United States Court of Appeals for the Federal Circuit 

06-5012 

COLVIN CATTLE COMPANY, INC., 

 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Michael J. Van Zandt, McQuaid Bedford & Van Zandt LLP, of San Francisco, 

California, argued for plaintiff-appellant. With him on the brief was Lyman D. Bedford. 

Katherine J. Barton, Attorney, Environment and Natural Resources Division, 

United States Department of Justice, of Washington, DC, argued for defendantappellee. With her on the brief were Sue Ellen Wooldridge, Assistant Attorney General, 

Kathryne E. Kovacs, and Kathleen L. Doster, Attorneys. 

John Echeverria, Georgetown Environmental Law & Policy Institute, of 

Washington, DC, for Amicus Curiae. 

 Appealed from: United States Court of Federal Claims 

Senior Judge John P. Wiese 
United States Court of Appeals for the Federal Circuit 

 

06-5012 

COLVIN CATTLE COMPANY, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

 __________________________ 

 DECIDED: November 1, 2006 

 __________________________ 

Before NEWMAN, MAYER, and RADER, Circuit Judges. 

MAYER, Circuit Judge. 

 Colvin Cattle Company, Inc. (“Colvin”) appeals the judgment of the United States 

Court of Federal Claims, which dismissed its complaint alleging takings of its water 

rights and ranching operations, breach of contract, and other injuries. Colvin Cattle Co., 

Inc. v. United States, 67 Fed. Cl. 568 (2005). We affirm. 

Background

 Colvin owns a 520-acre cattle ranch in Nevada, adjacent to the Montezuma 

Allotment. The allotment comprises 625,000 acres of public land in Nevada, and the 

Bureau of Land Management (“BLM”) administers cattle grazing on it pursuant to the 
1934 Taylor Grazing Act (“TGA”), 43 U.S.C. § 315 et seq. The land was initially 

conferred on the United States in 1848 through the Treaty of Guadalupe Hidalgo, and it

has remained in the federal government’s possession ever since. Colvin alleges, and 

the government does not contest, that it possesses stockwatering rights in the 

allotment. 

Colvin first applied to the BLM for a grazing lease in 1969, which was granted on 

January 19, 1970. The lease was last renewed in 1989, for a term of ten years, but it 

remained effective only upon Colvin making the requisite annual payments. By its 

terms, it conveyed “no right, title or interest held by the United States in any lands or

resources.”1

 In February 1995, Colvin failed to pay the $966 annual grazing fee. As a 

result of that failure, the BLM issued Colvin a trespass notice on March 15, 1995,

demanding that it stop grazing its cattle on the allotment. Ultimately, in 1997, Colvin’s

lease was canceled and trespass damages were assessed against it. 

However, Colvin continued to graze on the allotment, and on June 25, 2001, the 

BLM issued a notice of intent to have its cattle removed. Moreover, in May 2002, the 

BLM canceled Colvin’s range improvement permits, and issued an initial decision

ordering that all materials related to range improvements be removed. Colvin did not

 1 The lease specifically provides: 

This lease; 1. Conveys no right, title or interest held by the United States 

in any lands or resources and 2. Is subject to (a) modifications, 

suspension or cancellation as required by land plans and applicable law;

(b) annual review and to modification of terms and conditions as

appropriate; and (c) the Taylor Grazing Act, as amended, the Federal 

Land Policy and Management Act, as amended, the Public Rangelands 

Improvement Act, and the rules and regulations now or hereafter 

promulgated thereunder by the Secretary of the Interior. 

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respond, and the BLM issued a final decision on the matter on November 26, 2003, 

ordering all range improvements removed, excluding any “facilities necessary for 

exercise of water rights . . . established pursuant to Nevada law.” Colvin Cattle, 67 Fed. 

Cl. at 570. Although Colvin may no longer access the allotment for grazing purposes, 

the government has not impeded its access to water. The BLM has since authorized 

another rancher to graze livestock, but as a condition of his authorization, he must haul 

his own water to the allotment. 

