COMES NOW, Daniel Gabino Martinez and Ramona J. Hage Morrison, who both reside with- in the State of Nevada to Motion this Honorable court for the permission under the common law of the State of Nevada and International Law of human rights to file this amicus curiae brief in support of the finding of fact and Conclusions of Law read into the record on June 6, 2012 and the findings of civil contempt on August 31, 2012 in this instant case. As pro se movants Daniel G. Martinez and Ramona J. (Hage) Morrison will present facts and law with a clear statement of the issues without forming any conclusions or legal arguments. This we both leave to the Court to make these conclusions and analysis. This amicus curiae post trial brief is not intended to prejudice any of the parties, but it is intended to clarify issues from none parties who have an interest in the administration of justice, the proper administration of the laws and the compliance of federal employees of the executive agency, the Department of Justice, with Executive Order No. 12988 and the McDade Act codified at 28 U.S.C. 530B.
FACTS OF THIS CASE
By a preponderance of evidence Defendants and Cross complainants introduced admissible evidence under Federal Rules of Evidence Rule 901 throughout the trial and in pleadings submitted, that the Defendant’s/Cross Complainants had water rights and possessory rights that related back to the original settlers which had acquired rights under the “Customs, Local Laws and Court Decisions of the times”. The evidence clearly shows that these water rights and the right of beneficial use were acquired and vested prior to any state or federal statutory enactments.
These rights were evidence by an exhaustive chain of title from the public record that clearly shows that the Hage’s water and range rights had vested in 1864 and these rights have never been waived or voluntarily abandoned. In order for these rights to be abandoned under state law it must be voluntary. See Attachment to Minutes of the Court, May 22, 2012, Doc. 331, for the list of Exhibits # related to title, and Attachment A for addition exhibits and testimony related to Hage water rights incorporated hereto.
The evidence clearly shows that these rights had vested prior to the withdrawal from settlement within the forest reserves (now called National Forests), which creates a presumption of federal territory or jurisdiction. See act Mar. 4, 1907, ch. 2907, 34 Stat. 1269,) codified at 16 U.S.C. 471 -539. The evidence clearly shows that these rights had vested prior to the creation of Grazing Districts by the Secretary of Interior under the Taylor Grazing Act codified at 43 U.S.C. 315 et.al. The rights had vested prior to Federal Land Policy Management Act of 1976 (P.L. 94-579).
MEMORANDUM IN SUPPORT
1. Prior Appropriation and Beneficial Use Doctrine of the arid
mineral lands of the West.
Manifest Destiny was the belief widely held by Americans in the 19th century, that the United States was destined to expand across the continent. The federal Government promoted it and encouraged it and people left the comfort of their homes, the social networks of their friends and families to seek their fortunes in the unsettled and harsh environments of the west in the hope of acquiring the liberties and property that is inherent in each and every one of us. These pre-emptive possessory rights acquired under the “local laws, customs and court decisions of the times” created a property right that was “equitable” title as opposed to “legal” title and even though legal title was held in the name of the United States, the Hage’s had acquired “equitable” title subject to taxation and jurisdiction of the State of Nevada. (See Central Pacific Railroad Co. v. Nevada. Same v. Same., 16 S. Ct. 885, 162 U.S. 512 (U.S. 04/20/1896); Wright v. Cradlebaugh, 3 Nev. 341, (Nev. 10/1867))
As early as 1837, the United States Supreme Court noted that “[n]either actual occupation, cultivation nor residence, are necessary to constitute actual possession, when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party in his own right, and would not exercise over property which he did not claim.” Lessee of Ewing v. Burnet, 36 U.S. (11 Pet.) 41, 53, 9 L.Ed. 624 (1837)
The Doctrine of Prior Appropriation and Beneficial Use was a doctrine of law developed by the miners and settlers at a time when there was no law and these laws were recognized in the July 26, 1866 Act (14 Stat. 253). This Act did not grant these rights but recognized and confirmed them, as the Supreme Court in Utah Power and Light v. United States, 37 S. Ct. 387, 243 U.S. 389 (U.S. 03/19/1917) stated:
“General acts of Congress intended to aid and encourage the development of the country should be liberally construed so as to effectuate their purpose. The Acts of 1866 and 1870, now §§ 2339 and 2340, Rev. Stats., are to be construed as recognizing and confirming, and not as granting, rights of way over the public land for the beneficial use of water. Such rights are acquired by appropriation under the local laws. Jennison v. Kirk, 98 U.S. 453; Broder v. Water Co., 101 U.S. 274; Kansas v. Colorado, 206 U.S. 46, 87; Hough v. Porter, 51 Oregon, 318; Boquillas Land & Water Co. v. Curtis, 213 U.S. 339, 344.” [Emphasis added]
In quoting Utah Power & Light v. United States, 243 U.S. 389, 405(1917) “No application to an administrative officer was contemplated, no consent or approval by such an officer was required, and no direction was given for noting the right of way upon any record.”
