Diamond Bar Cattle Co. v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 23 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DIAMOND BAR CATTLE
COMPANY, a New Mexico
partnership; LANEY CATTLE
COMPANY, a New Mexico
partnership,

Plaintiffs-Counter-Defendants-
Appellants,

v. No. 97-2140

UNITED STATES OF AMERICA;
DAN GLICKMAN, Secretary of the
United States Department of
Agriculture; JACK WARD THOMAS,
Chief of the U.S.D.A. Forest Service,

Defendants-Counter-Claimants-
Appellees.

______________

NATIONAL WILDLIFE
FEDERATION, GILA WATCH, NEW
MEXICO WILDLIFE FEDERATION;
RIO GRANDE CHAPTER OF TROUT
UNLIMITED; WILDERNESS
WATCH,

Intervenors.
 APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-96-437-HB)

Larry G. Patton, Luna, New Mexico (R. Lar Thomas, Albuquerque, New Mexico,
with him on the brief), for the appellants.

Elizabeth Anne Peterson, Department of Justice (Lois J. Schiffer, Assistant
Attorney General; John J. Kelly, United States Attorney; John W. Zavitz,
Assistant United States Attorney; Robert L. Klarquist and Margo D. Miller,
Department of Justice, with her on the brief), for the appellees.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Diamond Bar Cattle Company and Laney Cattle Company appeal

the district court’s entry of summary judgment in favor of the United States. On

appeal, plaintiffs contend the district court erred in finding plaintiffs had no

private property right to graze their cattle on federal lands without a Forest

Service permit, and in finding plaintiffs liable for trespass based on use of federal

lands for cattle grazing without a permit. We affirm.

Kit and Sherry Laney are the owners and operators of Diamond Bar Cattle

Company and Laney Cattle Company. The Laneys and their predecessors in title

have used the lands at issue for cattle grazing since 1883. The companies

historically have grazed their cattle on government lands by obtaining grazing

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permits. The first such permit was issued to plaintiffs’ predecessors in title in

1907. More recently, the Forest Service issued a ten-year term grazing permit in

1985 allowing Laney Cattle Company to graze cattle on the 27,926-acre “Laney

allotment” within the Apache National Forest. The Forest Service issued a

similar permit in 1986 to Diamond Bar Cattle Company for grazing on the

146,470-acre “Diamond Bar allotment” within the Gila National Forest. Although

the Forest Service notified the companies several times of upcoming expirations

of the permits, neither company renewed its permit and the permits expired by

their terms in 1995 and 1996. Each company offered to pay the requested grazing

fees and negotiate a permit that recognized the companies’ “valid existing

rights.” 1

Plaintiffs allege they are the owners of a vested water right that was

obtained through prior appropriation before 1899, when the United States

withdrew from the public domain the land that became the Gila National Forest

and Apache National Forest. Plaintiffs claim this water right includes an

1
Plaintiffs state that had they signed the 1996 permit they “would [have]
relinquish[ed] the private property rights they were convinced they owned over to
complete government control.” Plaintiffs’ Br. at 32. Yet the language in the
1996 permit to which plaintiffs objected was present in the permit obtained by the
Laneys on behalf of plaintiffs in 1985. See id. at 6 (stating in 1996, a Forest
Service Employee “came to the Laneys’ home . . . and hand delivered a letter
requesting that the Laneys sign a new Term Grazing Permit, which would have
the same terms and conditions as the 1986 permit”).

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inseparable right to graze the lands that comprise their allotments. Plaintiffs do

not claim title or other real property interest in the land itself; rather, they assert a

private “possessory” property right that entitles them to use of the water and

range for the purpose of raising livestock. Plaintiffs contend their long-standing

private property right was acquired under New Mexico law, obviating the need for

plaintiffs to obtain grazing permits after the land was withdrawn from the public

domain. The Forest Service denied any such private property rights existed and

advised plaintiffs that refusal to complete permit applications would result in

accumulation of unauthorized use fees, removal of plaintiffs’ cattle from

government property, and initiation of a civil trespass action against plaintiffs.