On August 18, 2003, Colvin filed suit in the Court of Federal Claims, asserting 

takings claims relating to its water rights and ranching operations, a breach of contract 

claim relating to its canceled grazing lease, and a claim for compensation under 43 

U.S.C. § 1752(g) for the value of improvements made to the allotment. The government 

moved to dismiss for failure to state a claim or, in the alternative, for summary 

judgment. The trial court ruled in favor of the United States on all issues, and dismissed 

Colvin’s complaint. Colvin appeals, and we have jurisdiction under 28 U.S.C.

§ 1295(a)(3). 

Discussion

 Preliminarily, because the trial court relied on matters outside of the pleadings in 

dismissing Colvin’s complaint and Colvin was given a reasonable opportunity to present 

materials relevant to the government’s motion, we treat the trial court’s dismissal as a

grant of summary judgment in favor of the United States. Fed. R. Civ. P. 12(b); see 

also Moden v. United States, 404 F.3d 1335 (Fed. Cir. 2005). Summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of law.”

06-5012 3
Fed. R. Civ. P. 56(c). As such, we review the trial court’s judgment de novo, drawing all 

reasonable factual interferences in favor of Colvin. Crater Corp. v. Lucent Techs., Inc., 

255 F.3d 1361, 1366 (Fed. Cir. 2001). Applying this standard, we reject each of its 

arguments. 

We begin with Colvin’s takings claims. Its principal contention is that the United 

States’ actions restricting its ability to graze on the Montezuma Allotment constitute a 

taking of its water rights. It does not allege that it possesses a free-standing right to 

graze. Rather it says merely that such a right is inherent in its water rights, and 

therefore, interfering with its ability to graze constitutes a taking of its water rights. 

Colvin Cattle, 67 Fed. Cl. at 570. Accordingly, if no such inherent grazing right exists,

then governmental actions restricting its ability to graze do not implicate Colvin’s water 

rights in any constitutionally protected manner, and cannot constitute a taking. 

Indeed, under our regulatory takings analysis, see, e.g., M & J Coal Co. v. United 

States, 47 F.3d 1148, 1153-54 (Fed. Cir. 1995), the threshold inquiry is “whether the 

claimant has established a ‘property interest’ for purposes of the Fifth Amendment,” 

Conti v. United States, 291 F.3d 1334, 1339 (Fed. Cir. 2002) (citations omitted). In 

other words, the relevant question is whether Colvin’s alleged grazing interest is a stick 

in the bundle of rights it has acquired in the Montezuma Allotment, see M & J Coal, 47 

F.3d at 1154 (citing Lucas v. S.C. Coast Council, 505 U.S. 1003, 1027 (1992)): do 

Colvin’s water rights contain an appurtenant grazing right? In deciding this question, we

do not rely on the Constitution alone because it “neither creates nor defines the scope 

of property interests compensable under the Fifth Amendment.” Maritrans Inc. v. United 

States, 342 F.3d 1344, 1352 (Fed. Cir. 2003) (citations omitted). We also look to

“‘existing rules and understandings’ and ‘background principles’ derived from an 

06-5012 4
independent source, such as state, federal, or common law, [to] define the dimensions 

of the requisite property rights for purposes of establishing a cognizable taking.” Id.

(citing Lucas, 505 U.S. at 1030). 

Turning to the question at hand, the Constitution provides that “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.” U.S. Const. art. IV, § 3, cl.

2. As such, “[t]he United States can prohibit absolutely or fix the terms on which its 

property may be used.” Light v. United States, 220 U.S. 535, 536 (1911). Because the 

Montezuma Allotment has been the continuous property of the United States since 

1848, it has always been subject to the Property Clause. Under that clause, Congress

enacted the TGA, authorizing the Secretary of the Interior to create grazing districts on 

federal public lands and to issue grazing leases and permits upon the payment of an 

annual fee. TGA §§ 315, 315b. As both parties concede, the TGA itself does not

confer any grazing rights on private parties. Because the vesting of any property right 

to graze on public lands subsequent to the enactment of the TGA would be inconsistent 

with the act, any grazing right that Colvin possesses necessarily must have vested prior

to its enactment. 