This issue was confirmed in Nevada v. United States, 463 U.S. 110 (1983):
"The property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i. e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. See Murphy v. Kerr, 296 F. 536, 542, 544, 545; Commonwealth Power Co. v. State Board, 94 Neb. 613, 143 N. W. 937; Kersenbrock v. Boyes, 95 Neb. 407, 145 [463 U.S. 110, 126] N. W. 837. The law of Nevada, in common with most other Western States, requires for the perfection of a water right for agricultural purposes that the water must be beneficially used by actual application on the land. Prosole v. Steamboat Canal Co., 37 Nev. 154, 159-161, 140 P. 720, 722 (1914). Such a right is appurtenant to the land on which it is used. Id., at 160-161, 140 P., at 722.
Section 9 of the Act of July 26, 1866 is clear “Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right or way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirm; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” See Hobart v. Ford, 6 Nev.77
The following from Jennison v. Kirk, 98 U.S. 453, will show the history of these Federal statutes; and this is also a convenient place to set forth the views of the Supreme Court of the United States on the law of appropriation: (Movants apologize for the length of citation, but felt it necessary to establish the history of the doctrine of appropriation.)
“ The object of the section was to give the sanction of the United States, the proprietor of the lands, to possessory rights, which had previously rested solely upon the local customs, laws and decisions of the courts, and to prevent such rights from being lost on a sale of the lands. The section is to be read in connection with other provisions of the act of which it is a part, and in the light of matters of public history relating to the mineral lands of the United States. The discovery of gold in California was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada Mountains. Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canyons, and probing the earth in all directions for the precious
metals. Wherever they went, they carried with them that love of order and system and of fair dealing which are the prominent characteristic so our people. (This was shown at trial by associates and witnesses of the Hages) In every district they occupied, they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions being made for different kinds of mining, such as placer mining, quartz mining and mining in drifts or tunnels. They all recognized discovery, followed by appropriation, as the foundation of the possessor’s title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the lawmakers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold would remain forever buried in earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the conditions of miners in the mountains. The waters of rivers and lakes were, consequently, carried great distances in ditches and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through canyons and ravines, to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of these ditches and flumes, and for the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in controversies in the State courts, and received their sanction; and properties to the value of many millions rested upon them. For eighteen years, from 1848 to 1866, the regulations and customs of miners, as enforced and molded by the courts and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands. The policy of the country had previously been, as shown by the legislation of Congress, to exempt such lands from sale. In that year, the act, the ninth section of which we have quoted, was passed.” (See Act of July 26, 1866 (14 Stat. 252)(See Water Law in a Nutshell,by David H Getches pages 82-86)(See Angell on Water-Courses, Sec. 141)(See A Commentary On The Mining Legislation Of Congress: With A Preliminary Review Of The Repealed Sections Of The Mining Act Of 1866(1877) by Edward P. Weeks Vested Rights § 209 page 278)( See Atchison v. Peterson, 87 U.S. 507(1874); Basey v. Gallagher, 87 U.S. 670, 22 l.ed. 452; Broder v. Natoma Water Co. 101 U.S. 247, 25 L. ed. 790; United States v. Rio Grande Irr. Co. 174 U.S. 690, 19 Supp.Ct Rep. 770, 43 L.ed. 1136; Sturr v. Beck, 133 U.S. 541, 10 Sup. Ct. Rep. 350, 33L.ed. 761; Kansas v. Colorado, 185 U.S. 125, 22 Sup. Ct. Rep. 552, 46 L.ed. 838; Bear Lake etc. Co. v. Garland, 164 U.S. 1; Telluride etc. Co. v Rio Grande etc. Co. 187 U.S. 579; Gutierres v. Albuquerque etc. Co. , 188 U.S. 545. )
These transfers of water rights and the beneficial use thereof were peculiar in nature in that they did not require that they be in writing (Parol Sale) and was one afforded the law of appropriation. This arises out of the peculiar nature of possessory rights on the public domain. In the early days prior to the passage of the July 26 1866 Act the possessor disclaimed any right to an interest in the land itself; he insisted only on a right to go upon it and use it. The license or permission given by the tacit consent of the United States was the thing emphasized. All rights of property are theoretically chooses in action; a right to redress injuries done thereto; and in the early possessory rights this idea, usually a remote one elsewhere, came into prominence. Emphasis was placed, not upon the thing itself, but upon the permission of the government to make use of it, a license personal in its nature. No writing was needed to transfer these possessory rights and the Supreme Court of the United States affirmed this view. Union Etc. Co. v. Taylor, 100 U.S. 39, 25 L. ed. 541 and again in Black v. Elkhorn M. Co., 163 U.S. 445, 16 Sup. Ct. Rep. 1101, 41 L. ed. 221 declared this principal to be correct. The Supreme Court in Buford v. Houtz, 133 U.S. 320 (1890) recognized that the grazing of livestock was an implied license.
