Land for Love and Money

by Reid Lance Rosenthal

  One of these projects was the so-called Gateway Project, a multi-power line routing by three monolithic utilities across Idaho, Wyoming, Utah and Colorado. (For more information on this, see www.gatewaywestproject.com.) Two of the proposed lines were looped transmission corridors running from, and then back to, the major corridor. The loop was to run eighty miles through some of the most pristine country in the West and the most untrammeled and unspoiled lands within three hours of the Denver metro area. The routes aggressively proposed through this rugged wilderness consisted of eighteen-story steel towers every thirteen hundred feet with a road to every tower. The intent was simply to provide opportunity for potential future construction of four hundred-foot tall, two hundred eighty-foot wide wind turbines down this mountain corridor.

  Arguments by the power companies that this construction was important to save us all from environmental degradation withered in the face of suddenly united opposition, which rallied to protest the negative physical and visual impact and the material adverse consequences to wildlife, watersheds, agriculture and recreation, as well as the negative impact on cultural and historic areas of significance. Two hundred or so ranch owners organized pretty quickly into the Northern Laramie Range Alliance (NLRA)2, which continues to grow.

  Hopefully, your due diligence, investigation and common sense will ensure you never face a sinister macro threat to the land you love and its value. However, the unknown can always occur. If it does, the NRLA is a case study in how to proceed for success, as well as mistakes to avoid.

  Certain members of the alliance were well-connected and had previously been legislators in Wyoming. Others had contacts on the national level. To those members of the group fell the responsibility of legislative government interaction. One of our firm’s specialties is conservation, including cultural and historic matters. We took on the mission of organizing a number of ranchers at a very narrow neck of the valley, through which the transmission line would have to pass. We organized consultants and assisted neighbors in preparation of detailed maps, which included numerous points of historical, cultural and Native American designation.

  Finally, the goal of public galvanization flowed to other well-connected ranchers in the area. They did an extremely effective job of rallying public support from Douglas, Cheyenne and Laramie.

  A few of us with experience in business litigation were entrusted to bring a legal action that challenged the very foundation of the monolith’s proposal. At the outset, this attack took the form of a request to the court to declare that the power companies did not have the right of eminent domain. In the course of the back-and-forth discussions with the utility companies, federal agencies, state agencies and landowners, I met many people. Some had heard of our ranches and some had not. Our base of friends, acquaintances, allies and network of mutual respect greatly expanded.

  Demonstrating that organized opposition can prevail, the proposal for the unnecessary loop was abandoned by the power companies in mid-2009, in the face of stiff organized resistance. One other line was defeated, as were several turbine farms.

  However, the NRLA also lost several key battles. The reasons for less-than-total victory were four. Be alert to these and avoid them in your group:

  Some of the wealthier, more powerful members of the group focused on steps most likely to protect their own lands. This created resentment in other group members.

  Many landowners were informed of discussions or negotiations affecting their lands after the fact. They were not pleased.

  In typical small town fashion, some owners did not want to anger a minority of ranchers who did want wind power, and did not want to “stand out” as being overly negative. There is no way to win a monumental battle such as this by being in the least bit timid.

  Most members of the group were reluctant to use the courts as one of the weapons in their arsenal.

  Last, but very importantly, the group did not hire an administrative person. The result was lack of communication, untimely communication and many missed opportunities on the local political level, which would have beneficially affected eminent domain, alternative energy zoning, mapping and guidelines, moratoriums and overall public knowledge and support. Remember this old adage: “A single stick can be broken, but a bundle of sticks cannot.”

  If you are still searching for that special piece of land, open your eyes to what is happening politically in the regions of your search. If 183 you have already purchased your piece of heaven, get involved and stay involved.

  The satisfaction of being part of a successful strong communal effort on the right side of an issue is incalculable. Friendships and alliances created will benefit all involved for years or decades to come. The respect gained from having the courage to voice suggestion and opinion, to play an active role in the plan and to fight for the resource, cannot be measured. The preservation of your own property rights and values are worth protecting. Avoidance of emotional trauma inherent to being witness to land you love being ripped apart by mindless greed and lackadaisical planning of disinterested third parties is incalculable.

  In summary, when an occasion like this arises, and odds are it will in the course of your stewardship of your property, get involved. Lend your shoulder to the common wheel.

  1Google-a) Alternative Energy Subsidy-Federal Stimulus; b) Wind Power Federal Subsidy; and c) Government Subsidy to Alternative Energy Generation and Transmission.

  2www.nlralliance.org

  I never cease to be amazed at what some folks will do to get their cattle on someone else’s grass. Sometimes, more insidiously, livestock can be used as a weapon of advantage or persuasion. If you have rural property in an area where there is livestock, chances are that at some time your livestock is going to be on somebody else’s place or vice versa. This is particularly true of horses and yearling steers. Those critters like to roam and “push fence.” Mother cows with calves like easy feed and are unlikely to move unless they are out of grass or, are moved.

