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Open Range Warfare — The 2003 Version

Reprinted by permission
The Daily Recorder
901 H St., Suite 312
Sacramento, CA 95814

by Ron Zumbrun

As our nation developed during the 1800s, there were fierce encounters between cattlemen desiring an open range and ranchers who had other ideas. This year's movie "Open Range," starring Kevin Costner and Robert Duvall, is staged in 1882 and is a saga about the vicious confrontation between certain cattle ranchers and the "free graziers" — the transient cowboys on horseback who drove their cattle to market across vast spaces and through small, sparsely populated towns.

The common law in England recognized that every subject had common grazing rights over all lands not cultivated. In 1850 California adopted those parts of the English common law that did not conflict with the Constitution of the United States, laws of the state or the decisions of California courts. In 1851 the California Legislature reaffirmed ranching customs and usage. The so-called "no fence or trespass law" required farmers. and small property owners to fence out cattle to avoid the open-range practices.

As populations expanded, open-range rights shifted away from private property to include only public lands. In 1890 the United States Supreme Court in Buford v. Houtz 133 U.S. 618 held that the public lands of the United States shall be free to the people who seek to use them where the land is left open and unenclosed and where no act of government forbids this use.

A modem-day open-range battle is currently brewing in Plumas County (the home of Lake Davis Northern Pike). This beautiful northeastern California county is known for its tourists, retirees and sportsmen. It is where the Sierra Nevada and Cascade mountains meet and has more than 100 lakes and 1,000 miles of rivers. It also is an area coveted by cattlemen for grazing their cattle. The modern-day difference is that grazing land in Plumas County is owned by private property owners as well as the government.

In 1982 the Plumas County Board of Supervisors, urged on by the cattlemen, adopted an open range ordinance. The board designated nearly one-third of the land area of the entire Plumas County as open range.

Sections 9-6.01 through 9-6.05 of the Plumas County Code governs this open range area. Section 9-6.01 provides that all lands of any character (including private property) in the open range which are not enclosed by a lawful fence are declared to be areas devoted chiefly to grazing. These open ranges originally were used by the various ranchers as summer grazing but when they found them to be uneconomical they subdivided the land and sold it as recreational property. The open range ordinance allowed them to graze unfenced property without paying any taxes on it. The ordinance also prohibits the right to remove any stray animals found upon the property owner's premises.

The ordinance provides that persons having the ownership or rightful possession of such unfenced land in the open range shall be entitled to a reasonable rental fee from any person who pastures livestock thereon. "Reasonable rent" is then defined as being the value used under Williamson Act contracts in the area or Forest Service lease fees in the allotment area, whichever is higher.

Jack Herzberg and his wife Millie bought two parcels of real property in Plumas County in 1983 and 1994. Both properties have been included in the open range designation and each are approximately 40 acres in size. The properties have beautiful mountain and valley views, streams and riparian lands. Neither property is fenced.

The Herzbergs are concerned that the Plumas County Board has acted improperly for the benefit of cattle graziers because the regulations it passed regarding trespassing on the open range properties have been detrimental to private property owners. The private property owners now shoulder the burden of their private property being trampled, defecated upon, and damaged by the freely roaming cattle. Furthermore, the environmental damage to stream beds is immense.

The rental fee to be collected under the ordinance equates to approximately $8 per head of cattle for each property grazed. Yet the property owner is required to pay property taxes in an amount vastly greater than that paid by a grazier. The responsibility of collecting the "reasonable" rental fee falls entirely upon the private property owner. Determining which cattle owner is responsible also falls upon the private owner. In the alternative, the private property owner faces the burden of erecting and maintaining a lawful fence in order to protect his or her property, from the harmful effects of the open range ordinance. However, to fence in this beautiful area would greatly detract from its natural surroundings.

One of the cornerstones of owning private property is the ability to prevent trespassing and to choose those who come onto your property. In 1987, the United States Supreme Court addressed the California Coastal Commission's requirements of the dedication of a public easement along the ocean as a condition for granting any permit to property owners on the coast. The Court held that this violated these basic private property concepts and "constituted an out-and-out plan of extortion." Nollan v. California Coastal Commission 483 U.S. 825, 837.

Physical invasion of property also constitutes a taking of private property. Justice Thurgood Marshall writing for the United States Supreme Court stared in Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 435, "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights . . . Property law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury."

In Kaiser Aetna et al. v. United States (1979) 444 U.S. 164, 176, Justice William Rehnquist wrote for the Court: "The Government contends that ... the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property — the right to exclude others. . . . in this case, we hold that the 'right to exclude' so universally held to be a fundamental element of property right, falls within this category of interests that the Government cannot take without compensation."

The United States Constitution also prohibits states from depriving any person of life, liberty, or property without due process of law. (U.S. Const. 14th Amend., § 1.) Due process of law has been interpreted in Smith v. Bivens (1893) 56 F. 352, 356 as providing that: "Law, in its regular course of administration through courts of justice, is due process, and, when secured by the law of the state, the constitutional requisition is satisfied. In the case at bar the complainant, owner of a tract of land, and as such owner entitled to its exclusive use and enjoyment, is by an act of the legislature, and without more, deprived of this exclusive use and enjoyment. By the stroke of the pen, it is gone. This seems a clear illustration of what is forbidden in the constitution."

Smith is very similar to the Plumas County situation in that the legislature passed an act, the effect of which was to require a complainant either to fence his whole tract or to submit to having it trespassed upon by cattle running at large. Smith held that a statute which requires a complainant to erect a fence or allow the detrimental effects of cattle running at large on his property is in violation of the federal constitution inasmuch as it deprives complainant of his property without due process of law.

The Herzbergs strongly believe their constitutional rights have been violated. They also contend that Plumas County lacks jurisdiction and authority concerning the rent control that it has imposed. California Civil Code section 1954.27(a) expressly provides that "[n]o Public entity shall enact any measure constituting commercial rental control, nor shall any public entity enforce any commercial rental control, whether enacted prior to or on or after January 1, 1988."

Civil Code section 1954.26(f) defines "commercial rental control" as government establishing the price at which property is to be offered for rent or a system which designates with whom the property owner must negotiate such a tenancy.

The Herzbergs have lost the peaceful use of their property. They now worry about confrontation with cattle when on their property and damage to their property caused by trespassing cattle. The cattle pose obvious safety issues to the Herzbergs and others. The Herzbergs believe that at least they should be entitled to no less than full market value for the use of their property, as well as the cost of obtaining liability insurance to protect them from lawsuits that may arise from these circumstances.

After years of complaining to the Board of Supervisors, the county counsel and the cattlemen, the Herzbergs and other affected property owners have received no relief. We are fortunate that modern-day open-range warfare no longer involves the use of weapons or physical encounters. However, there should be reasonable solutions short of carrying this open range dispute to the courts.

*Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Zumbrun's column appears in the Daily Recorder on the second Monday of each month.

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