“There is an implied license, growing out of the custom of nearly one hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of the government forbids their use.”
Cited in Omaechavarria v. Idaho, 246 U.S. 343 (1918):
“For more than forty years, the raising of cattle and sheep have been important industries in Idaho. The stock feeds in part by grazing on the public domain of the United States. This is done with the government's acquiescence, without the payment of compensation, and without federal regulation. Buford v. Houtz, 133 U. S. 320, 133 U. S. 326. Experience has demonstrated, says the state court, that in arid and semi-arid regions, cattle will not graze, nor can they thrive, on ranges where sheep are allowed to graze extensively; that the encroachment of sheep upon ranges previously occupied by cattle results in driving out the cattle and destroying or greatly impairing the industry, and that this conflict of interests led to frequent and serious breaches of the peace and the loss of many lives.”
Under the Appropriation and Beneficial Use Doctrine west of the 100 meridian, applicable in Nevada, Nevada has recognized livestock watering as a beneficial use of water. The Nevada Supreme Court observed that the method of taking water from streams by the use of dams, ditches, or other artificial structures was the natural thing to do. However, it would not necessarily follow that a diversion by artificial means was necessary to constitute an appropriation where the water could be put to beneficial use without such diversion, where there was a practice of doing so, at less cost so far as the use of water was a factor, that had developed into a well-established custom.
Hence, the controlling reason for requiring an artificial diversion to establish an appropriative right did not apply to an appropriation for watering livestock in natural watering places formed by natural depressions(hard pan or diffused surface water), such appropriation having been made prior to enactment of any statute specifying the manner of appropriating water. Steptoe Live Stock co. v. Gulley, 53 Nev. 163, 171-173, 295 Pac. 772 (1931) (Note that the circumstances of this case related peculiarly to the livestock industry).
As stated in chapter 8 under “Elements of the Appropriative Right-Purpose of Use of Water-Stockwatering,” a Nevada statute, enacted in 1925, supplements the general water rights statute by prescribing certain conditions with respect to the acquisition of rights for the watering of livestock, particularly range livestock. The legislation relates to the “right to water range livestock at a particular place” and to “the watering place”—obviously contemplating use of the water in place, with no question about diverting it from the spring or stream channel. See, Nev.Rev.Stat. 533.485-510 (Supp. 1967). The constitutionality of the stockwatering act was sustained, under attack, by the Nevada Supreme Court, and it was referred to, with approval, by the Federal District Court for Nevada. See In re Calvo, 50 Nev. 125, 131-141, 253 Pac. 671 (1927); See Adams-McGill co. v. Hendrix, 22 Fed Supp. 789, 791 (D.Nev. 1938)
2. Purpose and Scope of the term grazing permit.
If these rights of prior appropriation and beneficial use created under the Local Laws, Customs and Court Decisions of the times made no provisions for registering or recording these rights and were considered an implied license by tacit procuration of acquiescence by silence of the United States, a well, established doctrine of law of our American Jurisprudence, then what is the purpose of a term grazing permit? The answer lies in the July 26, 1866 Act (14 Stat. 253) and the clear interpretation of the Supreme Court in Utah Power and Light v. United States, 37 S. Ct. 387, 243 U.S. 389 (U.S. 03/19/1917).
The regulations of the Departments of the Interior and of Agriculture, which are sought to be enforced, are unauthorized by the Act of February 15, 1901, 31 Stat. 790, or any other act of Congress, are attempts at the exercise of legislative power, and are null and void.
The power of the United States to protect its property by its own legislation from private trespass and waste does not, and cannot, imply a general police power over the vacant public lands within a State.
The section in the Constitution relating to the admission of new States, and the concomitant disposition of the public lands, excludes, by its express terms, any construction by which the United States may claim any additional governmental or police powers within the States in which such public land is situated.
The existence of easements of a public nature over vacant federal lands does not interfere with the disposal of such lands by the federal government, but is in aid thereof; and the claim made by the States of the right to control the creation and continuance of such easements, within their respective territorial jurisdictions, does not conflict with the power of Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho, 695; Homer E. Brayton, 31 L.D. 364, 365; Crane Falls Co. v. Snake River Co., 24 Idaho, 77.
