If the Government Prohibits You From Visiting Your Land, Do You Really Own It?

CNSNews.com ^ | June 06, 2003 | Bill Thode, Michael Fitzgerald

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If the Government Prohibits You From Visiting Your Land, Do You Really Own It?

(Editor's Note: The following is the 64th of 100 stories regarding government regulation from the bookShattered Dreams, written by the National Center for Public Policy Research. CNSNews.com will publish an additional story each day.)

Raymond and Nancy Fitzgerald have spent the last 14 years in court trying to defend the right to access their own land.

In 1983, the Fitzgeralds bought a ranch in Holbrook, Ariz. The ranch is completely surrounded by the Apache-Sitgreaves National Forest and can only be accessed by using a federally owned road. In 1986, the U.S. Forest Service (USFS) said that in order to use the road, the Fitzgeralds must sign a special use permit. The Fitzgeralds, who believe that any restriction on their right to access the property is unlawful, refused to sign the permit. Raymond's son Michael told the National Center for Public Policy Research: "If you have no access, you don't own the property."

Since the Fitzgeralds refused to sign the permit, the forest supervisor completely closed the road in 1988, and USFS employees put up signs to prevent any access. In order to reach the property, Michael Fitzgerald was forced to drive an all-terrain vehicle (ATV) across national forest land. He traveled approximately 100 miles a day on a three-wheeled ATV to check on the cattle and ensure that the gates for the cattle pastures were secure. The Fitzgeralds appealed the road closure to Forest Service Chief F. Dale Robertson, but their appeal was denied in 1993.

In March 1994, the Fitzgeralds filed a complaint in the U.S. District Court of Arizona, claiming that common law grants them a right-of-way access to their land. In 1996, however, the federal court ruled in favor of the Forest Service. In 1997, the Fitzgeralds took their case to the 9th Circuit Court of Appeals, which dismissed the case because the special use permit had expired.

In August 2000, the Forest Service again told the Fitzgeralds that they had to sign a special use permit to access the road and informed them that the permit could not be appealed. The Fitzgeralds refused to sign and filed a second complaint with the U.S. District Court of Arizona in January 2002. They are seeking to establish that inholders - people who own land inside the boundary of a national park - have the right to access their own land without a permit.

Currently, road closure signs do not prevent the Fitzgeralds from accessing their property, thanks to an agreement to allow access during litigation.

Sources: Mountain States Legal Foundation, Bill Thode, Michael Fitzgerald

[John Beresford Tipton]

"If the Government Prohibits You From Visiting Your Land"...

Is it really *Your* government?

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Tim Mantle owns a ranch, complete with grazing rights, near Hells Canyon, Colo. Mantle's father homesteaded the property with federally guaranteed grazing rights in 1919.

Congress designated the area surrounding the ranch as part of the Dinosaur National Monument in 1960. In 1961, the monument's park superintendent made a promise: "The grazing of domestic stock will be administered in a fair and unbiased manner." Despite this promise, the National Park Service (NPS) has manipulated regulations regarding Mantle's land use in an attempt to compel Mantle, in his view, to become a "willing seller."

One NPS regulation prohibited anyone except family members from using the road to the Mantle Ranch. According to Mantle, at one point, a former park superintendent even forbade family members from using the road, saying that they instead could use a helicopter.

NPS officials have tried to get the Mantles to violate their grazing permit by creating situations in which violations could easily occur. For example, the NPS has claimed there were pastures and fences that did not exist, hoping to prove that cattle were trespassing on federal land not included in Mantle's grazing allotment.

According to Mantle, NPS employees also released antelope on the Mantle ranch in an attempt to prove that he had too many animals grazing on his allotment. If the trespass or overgrazing charges had been proven, the NPS could have taken away his grazing permit. Without it, Mantle's ranch would lose value.

In 1994, the Mantles filed suit against the NPS for "denial of due process; temporary taking [through grazing and access restrictions]; and violation of the Administrative Procedures Act" and spent $400,000 and four years in U.S. District Court in Colorado. In November 1996, Judge John Kane, Jr., found that NPS officials had "unlawfully removed [a] spring box and pipes leading from it," which Mantle had set up to divert water for his cattle. According to the judge, "evidence and inspection [of the Mantle ranch]... reveals Mantle's historic access to water sources." Judge Kane further stated: "Unless remedied, [the government's removal of the spring box and pipes] will cause irreparable harm" to Mantle's historic grazing rights.

