9th Circuit upholds cancellation of AZ grazing permit 

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1. 

   Silkie Perkins

   May 12, 2026

   While the three judge panel found the USFS decision was not arbitrary or capricious, it failed to take a "hard look", review the laws governing issuance of 10 year Term Grazing Permits and find the agency in violation by asserting a 9 year Term Permit; failed to review the plain language of the term permit assigning responsibility only for cattle owned or controlled by the permittee and find the agency could not assert responsibility for other's livestock or fence maintenance responsibilities to Perkins. The court failed to take a hard look at the agency "evidence" asserted to uphold its decision or find the admitted ranger administrative misconduct and disparate actions under identical circumstances, failure to administer and demand compliance from the Horseshoe permittee for serious permit violations of assigned fence maintenance responsibilities. The willful violations of law and regulation, administrative misconduct and violations, fabricated claims based on law and administrative requirements are presented by the agency itself and argued by the US Attorneys.It is unlawful for a federal employee or a group of federal employees to conspire and collude in the fabrication of claims, withhold exculpatory evidence, assert false claims; fabricate evidence; be untruthful with federal investigators;fraudulently misrepresent facts (See United States v. Bundy) or violate black letter law.Perkins is preparing an appeal to the full 9th circuit, testing Loper Bright, Jarkesy, review of agency claims for violations of black letter law, fabricated claims and 5th and 14th Amendment violations.For too long federal employees have run amok and abused, overstepped their authority and gotten away with asserting fabricated claims and/or fraudulently misrepresenting facts without any judicial review under the Chevron. Not any more.This case represents typic agency overreach, agency and employee violations of black letter law, civil rights and willful fabrications of claims by federal employees (see 18 UCS 1001) and may end up before the Supreme Court.If the Trump administration is serious about removing and prosecuting lawbreaking federal employees, the US Attorney General will review, investigate, convene a grand jury and prosecute the employees involved for the violations listed above (facts fully enumerated and admitted throughout argument by the agency itself in briefing) to the fullest extent of the law. In addition, the Attorney General should review the ethics violations of the US Attorneys who argued the agency "facts" and unrelated conclusion and asserted agency actions in direct violation of unambiguous black letter law.As a perfect example of employee misrepresentation of fact,the article claims the picture presented is within the Wild and Scenic River designation, but that begins 30 miles downriver, south of Camp Verde. Typical misrepresentation of known facts by a federal employee.

   Reply to Silkie Perkins
   1. 

      Colby

      May 16, 2026

      This will be long so bare with me. Looks like the whole argument and narrative was controlled by the Forest Service around the grazing permit. Arguing that I think will always be a losing argument. Instead consider the following. So my comment is too long so I will break it up.THE LAWS AND RIGHTS THE AGENCIES NEVER TOLD YOU EXISTED What BLM and the Forest Service Hide — The Enacted Law Before the Permit System, the Rights That Survived Every Repeal, and Why Every Rancher in the West Still Has Valid Existing Rights —————————————————————————————————————— BEFORE YOU READ THIS — WHAT "CLAIM" MEANS Every time this document uses the word "claim," it means the occupation itself — the act of going onto the land, improving it, and conducting your trade and livelihood there. A "claim" is not a piece of paper filed at a land office. The paper filed at the land office was the record of the claim. The claim existed on the ground before the paper existed in the office. The 1868 Secretary of the Interior Report confirms this at page 154: "the act extends the right to apply for patents only to claimants having previously occupied and improved their claims." The claim was the occupation and improvement. The patent application was the paperwork that came after. When this document says "claim," it means what the settler did on the land — not what the settler filed at the office. —————————————————————————————————————— THE UNITED STATES CODE IS NOT THE LAW — IT IS AN INDEX If someone picks up a book and reads only the table of contents, they have not read the book. They know what chapters exist. They know the page numbers. They may think they know what the book says. But they have not read the text. They have read an index. The United States Code is the table of contents. The Statutes at Large are the book. The United States Code is an editorial publication. It is not compiled by Congress. It is not enacted by Congress. It is not authorized by the Constitution. It is published by a private editorial office — the Office of the Law Revision Counsel — that reorganizes and paraphrases the Acts of Congress. It contains over 10,000 documented errors. When FLPMA repealed a disposal section, the editorial office removed it from the Code. The section disappeared from the publication. The lawyer sees an empty space and concludes the right is dead. Every lawyer in America reads the table of contents and tells the rancher what the law says. The rancher asks, "Did you read the actual statute?" The lawyer says, "I read the Code." That is the problem. The actual law of the United States is in the Statutes at Large — the official publication of every Act of Congress in chronological order, as enacted. When the editorial office removed the validation clause from the table of contents, every lawyer concluded the chapter was gone. They did not open the Statutes at Large to check. The chapter is still there. It has always been there. The editorial office removed it from the index. The editorial office cannot remove it from the enacted law. There is one more thing every rancher needs to know about the Code. Not all titles of the United States Code are the same. Some titles have been "enacted into positive law" by Congress — meaning Congress passed a specific Act adopting that title's text as enacted law. Those titles — and only those titles — can be treated as enacted law in their own right. The rest are editorial compilations that carry no more legal weight than any other editorial publication. Title 43 — Public Lands — has NOT been enacted into positive law. This is the title BLM cites. It is editorial commentary. It is not enacted law. The enacted law is in the Statutes at Large — the individual Acts of Congress that Title 43 attempts to reorganize and paraphrase. Title 16 — Conservation — has NOT been enacted into positive law. This is the title the Forest Service cites. It is editorial commentary. It is not enacted law. The enacted law is in the Statutes at Large — the 1897 Act at 30 Stat. 34-36, the Transfer Act at 33 Stat. 628, and every other Act the Forest Service claims authority under. The two titles that govern nearly every rancher's life in the West — Title 43 for BLM and Title 16 for the Forest Service — are both editorial publications. Neither one is enacted law. When BLM cites "43 U.S.C." or the Forest Service cites "16 U.S.C.," they are citing the index, not the book. Demand the Act of Congress. Demand