Colvin Cattle Co. v. United States

67 Fed. Cl. 568, 2005 U.S. Claims LEXIS 267, 2005 WL 2108695
CourtUnited States Court of Federal Claims
DecidedSeptember 2, 2005
DocketNo. 03-1942L
StatusPublished
Cited by6 cases

This text of 67 Fed. Cl. 568 (Colvin Cattle Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colvin Cattle Co. v. United States, 67 Fed. Cl. 568, 2005 U.S. Claims LEXIS 267, 2005 WL 2108695 (uscfc 2005).

Opinion

OPINION

WIESE, Judge.

Plaintiff, Colvin Cattle Co., Inc., the owner of 520 acres of land located near the publicly held Montezuma Allotment in central Nevada, sues here for the alleged taking of its water rights and ranching operations as a result of the government’s denial of an application to graze cattle on federal lands. Plaintiff additionally asserts a breach of contract arising from the government’s cancellation of plaintiffs grazing lease. This ease is before the court on defendant’s motion to dismiss or, alternatively, for summary judgment on the grounds that plaintiffs water rights do not confer a compensable right to graze on federal lands and that its grazing lease does not create a contractually enforceable right against the government. After hearing oral argument on July 20, 2005, we now rule in defendant’s favor and direct the dismissal of plaintiffs claims.

FACTS

The current dispute arose in February 1995 when plaintiff, a long-time rancher on the Montezuma Allotment, failed to pay $966 in grazing fees to the Bureau of Land Management (“BLM”) in connection with its grazing of cattle on publicly held land.1 As a result of that failure, the BLM issued a notice of trespass on March 15, 1995, for “[gjrazing livestock in the Montezuma Allotment without an authorization.” Plaintiff in turn challenged the federal government’s ownership of the land in question and submitted payment of the grazing fee to the Esmeralda County treasurer under the theory that the state, rather than the federal government, was the legitimate owner of the land. The county promptly returned the check to plaintiff uncashed.

On May 21, 1997, after numerous unsuccessful attempts to settle the trespass claims against plaintiff, the BLM issued a “Proposed Decision Order to Remove and Demand for Payment on the Montezuma Allotment.” In response, plaintiff submitted a June 6,1997, protest in which it continued to challenge the government’s ownership of the land. The BLM rejected plaintiffs challenges in a July 24, 1997, “Final Decision,” concluding that plaintiff had been “knowingly, and willfully grazing livestock without a grazing authorization.” The decision demanded payment in the amount of $37,332.26 for costs and damages associated with plaintiffs unauthorized grazing and provided for the cancellation of plaintiffs grazing lease and the removal of plaintiffs cattle if payment was not made within 15 days. Plaintiff appealed the BLM’s decision to the Interior Board of Land Appeals on September 4, 1997, but that appeal was dismissed on November 28,1997.

After more than three years of additional attempts to remedy the trespass claims against plaintiff, the BLM issued a notice of intent on June 25, 2001, to have plaintiffs cattle removed from the public lands. The following year, on May 1, 2002, in connection with the cancellation of plaintiffs grazing lease, the BLM canceled plaintiffs range improvements permits and ordered plaintiff to remove all materials associated with such improvements within 180 days. Plaintiff did not respond to the cancellation notice and instead filed suit in this court on August 18, 2003. Thereafter, on November 26,2003, the BLM issued a final trespass decision order[570]*570ing plaintiff to remove all range improvements from the public lands. By its terms, however, the order excluded from removal “facilities necessary for exercise of the water rights (e.g. wells) ... established pursuant to Nevada law.”

Although plaintiff is permitted continued access to the water on the Montezuma Allotment, the BLM has since authorized another rancher, Bud Johns, to graze livestock on that same land. As a condition of that authorization, however, Mr. Johns must haul water to the Montezuma Allotment for use by his cattle.

DISCUSSION

I.

In determining whether plaintiff has suffered a Fifth Amendment taking,2 we must begin by examining the nature of plaintiffs asserted property right. Conti v. United States, 291 F.3d 1334, 1339 (Fed.Cir.2002). At its core, plaintiffs claim is that a right to the beneficial use of water established under Nevada law carries with it an attendant right to graze cattle on federal land since grazing is the only beneficial use to which the water can be put. See Buford v. Houtz, 133 U.S. 320, 322, 10 S.Ct. 305, 33 L.Ed. 618 (1890) (recognizing that due to “the scarcity of water, and the aridity of the climate,” land on the public range “can never be subjected to any beneficial use other than the grazing of stock”). Plaintiff maintains that the question of whether it has a right to graze is thus inseparable from the question of whether it has a right to the beneficial use of water, and, in plaintiffs view, “denying the right to use a water right for its legal purpose is the same as destroying that right.”

The case law makes clear, and plaintiff concedes, that a grazing permit does not rise to the level of a protectable property interest, nor does it confer any right, title, or interest to the lands of the United States. Light v. United States, 220 U.S. 523, 535, 31 S.Ct. 485, 55 L.Ed. 570 (1911) (ruling that the federal government’s failure to object to the use of public lands for private grazing “did not confer any vested right on the [users], nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes”).3 According to plaintiff, however, its takings claim is not based on a federal permit or license to graze but rather rests on a state-created water right confirmed by the United States in the Mining Act of 1866, 43 U.S.C. § 661 (2000). Plaintiff argues, in other words, that the right in question was created not by the United States but by the appropriation of water under Nevada law. Once such a vested right exists, plaintiff argues, the United States can extinguish that right only upon the payment of just compensation.

Plaintiffs asserted right to graze cattle on public land is essentially predicated on three sources: the Supreme Court’s decision in Buford, 133 U.S. 320, 10 S.Ct. 305; the state of Nevada’s 1925 Stockwatering Act, Nev.Rev.Stat. §§ 533.485-533.510; and the federal Mining Act of 1866, 43 U.S.C. § 661. Plaintiff begins its argument with the Supreme Court’s decision in Buford. Under its reading of that decision, plaintiff contends that the state of Nevada had the right to define grazing in connection with water rights on public lands prior to the reservation of those lands by the federal government through the enactment of the Taylor Grazing Act of 1934, 43 U.S.C. §§ 315-315r (2000). To the extent the state had in fact regulated or controlled grazing on those lands, plaintiff interprets Buford as recognizing a vested property right in the public lands that would remain enforceable against the United States even after that land was later reserved for federal use by the Taylor Grazing Act.

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Bluebook (online)
67 Fed. Cl. 568, 2005 U.S. Claims LEXIS 267, 2005 WL 2108695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colvin-cattle-co-v-united-states-uscfc-2005.