Plaintiffs initiated this action on April 1, 1996, seeking a declaration that

plaintiffs are the valid lawful owners of (1) “sufficient permanent living water for

the proper maintenance of the cattle owned by Diamond Bar and Laney,” and (2)

“valid vested existing rights in the range for cattle raising purposes on the lands

upon which Diamond Bar and Laney are located.” 2
Appellants’ App., Doc. 1 at 4.

Plaintiffs also asked the court to declare the Department of Agriculture and the

Forest Service had “no jurisdiction over the rights to the water and in the range

now held by Diamond Bar and Laney,” and to permanently enjoin the Forest

2
Plaintiffs concede their asserted rights are exclusively for raising
livestock, and that ownership of such rights does not impact the rights or
privileges of any other user of the national forest system lands.

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Service from “interfering with the valid existing rights to water and in the range

for cattle raising purposes.” Id. at 14. The United States counterclaimed to

recover damages from plaintiffs for trespass and unauthorized grazing use and to

enjoin plaintiffs “from unauthorized and unlawful use of property owned by the

United States for livestock grazing purposes.” Id. , Doc. 2 at 10.

In entering summary judgment for the United States, the district court held

plaintiffs obtained no legal right of possession or use merely because their

predecessors historically grazed cattle on the land. Nor did the court find it

material that plaintiffs’ water rights may have long been vested under New

Mexico law, stating: “[W]hether Plaintiffs own certain water rights . . . does not

change the fact that such rights do not deprive the Forest Service of its statutory

authority and responsibility to regulate the use and occupancy of National Forest

System lands for livestock grazing through the issuance of grazing permits.” Id. ,

Doc. 9 at 15. The court enjoined plaintiffs from grazing livestock in the Gila and

Apache National Forests until they obtained authorization from the Forest

Service. 3

3
The district court erred in characterizing plaintiffs’ complaint as one
seeking to quiet title in land owned by the United States. The Quiet Title Act, 28
U.S.C. § 2409a, waives the United States’ sovereign immunity in civil actions
adjudicating title to real property in which the United States claims an interest,
“other than a security interest or water rights.” As noted, plaintiffs do not seek
title to the real property that comprises the Diamond Bar and Laney allotments.

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 Standard of Review

We review a grant of summary judgment de novo, applying the same legal

standard used by the district court. Sundance Assocs., Inc. v. Reno , 139 F.3d

804, 807 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). In applying this standard, we examine the factual record and reasonable

inferences therefrom in the light most favorable to the party opposing summary

judgment. Sundance , 139 F.3d at 807.

Federal Regulation of United States Lands

Article IV of the United States Constitution provides: “The Congress shall

have Power to dispose of and make all needful Rules and Regulations respecting

the Territory or other Property belonging to the United States.” The Supreme

Court has characterized Congress’ power under the Property Clause to regulate

the public lands as “without limitations.” United States v. City and County of San

Francisco , 310 U.S. 16, 29 (1940). Pursuant to this expansive grant of authority,

Congress passed the Organic Administration Act of 1897, which authorized

reservation of lands as national forests and directed the Secretary of Agriculture

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to issue rules and regulations concerning such forests. See 16 U.S.C. § 551. 4

Since then, Congress has passed numerous additional statutes directing that

grazing in national forests be by permit only. See , e.g. , 16 U.S.C. § 580 l (“The

Secretary of Agriculture in regulating grazing on the national forests . . . is

authorized, upon such terms and conditions as he may deem proper, to issue

permits for the grazing of livestock for periods not exceeding ten years and

renewals thereof.”); 43 U.S.C. § 315b; 43 U.S.C. § 1752.

As early as 1906, the Secretary of Agriculture promulgated a regulation

requiring that any person seeking to graze stock on national forest land first

obtain a permit from the Forest Service. See United States v. Grimaud , 220 U.S.

506, 509 (1911). In upholding the Secretary’s authority to issue this regulation,

the Supreme Court iterated that an “implied license” to graze on public lands

existed “so long as the government did not cancel its tacit consent.” Light v.