the Statutes at Large. That is the law. —————————————————————————————————————— THE PREMISE EVERY LAWYER GETS WRONG A lawyer opens the current United States Code, Title 43 — Public Lands. Entire sections are gone. The Pre-emption Act — gone. The Homestead Act — gone. The Desert Land Act disposal provisions — gone. The Timber and Stone Act — gone. The Stock-Raising Homestead Act — gone. The 1890 validation clause — gone. The lawyer tells the rancher: those laws don't exist anymore. FLPMA repealed them. You have no rights under them. The lawyer is wrong. The right is not dead. The pathway is closed. Congress closed the door to new entries. Congress did not evict the people who were already inside. The proof is in the Statutes at Large — the actual enacted law — and in FLPMA's own savings clauses at 90 Stat. 2786. Congress wrote five savings clauses into FLPMA specifically to prevent what every lawyer has been telling every rancher for 50 years. But there is something worse than the lawyer getting FLPMA wrong. The lawyer — and BLM — and the Forest Service — never told the rancher about the enacted law that came before the permit system. The land laws of the United States did not begin in 1934 with the Taylor Grazing Act. They did not begin in 1866 with the mineral lands Act. The principle that the government holds the public domain for the purpose of disposing it to the people who settle and improve it goes back before the Constitution — to the cessions, the 1784 and 1785 land ordinances, and the Northwest Ordinance of 1787. The Constitution incorporated that principle at Article IV, Section 3. Congress was recognizing settlers on the public domain from its very first session. The 1866 Act is where the occupation framework in this document begins — but the right to occupy the public domain and have Congress recognize it is older than the Republic itself. The agencies start their timeline at the permit. The law starts before Congress existed. The occupation starts before the law. These are the laws and rights the agencies never told you existed. —————————————————————————————————————— THE CONSTITUTIONAL PROHIBITION ON RETROACTIVE IMPAIRMENT OF VESTED RIGHTS This is the premise the original document understated, and it must be stated in full because it is the foundation everything else rests on. Once Congress grants a right and that right vests in the settler through occupation and improvement, the right is no longer Congress's to take back. It belongs to the settler. Congress cannot reach backward and destroy it. This is not a policy preference. It is a constitutional command — two commands, stated in separate clauses of the same document. The Constitution of the United States, Article I, Section 9, Clause 3 prohibits the federal government from passing any ex post facto law. The Constitution of the United States, Article I, Section 10, Clause 1 prohibits any State from passing any ex post facto law. The Supreme Court of the United States established in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), that ex post facto prohibition applies to laws that retroactively alter the legal consequences of acts completed before enactment of the new law. The settler who occupied, improved, and conducted their trade and livelihood on the public domain under an Act of Congress completed those acts before FLPMA was enacted. FLPMA cannot reach back and destroy the legal rights those completed acts produced. The vested rights doctrine runs deeper still. In Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), the Supreme Court held that once a grant is made and a right vests under it, the grantor — including the government — cannot rescind it. The grant is done. The right belongs to the grantee. Congress is bound by its own grants. In Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), the Supreme Court confirmed that vested rights under a Congressional grant cannot be taken away by subsequent legislation without violating the Constitution. In ***** v. United States, 292 U.S. 571 (1934), the Supreme Court held that Congress cannot repeal vested contractual rights held by citizens even when it has authority over the underlying subject matter. Congressional mandatory language — "shall be allowed," "shall be recognized," "shall be valid" — creates an obligation, not a legislative grace that can be withdrawn at will. The occupation right vested the moment the settler set foot on the land and began improving it under an Act of Congress that recognized that occupation. At that moment, the right left Congress's hands. It became the settler's property. The Fifth Amendment of the Constitution of the United States then stands as the second barrier: "No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Congress did not and cannot: (1) pass an ex post facto law stripping completed acts of their legal consequences; (2) rescind a vested grant without violating Fletcher v. Peck; (3) take vested property rights without due process and just compensation. FLPMA did not attempt any of these three things — FLPMA's own savings clauses at 90 Stat. 2786 prove that Congress knew it could not destroy what had already vested. The savings clauses are Congress acknowledging the constitutional limits on its own power. Any agency action that treats the permit system as having retroactively extinguished rights that vested under pre-permit Acts of Congress is an ex post facto application of FLPMA to completed acts. That application is unconstitutional on its face. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). —————————————————————————————————————— THE PERMIT SYSTEM WAS A COOPERATIVE AGREEMENT — NOT A MANDATORY IMPOSITION AND THE CONSTITUTION PROTECTS THE RIGHT NOT TO CONTRACT This is the second premise the original document understated, and it must be corrected. The Taylor Grazing Act of June 28, 1934, ch. 865, 48 Stat. 1269, in Section 2 at 48 Stat. 1270, expressly authorizes the Secretary of the Interior to "enter into such cooperative agreements" as are necessary to accomplish the purposes of the Act. That is the enacted text. The word "cooperative" is the enacted word. The permit system was not an imposition of unilateral federal authority over settlers who already had vested occupation rights. It was a cooperative framework — the Act's own author, Representative Edward Taylor of Colorado, described the original administration as "democracy on the range." The Mizpah-Pumpkin Creek Grazing District in Montana was the pilot program: ranchers forming local advisory boards, working with Grazing Service personnel, cooperatively apportioning use. Cooperation. Agreement. Not command. This matters for two reasons that run directly to the Constitution. First: the Constitution of the United States, Article I, Section 10, Clause 1 prohibits any law impairing the obligation of contracts. The Supreme Court held in Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), that the Contracts Clause protects the right to enter contracts and to have those contracts honored. The right to contract necessarily includes the right not to contract. A government that can compel a citizen into an agreement under threat of losing pre-existing vested rights is not entering a cooperative agreement — it is coercing a waiver. That coercion impairs the obligation of contract and violates Article I, Section 10. In Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934), the Supreme Court confirmed that the Contracts Clause remains a real constitutional limit on government power and cannot be evaded by the appearance of