  It was a tranquil Indian summer day. Sunlight filtered through pine needles and the golden red of quaking aspen leaves. I had been on a horse since four a.m. and hiked an additional three miles through a morning frost, resulting in an energy-sucking chill. No great bull elk had shown himself in this remote inviting canyon bisected by a small creek. I planned to camp there the whole day and steal out after dark. I enjoyed a mid-day siesta in the drowsy warmth.

  I was awakened by a wet rasp-like caress on my cheek, along with a less than thrilling smell I quickly realized was bad breath. The kiss of an inquisitive cow jerked me awake. Apparently my nodding head must have resembled a salt block. I don’t know who jumped the highest, me or the cow. I recovered from my surprise and was truly annoyed. I was more than two miles from the nearest property line of our Wyoming ranch, inside an area that we had gone to great pains and expense to fence in order to protect the restored riparian habitat. Yet here was a neighbor’s cow along with about twenty of her cousins in exactly the wrong place at exactly the wrong time.

  I checked the brands. They belonged to the family who leased National Forest lands on the eastern boundary of our spread. I had had numerous run-ins with that federal lessee over the previous five years. The man simply did not want to live up to his responsibility to fix the fence between us and the forest land, although that was part of his federal lease agreement. Over the years, we had wasted many days rounding up his cows and trying to talk some sense into him. Our complaints to the Forest Service sometimes resulted in temporary action, but never had any long-term result.

  We had resorted to driving the cows all the way through the ranch to the county road where they could wander for miles, which made his roundup more difficult. We had intimated that the “next time” it happened, his cows might become permanently lost or mysteriously disappear somewhere in the interior of our acreage. Our neighbor sometimes pandered to our concerns. Once in a while he would send his sons up to fix a few hundred yards of the five-mile excuse for a fence.
But generally he just ignored us. After all, grass is money and the other guy’s grass is free.

  For a brief instant that day in the canyon I contemplated beef rather than elk steaks that night. I was annoyed enough by that cow’s foul-smelling tongue and the numerous trespasses of half a decade that I marched out of the canyon back to the horse, rode down to the cabins that we use as spike camp in that high country, jumped in the truck, and roared the twenty miles to the lower ranch house where we had some communication capabilities.

  The phone finally in hand, I called the patriarch of the family who had the forest lease. Even though Wyoming is a “fence out” state1 I could feel the animosity when I told him who was on the other end of the line.

  “How many times have we asked you to keep your cows off our place?” I demanded.

  “Well, we have talked about it a bit and you know I sent the boys up there to fix the fence,” he drawled.

  “BS. Your boys have not fixed five hundred yards of fence out of five miles in over five years. Last year we spent the equivalent of six man-days chasing your cows back onto your lease or down to the county road. This is our time, our money and our grass. The Forest Service has been on you, we have been on you, and other neighbors have been on you. The bottom line is you don’t control your cows and you don’t care because there is really no ramification.”

  “Well, we are really busy on the home place and that is about forty miles away, as you know…” he stammered.

  “Well, I am done,” I interrupted him. “I don’t know if you know what that means, ‘Sam’, since you don’t know me well, but it means exactly what it sounds like. I am done! Here is what you are going to do. You are going to go up and get every single cow, and it looks like there is about twenty pair, off of our property by noon tomorrow. You are going to bring your sons. And they are going to start fixing that entire five miles of fence tomorrow, and they are not going to stop until they are done.

  If you miss any of those deadlines, here is what we are going to do. First, we are going to file an Agisters Lien on your brand. Every time you sell one of those heifers, or any of those steers, you are going to pay us on the lien. The lien is going to be for all of your trespasses for the past five years, including today. We have kept a log and I bet you it is between three and four thousand animal unit days, which is about one hundred fifty AUMs. Our rate is going to be $100 per AUM, which is about what it costs when you get done with our time, aggravation, expense and damage.” I could feel the head of steam as it boiled up from deep within my chest.

  “But—” he tried to interject.

  “I am not done.” I knew my voice decibels were rising. “In addition, the next time one of your cows is on our place, unless it got through a portion of the fence because a tree fell over, we are going to call our attorneys and we are going to sue you for civil trespass and the damages associated with that. I will let you think about it. My math says the cost of your two boys fixing five miles of fence versus the cost of attorneys, five years of trespass and other problems and damages which are sure to arise is a deal. I bet you come to the same conclusion as me. It is way cheaper to be a good neighbor, fix the fence and maintain it.” I hung up.

  The fence did indeed get fixed within the required time frames. That was three years ago, and except for a few occasions which were simply unavoidable or for which “Sam” cannot be faulted, his cows have not tasted our grass since that conversation.

  I can also relate tales of very different reactions to livestock trespass by truly concerned and well-meaning neighbors. I had a neighbor in Colorado some years back whose yearlings got into some of our high country. I had to talk him out of going up there in the dark at great risk to his sons, himself and their horses. I told him that the next day would be just fine. His wife baked three absolutely yummy apple pies for us as payment for their one-day indiscretion.