United States , 220 U.S. 523, 535 (1911). The fact that historically the

government may not have objected to use of public lands for grazing was never

intended to “confer any vested right on the complainant, 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.” Id.

4
This section was repealed in part in 1976 when Congress passed the
Federal Land Policy and Management Act. See Pub. L. 94-579, Title VII, §
706(a), 90 Stat. 2793.

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 The “implied license” theory discussed in Light was articulated by the

Supreme Court as early as 1890, see Buford v. Houtz , 133 U.S. 320, 326 (1890),

and has since been cited dominantly in cases reaffirming that use of public lands

for grazing is not a right but a privilege. See , e.g. , Osborne v. United States , 145

F.2d 892, 896 (9th Cir. 1944) (“It is safe to say that it has always been the

intention and policy of the government to regard the use of its public lands for

stock grazing, either under the original tacit consent or, as to national forests,

under regulation through the permit system, as a privilege which is withdrawable

at any time for any use by the sovereign without the payment of compensation.”);

Healy v. Smith , 83 P. 583, 587 (Wyo. 1906). In Omaechevarria v. Idaho , 246

U.S. 343, 352 (1918), the Court stated unambiguously, “Congress has not

conferred upon citizens the right to graze stock upon the public lands. The

government has merely suffered the lands to be so used.” This principle

categorically refutes plaintiffs’ assertions that their predecessors obtained a

vested water right that included a right to graze public lands. Any grazing of

cattle on public lands by plaintiffs’ predecessors was permitted by an implied

license, which is merely a “personal privilege to do some particular act or series

of acts on land without possessing any estate or interest therein, and is ordinarily

revocable at the will of the licensor.” Black’s Law Dictionary 919-20 (6th ed.

1990).

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 Current regulations provide that “all grazing and livestock use on National

Forest System lands . . . must be authorized by a grazing or livestock use permit.”

36 C.F.R. § 222.3. Permits are issued for terms of ten years or less and are issued

only after submission and approval by the Forest Service of an appropriate

application. See id. § 222.3(c)(1). A term permit holder has first priority for a

new permit at the end of the term period, provided the holder has fully complied

with the terms and conditions of the expiring permit. See id. Use of forest

service lands for grazing purposes without a permit subjects the offender to

unauthorized grazing use fees. See id. § 222.50(h). Grazing permits “convey no

right, title, or interest held by the United States in any lands or resources.” Id. §

222.3(b).

Plaintiffs concede the existence of the above law, but contend it does not

apply to the specific situation presented here, namely the extent to which a permit

is required when the rights were “appropriated” pursuant to state law before the

federal government removed the land at issue from the public domain. However,

plaintiffs misconstrue the law upon which they base their “vested private property

rights.”

New Mexico Law

In New Mexico, water rights are obtained and governed by the doctrine of

prior appropriation. See N.M. Const. Art. XVI, § 2 (“Priority of appropriation

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shall give the better right.”). Plaintiffs claim their predecessors in title obtained a

valid, vested water right through appropriation. This vested water right allegedly

entitled plaintiffs’ predecessors, and now entitles them, to an inseparable but

distinct right to use for grazing, without a permit, the rangeland known as the

Diamond Bar and Laney allotments. 5
See Plaintiffs’ Br. at 17 (“Diamond Bar and

Laney are the owners of the water right and the scope of that right includes

possession of the range for the purpose of raising livestock.”).

Plaintiffs premise their alleged rights upon N.M. Stat. Ann. § 19-3-13:

Any person, company or corporation that may appropriate and
stock a range upon the public domain of the United States, or
otherwise, with cattle shall be deemed to be in possession thereof:
provided, that such person, company or corporation shall lawfully
possess or occupy, or be the lawful owner or possessor of sufficient
living, permanent water upon such range for the proper maintenance
of such cattle.