cooperative process. Second: a settler who was told they had to sign a permit or leave — when the settler had valid existing rights that predated any permit requirement — was not entering a voluntary cooperative agreement. They were signing under duress, under a false belief that the permit was the only lawful basis for remaining on land their family had occupied for generations. A signature obtained under that belief is not informed consent. A waiver of a constitutional right is not valid unless it is knowing, intelligent, and voluntary. Brady v. United States, 397 U.S. 742 (1970). The rancher who signed a permit did not knowingly waive vested rights they were never told they had. The TGA's own Section 3 at 48 Stat. 1271 states: "the issuance of a permit pursuant to the provisions of this Act shall not create any right, title, interest, or estate in or to the lands." If the permit creates nothing, then the settler who held vested rights before the permit gave up something real — their pre-existing occupation right — in exchange for a permit that creates nothing. That is not a meeting of the minds. That is not a contract. That is the government extracting a waiver of constitutional rights by misrepresenting the legal situation. The cooperative agreement framework of the TGA was designed to be entered voluntarily by settlers who chose to participate in the range management program. It was not designed to be used as a mechanism to extinguish the pre-existing vested rights of settlers who declined to participate or who signed under the false belief that they had no choice. Any permit issued on that basis rests on a defective foundation. —————————————————————————————————————— THE FIVE SAVINGS CLAUSES THAT PRESERVED EVERYTHING FLPMA, Public Law 94-579, Section 701, 90 Stat. 2786: Section 701(a): "Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act." Section 701(f): "Nothing in this Act shall be deemed to repeal any existing law by implication." Section 701(g)(1): Nothing in this Act shall be construed as "affecting in any way any law governing appropriation or use of, or Federal right to, water on public lands." Section 701(g)(2): Nothing in this Act shall be construed as "expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water resources development or control." Section 701(h): "All actions by the Secretary concerned under this Act shall be subject to valid existing rights." If your family or your predecessors were on the ground before October 21, 1976, conducting their trade and livelihood on the public domain under any Act of Congress, your occupation is a valid existing right. FLPMA preserved it. The permit system cannot be used to destroy what existed before. And the constitutional prohibition on ex post facto laws and on impairment of vested rights means that even if FLPMA had not written savings clauses, the result would be the same. Congress confirmed what the Constitution already required. —————————————————————————————————————— THE ACTS — ONE BY ONE What each Act did. What FLPMA did to it. What survived. What the agencies hide. But first — where the land laws started. The land laws of the United States did not begin with the Pre-emption Act of 1841. They began with the Constitution and the first Congress. Before the Constitution, the states ceded their western land claims to the national government. The 1784 land ordinance and the 1785 land ordinance established the theory of land disposal — the government holds the public domain for the purpose of surveying it, dividing it, and disposing it to the people. The Northwest Ordinance of 1787 carried that theory forward. The land belonged to the nation. The nation's policy was to put it into the hands of the people who would settle it, improve it, and make it productive. The Constitution incorporated this at Article IV, Section 3: "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 power to dispose. Not the power to retain permanently. Not the power to manage as a landlord. The power to dispose — to put the land into the hands of the people. The first Congress acted on that power immediately. On July 13, 1789 — less than four months after the Constitution took effect — the House of Representatives debated how to dispose of the western lands. The debate was published in The Pennsylvania Journal that same summer, printed on the same newspaper page as a Pennsylvania state fencing law regulating cattle on the open range. Side by side on the same page: the state was regulating cattle, and the House was debating how to get the public land into the hands of settlers. Mr. Scott of Pennsylvania told the House that Congress should sell land "to those that would settle it, in preference to selling it in large tracts to speculators" and that "the plan that has been pursued has been enormously expensive, so much so, that Congress had better give the lands to settlers." The House voted to adopt the committee report and appointed a committee to prepare a land office bill. Land disposal was among the very first business of the very first Congress. By the time the Pre-emption Act of 1841 formalized the principle, Congress had been recognizing occupation on the public domain for over 50 years. The 1841 Act did not invent pre-emption — it codified a practice that had been operating since the founding. Settlers went onto the land, improved it, occupied it, and Congress recognized them. That is the foundation everything else stands on. The agencies act as if the law started with the permit. The law started with the Constitution. The occupation started before the law. ═══════════════════════════════════════════════════════════════ACT OF SEPTEMBER 4, 1841 — PRE-EMPTION ACT 5 Statutes at Large 453 — 27th CongressWHAT IT DID: Gave the settler who was already on the ground — occupying, improving, cultivating — the first right to purchase the land at the minimum price before anyone else could bid. Pre-emption recognized that the occupation came first. The government's job was to recognize it. Pre-emption required "settlement and improvement." It did not require building a house. Settlement meant establishing yourself on the land with the intention to make it your own. Improvement meant making the land more valuable — clearing, plowing, fencing, digging ditches, developing water, building corrals, cultivating ground. Stock raisers who settled on the public domain, developed water, built corrals, and ran their operations were "improving" the land under every understanding Congress and the GLO had. PRE-1976 MEANING: If your predecessors settled on public land, improved it, and occupied it, they had the pre-emptive right to purchase it. The occupation was the basis of the right. The filing was the recognition of it. Once the occupation occurred and the right vested, that right belonged to the settler — Congress could not reach back and destroy it. WHAT HAPPENED TO IT: Pre-emption was repealed by the Act of March 3, 1891, Section 4 (26 Stat. 1097) — not by FLPMA. But the 1891 repeal carried a savings clause: "all bona fide claims lawfully initiated before the passage of this act may be perfected upon due compliance with law, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed." The 1891 savings clause preserved every pre-emption right initiated before March 3, 1891. The TGA savings clause at 48 Stat. 1269 preserved it again in 1934. FLPMA Section 701(a) preserved it again in 1976. And the constitutional prohibition on ex post facto laws and the vested rights doctrine of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), stand independent of all savings clauses as a permanent bar on retroactive destruction. WHAT THE CURRENT CODE SHOWS: The pre-emption sections are gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 5 Stat. 453 still exists. 