The Act of March 3, 1891, 26 Stat. 1095, and acts supplemental thereto, were intended to encourage the appropriation of water for beneficial purposes by providing for the reservation of rights of way over the public land in advance of construction and use, and were not intended to limit or modify the authority and operation of the local laws in respect thereof.
The Acts of May 14, 1896, 29 Stat. 120, February 26, 1897, 29 Stat. 599; May 11, 1898, 30 Stat. 404; February 15, 1901, 31 Stat. 790, and § 4 of the Act of February 1, 1905, 33 Stat. 628, were intended to correct erroneous rulings by the Land Department under the Act of March 3, 1891, supra, and not to supersede, modify or repeal the ninth section of the Act of July 26, 1866, nor to interfere with the operation of the local laws on the subject of the beneficial use of water.
The rights of way mentioned in the Act of February 15, 1901, supra, are all permanent in their nature; and from the body of the act it is plain that the only one which is subject to purchase and termination after construction is the right of way for telephone and telegraph lines, and that this can only be terminated by paying the valuation to be fixed in accordance with the prior statute referred to in the act. The administration of the Act of February 15, 1901, remains, therefore, in the hands of the Secretary of the Interior and was not transferred to the Secretary of Agriculture in forest reservations by the Act of February 1, 1905.
The regulations of the Departments of the Interior and of Agriculture, assuming entire control over the appropriation and use of water on the public domain, sought to be enforced in this and similar cases, are unauthorized by any Act of Congress, and are unconstitutional and void. The laws and policy of a State may be framed and shaped to suit its conditions of climate and soil. The State has the police power to provide for its internal development and to this end to declare what uses are public within its territorial jurisdiction and to regulate the same. Clark v. Nash, 198 U.S. 361; Offield v. N.Y., N.H. & H.R. Co., 203 U.S. 372, 377; Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527; Bacon v. Walker, 204 U.S. 311, 315.
The claims of the federal government, in this and similar cases, are devoid of equity. Woodruff v. Trapnall, 10 How. 190, 207; Indiana v. Milk, 11 Fed. Rep. 389, 397.
The purpose of the permit system was to provide an orderly system of adjudication of the allotments and the access to the Range Improvement funds. These 8100 funds are owned by the ranchers and are being used as a slush fund for federal despots. These fees are not grazing fees as they are administrative fees (25%), payment to the counties in lieu of property tax on the equitable titled property (25%) and 50% are to be used for range improvements and each rancher is to be credited to his account. Yet when a rancher requests funds for reseeding, fence building etc. he is always denied. The solicitor of the U.S. Department of Interior issued a report of missing funds. See EXHIBIT ONE attached hereto. (See the Granger-Thye Act 16 U.S.C. 572 which authorizes Forest Service to collect funds and do work that is the responsibility of the partner).
The Federal Land Policy and Management Act of 1976 (Public Law 94-579 94th Congress) Title IV Section 401(b)(1) provides:
"…shall be credited to a separate account in the Treasury, one-half of which is authorized to be appropriated and made available for use in the district, region, or national forest from which such moneys were derived, as the respective Secretary may direct after consultation with district, regional, or national forest from which such moneys were derived, as the respective Secretary may direct after consultation with district, regional, or national forest user representatives, for the purpose of on-the-ground range rehabilitation, protection, and improvements on
such lands, and the remaining one-half shall be used for on-the-ground range rehabilitation, protection, and improvements as the Secretary concerned directs. Any funds so appropriated shall be addition to any other appropriations made to the respective Secretary for planning and administration of range betterment program and for other range management. Such rehabilitation, protection, and improvements shall include all forms of range land betterment including, but not limited to, seeding and reseeding, fence construction, weed control, water development and fish and wildlife habitat enhancement as the respective Secretary may direct after consultation with user representatives…..”
These funds have historically not been available to the ranchers and have always been used for other than their intended purpose. It is like putting funds into a savings account at the bank and then when you go to use these funds for range improvements the bank tells you that those funds were used up in bank administrative fees. This abuse of desecration on the part of the federal administrative agencies in and through their employees has created a culture of lawlessness within the agencies.