In November 1997, Judge Kane further ruled that "if the intent of Congress is to restore [Dinosaur National Monument] and the adjacent properties belonging to Mantle...it must do so by budgeting the necessary funds to condemn such properties, rather than taking the property rights by a process of regulatory whittling." The next month, a settlement agreement was drawn up that required both sides to develop a grazing Allotment Management Plan (AMP). Until this plan could be developed, Mantle was allowed to graze a specific number of cattle on a certain amount of land. The agreement also gave the Mantle ranch access to maintain its water systems based on its historical use of certain springs. Mantle resumed grazing under the conditions of the settlement.

However, the NPS never negotiated an AMP as agreed in the settlement, and in 2001, the new park superintendent refused to sign another permit based on the stocking levels agreed to in the settlement. After many delays in the permit process, Mantle finally obtained a permit in April 2002. Although the Mantles continue to graze their cattle, NPS restrictions still afflict them. For example, Mantle is now prohibited from shooting a firearm on his own land.

Sources: CNSNews, Tim Mantle

[MatthewViti]

I remember a story somewhat similar to this..back in the 80's about the Army Corps of Engineers.

[sauropod]

ping!

[txhurl]

If your local sheriff's department can auction off your land over a couple thousand due in taxes, do you really own it?

[FormerLib]

Note to self: Sign the stupid permit first, then fight for the right to free access.

[muawiyah]

Very good point. A friend of my father's once bought a piece of land in a great place. Unfortunately it was "land locked" and he had no right of easement over any of his neighbors' adjoining properties.

Over the course of half a century of ownership he was never able once to visit his property.

If you need a permit for access, then get the permit. If you need an easement for access, make sure the easement exists. Otherwise go somewhere else. It's a big country with lots of land.

[Notwithstanding]

Local property taxes are constitutional.

Not paying them means freeloadingr and screwing the neighbors who are taxpayers.

If you want lower taxes, then work within your local democracy to change the system.

[AdamSelene235]

So if you had to give the government $1 a month to keep your toothbrush, would you still argue that the toothbrush belonged to you?

[patton]

Whups - one little moment, there.

My "local" property taxes in NY come to about $4,000.00 a year.

Only, I cannot vote in NY. I live in VA. Heck, I can't even OWN a handgun in NY, while I have a cancealed carry permit, serve on the Draft Board, and friggin' work in the pentagon, in VA.

Tell me again how I should work to change NY local taxes?

Those folks think I am a cash cow, and I have no rights, and no vote.

The taxes, by the way, are for a piece of land that my family has owned for generations.

Or we thought we did.

[txhurl]

In reality, you are leasing it from the government.

[technomage]

No one in this country really owns their property. At best, we are leasing property from government entities.

After all, try not paying property taxes. They will eventually sieze your property. In other words, we are all leasing or renting our property.

Not what the founding fathers envisioned.

[HairOfTheDog]

You know, I would love to sympathize with this guy, and I don't understand the terms of the 'permit' because it doesn't say, but if the land between the public road and his land were owned by anyone other than the government, he would need an easement from that landowner to be guarunteed access. This permit would give him the same thing. He purchased property completely surrounded without access from a public road.... He should just work with his neighbor and sign the permit/easement/whatever.

[AdamSelene235]

No one in this country really owns their property.

It is still possible, in some states to get an allodial (as opposed to a feudal) title. Most Americans hold a feudal title or rather a document with "color of title". Unlike feudal titles, allodial titles are not dependent on your political behavior. I.E. you can refuse to fund the socialist indoctrination camps that masquerade as as "public" schools without fear of retaliation against your property.

Allodial property rights are a cornerstone of a free society and were a conspicuous feature of America and Britian prior to the dawn of Socialism.

[txhurl]

Is Texas one of these states?

[Beck_isright]

No one "owns" land in the United States. We all lease it from the state and/or federal government. If you don't believe me, don't pay your property taxes and offer the annual tribute, er, payment to the IRS.

[PatrioticAmerican]

"9th Circuit Court of Appeals"

Say no more. Those commies are anti-American.

[Beck_isright]

No one owns property in the USA. It's the dirty little secret no one wants to reveal.

[Beck_isright]

I concur, but you had best have one hell of a lawyer on retainer to first get the allodial title and defend it. The current structure of almost every state, county and city government will fight you with every ounce of their power to prevent you from getting that title.