; mineral lands not open for homestead; possessory property rights - assertion of rule that one could not "prescribe against the sovereign" through adverse possession.
Land disposal strategies - "distribution," "graduation and donation," "preemption"; "Log Cabin Bill"; doctrine of "relation back"; possessory rights; homestead acts; "indemnity lands" as incentives to railroads;
160 acre homestead pattern established in the east economically and biologically impossible for establishment of small ranches in the arid Western.
English common grazing rights of pasturage and pannage wastelands and lands not under cultivation; reaffirmation of Mexican ranching customs by California Legislature in 1851 - "no fence or trespass law" or "open range"; Buford v. Houtz - public lands open to "common" grazing; federal Act in 1885 to remove fences on public lands.
Right of "posessing" property recognized as inalienable right in California; right of possession under natural equity (Color of Title) by first discovery, location and occupancy - "first in time, first in right;" prescription; differentiation federal ownership status to lands ceded east of Mississippi and those ceded to nation through international treaty in the West; Equal Footing Doctrine" - "sovereign lands" to be held in trust for the people of the States while in territorial status; California taxation of grazer's "possessory interest."
"Appropriative" water use rights through "beneficial use" by livestock watering on public land; equitable possessory rights to customary range - range rights, secured by control of water use; Hunter v. United States; expectations possession would ripen into title by prescription
Repeal pre-emption Acts, authority of President to "set apart or reserve" public lands States or territories with forests, timber or undergrowth, no funds appropriated for management; Dept. of Ag. prohibited "driving, feeding, grazing, pasturing or herding" of livestock on Forest Reserves; Light v. U.S. and U.S. v. Grimaud - effect of Act to withdraw land from "public domain" - revoking implied license to graze, creating "privilege" subject to permit; federal "reservations" prior to and post-statehood - Utah Division of Lands v. United States; differentiation status between lands reserved post statehood with and without State cession - exclusive legislative jurisdiction and "ordinary proprietior; State sovereignty over lands and resorces - Kansas v. Colorado.
Purpose "Forest Reserves" - watershed protection and timber production; excluded lands valuable for agriculture and minerals; regulations allowing grazing in reserves established preferences for inholders and those with customary range; issuance of "special privilege" and "special use" permits; Trinity, Lassen, Klamath and Shasta National Forests.
1905 meeting USFS and Cattleman's Assoc.- promises of tenure protection, fair notice of reductions; 1905 & 1910 USFS "Use Book"s.
Grazing "tax" imposed on value of forage use - (called "fee" later;) "permits" considered "privileges" to counter "color of title" claims; permit waivers to revert back to USFS on sale of ranch; market recognition of value of range rights as part of base ranch that could be sold, inherited and mortgaged; IRS considers part of rancher's estate for federal tax purposes.
1934 Senate hearings - estab. renewable permits when underlying customary range use security in a loan; protects pre-existing possession and use of water; preference based on inholding and ownership of appropriative water use rights; subsequent permitees to reimburse prior permitees for any improvements; agencies presume unappropriated lands not reserved (public lands) are owned by the federal government; questions of "vested rights" and title interest in lands by stockmen; 1942 Amendment establishing fair & reasonable compensation for national defense "takings"
1866 debates over disposal of mineral lands; 1866 "Lode Act" granting rights of way over "public domain" for highways and to ditch and canal owners; State law governs establishment of "public highways;" 1870 Placer Act clarified right of way grants burdened subsequently patented private land as easement; 1872 Mining Law made "free access" applicable only to "public lands"; 1873 R.S. 2477 separated highway provisions from mining Acts - applicable only to lands not withdrawn from disposal or reserved; definition of a "highway"; quiet-title statute.
"Free Access" mining principle applicable only to lands not withdarwn from disposal; establishment of rights-of-way a question of State law; grant of right-of way self-executing; California law recognizes customary public use as sufficient to establish; 1988 DOI policy required acts constituting construction of a highway, connection between public destinations; Courts have ruled "regular" and "common" public use sufficient, not requiring construction; route may change; 1976 FLPMA "withdrew" remaining lands from disposal for permanent federal retention, thereby ending further establishment of R.S. 2477 rights of way.
the United States General Accounting Office, 7/29/97
8/20/97
Letter by Ron Schiller, Chairman High Desert Multiple Use Coalition to Mr. Hector Villalobos, Manager, Bureau of Land Management, Ridgecrest CA Field Office officially requesting that the BLM cease obliteration, closure and closure signing of any routes of travel that existed prior to October 21, 1976, (e.g. RS 2477 rights of way.)
Link Of Interest - Library of Congress
The Evolution of the Conservation Movement 1850-1920
The West 2000 - Facts about the West
[It should be noted that the author is not an attorney. The comments presented are the author's opinion and should not be construed in any manner as legal advice or counsel. Concepts presented are intended for discussion purposes only. Full text of Supreme Court decisions may be located though "FindLaw" on the Internet. ] Copyright 1998, Marcia H. Armstrong. All rights reserved. Permission granted for non-commercial use and distribution with appropriate attribution to sources. |