The permit system was intended to permit by administrative action the permission of those issues that was clearly outside the scope of the grant in the July 26, 1866 Act. (14 Stat. 253) such as the building of boundary fences, reseeding etc. it was never intended to be a mandatory scheme designed to deprive property owners of their property, it was never intended to grant any usurpation of the States Sovereign Powers and was never intended to grant any police powers to the federal government. The Federal Government was never granted any regulatory authority (police powers) over private property within the boundaries of the states. See Slauterhouse Cases, 83 U.S. 36 (1872) The privileges and immunities clause under the 14th Amendment grants no federal authority to interfere with the police powers of the states. Private property rights that predate the forest reservations or the creation of grazing districts are not within the scope or intent of Congress in fact it has always been the intent of Congress to recognize and protect these rights. 43 U.S.C. 661. See, United States v. Cruikshank, 92 U.S. 542 (1875) The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.
The rights cannot be waived by the signing of a term grazing permit, "rights” acquired before 1913 [can] only be lost in accordance with the law in existence at the time of the enactment of [Nevada's statutory water rights provisions], namely, intentional abandonment." Because nothing in NRS Chapter 533 or our previous cases suggests that an application to modify vested water right extinguishes it .” Anderson Family Associates v. Hugh Ricci, 179 P 3d 1201 (Nev 2008); See, also the following Supreme Court Cases on “Vested Rights”: Trustees of Dartmouth College v. Woodward, 4 L.Ed 629, 17 U.S. 518, 4 Wheat(1819) Charles River Bridge v. Warren Bridge , 11 Pet. 420, 9 L.Ed. 773, 36 U.S. 420 (Jan 1, 1837).
The Federal Land Policy and Management Act of 1976 (Public Law 94-579 94th Congress) Title III ADMINISTRATION Section 301(c) (43 U.S.C. 1731) “The Secretary shall insert in any instrument providing for the use, occupancy, or development of the public lands a provision authorizing revocation or suspension, after notice and hearing of such instrument upon a final administrative finding of a violation of any term or condition of the instrument, including, but not limited to, terms and conditions requiring compliance with regulations under Acts applicable to the public lands ……..” [emphasis added]
Defendants/Cross Complainants’ due process rights were violated as no notice or hearing was ever conducted according to Section 301. This is clearly arbitrary, capricious and not in accordance with law.
Throughout the trial, it became increasingly clear of a conspiracy to destroy these private property rights, by unlawful regulations without authority from the underlying statutes of which they claim to get their authority. See, Corpus Juris Segundum Public Administrative Law and Procedure Section 172 Validity-Consistency with governing statute and other Laws. An Administrative rule or regulation must be consistent with the statute under which it is promulgated and with other laws and Constitutional Provisions.[emphasis added] See Also Parallel Table of Authorities and Rules provided by GPO [Government Printing Office]..
It was never the intent of the Hages to be in defiance with impunity as it was always the intent to protect their private property rights and to be protected by the laws as written by the State and Federal legislatures within the restraints of the enumerated powers of the Constitution of the United States of America and the Constitution of the State of Nevada.
To be free of despots that claim immunities to be free to conduct their unlawful activities.
To be free to be protected by the Courts of perjured statements, like those made by the sworn testimony of Harv Forsgren on August 27, 2012 in open court. Harv Forsgren Regional Forester for Region 4 testified that there has been no cattle seizures without a court order or warrant since 1995, yet in November of 2005 when he was the Regional Forester for Region 3, the United States Forest Service seized and sold all of the cattle of Daniel G. Martinez without a court order or warrant in gross violation of both his substantive and procedural Due Process rights of which is the subject matter of Case 11-751 L presently before the United States Court of Federal Claims. I, Daniel G. Martinez have firsthand knowledge of the facts and am competent to testify as to those perjured statements.
The principal of our American Jurisprudence was made clear by the Supreme Court of the United States in Nixon v. Fitzgerald, 457 U.S. 731 (1982):
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.”
See United States v. Lee, 106 U.S. 196, 220 (1882), [n1] and Marbury v. Madison, 1 Cranch 137, 163 [p798] (1803). [n2
3. Doctrine of Retroactivity and Prospectivity.
In our American Jurisprudence of established Statutory Construction and Interpretation, the Supreme Court has made clear that a statute is to read as a whole and not in parts. A cardinal rule of construction is that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes. Justice Scalia, who has been in the vanguard of recent efforts to redirect statutory construction toward statutory text and away from legislative history, has aptly characterized this general approach. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme —because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (citations omitted) (opinion of Court). This was not a novel approach. In 1850 Chief Justice Taney described the same process: “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the whole law, its object and policy,” United States v. Boisdoré’s Heirs, 49 U.S. (8 How.) 113, 122 (1850).