  We had a neighbor next to another of the Colorado ranches. He was building a fine new home on one hundred acres that tied into one corner of our larger place. I got a call one night in 2009 from his hysterical wife. Our pasture lessee’s cows had somehow gotten on his property and were thoroughly enjoying the new construction underway.

  The house was framed at that time. The cows had taken a particular fancy to the living room area and were happily camped out on the plywood floors. It seems they liked the view to the west towards the Grand Mesa. Those windows were covered with slobber marks from their noses as they pressed their faces against the glass, no doubt trying to take in the sunset. After the fact, it was my theory that the open floor plan had attracted them to that level of the house. Who says cows don’t have taste?

  The next morning, we all met out there. Apparently one of the contractors had taken out a portion of the fence and brace posts to get in a large piece of equipment. This created an open gap between his property and ours. We had given his contractor permission to cross us since it was a shorter run for him during the construction period. We extricated the cows from the abode. The roundup was on foot to minimize any more damage to the floors. Our neighbor apologized for the drama, sheepishly admitted that it had been his mistake not to notice the hole in the fence created by his own contractors, and together we made the repair. Mission accomplished and everyone was smiles. I assume they power-sprayed their subfloors before putting down the carpet!

  Many western states have “fence-out laws.” In other words, if you do not construct a fence to keep the neighbor’s livestock off your grass, too bad for you. Open Range Laws in some of the western states and in western Canada also contribute to trespass as cows move up and down county or provincial right of ways from one property to another. The eastern states and provinces generally take a different view. If you have animals, you are responsible for them and for the enclosures that keep them on your property and not someone else’s.

  Whatever the state or provincial law, the reality is that livestock will from time to time escape. Trees will fall on fences. Big game animals will knock strands of wire off posts or in some cases flatten the fence entirely. Animals that have depleted forage on one side of a fence will obviously want to get to the other side of the fence to partake in more ample feed supplies. High water or beaver activity can wipe out a boundary along water courses.

  If it is your animals trespassing, do the right thing and do it promptly. Call your neighbor and inform them of the indiscretion. Move them back onto your place immediately. Repair the breach from which they escaped. Offer compensation to your neighbor whether in the form of cash, helping them out on their place, or a scrumptious neighborly apple pie. This will earn you respect and good will in the community. Remember, word travels quickly. In return, your neighbors will be as rapid in their response as you are in yours.

  If your property becomes the victim of an unwitting trespass, let the owner of the livestock know immediately. Be friendly though firm, and follow up to make sure that they perform the agreed-upon rectification within the time frames discussed. Perhaps you could use the opportunity to suggest and agree on a plan to avoid the situation in the future. This might be as simple as the two of you meeting once or twice a year, walking or riding the fence together and then sharing the expense of the repairs. Each of you can agree to alternating years in fix-up responsibilities. Many times neighbors meet in the middle of a fence line, and each person agrees to fix the fence to his or her left or right.

  If you find yourself in the unfortunate situation where a neighbor or adjoining landowner tries to take advantage of the situation, or their attitude is one of obvious unconcern, do not hesitate about getting firm, immediately. Be reasonable, but state the expected resolution explicitly, and how to avoid similar dilemmas in the future. Follow up with a letter in writing. If the situation reoccurs, get tough. The Agisters Lien on a rancher’s brand and civil remedies for trespass and damages almost always does the trick. Less than honorable folks have been known to get religion overnight when they face an expense greater than grazing their animals on
their own grass.

  Bear in mind, whether you have a spread of many thousands of acres, or a five- to twenty-acre place in some of the more crowded areas of the continent, the protection of your resource, your grass and your water is important to your sanity, to your values and indeed to the health of your own livestock. An owner who has twenty acres back east with four or five horses and who plans to support those horses year-round on that place with pasture and supplemental winter hay will be in a serious pickle indeed if the neighbor’s stock get in the fence for a day or two. It doesn’t take long for just a few trespass animals to blaze ten acres of grass down to the nubs.

  1An owner is responsible for fence to keep livestock out, rather than vice versa. U.S. Forest Service leases, however, require the lessee to maintain all fencing in and around the leased federal ground.

  It is not often that one gets to leave the imprint of perpetual preservation on a significant chunk of the planet in the form of conservation of rapidly disappearing prime resources. As well as enjoying the attendant financial consideration in the form of tax benefits that emanates from a grant, there is the additional satisfaction of getting paid to do the right thing.

  But there is a dark side to the grants of these conservation easements. Their use by unscrupulous or ignorant grantors can be shady. Grants by unsophisticated landowners being advised by sometimes well-meaning but usually ill-informed advisors or consultants can be disastrous. Few attorneys and CPAs know much about this process, and they often fail to comprehend that a good long-term plan, with flexible strategies and quantifiable goals, is integral to the formulation of a successful grant or series of easements on any piece of property. Potential benefits and adverse effects apply to property anywhere and of any size. To be meaningful and legal, and to serve the purpose of resource protection, a conservation easement must achieve Real Conservation Value.