In an unusual case from the wilds of Plumas County, the Third District Court of Appeal has rejected the claims of a property owner who argued that a county ordinance allowing a neighbor’s livestock to graze on his land amounted to an unconstitutional taking.

The court’s opinion, written by Justice Tani Cantil-Sakauye, offers an interesting look not only at takings law, but at the traditional grazing practices of the West.

In the 1800s, California adopted a “fencing out” livestock policy: Livestock were free to graze, and if someone wanted to keep livestock off his land, he had to put up his own fence. The law also prohibited owners of unfenced land from seizing stray livestock. This approach was counter to the rule of common law that required cattle owners to fence in their animals.

Over the decades, particular areas and counties began adopting the common law “fencing in” policy, and a 1915 state law repealed the “fencing out” laws in most California counties, including Plumas County. However, an uncodified statute approved by the Legislature in 1919 (Statutes of 1919, Chapter 284, §1, p. 464) spells out exceptions specifically for Plumas, Lassen and Modoc counties. Under the statute, if livestock is herded or grazed on another person’s property, the livestock owner is liable for all damage, and the livestock may be seized as stray. But the law does not apply to “any live stock running at large on the ranges or commons.” In other words, livestock not moving as the result of human conduct may graze legally on someone’s private property. Although the statute was never codified, neither was it repealed or amended and it remains good law, Cantil-Sakauye wrote. The background is important because it means that a Plumas County property owner could sue for damages if livestock were herded onto his property.

In 1982, Plumas County designated the Last Chance Creek Open Range as an area chiefly devoted to livestock where the “fencing out” rule would apply. The owner of unfenced land could demand “a reasonable rental fee” from the livestock owner, but he could not take the animals as strays.
The case at hand was filed by Jack Herzberg, who purchased 40 acres in the Last Chance Creek Open Range in 1994. From 1995 to 2000 and again in 2003, cattle owned by the Wemple family grazed on land leased by the Forest Service — and wandered onto Herzberg’s neighboring land. Herzberg’s attempts to contact the Wemples were unanswered, according to the court.

So Herzberg sued the Wemples and Plumas County in 2004. Herzberg argued that the county ordinance improperly shifted the burden of livestock grazing from the cattle rancher to other private property owners. This, Herzberg contended, was an unconstitutional taking of private property, and deprived him of his due process and equal protection rights. Plumas County Superior Court Judge Ira Kaufman ruled against Herzberg, who then appealed the ruling in favor of the county. A unanimous three-judge panel of the Third District upheld the lower court.

In addressing the takings claim, Justice Cantil-Sakauye first laid out the U.S. Supreme Court’s Penn Central factors: The degree to which a regulation impacts a property owner economically, the extent to which the regulation interferes with “distinct investment-backed expectations,” and the character of the regulations. The court then listed 10 nonexclusive factors, most of which build on the Penn Central inquiry, that the California Supreme Court has applied to takings claims. “There is no ‘set formula’ for identifying a taking,” Cantil-Sakauye summed up.

Herzberg tried to pass the Penn Central test by arguing that the county’s action damaged his private property while serving no public use. Rather, the ordinance forced him to accept the physical invasion of his property by a neighbor’s cattle.

The court, however, identified the legitimate public interest that Penn Central requires, and concluded it was not a burden on Herzberg.

“The ‘fencing out’ ordinance of the county recognizes and substantially fosters the important historic, traditional and economic use of rural property in California for open grazing land, a legitimate governmental purpose,” Cantil-Sakauye wrote.

“The ‘fencing out’ ordinance does not require property owners to fence their property,” the court continued. “If owners choose not to fence because of the expense, aesthetics, or other personal reasons, the owners are not forced to accept any intentional herding or grazing of other people’s cattle on their land … . They are only precluded from seizing livestock wandering at large or suing for negligent trespass damages. They can still try to move the cattle off their property. They can still contact the cattle owners, if known, to ask them to move their cattle along.” If the livestock owner does not cooperate, an intentional trespass claim “may eventually ripen.” The landowners also may charge a rental fee, Cantil-Sakauye pointed out.

“Therefore, the only potential economic burden of this ordinance is the occasional use of and damage to property caused by wandering cattle as they move on. Plaintiffs have not shown, nor can we perceive how plaintiffs could show, this limited burden interferes with their reasonable investment-backed expectations in buying this particular property within a traditional open grazing area when plaintiffs can always avoid it by fencing their property,” the court ruled. “The ordinance does not itself limit plaintiff’s best, or any, use of their property.”

The court dismissed Herzberg’s due process claim as inadequately stated. As to equal protection, Hertzberg argued that the county would require him to obtain a special use permit to conduct commercial animal husbandry on his property, yet the county’s “fencing out” ordinance essentially allows a neighbor to conduct animal husbandry on Herzberg’s land without any permit. The court didn’t buy it.

“Plaintiffs’ argument is premised on the assumption the ordinance allows other people to care for and raise their cattle on plaintiffs’ property. In fact, the law does not permit intentional herding or grazing of livestock on another person’s land without their consent,” the court ruled.

The court also rejected the argument that the ordinance’s prescription of a “reasonable rental fee” violated state law prohibiting commercial rent control. The court ruled that the ordinance set a floor, not a ceiling, for renting pasture land.

The Case:
Herzberg v. County of Plumas, No. C048130, 2005 DJDAR 11920. Filed October 3, 2005.
The Lawyers:
For Herzberg: Ronald Zumbrun, (916) 486-5900.
For the county: Brian L. Morris, deputy county counsel, (530) 283-6240.

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