In the oft-cited 1814 case of Society for the Propagation of the Gospel v. Wheeler, 22 Fed. Cas. 756 (C.C.D.N.H.1814). Justice Story rejected the view that only laws with primary retroactivity were invalid. He instead adopted the position that even statutes that are secondarily retroactive may also be invalid. The Wheeler case stated that if a statute satisfied this definition, it would be impermissible either if it (1) “takes away or impairs vested rights acquired under existing laws, or (2) creates a new obligation…or attaches a new disability, in respect to transactions…..already past…”. Under this conception of secondary retroactivity, that became effective only after their passage could still be invalidated if they either interfered with vested rights or imposed new duties or liabilities on earlier events. (See, W. Wade, A treatise on the Operation and Construction of Retroactive Laws, as Affected by Constitutional Limitations and Judicial Interpretations §1 at 2 (1880))
The Landgraf v. USI Film Products, 511 U.S. 374 (1994) case resurrected the judiciary’s traditional distaste for retroactive laws, and confirmed that retroactive laws affecting property are particularly unfair because they may interfere with legal relationships that have arisen under prior law, (See July 26, 1866, 14 U,S. stats. 252 section 9 (R.S. 2339) and Act of July 9, 1870, 16 U.S. stats. 218 Section 17 (R.S. 2340) as well as decisions made by private property holders in reasonable, legitimate reliance on existing law. The Landgraf, opinion readopts the broad “vested rights” definition of retroactivity originally set forth by Justice Story in the Wheeler case.
The Due Process Clause has been successfully invoked to defeat retroactive invasion or destruction of Property rights in a few cases. A revocation by the Secretary of Interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the Company of its property without due process of law. Noble v. Union River Logging R.R., 147 U.S. 165 (1893)
This doctrine of “retroactivity and prospectivity” is made clear in the Act of July 30, 1947, ch. 388, 61 Stat. 635 codified at: 1 U.S.C. § 111. Repeals as evidence of prior effectiveness, “No inference shall be raised by the enactment of the Act of March 3, 1933 (ch. 202, 47 Stat. 1431), that the sections of the Revised Statutes repealed by such Act were in force or effect at the time of such enactment: Provided, however, That any rights or liabilities existing under such repealed sections shall not be affected by their repeal.” [emphasis added]
4. Authority of the Court, Under 5 U.S.C. Section 706 and Article
III Section 1, of the Constitution of the United States of America.
5 U.S.C. Section 706 is a grant of authority for judicial review:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."
Both agencies involved in and through their employees have acted arbitrarily, capriciously and otherwise not in accordance with law. Agencies have ignored Defendants/Cross complainants’ valid pre- existing rights that were acquired under the local laws, customs and court decisions of the times. Agencies have acted arbitrarily and capriciously and have abused their desecration by attempting to extinguish the private property of the Hage family by retroactively misapplying the law as written. The Act of March 3, 1891, 26 Stat. 1095 and those thereafter as quoted in Utah Power and Light supra,
‘The Act of March 3, 1891, 26 Stat. 1095, and acts supplemental thereto, were intended to encourage the appropriation of water for beneficial purposes by providing for the reservation of rights of way over the public land in advance of construction and use, and were not intended to limit or modify the authority and operation of the local laws in respect thereof.
The Acts of May 14, 1896, 29 Stat. 120, February 26, 1897, 29 Stat. 599; May 11, 1898, 30 Stat. 404; February 15, 1901, 31 Stat. 790, and § 4 of the Act of February 1, 1905, 33 Stat. 628, were intended to correct erroneous rulings by the Land Department under the Act of March 3, 1891, supra, and not to supersede, modify or repeal the ninth section of the Act of July 26, 1866, nor to interfere with the operation of the local laws on the subject of the beneficial use of water.” [emphasis added]
Taylor Grazing Act of 1934 codified at 43 U.S.C. 315 et.alius pre-empted and recognized these pre-existing rights of property:
“Nothing in this subchapter shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this subchapter nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this subchapter, would be a part of any grant to any State, nor as limiting or restricting the power or authority of any State as to matters within its jurisdiction.”
The Roosevelt withdrawal of these lands by executive order 6910 recognized and pre-empted these valid pre-existing rights. The withdrawal from settlement was for a specific purpose with no intention of any retroactive cancellation of these pre- existing rights.
