Martinez and Hickey ranches owner Dan Martinez and his legal adviser, Wray Schildnecht, asked the Greenlee County Board of Supervisors to help him uphold state law on March 16.

Martinez gave a presentation to explain his position in a debate with the U.S. Forest Service over who really owns portions of the two properties. He owns the Martinez and Hickey ranches and grazes on the allotments. The U.S. Forest Service's grazing allotment fees and reductions in the number of cattle allowed on the allotment are part of the reason for the debate.

"If the Forest Service wants to impound my cattle and charge me with trespassing, they must follow the laws of the state," Martinez said. "They have to go to state court for that." In February, Schildnecht told the Courier that Martinez "filed a Constructive Notice to the Forest Service, giving them notice that he owned the vested-fee interest and that it is private property under the jurisdiction of the state of Arizona."

A situation similar to the cattle removal with Kit and Sherry Laney in New Mexico could happen in Greenlee County if Martinez loses his grazing privileges. The removal was the result of a Dec. 18 decision by Federal Judge William P. Johnson.

According to a news release from the Center for Biological Diversity, Johnson "held the Diamond Bar and Laney Cattle companies, and their owners Kit and Sherry Laney, in contempt for violating the court's December 1996 livestock removal order."

During Tuesday's board meeting, Schildnecht referred to the Laney case and said the executive director of the New Mexico State Livestock Board signed a Memorandum of Understanding with the Forest Service without consulting the rest of the board.

"The executive director did not have the authority to do that," he said. The memorandum allowed the Forest Service to remove and sell the Laney cattle. Before the removal started, Catron County Sheriff John Snyder said he would stop the removal because of his duty to uphold state laws conflicting with it. That is what Martinez would like the Greenlee County Sheriff's Department to do, if the situation occurs.

The Laneys lost grazing privileges in federal court last December, but Martinez and other ranching advocates are saying the case could be won in state court.

New Mexico State University Associate Professor Angus McIntosh said, "Most land in the U.S. exists in a split estate." He said laws that separate water rights, easements and mineral rights from the actual property itself are at the heart of this type of legal argument.

McIntosh used the stretch of Highway 70 east of Safford as an example. He pointed out that while the land was federally owned before the highway existed, the federal agency owning the land gave the state of Arizona an easement to build the highway on its land.

"Once Congress granted that easement, that easement became the property of the state," he said. "An easement is private property, even though it may cross over land that the federal government owns. . . The federal district court doesn't have the jursidiction to rule what is defined as property."

Martinez quoted the 1839 Wilcox v. Jackson ruling as saying "whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment, the land thus appropriated becomes severed from the mass of public lands."

Greenlee County owns the rights of several roads that the Forest Service claims jurisdiction over (when they close the roads), he said.

Martinez noted that some of these rights are referred to as Vested Property Rights. These were granted to ranchers by federal adjudicators in the late 1800s and early 1900s to help settle land disputes. This included easements addressing grazing paths, water rights and more.

Schildnecht said the Tenth Circuit Court of Appeals (from the Laney case) never questioned this. Martinez said he has had these easements passed down through his family for several generations.

Forest Service Public Information Officer Andrea Martinez and other officials have told the Courier numerous times that the land in question is still owned and must be regulated by the Forest Service. The federal agency has held strong on its stance that it maintains jurisdiction over the grazing allotments and its right to revoke permits for the allotments or reduce the number of cattle on them.

Andrea Martinez also told the Courier about 250 cattle have been gathered as of last Friday.

An update on Kit Laney

Kit Laney was arrested for interfering with the duties of a federal law officer on March 14. U.S. Forest Service Law Enforcement Officer Chris Boehm filed a complaint on March 15 that said Laney "forcibly assaulted, resisted, opposed, impeded, intimidated and interfered with Federal Law Enforcement Officers who were engaged in or on account of the performance of their official duties."

U.S. Magistrate Karen B. Molzen denied Laney's request to be released on a bail bond Tuesday.

McIntosh said, "The bottom line is that because the judge feels Kit ignored the previous court order to remove his cattle from the allotment, the judge did not believe he would abide by any bail conditions requiring him to stay away from the allotment. Therefore, he will not be released on bail. So, if he is released on bail, it will only be under third-party custody (house arrest with someone who lives a long way from National Forest) or they will keep him in jail until the FS (Forest Service) is done with their confiscation."

To contact John Kamin, call 428-2560 (ext. 240) or e-mail him at johnk@eacourier.com.