26 Stat. 1097 shows the repeal with the savings clause. 48 Stat. 1269 shows the TGA savings clause. 90 Stat. 2786 shows the FLPMA savings clauses. The right that vested under pre-emption before 1891 was never extinguished. WHO THIS APPLIES TO: Every family whose predecessors settled, improved, and occupied public land before March 3, 1891. ═══════════════════════════════════════════════════════════════ACT OF MAY 20, 1862 — HOMESTEAD ACT 12 Statutes at Large 392 — 37th CongressWHAT IT DID: Gave any citizen who settled on 160 acres of public land, improved it, and lived on it for five years the right to a free patent. Occupation and improvement — not purchase — earned the title. PRE-1976 MEANING: If your predecessors homesteaded, they earned the right to the land by living on it, improving it, and making it productive. The patent recognized what their labor established. Once that right vested through occupation and improvement, it was their property — not Congress's to reclaim. WHAT FLPMA DID TO IT: FLPMA Section 702 (90 Stat. 2787) repealed the Homestead Act effective October 21, 1976. No new homestead entries after that date. WHAT SURVIVED: Every homestead right that existed on October 21, 1976 — whether perfected to patent or initiated and in progress — was preserved by Section 701(a). FLPMA did not terminate any valid land use right existing on the date of approval. The occupation that supported the homestead was not extinguished. The improvements that proved the homestead were not seized. The ex post facto prohibition and the vested rights doctrine stand as independent constitutional bars on retroactive extinguishment regardless of the savings clauses. WHAT THE CURRENT CODE SHOWS: The homestead sections are gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 12 Stat. 392 still exists. 90 Stat. 2787 shows the repeal. 90 Stat. 2786 shows the savings clauses that preserved what vested under it. WHO THIS APPLIES TO: Every family that homesteaded before October 21, 1976. ═══════════════════════════════════════════════════════════════ACT OF JULY 26, 1866 14 Statutes at Large 251–253 — 39th CongressWHAT IT DID: Recognized the occupation and possessory rights of settlers on the public domain. Protected water rights by priority of possession. Confirmed rights-of-way for ditches and canals. Did not create the right — recognized occupation that was already happening on the ground. The title of this Act is "An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes." The popular label is the "Mineral Lands Act." Someone will read that title and say this Act is only for miners. The enacted text says otherwise. The title of an Act does not control its operative text. The Supreme Court established this in United States v. Fisher, 6 U.S. (2 Cranch) 358 (1805). The "and for other purposes" language is the 39th Congress telling you the Act reaches beyond minerals. Section 9 of the 1866 Act protects water rights "for mining, agricultural, manufacturing, or other purposes." That is the enacted text. Congress listed four categories of water use, and three of them are not mining. Agricultural water use is stock watering. Manufacturing includes milling. "Or other purposes" covers everything else. The rancher's stockwater right is protected by the explicit text of Section 9 — not by analogy, not by extension, but by the enacted word "agricultural." Section 10 grants rights-of-way for highways over public lands "not reserved for public uses." That has nothing to do with mining. Congress put general public land provisions into this Act because this Act was the vehicle for the entire occupation framework. The 1868 Secretary of the Interior Report confirms at page 149 that the 1866 Act was applied to agricultural settlers: "the public lands on which no valuable mines of gold, silver, cinnabar, or copper, have been discovered, and which had been occupied and improved by bona fide homestead or pre-emption settlers, are permitted to be taken up by said settlers." The government applied this Act to non-miners within two years of enactment. "Occupation" meant one's trade, business, and livelihood conducted on the land — not merely physical presence on a mining claim. The bill history proves this. S. 257 was titled "to regulate the occupation." HR 786 was titled "to legalize the occupation." Neither word — "regulate" nor "legalize" — creates a right. Both words confirm the occupation was already happening. Companion Acts passed the same week use "bona fide occupancy" for non-mineral lands. Congress used "occupation" as the controlling legal term across all categories of land use. PRE-1976 MEANING: If your predecessors were on the public domain conducting their trade — ranching, grazing, herding, agriculture, water development — their occupation was recognized by this Act. The patent was recognition of the claim, not creation of it. Water rights vested by priority of possession. Once vested, those rights were the settler's property and Congress could not retroactively destroy them. WHAT FLPMA DID TO IT: FLPMA Section 706 (90 Stat. 2793) repealed the ditch and canal right-of-way construction language from Revised Statutes 2339 and 2340 (derived from Section 9 of the 1866 Act). FLPMA did NOT repeal the 1866 Act itself. The occupation recognition, the possessory rights, and the water rights priority framework were never repealed by any Act of Congress. WHAT SURVIVED: Everything except the right-of-way construction mechanism. The water rights themselves were preserved by Section 701(g)(1). The occupation right was preserved by Section 701(a). Section 701(f) means the 1866 Act's recognition of occupation cannot be implied away. The constitutional vested rights doctrine and the ex post facto prohibition stand independently. WHAT THE CURRENT CODE SHOWS: The ditch and canal language is gone from Title 43 Section 661. WHAT THE STATUTES AT LARGE SHOW: 14 Stat. 251–253 still exists in its entirety. The 1866 Act was never expressly repealed. It is still the law of the United States. WHO THIS APPLIES TO: Every family whose trade, business, or livelihood has been conducted on the public domain — ranching, grazing, herding, farming, water development. Every family. ═══════════════════════════════════════════════════════════════ACT OF JULY 9, 1870 16 Statutes at Large 217 — 41st CongressWHAT IT DID: Amended the 1866 Act by adding Sections 12 through 17. Extended the 1866 framework to all public lands. Protected bona fide settlers' improvements. Confirmed that possession and working were sufficient to establish the right to patent. Subordinated all patents to vested and accrued water rights "for mining, agricultural, manufacturing, or other purposes." Someone will say this is "just for miners because it's part of the 1866 Act." If this Act only applied to miners, Congress would have written "mining purposes" in Section 15. Congress wrote "agricultural" and "other purposes" because the Act reached every occupant on the public domain. PRE-1976 MEANING: Settlers' improvements on the public domain were protected. Water rights were superior to any later patent. Possession and working of the land established the right to patent — no one needed to wait for a patent to have the right. Once possession and working established the right, that right was vested property. Congress could not retroactively strip