This section has been in effect since its passage in 1889 by the Territorial

Legislature of New Mexico. Plaintiffs read this section as bestowing a private

5
In their complaint, plaintiffs sought, inter alia , a declaration that they
owned water rights under New Mexico law and that they owned a possessory right
to graze the federal land surrounding the water rights. The district court held
plaintiffs did not own grazing rights on land belonging to the United States, but
never reached the issue of whether plaintiffs own water rights under New Mexico
law. Yet, the district court dismissed the entire complaint with prejudice.
Although the judgment shows the district court dismissed plaintiffs’ water rights
claim with prejudice, we do not view the court’s action as affecting any water
rights plaintiffs may own under New Mexico law. Thus, we do not reach the
issue and for purposes of this appeal, we assume without deciding that plaintiffs
hold valid water rights under New Mexico law.

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property right to graze cattle on the public domain upon all those with a valid

water right. Plaintiffs’ interpretation is negated by longstanding New Mexico

law.

As early as 1915, the New Mexico Supreme Court rejected the proposition

that what is now § 19-3-13 created, or was intended to create, a property right in

land in the public domain superior or equal to the federal government’s right in

such land. In Hill v. Winkler , 151 P. 1014 (N.M. 1915), two private parties had

conflicting claims to grazing land in the public domain. The court was asked to

decide which party “had a first and prior right to graze the said tract of

government land by reason of prior occupancy thereof, and by reason of the

further fact that they had acquired and developed permanent waters in connection

therewith for the proper maintenance of such cattle.” Id. at 1015. The court

conceded: “There is a serious question concerning the right of the Legislature to

make provision such as is argued was here made.” Id. The basis for the court’s

reservation was an 1885 federal statute prohibiting the “assertion of a right to the

exclusive use and occupancy of any part of the public lands of the United States

in any state or any of the territories of the United States, without claim, color of

title.” Id. In addressing the scope of the New Mexico law in light of the 1885

federal statute, the court stated “it seem[ed] clear . . . that the attempted granting

of an exclusive right in the use of the public domain . . . would clearly violate the

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congressional act, and must therefore be held invalid, if that was the intention of

the Legislature.” Id. The court avoided this conflict by limiting the reach of the

New Mexico statute:

We are of the opinion, however, that the [New Mexico laws at issue]
can be construed as not intending to grant any exclusive right in the
use of the public domain, but, on the contrary, as attempting to
provide that all those who seek to stock a range upon the public
domain must, before doing so, lawfully possess, or be the lawful
owner of, sufficient permanent water on such range for the proper
maintenance of such cattle. This would be a sound and proper
regulation of the use of the public lands which would be defended. It
is clear, however, that any attempt on the part of the Legislature to
grant exclusive right or occupancy upon a part of a public domain
would be clearly . . . invalid.

Id. at 1015-16. Thus, contrary to plaintiffs’ argument, § 19-3-13 has not been

interpreted to bestow a private property right to graze upon the public domain if

one has a concomitant right to the water upon the proposed grazing range. As

Hill makes plain, § 19-3-13 purports only to limit access to the public domain for

grazing purposes to those individuals who have first obtained a valid water right

sufficient to maintain the cattle to be grazed.

The New Mexico Supreme Court further explained the reach of § 19-3-13

in Yates v. White , 235 P. 437 (N.M. 1925). The court characterized a defendant’s

rights as follows: “The defendant, then, owning all of the waters on his range, had

the right to the exclusive enjoyment of the license to graze these lands as against

all others who did not develop other waters upon the same.” Id. at 437. Yates

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thus reinforced the holding in Hill that § 19-3-13 serves only to limit private use

of the public domain by restricting grazing access to those who have a water right

along the range. More significant, however, is the court’s express concession that

access to the public domain, even if regulated pursuant to § 19-3-13 and other

New Mexico laws, is not a right, but a privilege governed by license.

Plaintiffs direct our attention to First State Bank of Alamogordo v. McNew ,

269 P. 56 (N.M. 1928), where the New Mexico Supreme Court stated that

McNew,

having appropriated and stocked said range with cattle, and being the
owner of permanent water for use upon said range for the
maintenance of cattle thereon, had possessory rights in the said
public lands, which he could protect as against one forcibly entering
thereon without right. Equity would protect him in such possession
by enjoining another stock-owner not owning or possessing water
from willfully turning his cattle upon such range.