“Whereas, the Act of June 28, 1934 (ch. 865, 48 Stat. 1269), provides, among other things, for the prevention of injury to the public grazing lands by overgrazing and soil deterioration; provides for the orderly use, improvement and development of such lands; and provides for the stabilization of the livestock industry dependent upon the public range; and
WHEREAS, in furtherance of its purposes, said Act provides for the creation of grazing districts to include an aggregate area of not more than eighty million acres of vacant, unreserved and unappropriated lands from any part of the public domain of the United States; provides for the exchange of State owned and privately owned lands for unreserved, surveyed public lands of the United States; provides for the sale of isolated or disconnected tracts of the public domain; and provides for the leasing for grazing purposes of isolated or disconnected tracts of vacant, unreserved and unappropriated lands of the public domain; and
WHEREAS, said Act provides that the President of the United States may order that unappropriated public lands be placed under national-forest administration if, in his opinion, the land be best adapted thereto; and
WHEREAS, said Act provides for the use of public land for the conservation or propagation of wild life; and
WHEREAS, I find and declare that it is necessary to classify all of the vacant, unreserved and unappropriated lands of the public domain within certain States for the purpose of effective administration of the provisions of said Act;
NOW, THEREFORE, by virtue of and pursuant to the authority vested in me by the Act of June 25, 1910 (ch. 421, 36 Stat. 847), as amended by the Act of August 24, 1912 (ch. 369, 37 Stat. 497), and subject to the conditions therein expressed, it is ordered that all of the vacant, unreserved and unappropriated public land in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah and Wyoming be, and it hereby is, temporarily withdrawn from settlement, location, sale or entry, and reserved for classification, and pending determination of the most useful purpose to which such land may be put in consideration of the provisions of said Act of June 28, 1934, and for conservation and development of natural resources.
The withdrawal hereby effected is subject to existing rights.
This order shall continue in full force and effect unless and until revoked by the President or by act of Congress”.[emphasis added]
The Federal Land Policy and Management Act of 1976 (Public Law 94-579 94th Congress) provides for their protection and not their destruction., title VII, § 706(a), Oct. 21, 1976, 90 Stat. 2793) provided that effective on and after October 21, 1976, insofar as applicable to the issuance of rights-of-way over, upon, under, and through the public lands and lands of the National Forest System this section is amended to read as follows: “Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same. All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights as may have been acquired under or recognized by this section.” [emphasis added]
The Federal Lands Policy Management Act of 1976 (Pub. L. 94-579, 90 STAT. 2743) has a savings clause in Section 701 of the Act which is codified at 43 U.S.C. § 1701 and is hidden in the notes of the codified section:
Savings Provision
Section 701 of Pub. L. 94–579 provided that:
“(a) Nothing in this Act, or in any amendment made by this Act [see Short Title note above], 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 [Oct. 21, 1976].
“(b) Notwithstanding any provision of this Act, in the event of conflict with or inconsistency between this Act and the Acts of August 28, 1937 (50 Stat. 874; 43 U.S.C. 1181a–1181j) and May 24, 1939 (53 Stat. 753), insofar as they relate to management of timber resources, and disposition of revenues from lands and resources, the latter Acts shall prevail.
“(c) All withdrawals, reservations, classifications, and designations in effect as of the date of approval of this Act shall remain in full force and effect until modified under the provisions of this Act or other applicable law.
“(d) Nothing in this Act, or in any amendments made by this Act, shall be construed as permitting any person to place, or allow to be placed, spent oil shale, overburden, or byproducts from the recovery of other minerals found with oil shale, on any Federal land other than Federal land which has been leased for the recovery of shale oil under the Act of February 25, 1920 (41 Stat. 437, as amended; 30 U.S.C. 181 et seq.).
“(e) Nothing in this Act shall be construed as modifying, revoking, or changing any provision of the Alaska Native Claims Settlement Act (85 Stat. 688, as amended; 43 U.S.C. 1601 et seq.).
“(f) Nothing in this Act shall be deemed to repeal any existing law by implication.
“(g) Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or— “(1) as affecting in any way any law governing appropriation or use of, or Federal right to, water on public lands; “(2) as expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water resources development or control; “(3) as displacing, superseding, limiting, or modifying any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more States or of two or more States and the Federal Government; “(4) as superseding, modifying, or repealing, except as specifically set forth in this Act, existing laws applicable to the various Federal agencies which are authorized to develop or participate in the development of water resources or to exercise licensing or regulatory functions in relation thereto; “(5) as modifying the terms of any interstate compact; “(6) as a limitation upon any State criminal statute or upon the police power of the respective States, or as derogating the authority of a local police officer in the performance of his duties, or as depriving any State or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the national resource lands; or as amending, limiting, or infringing the existing laws providing grants of lands to the States.
“(h) All actions by the Secretary concerned under this Act shall be subject to valid existing rights.
“(i) The adequacy of reports required by this Act to be submitted to the Congress or its committees shall not be subject to judicial review.