it. WHAT FLPMA DID TO IT: Nothing. The 1870 Act was never repealed by FLPMA or by any other Act of Congress. WHAT SURVIVED: Everything. The 1870 Act is still the law. WHO THIS APPLIES TO: Every settler, rancher, and occupant whose improvements and water rights exist on the public domain. ═══════════════════════════════════════════════════════════════ACT OF MAY 10, 1872 17 Statutes at Large 91–96 — 42d CongressWHAT IT DID: Established possessory title by occupation — the locator's right to possession and enjoyment without patent. Confirmed that patent was recognition, not creation. Extended the 1866 framework with detailed procedures. Declared the public domain "both surveyed and unsurveyed" to be "free and open to exploration and occupation." Section 3 grants "the exclusive right of possession and enjoyment" for occupants, "their heirs and assigns." Possessory title transfers as property by inheritance and assignment. This is how ranching operations pass from generation to generation. Section 15 cross-references Section 9 of the 1866 Act by name and preserves water rights for "mining, agricultural, manufacturing, or other purposes." Then it says: "all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights." If patents bow to water rights that exist for agricultural purposes, a permit system enacted 62 years later cannot extinguish them. PRE-1976 MEANING: Settlers had possessory title by virtue of their occupation. They did not need a patent to have the right to possession and enjoyment of the land. That possessory title, once established, was vested property — Congress could not retroactively destroy it through subsequent legislation without violating the constitutional prohibitions on ex post facto laws and on taking private property without just compensation. WHAT FLPMA DID TO IT: FLPMA did not repeal the 1872 Act. It remains in force. WHAT SURVIVED: Everything. WHO THIS APPLIES TO: Every occupant of the public domain who established possessory rights by occupation and use. The 1872 Act is the third link in an unbroken chain: 1866 recognized occupation, 1870 extended it, 1872 confirmed possessory title by occupation and subordinated patents to water rights. All three recognize occupation across all uses — not just mining. ═══════════════════════════════════════════════════════════════ACT OF MARCH 3, 1877 — DESERT LAND ACT 19 Statutes at Large 377 — 44th CongressWHAT IT DID: Opened arid lands to entry upon condition of irrigation and reclamation. Severed water from land on the public domain — water rights governed by state appropriation law, not federal control. Created a pathway to patent for 640 acres of desert land. Montana is named in the Act by its express terms. PRE-1976 MEANING: Families that filed desert land entries, irrigated, and reclaimed the land earned the right to patent. Their water rights were governed by state law — not by the federal government, not by any agency. Once earned through irrigation and reclamation, those rights vested and became the settler's property. Congress could not retroactively reclaim them. WHAT FLPMA DID TO IT: FLPMA Section 703 (90 Stat. 2789) repealed the disposal provisions — Sections 1, 3, and 4 — effective October 21, 1986 (ten years after FLPMA approval). No new desert land entries after that date. WHAT SURVIVED: Every water right that vested under the Desert Land Act. Section 701(g)(1) preserved all laws governing appropriation or use of water. Section 701(g)(2) preserved state jurisdiction over water. Section 701(a) preserved every valid land use right existing on October 21, 1976. The Desert Land Act was in force for 109 years. Every right that vested during those 109 years survived the repeal. The ex post facto prohibition and the vested rights doctrine of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), operate as independent constitutional bars on retroactive destruction of those vested rights. WHAT THE CURRENT CODE SHOWS: The disposal sections are gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 19 Stat. 377 still exists. The TGA savings clause at 48 Stat. 1269 preserved it. The FLPMA savings clauses at 90 Stat. 2786 preserved it again. WHO THIS APPLIES TO: Every family that filed a desert land entry, irrigated, developed water, or established water rights on arid public lands before 1986. ═══════════════════════════════════════════════════════════════ACT OF JUNE 3, 1878 — TIMBER AND STONE ACT 20 Statutes at Large 89 — 45th CongressWHAT IT DID: Allowed purchase of public land "unfit for cultivation" and "valuable chiefly for timber or stone" at $2.50 per acre. Recognized that not all public land was agricultural — some was timber, some was stone, and the people using it had the right to acquire it. PRE-1976 MEANING: Families that used land for timber or stone purposes could purchase it outright. The Act recognized the use and provided the pathway to title. Once the purchase was made and the right vested, that right was the family's property. WHAT FLPMA DID TO IT: FLPMA Section 703 (90 Stat. 2789) repealed it. The Timber and Stone Act was in force for 98 years — from 1878 to 1976. WHAT SURVIVED: Every right that vested under the Timber and Stone Act during those 98 years. Section 701(a) preserved every valid land use right existing on October 21, 1976. The constitutional prohibitions on ex post facto laws and retroactive destruction of vested property rights stand independently. WHAT THE CURRENT CODE SHOWS: Section 253 is gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 20 Stat. 89 still exists. 90 Stat. 2786 shows the savings clauses that preserved what vested under it. WHO THIS APPLIES TO: Every family that purchased or used timber or stone lands before 1976. ═══════════════════════════════════════════════════════════════ACT OF FEBRUARY 25, 1885 — UNLAWFUL INCLOSURES ACT 23 Statutes at Large 321–322 — 48th CongressWHAT IT DID: Prohibited fencing — not grazing. Made it unlawful to enclose public lands with fences to prevent free passage. The Proviso in Section 3 expressly protected "the right or title of persons, who have gone upon, improved or occupied said lands under the land laws of the United States, claiming title thereto, in good faith." This was a local settlers protection Act. The Nimmo Report (1885) — prepared for Congress at the same time — documents what was happening. Transient Texas herds were being driven north into Montana, Wyoming, Idaho, and Dakota. They invaded ranges already occupied by local settlers. Corporate outfits were buying up small ranchers' brands and consolidating ranges. Some operators were fencing public land to lock out everyone else. Congress treated fencing as the problem and occupation as the right. The local settler who occupied, improved, and developed water on the range was protected. The corporate operator or transient outfit that fenced to exclude was not. PRE-1976 MEANING: Grazing was lawful. Fencing to exclude others was not. The settler's occupation was protected by the Proviso. That protection extended to vested occupation rights that Congress had already recognized — rights which could not be retroactively destroyed by any subsequent Act. WHAT FLPMA DID TO IT: Nothing. The 1885 Act was never repealed. It is still in force. WHAT SURVIVED: Everything. The 1885 Act is still the law. Grazing on the unenclosed public domain was not made unlawful by this Act or any other Act. WHO THIS APPLIES TO: Every rancher who grazes on the public domain without enclosing it. ═══════════════════════════════════════════════════════════════

      Reply to Colby
   2. 