However, prior to the TGA, grazing on federal public lands was done at the 

United States’ sufferance. See Light, 220 U.S. at 535. It was, and remains, a privilege, 

not a right. See Omaechevarria v. Idaho, 246 U.S. 343, 352 (1918) (“Congress has not

conferred upon citizens the right to graze stock upon the public lands. The Government

has merely suffered the lands to be so used.”). As such, the pre-TGA “implied license”

that these lands could be used for grazing was left open only “so long as the 

Government did not cancel its tacit consent.” Light, 220 U.S. at 535 (citing Buford v. 

06-5012 5
Houtz, 133 U.S. 320, 326 (1890)). “Its failure to object [to pre-TGA grazing] . . . did not

confer any vested right . . . , nor did it deprive the United States of the power of recalling

any implied license under which the land had been used for private purposes.” Id.

(citations omitted). Accordingly, any water right that Colvin or its predecessors obtained 

could not and did not include an attendant right to graze on public lands. 

Colvin’s reliance on Nevada law to establish the contrary proposition fails. Its 

argument begins well enough by stating that under the Mining Act of 1866, 43 U.S.C. 

§ 661,2

 and the TGA, 43 U.S.C. § 315b,3 the United States recognizes vested state lawbased water rights. It runs into trouble, however, when it asserts that under Nevada law 

“a stockwatering right has always included the right to graze.” Pet. Br. at 29. To

support this proposition, Colvin cites the 1925 Nevada Stockwatering Act, Nev. Rev.

Stat. §§ 533.485-533.510 (“Stockwatering Act”). Yet, nothing in the Stockwatering Act 

or Nevada Supreme Court interpretations of it establishes any such right. 

 2 The Mining Act of 1866 provides in pertinent part: 

Wherever, by priority of possession, rights to the use of water for mining,

argiculture, 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 . . . . 

43 U.S.C. § 661 (2000). 

3 The TGA provides in pertinent part: 

[N]othing in this subchapter shall be construed or administered in any way

to diminish or impair any right to the possession and use of water for 

mining, agriculture, manufacturing, or other purposes which has 

heretofore vested or accrued under existing law validly affecting the public 

lands or which may be hereafter initiated or acquired and maintained in 

accordance with such law. 

43 U.S.C. § 315b (2000).

06-5012 6
In In re Calvo, 253 P. 671, 675 (Nev. 1927), the Nevada Supreme Court stated: 

“The state is not asserting any right or title to the public domain under the [1925 

Stockwatering Act]. All that the state seeks to do pursuant to the statute is to exercise 

police regulations over the public domain. . . . Furthermore any time the federal 

government conveys title to any portion of the public domain in this state, or in any other 

manner undertakes to exercise control over it, the statute in question becomes 

inoperative in so far as it conflicts with the authority of the federal government.” In 

Itcaina v. Marble, 55 P.2d 625, 629-30 (Nev. 1936), it further clarified: “No property 

right can be acquired by [grazing livestock upon the public domain]. All persons so 

using the public domain do it merely by sufferance of the federal government . . . . This

use is often alluded to as a right. It is not a right that the government of the United

States has conferred, and these public range lands may at any time be withdrawn from

such use.” 

Moreover, the Stockwatering Act could not have conferred such a right, even if it 

had tried. Because the Montezuma Allotment is and always has been federal land, no 

right in it may be obtained without congressional authorization. See U.S. Const. art. IV, 

§ 3, cl. 2.; see also Kleppe v. New Mexico, 426 U.S. 529, 539-40 (1976). Ansolabehere 

v. Laborde, 310 P.2d 842, 842 (Nev. 1957), recognizes as much in holding that to the 

extent the Stockwatering Act purported to “govern[] the grazing use of the public lands

[it was] superseded and rendered ineffective by the enactment by Congress of what is

known as the Taylor Grazing Act.” Therefore, because Colvin’s water rights do not 

have an attendant right to graze, no governmental action restricting Colvin’s ability to 

graze on federal land can affect its water right in a manner cognizable under the Fifth

Amendment. 