“(j) Nothing in this Act shall be construed as affecting the distribution of livestock grazing revenues to local governments under the Granger-Thye Act (64 Stat. 85, 16 U.S.C. 580h), under the Act of May 23, 1908 (35 Stat. 260, as amended; 16 U.S.C. 500), under the Act of March 4, 1913 (37 Stat. 843, as amended; 16 U.S.C. 501), and under the Act of June 20, 1910 (36 Stat. 557).” [emphasis added]
CONTEMPT
Under Article III of the Constitution of the United States of America and our separation of powers doctrine the federal courts under their inherent powers have the authority to protect the integrity and the working of the courts and to protect from the interference of Administrative Agencies in and through their employees, that are abusing the Due Process provisions of the Constitution and their attempt to legislate under their rule making authority, a function delegated to Congress.
In International Union, UMW v. Bagwell, 512 U.S. 821 (1994) the Court formulated a new test for drawing the distinction between civil and criminal contempts, which has important consequences for the procedural rights to be accorded those cited. 512 U.S. at 832-38 Relevant is the fact that contempts did not occur in the presence of the court and that determinations of violations require elaborate and reliable factfinding. In the case of Shillitani v. United States, 384 U.S. 364 (1966) defendants were sentenced to 2 years imprisonment for contempt of Court. On appeal the Supreme Court determined that they were in civil contempt, as the purpose was to obtain answers to questions for the grand jury, and the court provided for their relief upon compliance; whereas “a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterrence.”
A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt---whether civil or criminal in nature. Direct contempt results when the contumacious act is committed “in the presence of the Court or so near thereto as to obstruct the administrations of justice” Act of March 2, 1831 ch. 99 Section 1, 4 Stat. 488 see Beale Contempt of Court, Civil and Criminal, 21 HARV. L. REV. 161, 171-172 (1908)
The Act of 1789.—The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign. By the latter part of the 18th Century, summary power to punish was extended to all contempts whether committed in or out of court. In the United States, the Judiciary Act of 1789 in section 17 (1 Stat. 83) conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” This was latter amended in the Act of 1831.
An Inherent Power.—The validity of the Act of 1831 was sustained forty-three years later in Ex parte Robinson, 86 U.S. (19 Wall) 505 (1874) in which Justice Field for the Court expounded principles full of potentialities for conflict. He declared,
“The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and writs of the courts and consequently to the due administration of justice. The moment the court of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.”
The Court has complied with the Due Process Limitations on Contempt Powers by giving proper notice and a hearing versus summary Punishment. This was the purpose of the August 27, 2012 hearing that lasted until late evening on August 31, 2012.
What appeared to be confusing to Opposing Counsel for the Plaintiffs/ Cross Defendants is that contempt can apply to acts outside the court room as the contemptuous acts were acts outside the courtroom intended to obstruct the proper administration of justice, especially when it was the Plaintiffs/Cross Defendants that by filing the complaint had vested the Court of jurisdiction over the subject matter, then interfered in its administration by proceeding to administer their own punishment or enforcement of void rules without the proper authority.
Criminal Complaint has been codified in the federal criminal code at 18 U.S.C. 1505 as follows:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”
CONCLUSION
Movants hereby request that their Motion for Leave be granted and their amicus curiae brief be accepted. This motion is not intended to prejudice any of the parties but it intended to protect the Movants interest in the administration of the Law and to preserve order in the proper administration of our Court system.
Dated this 11th day of September
Respectfully submitted,
______________________________
Daniel Gabino Martinez
______________________________
Ramona J. (Hage) Morrison
1 Black’s Law Dictionary 6th Edition page 385 define Custom and Usage as follows: A usage or practice of the people, which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of law with respect to the place or subject-matter to which it relates. It results from a long series of actions, constantly repeated, which have by such repetition and by uninterrupted acquiescence, acquired the force of a tacit and common consent. Louisville & N.R. Co. v Reverman, 243 Ky. 702, 49 S.W. 2d 558, 560. An habitual or customary practice, more or less widespread, which prevails within a geographical or sociological area; usage is a course of conduct based on a series of actual occurrences. Corbin-Dykes Elec. Co. v. Burr, 18 Ariz.App. 101, 500 P). 2d 632, 634. [emphasis added]
2 Black’s Law Dictionary 6th Edition page 1156 Police Power. An authority conferred by the American constitutional system in the Tenth Amendment, U.S. Const., upon the individual states, and, in turn delegated to local governments, through which they are enabled to establish a special department of police; adapt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of its citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.
The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the federal and State constitutions, and especially to the requirement of due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government.
The term Despot is not the original and mot simple acceptance, but that taken in bad sense , as it is usually employed, it signifies a tyrant. See Black’s Law Dictionary 6th Edition page 448.
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