      Colby

      May 16, 2026

      ACT OF AUGUST 30, 1890 — VALIDATION ACT 26 Statutes at Large 391 — 51st CongressWHAT IT DID: Repealed the 1888 arid region withdrawal that had locked up the entire West from entry, occupation, and settlement. Validated all entries and claims made during the withdrawal. And contained the validation clause. The verbatim enacted text, from the Congressional Record — House, August 25, 1890, page 9138, conference report as read on the floor: "No person who shall, after the passage of this act, enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws shall be permitted to acquire title to more than 320 acres in the aggregate under all of said laws; but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry, or settlement, is validated by this act" The limitation applied to new entrants. The validation applied to everyone already on the ground. PRE-1976 MEANING: Every person who occupied, entered, or settled on the public lands before August 30, 1890 had their right validated by Congress. Their occupation was recognized as lawful and protected from curtailment. That recognition vested those rights in the settler — permanently, as a matter of constitutional law. Congress validated the occupation. The validated right then passed out of Congress's hands and into the settler's. No subsequent Act of Congress could retroactively destroy it without violating the ex post facto prohibition of Article I, Section 9, Clause 3 and the vested rights doctrine of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). WHAT FLPMA DID TO IT: FLPMA Section 702 (90 Stat. 2787–2788) repealed the acreage limitation language — which carried the validation clause within it. The disposal mechanism was closed. But Section 701(a) preserved every valid land use right existing on October 21, 1976. Section 701(f) says FLPMA does not repeal any existing law by implication. And the Constitution prohibits retroactive destruction of vested rights with or without a savings clause. THE 1926 PROOF: The validation clause was enacted law from 1890 forward — 26 Stat. 391. The first United States Code, published in 1926, carried the enacted text at Title 43, Section 212 (page 1340). For 50 years, any lawyer, judge, or agency official who opened the editorial publication could read it. FLPMA removed it from the editorial publication. The Statutes at Large still carry it. It was the law in 1890, it was the law in 1926, it was the law in 1934, it was the law in 1976, and it is the law today — because the rights it validated were never extinguished by any Act of Congress and cannot be extinguished by any Act of Congress without violating the Constitution. WHAT THE CURRENT CODE SHOWS: Section 212 is gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 26 Stat. 391 still exists. The validation clause was the law for 86 years. The rights it validated were never extinguished. WHO THIS APPLIES TO: Every family whose predecessors occupied, entered, or settled on the public lands before August 30, 1890 — and every family whose occupation traces through predecessors to that date. ═══════════════════════════════════════════════════════════════ACT OF MARCH 3, 1891 — GENERAL REVISION ACT 26 Statutes at Large 1095–1103 — 51st CongressWHAT IT DID: Repealed the Timber Culture Act and the Pre-emption Act. Amended the Desert Land Act. Created the forest reservation power (Section 24). But every single repeal carried a savings clause preserving all valid rights heretofore accrued and all bona fide claims lawfully initiated. PRE-1976 MEANING: Congress restructured the public land framework. It closed some pathways and tightened others. But it refused to disturb a single right that had already vested. Every savings clause said "as if this act had not been passed." The settler on the ground was protected. Congress could not have disturbed those vested rights even if it had tried — the Constitution would not permit it. WHAT FLPMA DID TO IT: FLPMA repealed various sections of the 1891 Act across the repeal schedules. The 1891 Act's own savings clauses remained operative because they were part of the enacted text at 26 Stat. 1095–1103 and were never expressly repealed as to the rights they preserved. WHAT SURVIVED: Every right that vested under the 1891 Act's savings clauses. FLPMA's savings clauses at 90 Stat. 2786 layered on top — preserving what the 1891 savings clauses already preserved. The constitutional floor stands independent of both. WHO THIS APPLIES TO: Every family whose rights were protected by the 1891 savings clauses — which is every family on the ground before 1891. ═══════════════════════════════════════════════════════════════ACT OF JUNE 4, 1897 — FOREST RESERVES (ORGANIC ADMINISTRATION ACT) 30 Statutes at Large 34–36 — 55th CongressWHAT IT DID: Established the purpose and administration of forest reservations. Contained five savings clauses preserving settlers' rights, water rights under state law, ingress and egress, and state jurisdiction within forest reservations. PRE-1976 MEANING: If your predecessors had occupation, water rights, or improvements within what became a forest reservation, those rights survived the reservation. State water law controlled — not the federal agency. Those rights were vested property and the constitutional prohibition on retroactive destruction applied to them fully. WHAT FLPMA DID TO IT: FLPMA did not repeal the 1897 Act. It remains in force. The savings clauses within it are still operative. WHAT SURVIVED: Everything. The 1897 Act is still the law. WHO THIS APPLIES TO: Every rancher and settler within or adjacent to a national forest whose rights predate the forest reservation. ═══════════════════════════════════════════════════════════════ACT OF DECEMBER 29, 1916 — STOCK-RAISING HOMESTEAD ACT 39 Statutes at Large 862 — 64th CongressWHAT IT DID: Recognized that stock raising on the public domain required 640 acres — not 160. Opened lands "chiefly valuable for grazing and raising forage crops" to homestead entry at 640 acres. Created the split estate — surface to the stock raiser, minerals reserved to the United States. Protected the surface occupant's improvements against mineral claimants. PRE-1976 MEANING: Congress acknowledged that stock raising was the established use of these lands and that the standard homestead was too small for it. Stock raising on the public domain was the trade, the livelihood, and the right. The right vested in the settler through occupation and improvement and became constitutionally protected property. WHAT FLPMA DID TO IT: FLPMA Section 702 (90 Stat. 2789) repealed Sections 1 through 8. The SRHA was in force for 60 years. WHAT SURVIVED: Every right that vested under the SRHA during those 60 years. Section 701(a) preserved every valid land use right existing on October 21, 1976. The split estate framework remains operative on SRHA patents. The ex post facto prohibition and the vested rights doctrine stand independently of the savings clauses. WHAT THE CURRENT CODE SHOWS: Sections 291–298 are gone from Title 43. WHAT THE STATUTES AT LARGE SHOW: 39 Stat. 862 still exists. 