Id. at 59 (internal citations omitted). We do not read McNew as contravening Hill

or Yates , but as restating that under § 19-3-13 McNew had a right to exclude from

public lands anyone seeking to graze cattle upon those lands who did not have a

vested water right. In any event, whatever McNew’s rights may have been, they

were superior only to those who were seeking to make use of public land “without

right.” As implicitly acknowledged in Hill and Yates , the government’s right to

possess, control, and exclude others from public lands is plenary and may not be

negated by contrary state law. At best, McNew had a right to possession

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sufficient to allow him to exclude certain private parties. His own occupation of

public lands for grazing was a privilege subject to withdrawal by the government.

Plaintiffs’ claim of a private property right superior to that of the United

States also ignores N.M. Stat. Ann. § 19-3-1, which delineates a recording and

notice procedure for those who take “possession of any lands being a part of the

public domain of the United States.” The statute was passed in 1878 and

specifically limits the right of possession: “And the person so making and

recording the same shall have the right to the possession of said lands described

therein, as against every other person except the United States, and those holding

or deriving title from the United States .” N.M. Stat. Ann. § 19-3-1 (emphasis

added). Hence, while § 19-3-1 and § 19-3-13 purport to grant “possessory”

interests in public domain lands that may be enforceable against non-federal

claimants, no New Mexico statute grants (nor could it grant) a property interest in

federal lands that may be enforced against the United States.

Federal Law

The United States has long recognized the validity of private water rights

obtained pursuant to state water law. See Andrus v. Charlestone Stone Products

Co., Inc. , 436 U.S. 604, 614 (1978) (noting in 1866, 1870, and 1872, Congress

affirmed the “view that private water rights on federal lands were to be governed

by state and local law and custom”). This recognition was made explicit in the

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Mining Law of 1866, which provides in relevant part:

Whenever, by priority of possession, rights to the use of water
for mining, agricultural, manufacturing or other purposes, have
vested and accrued, and the same are recognized and acknowledged
by the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be maintained and
protected in the same; and the right of way for the construction of
ditches and canals for the purposes herein specified is acknowledged
and confirmed.

43 U.S.C. § 661. Plaintiffs argue § 661 constitutes governmental recognition not

just of their water right, but also of their “inseparable” range right, which they

contend is within the scope of their water right and was likewise obtained by

“priority of possession.” In plaintiffs’ words,

The doctrine of prior appropriation is a doctrine which extends far
beyond water. It can apply to any natural resource which can be
reduced to the control of man by his own labor . . . .
The doctrine applies to the water which the cattle consume and
to the range upon which they forage.

Plaintiffs’ Reply Br. at 9.

Plaintiffs’ interpretation of the Mining Act is contrary not only to the

language of the Act itself, which simply recognizes rights to the use of water, but

also to the well-settled body of law holding no private property right exists to

graze public rangelands. The Act cannot fairly be read to recognize private

property rights in federal lands, regardless of whether proffered as a distinct right

or as an inseparable component of a water right. See , e.g. , United States v. Rio

Grande Dam & Irrigation Co. , 174 U.S. 690, 704 (1899) (“The effect of this

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statute was to recognize, so far as the United States are concerned, the validity of

the local customs, laws, and decisions of courts in respect to the appropriation of

water .” (emphasis added)); Cleary v. Skiffich , 65 P. 59, 62-63 (Colo. 1901)

(holding under Mining Act, owner of vested water right for purposes of mill

operation had right to use of water and ditch to divert water to place of beneficial

use, but did not have right to land on which mill was situated).

Virtually every attempt like plaintiffs’ to expand the reach of the Mining

Act to include federal recognition of private property rights in federal land has

been soundly rejected. In Hunter v. United States , 388 F.2d 148, 151 (9th Cir.

