New Mexico rancher Craig Thiessen recently lost his case against the Gila National Forest, contesting the loss of his grazing permit after killing a Mexican gray wolf in 2015 on a public grazing allotment in the Apache National Forest.
After pleading guilty to knowingly taking an endangered species, Thiessen claimed the allotment was privately owned and therefore, he did not need a grazing permit from the U.S. Forest Service (USFS) or need to comply with the permit’s regulations.
Background
Thiessen owns several hundred head of cattle that grazed in the Apache National Forest on a 48,000-acre allotment, the Canyon del Buey Allotment, through a USFS grazing permit issued in 2011. In 2015, Thiessen captured a collared Mexican gray wolf in a trap on the allotment and killed it with a shovel because he “was afraid that if he didn’t hit it with a shovel, it would kill him when he released it,” according to court records.
In 2017, Thiessen asked USFS to transfer the permit to the newly formed Canyon del Buey LLC, “as he had been indicted by the [United States Fish and Wildlife Service] and they were coming after his permit.” USFS transferred the grazing permit to the LLC later that year.
In 2018, Thiessen pled guilty to knowingly taking threatened wildlife and was sentenced to one year of unsupervised probation and restitution of $2,300. USFS cancelled the LLC’s permit later that year because of the conviction, as well as the “discovery of false materials in the permit application… relating to the creation of the LLC.”
The cancellation was based on a “misrepresentation” that Thiessen was not a member of the LLC. In August 2019, Thiessen’s brother Lance and the LLC filed suit in court, claiming Lance Thiessen was the sole member of the LLC. The complaint sought judicial review of the cancellation of the permit and an injunction to prevent livestock from being removed from the property. The court dismissed the lawsuit in March 2020 because Lance Thiessen and the LLC did not properly serve the defendants.
In April 2020, Craig Thiessen and the LLC filed suit to request under the Quiet Title Act that the LLC was the surface owner of the Canyon del Buey Allotment by specific legislative grants of Congress. The complaint also sought an injunction to allow cattle to continue grazing on the allotment. Both Craig and Lance Thiessen were named in the complaint as owners of the LLC.
In the complaint, the brothers alleged the allotment was their private real property and could fully utilize it for agricultural and ranching purposes. The suit read that as a preexisting private property, the allotment never became national forest land, or did so to a limited extent. The complaint asserted the surface of the allotment has remained private property and carried valid existing rights for its owners to use that surface for any ranching or agricultural purpose, including grazing.
In July 2020, before responding to the brothers’ complaint, the government filed a separate lawsuit against the Thiessens, alleging they had been trespassing on National Forest System land since August 31, 2019, the date USFS required the removal of Craig Thiessen’s livestock.
In August 2020, the government filed a motion to dismiss the brothers’ lawsuit. The government argued the brothers should have known the U.S. claimed a conflicting interest in the allotment for more than 12 years before the litigation. The brothers claimed that until the permit was denied and the government demanded removal from the allotment, they were not aware the U.S. claimed an interest in the surface rights.
The court found that the plaintiffs’ quiet title suit was not initiated within the 12-year statute of limitations and therefore, the government had sovereign immunity from the suit. U.S. Magistrate Judge Gregory J. Fouratt wrote in his opinion that the brothers should have known long before 2008 the government had some type of adverse interest in the allotment.
“That the United States set aside the land encompassing this Allotment in 1899 and turned it into a national forest (i.e., federal government property) was surely some type of interest that a (yet-to-be-identified) landowner of this Allotment would have recognized as adverse—particularly a landowner with a preexisting private property right to use the Allotment for any ranching or agricultural purposes,” he wrote.
Fouratt said the court rejected the brothers’ contention that neither they nor their predecessors could or should have known the government “was doing anything more than merely regulating the manner in which they could exercise their preexisting private property rights to graze livestock.”
The opinion continued that the federal government was not just acting as “some sort of voluntary homeowners’ association for ranchers when it issued these permits” and that the government made it well-known it owned or controlled the allotment as federal land. This includes authorizing grazing as well as prohibiting grazing through withholding a permit.
“Such an assertion of ownership and control is directly at odds with an alleged preexisting private right to use the Allotment’s surface for any ranching purpose,” Fouratt said.
He, therefore, dismissed with prejudice the brothers’ case. Conservation groups celebrated the ruling.
“The myth that public lands ranchers have some kind of ‘right’ to graze livestock has been shot down by the courts again and again,” said Greta Anderson, deputy director of Western Watersheds Project. “It’s a privilege, not a right, and when ranchers abuse the land or harm the wildlife—especially critically imperiled wildlife like wolves—they should lose that privilege.” — Anna Miller, WLJ managing editor