90 Stat. 2786 shows the savings clauses that preserved what vested under it. WHO THIS APPLIES TO: Every stock-raising family that entered or occupied land for grazing before 1976. ═══════════════════════════════════════════════════════════════ACT OF JUNE 28, 1934 — TAYLOR GRAZING ACT 48 Statutes at Large 1269–1275 — 73d CongressWHAT IT DID: Created grazing districts and a permit system. BLM reads "shall not create any right, title, interest, or estate in or to the lands" as meaning no right exists. The Act says the opposite — the permit creates no right because the right already existed. The savings clause in Section 1 preserves "any right which has been heretofore or may be hereafter initiated under existing law." The water savings clause in Section 3 preserves water rights that have "heretofore vested or accrued under existing law." The operative mechanism of the TGA was a cooperative agreement framework — not a unilateral command. Section 2 at 48 Stat. 1270, in the enacted text, authorizes the Secretary to "enter into such cooperative agreements" as necessary to accomplish the Act's purposes. The Act's author described the original administration as "democracy on the range" — local advisory boards of ranchers working cooperatively with Grazing Service personnel to apportion use. The permit was the instrument of that cooperative arrangement, not a mandatory license that extinguished pre-existing vested rights. This cooperative framework matters constitutionally. The right not to contract is secured by the same Constitution that secures the right to contract. Article I, Section 10, Clause 1 prohibits impairment of the obligation of contracts. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819). A settler who signed a permit under the false belief that they had no pre-existing rights and no choice but to sign did not enter a voluntary cooperative agreement. They were coerced into signing away rights they were never told they had. PRE-1976 MEANING: The TGA imposed a cooperative administrative framework on top of existing occupation. It did not create the occupation. It did not create the right. It did not and could not extinguish vested rights that predated it — the Constitution prohibited that result. The savings clauses prove Congress knew the rights existed and deliberately preserved them. The permit is the administrative instrument of a cooperative agreement. The occupation is the right. WHAT FLPMA DID TO IT: FLPMA Section 705 (90 Stat. 2792) repealed only TGA Section 8 — the land exchange provision. Every other section of the TGA remains in force, including Section 1 (savings clause), Section 2 (cooperative agreements), Section 3 (water savings clause and non-conveyance clause), and all operative provisions. WHAT SURVIVED: Everything except Section 8. The TGA is still the law. The savings clauses are still operative. The non-conveyance clause is still operative — the permit still creates no right, because the right still predates the permit. The cooperative agreement framework is still the operative structure — not a mandatory command. WHO THIS APPLIES TO: Every rancher on every grazing district in the West. ═══════════════════════════════════════════════════════════════ACT OF JUNE 4, 1897 / ACT OF OCTOBER 22, 1976 — NATIONAL FOREST MANAGEMENT ACT Public Law 94-588 — 90 Statutes at Large 2949 — 94th CongressWHAT IT DID: The National Forest Management Act of October 22, 1976 (Public Law 94-588, 90 Stat. 2949) amended and supplemented the Organic Administration Act of June 4, 1897 (30 Stat. 34-36). It established planning requirements for national forest management, created the requirement for land and resource management plans for each national forest unit, and set standards for timber harvesting, species diversity, and multiple use management. NFMA is the primary statutory basis for Forest Service land use planning — what the Forest Service uses as its authority to issue, modify, and revoke grazing permits on national forest lands. WHAT THE FOREST SERVICE DOES NOT QUOTE: NFMA was enacted one day after FLPMA — October 22, 1976, versus FLPMA's October 21, 1976. The two Acts are companion legislation from the same Congress. FLPMA's savings clauses at 90 Stat. 2786 — enacted the day before NFMA — expressly preserved all valid existing rights. NFMA cannot override what FLPMA preserved, because Congress enacted both Acts with full knowledge of each other and did not place any language in NFMA overriding the FLPMA savings clauses. NFMA's planning requirement does not grant the Forest Service authority to extinguish vested rights through the planning process. A land and resource management plan is an administrative document. It is not a Congressional Act. It is not in the Statutes at Large. It cannot override enacted law. It cannot extinguish rights that vested under Acts of Congress that predated both NFMA and FLPMA. THE SAVINGS CLAUSE INTERACTION: The 1897 Organic Administration Act at 30 Stat. 34-36 contained its own savings clauses protecting settlers' rights, water rights, ingress and egress, and state jurisdiction. NFMA was enacted as an amendment to and supplement of the 1897 Act. An amendment cannot destroy the savings clauses of the Act it amends — it operates within that Act's existing framework. The five savings clauses of the 1897 Act survive NFMA's amendments because NFMA did not expressly repeal them. FLPMA Section 701(f) independently confirms that nothing in FLPMA — and by extension nothing in NFMA enacted the next day by the same Congress — shall be deemed to repeal any existing law by implication. THE CONSTITUTIONAL FLOOR: NFMA is a planning statute. It authorizes the Forest Service to make plans. It does not authorize the Forest Service to take private property. The Fifth Amendment's requirement of due process and just compensation applies to NFMA's implementation the same as to every other federal action. A NFMA land use plan that eliminates a rancher's valid existing grazing right without due process and just compensation is an unconstitutional taking regardless of what the plan says. WHAT FLPMA AND THE CONSTITUTION SAY TOGETHER: FLPMA Section 701(h) states that "all actions by the Secretary concerned under this Act shall be subject to valid existing rights." NFMA planning actions taken pursuant to or in conjunction with FLPMA carry the same constraint. The Forest Service's own planning authority is bounded by valid existing rights. Every land and resource management plan that purports to eliminate valid existing grazing rights is ultra vires — beyond the agency's authority — because the agency cannot do by planning what Congress itself cannot do by legislation. WHAT THE CURRENT CODE SHOWS: NFMA is referenced editorially in Title 16 — which has NOT been enacted into positive law. The editorial reference is not the enacted law. WHAT THE STATUTES AT LARGE SHOW: Public Law 94-588 at 90 Stat. 2949 is the enacted law. The 1897 Act savings clauses at 30 Stat. 34-36 are still the law. The FLPMA savings clauses at 90 Stat. 2786, enacted the day before NFMA, are still the law. WHO THIS APPLIES TO: Every rancher on every national forest who holds a grazing permit or whose predecessors occupied national forest land before it was reserved — and every rancher whose valid existing rights the Forest Service claims to have modified or eliminated through the NFMA planning process. ═══════════════════════════════════════════════════════════════ACT OF OCTOBER 21, 1976 — FEDERAL LAND POLICY AND MANAGEMENT ACT (FLPMA) 90 Statutes at Large 2743–2794 — 94th CongressWHAT IT DID: Repealed the disposal framework. Closed the pathways to patent. Established BLM's management authority. But wrote five savings clauses — 701(a), (f), (g)(1), (g)(2), and (h) — preserving every valid existing right, every water right, every law governing water appropriation, state water jurisdiction, and making all Secretary actions subject to valid existing rights. WHAT IT MEANS: FLPMA is the Act that lawyers point to when they tell ranchers the old laws are gone. FLPMA is also the Act that proves the rights survived. The savings clauses are in the same Title VII as the repeal schedules. Congress put them together deliberately. The repeals and the savings clauses are one integrated legislative action — close the pathway, save