1967), the court rejected plaintiff’s claim that the Mining Act of 1866 required

recognition of water and grazing rights that had been “appropriated” by plaintiff’s

predecessors and thus were vested in him. A district court recently cited Hunter

in rejecting a claim that ranchers’ predecessors “as a matter of prior

appropriation” had acquired “common law rights to use [federal] land for grazing

purposes and to some amount of water” because those predecessors had “occupied

and used the land for ranching purposes” since 1872. Gardner v. Stager , 892 F.

Supp. 1301, 1302 (D. Nev. 1995), aff’d 103 F.3d 886 (9th Cir. 1996). The court

described the claim as flying “in the face of a century of Supreme Court

precedent,” id. at 1303, and explained:

[T]he fact that [plaintiffs’] predecessors grazed stock on the land at
issue in the 1870’s does not mean that the [plaintiffs] today have a

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 vested grazing right . . . immune from federal pasturage. On the
contrary: use of public lands for stock grazing, either under the
original regime of “tacit consent” or under the permit system after
establishment of the national forests, was and is a privilege with
respect to the federal government, revocable at any time.

Id. at 1303-04 (adding “plaintiffs’ pleadings in this case . . . border on the

frivolous and sanctionable” and “reflect a lack of research into the most basic

legal concepts and principles applicable to this case, and . . . are directly

contradicted by an unbroken line of Supreme Court precedent”).

Only one court has intimated that an interest in federal land, other than a

ditch right-of-way or an easement for diversion of water from federal to private

land, is obtainable under the Mining Act of 1866. In Hage v. United States , 35

Cl. Ct. 147 (1996), Nevada ranch owners brought suit alleging the government, by

canceling plaintiffs’ grazing permit and thereby denying them access to water to

which plaintiffs had a vested right, had taken without just compensation

plaintiffs’ property interests in water rights, ditch rights-of-way, and rangeland

forage. Plaintiffs claimed an interest in public land and water which their

predecessors had used for cattle grazing since the 1800’s. In 1907, Congress had

designated the land as national forest. As relevant here, plaintiffs’ complaint was

twofold. First, plaintiffs claimed they had a “property interest in the permit

because the federal government issued the permit in recognition of rights which

existed prior to the creation” of the national forest. Id. at 168. This interest

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purportedly was recognized by the Mining Act of 1866: “Plaintiffs claim that the

Act of 1866 merely enacted as federal law the custom and usage of the Western

states and territories to recognize the rights of the first appropriator to acquire a

priority right to the use and enjoyment of the public land over those who had not

expended such labor.” Id. at 170. Second, plaintiffs alleged that under Nevada

law, their water right included the right (“inherently part of the vested stockwater

right”) to “bring cattle to the water, and for cattle to consume forage adjacent to a

private water right.” Id. at 175.

The court rejected plaintiffs’ argument that the Mining Act recognized

distinct property interests in public lands. See id. at 170 (“The Act does not

address property rights in the public lands and the court declines to create such

rights contrary to the clear legislative intention of Congress.”). However, despite

conceding grazing was a revocable privilege and plaintiffs had no property

interest in the rangeland, the court denied the government’s motion for summary

judgment with respect to plaintiffs’ claim that the water right included the right to

adjacent forage.

If Nevada law recognized the right to graze cattle near bordering
water as part of a vested water right before 1907, when Congress
created the Toiyabe National Forest, plaintiffs may have a right to
the forage adjacent to the alleged water rights on the rangeland.
....
When the federal government created the Toiyabe National
Forest, it could not unilaterally ignore private property rights on the
public domain. If Congress wanted to remove all private property

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 interests in the public domain, which were created by the state under
state law, the Constitution would have required the federal
government to pay just compensation. Just as the federal government
could not take private property rights in water or ditch rights-of-way
when it created the Toiyabe National Forest, the government could
not take any other form of private property right in the public
domain. Plaintiffs will have the opportunity at trial to prove property
rights in the forage stemming from the property right to make
beneficial use of water in the public domain within Nevada
originating prior to 1907.