06-5012 7
Colvin’s argument that grazing is the only beneficial use for which it may exercise 

its water rights is to no avail. Even if we accept as true that its water rights are rendered 

sufficiently without value as to satisfy the second prong of M & J Coal, 47 F.3d at 1153-

54 (Fed. Cir. 1995) (setting forth the nature of the loss that is necessary to constitute a 

taking), its claim fails because, under the first prong, grazing is not a stick in the bundle 

of rights that it has ever acquired, id. at 1154 (citing Lucas, 505 U.S. at 1027). 

Colvin’s related claim for a taking of its ranch also fails. That the ranch may have 

lost value by virtue of losing the grazing lease is of no moment because such loss in

value has not occurred by virtue of governmental restrictions on a constitutionally

cognizable property interest. See also United States v. Fuller, 409 U.S. 488, 493 (1973)

(holding that “the Fifth Amendment does not require the Government to pay for that 

element of value based on the use of respondents’ fee lands in combination with the

Government’s permit lands”). 

Next, Colvin’s argument that the government’s alleged failure to prevent the 

successor to its lease and wild horses from infringing on its water rights constitutes a 

taking, is also without merit. The government has required Colvin’s successor to 

provide his own water for his cattle, and, more importantly, the United States cannot be 

held responsible for the incursion on water rights by a private party. See Alves v. 

United States, 133 F.3d 1454, 1458 (Fed. Cir. 1998) (“There clearly can be no taking 

when whatever acts complained of are those of private parties.”) (citing 767 Third Ave. 

Assocs. v. United States, 48 F.3d 1575, 1580 (Fed. Cir. 1995)). And because wild 

horses are outside the government’s control, they cannot constitute an instrumentality of 

the government capable of giving rise to a taking. See id. at 1457-58 (citing Mountain 

States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) (en banc)); see also

06-5012 8
Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284 (1977) (“[I]t is pure fantasy to talk 

of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government

. . . has title to these creatures until they are reduced to possession by skillful capture.”) 

(citations omitted); Kleppe, 426 U.S. at 535-38. 

Colvin next argues that the government’s actions leading up to its decision to 

stop making annual lease payments constitute a breach of contract. However, even if a 

breach of contract suit could properly be brought under a grazing lease, Colvin’s failure

to pay occurred in February 1995, and, therefore, any governmental acts giving rise to 

such a claim necessarily occurred before that time. Because Colvin did not file suit until 

August 2003, its breach of contract claim is barred by the Tucker Act’s six year statute 

of limitations, 28 U.S.C. § 2501. The trial court dismissed Colvin’s claim on the merits; 

we affirm the dismissal, but do so for lack of jurisdiction. See John R. Sand & Gravel 

Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir. 2006). 

Finally, Colvin seeks compensation under 43 U.S.C. § 1752(g)4

 for the value of 

improvements made to the grazing area. However, even if such a claim may properly 

be raised here, it did not request a determination by the Secretary of the value of its 

improvements as required by the statute. Cf. Julius Goldman’s Egg City v. United 

States, 556 F.2d 1096, 1099 (Ct. Cl. 1977) (holding that where the statute in question 

 4 43 U.S.C. § 1752(g) provides in pertinent part: 

Whenever a permit or lease for grazing domestic livestock is canceled in 

whole or in part, in order to devote the lands covered by the permit or

lease to another public purpose, including disposal, the permittee or 

lessee shall receive from the United States a reasonable compensation for

the adjusted value, to be determined by the Secretary concerned, of his

interest in authorized permanent improvements placed or constructed by 

the permittee or lessee on lands covered by such permit or lease . . . . 

(emphasis added).

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required that “the measure of fair market value shall be ‘as determined by the 

Secretary.’ . . . the court cannot substitute its own discretion for properly exercised 

administrative discretion.”). Therefore, its claim is not ripe for failure to exhaust 

administrative remedies. Here again, the trial court dismissed Colvin’s claim on the 

merits; we affirm, but for lack of jurisdiction. 

Conclusion

Accordingly, the judgment of the United States Court of Federal Claims is

affirmed. 

AFFIRMED

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