what vested under it. WHAT IT DID NOT DO: FLPMA did not repeal the Act of July 26, 1866. FLPMA did not repeal the 1870 Act. FLPMA did not repeal the 1872 Act. FLPMA did not repeal the 1885 Unlawful Inclosures Act. FLPMA did not repeal the 1897 Forest Reserves Act. FLPMA did not repeal the Taylor Grazing Act savings clauses. FLPMA did not retroactively extinguish any right that vested under any Act of Congress at any time. FLPMA cannot be applied retroactively. A statute enacted in 1976 cannot reach back and destroy rights that vested under laws that were in force at the time. The Constitution prohibits it — the ex post facto prohibition of Article I, Section 9, Clause 3, the vested rights doctrine of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), and the Fifth Amendment's guarantee of due process and just compensation all stand as independent constitutional bars on retroactive destruction of vested rights. The savings clauses confirm this. Congress expressed that prohibition five times in the same Title VII. Five times. —————————————————————————————————————— THE PATTERN CONGRESS ESTABLISHED Every time Congress restricted, reserved, managed, or repealed a public land law, Congress wrote a savings clause: 1891 — "shall not affect any valid rights heretofore accrued" 1897 — five savings clauses in one Act 1934 — "nothing in this Act shall be construed in any way to diminish, restrict, or impair any right" 1934 — "nothing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water" 1976 — "Nothing in this Act shall be construed as terminating any valid land use right" 1976 — "Nothing in this Act shall be deemed to repeal any existing law by implication" 1976 — "Nothing in this Act shall be construed as affecting in any way any law governing appropriation or use of water" 1976 — "All actions by the Secretary shall be subject to valid existing rights" 85 years. Five Acts. Eight savings clauses. The same prohibition every time: do not destroy what came before. This is not an accident. This is not a loophole. This is congressional policy established across eight decades and never reversed. And it mirrors the constitutional prohibition that would have required the same result even if Congress had never written a single savings clause. —————————————————————————————————————— THE 1888 FREEZE AND THE 1890 FIX — HOW CONGRESS LOCKED THE WEST AND THEN UNLOCKED IT In 1888 Congress authorized John Wesley Powell and the Geological Survey to map the arid region of the West — to identify reservoir sites, irrigable lands, and water sources. The Act of October 2, 1888 (25 Stat. 526) funded the irrigation survey. But the withdrawal language in the Act was read by the Interior Department as withdrawing the entire arid West — everything west of the 100th meridian — from entry, occupation, and settlement. Not just the reservoir sites. Everything. For two years, settlement was frozen across the West. Families already on the ground could not file entries. New settlers could not come in. The public land laws were suspended across an area covering most of the western states and territories. Montana was in the middle of it. Congress did not intend this. The Congressional Record shows members of Congress saying they were told the 1888 Act would only withdraw "a few reservoir sites." Instead, when they came back to Washington in December 1889, they found "the whole of our Western country west of Kansas had been withdrawn from settlement under the public-land laws and could not be settled by the people at all." Congress fixed it with the Act of August 30, 1890 (26 Stat. 391). First — Congress repealed the 1888 withdrawal: "so much of the act of October second, eighteen hundred and eighty-eight ... as provides for the withdrawal of the public lands from entry, occupation and settlement, is hereby repealed." Second — Congress validated everything that happened during the freeze: "all entries made or claims initiated in good faith and valid but for said act shall be recognized and may be perfected in the same manner as if said law had not been enacted." Third — Congress enacted the validation clause preserving every occupation that existed before the Act. This matters because it proves Congress recognized that settlers were on the ground. Congress knew the West was occupied. Congress knew that locking up the public domain hurt the people already on it. Congress responded by reopening the land and validating all occupation — not by evicting the settlers who had been frozen out. The 1890 Act is Congress saying: the people were there. The withdrawal was wrong. We are fixing it. Everything is validated. Seven months later, in March 1891, Congress gave the President the power to create forest reserves — with savings clauses. Less than seven months after validating all occupation in the arid West, Congress created the reservation framework and immediately protected everything it had just validated. The timeline proves the intent: validate the occupation, then create the reservation subject to it. —————————————————————————————————————— THE PATHWAY AND THE RIGHT — THEY ARE NOT THE SAME THING This is the single most important distinction in this entire document. The agencies confuse the pathway with the right — deliberately. Understanding the difference is how you see through everything they do. The pathway is the mechanism Congress created for turning occupation into a patent — a paper title. Pre-emption was a pathway. Homestead was a pathway. Desert land entry was a pathway. Stock-raising homestead was a pathway. Each pathway had conditions — settle, improve, irrigate, cultivate, prove up, pay. If you met the conditions, you got the patent. The patent was the paper at the end of the pathway. The right is the occupation itself. The right to be on the land, improve it, conduct your trade and livelihood, develop water, build structures, and use the forage. The right existed from the day the settler set foot on the land and began working it. The right did not wait for the patent. The 1866 Act recognized the right. The 1868 Secretary of the Interior confirmed it. The 1872 Act granted possessory title by it. The right is the occupation. FLPMA closed the pathways. No new homestead entries. No new desert land entries after 1986. No new stock-raising homestead entries. The mechanisms for turning occupation into paper title were shut down. The door to the patent office was closed. But closing the patent office does not evict the people who are already living on the land. Congress closed the pathway — the mechanism. Congress did not close the right — the occupation. The savings clauses prove it. "Nothing in this Act shall be construed as terminating any valid land use right existing on the date of approval of this Act." The right — the occupation — survived the closure of the pathway. And the Constitution stands behind the savings clauses with the same force. Once the right vested through occupation, it was property. Congress cannot take it by closing the pathway. The Fifth Amendment requires due process and just compensation before any taking. The ex post facto prohibition bars Congress from retroactively stripping completed acts of their legal consequences. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), bars Congress from rescinding its own grants after they vest. When BLM says "no permit means no right," BLM is confusing the pathway with the right. The permit is an administrative instrument of a cooperative agreement framework — a mechanism. The occupation is the right. Taking the mechanism does not take the right. Congress said so five times. The Constitution confirms it independently. ——————————————————————————————————————

      Reply to Colby