Id. at 175-76. In a subsequent order, the court explicitly recognized plaintiffs had

a property interest in their ditch rights-of-way and forage rights appurtenant to

their water right. See Hage v. United States , 1998 WL 775484 *2 (Cl. Ct. Nov. 5,

1998) (“[I]mplicit in a vested water right based on putting water to beneficial use

for livestock purposes was the appurtenant right for those livestock to graze

alongside the water.”). The court held this forage right encompassed the “ground

occupied by the water and fifty feet on each side of the marginal limits of the

ditch.” Id. See Store Safe Redlands Assoc. v. United States , 35 Cl. Ct. 726

(1996).

The circumstances here are appreciably different than in Hage . First, it is

not the law in New Mexico that a water right includes the right to graze public

lands. As noted, the New Mexico Supreme Court has specifically disavowed such

an interpretation of N.M. Stat. Ann. § 19-3-13. See Hill , 151 P. at 1015. It is

irrelevant to the present case that Nevada law may attach a forage right to a water

right. Second, the property interest not explicitly recognized by the Mining Act

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but asserted by plaintiffs and recognized as potentially compensable in Hage was

a narrow right to forage along the waterfront. Here, plaintiffs do not assert a

right to forage only along the waterfront or a right to lead their cattle to water

solely to drink, but a right to occupy and possess, without federal authorization,

174,396 acres of federal land for cattle grazing purposes.

Further, Hage was a takings case in which plaintiffs claimed they were

entitled to compensation from the government for its taking of “compensable

property interests” in water, ditch rights-of-way, and forage rights. “The Fifth

Amendment does not prohibit the government from taking its citizens’ property; it

merely prohibits the government from taking property without paying just

compensation.” Miller v. Campbell County , 945 F.2d 348, 352 (10th Cir. 1991).

Plaintiffs here do not bring a claim under the Fifth Amendment, but rather seek

declaratory and injunctive relief requiring the United States to issue a grazing

permit that explicitly recognizes the permit holders’ vested “possessory” property

interest in federal lands. This significant difference is itself dispositive. Even if

we were to assume the truthfulness of all facts alleged by plaintiffs and the

validity of every legal theory asserted by plaintiffs, they would not be entitled to

the relief they seek. Plaintiffs do not seek mere compensation here, but in

essence assert property owners have a right to require that the federal government

recognize plaintiffs’ property interest instead of taking that interest and paying

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just compensation.

At best, plaintiffs possess a valid water right that is protected by the

Mining Act. However, the United States has not acted to take plaintiffs’ water

rights, has not denied access to the water, and has not sought to divert plaintiffs’

use to a governmental purpose. In fact, the United States concedes if plaintiffs do

hold a valid water right, the government may not usurp that right. Plaintiffs

contend their water right is of little utility if their cattle have no place to graze. If

true, the fault lies with plaintiffs, who were fully apprized of the consequences of

failing to renew their permits. See Hage , 35 Cl. Ct. at 171 (“The court also

understands that without a grazing permit, the ranch may become worthless. But

the court emphasizes that plaintiffs’ investment-backed expectations and reliance

on the privilege to graze do not, in themselves, create a property interest in the

rangeland or the permit.”).

Conclusion

Plaintiffs do not now hold and have never held a vested private property

right to graze cattle on federal public lands. At the time plaintiffs’ predecessors

began ranching, grazing on the public domain was a privilege tacitly permitted by

the government by an implied license. This license was revocable at the

government’s pleasure and conferred no right in plaintiffs or their predecessors to

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graze a specific allotment of land.

It is not disputed that the Diamond Bar and Laney allotments are located on

national forest lands, where grazing is by permit only. Nor is it contested that

plaintiffs grazed cattle on these allotments without a permit. Therefore, the

district court acted properly in enjoining plaintiffs from further unauthorized

grazing, in assessing unauthorized use fees, in directing removal of plaintiffs’

cattle, and in finding plaintiffs in trespass of federal lands.

AFFIRMED.

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