Analyst breaks down history of Washington grazing rights

RaeLynn Ricarte

Washington bureaucrats want ranchers to believe they have no grazing rights of publicly-held lands beyond those granted by permits, but that is not the truth, says Dr. Angus McIntosh, a recognized legal consultant and expert witness on the subject.
He said a series of Congressional acts from the 1800s forward prohibits the government from stripping away a rancher’s grazing allotment in national forests and on federally-managed grasslands. 
“Ranchers own their allotments even though they are told repeatedly that these are only ‘permitted’ rights,” said McIntosh, who visited Northeastern Washington in December to educate livestock producers.
A retired U.S. Department of Agriculture Range Allotment Specialist and founder of the Range Allotment Association, an advocacy group for producers, McIntosh resides in Colorado and routinely walks ranchers through the long history of Congressional acts that regard grazing rights as protected property rights.
“Bureaucrats get away with removing those rights because too many ranchers are ignorant of the law,” said McIntosh. “A right is a right, it’s not a permissive use.”
Similarly, he said many federal employees are also ignorant of the law and believe what they are told, that ranchers must get permits to turn out livestock on grazing allotments, and the agency can change the boundaries or conditions at any time.
“I’ve known a lot of ranchers who have not had a good experience with federal employees,” said McIntosh. 
Scott Nielsen, president of the Stevens County Cattlemen’s Association, invited McIntosh to the group's annual meeting in December to educate members about their rights.
He said the association felt it was a good time for more information with Washington State Gov. Jay Inslee recently asking the Department of Fish and Wildlife officials to work with federal agencies to possible change razing practices to reduce wolf-cattle conflicts.
“This is the time for ranchers to be knowledgeable about what the government can and can’t do,” he said.
Even though there is a good working relationship between grazing specialists with the Colville National Forest and ranchers, all it takes is one manager with a political agenda and things can take a bad turn, said Nielsen.
For example, he said in 2013 the Newport-Sullivan Lake Ranger District of the Forest Service initiated action to change the boundaries for the 23,413 acre grazing allotment of a Pend Oreille rancher. Officials said changes were needed to protect water quality in streams, and the agency made a decision in 2018 to enact that plan.
Nielsen said the association registered strong objections and the decision was “mysteriously” withdrawn with no explanation. He believes President Donald Trump's directive that federal land-use and environmental agencies not impede agricultural activities was likely behind the change in plans.
However, he said a new administration could bring a return of problems, so the association feels that ranchers should become knowledgeable about the law.
“Our ranchers need to know what their rights are when policies are being made that negatively affect their ability to produce food,” said Nielsen.
McIntosh told livestock producers gathered Dec. 7 at the Kettle Falls Gun Club that, from the founding of the country, there have been serious conflicts between federal
bureaucrats and stock-raising settlers.
The problems became so bad by the turn of the century, when the west was being settled, that President Theodore Roosevelt proposed the creation of a “split estate.”
That plan gave ranchers grazing rights on the surface of lands under federal management. In turn, the government would control timber harvests, mineral removal, recreation and other purposes.
“Your range rights don’t belong to the federal government,” said McIntosh. 
By 1910, the corruption, abuse and overreach of federal bureaucrats had become so out of control that Congress enacted special legislation to have a full-blown investigation of operations within the Department of Interior, Department of Agriculture and the Forest Service, he said. 
The result of the investigation was the adoption of the split-state policy and enactment of other statutes that established grazing districts outside of national forests.
Three subsequent acts passed by Congress allowed federal managers to regulate allotment grazing only to the extent of protecting the “young growth of trees” and to prevent “soil erosion” which protected the government’s timber and mineral rights. 
Grazing rights have been so protected by Congress, which is the body with sole power over public lands,  said McIntosh, that the Federal Land Policy Management Act of 1976 requires an allotment owner to be compensated when a cabinet official wants to devote that piece of land land to a different use. 
McIntosh said when the Forest Service or Bureau of Land Management argue against a rancher’s grazing rights in court, they cite two cases where cattlemen were found guilty of trespassing because they did not hold permits.
Even then, McIntosh said the judge noted that prohibiting grazing was only allowable to protect the government’s actual interest in the growth of timber.
What isn’t widely known, said McIntosh, is the U.S. Supreme Court ruling on the federal government’s infringement of grazing rights in 1911. Rancher JB Curtin continued grazing cattle on 23,000 acres of his property that had been turned into Yosemite National Park.  He argued that he did not need permission to exercise grazing rights on his allotment. 
Justices in the high court noted that preventing him from turning cattle out to forage would have been an “unconstitutional taking of property.”
“The difference between the first two cases and this one is that the ranchers in the first two didn’t claim a property right,” said McIntosh. 
He said federal land managers opposed to grazing continually enact administrative rules that make it more and more difficult, ,and less cost-effective, for ranchers to turn cattle out on their allotments.
“When they say you can only have 10 cows instead of the 270 you used to have, that’s an infringement of existing rights,” said McIntosh.
He invited local ranchers to support his association, which engages in legal battles to protect ranchers who have been deprived of their rights.