Having reviewed the Deputy Attorney General’s advisory letter of May 31, 2012, and having heard comments from Arbon residents on June 25, 2012, perhaps some additional clarification may be in order.
- At law and in fact the Arbon Herd District is a “lawful” herd district.
- The herd district can neither be modified nor eliminated solely at the vote of the county commissioners. The Power Board of County Commissioners must either follow the panel process set forth in I.C. §25-2401, or by petition, notice and hearing provided in §25-2402 – 2404.
- State fencing laws cannot be enforced on federal or tribal trust lands.
- As a practical matter, a “legal” fence should separate open range from herd district lands. There are no cases specific to that issue in Idaho, except for districts created after 1963.
It could be argued in court that any cattle that enter the herd district created prior to 1963 would be subject to the herd district rule of “fencing in.” That remains an open question for the Arbon Herd District.
The statutory language enacted after 1963 provides little authority to address that issue, or the issues of fences and liability.
Regarding the issue of taxation, I do not agree with the letter of the Attorney General deputy as written. The assertion that there is a mandatory and discretionary tax provided in I.C. §25-2402(b) is incomplete.
The Attorney General’s opinion letter states:
The herd district law contains both mandatory and discretionary county taxing authority. As to the mandatory authority, the herd district law provides that “[n]notwithstanding any provision of law to the contrary, a county shall have the authority to and shall levy an annual property tax not to exceed six hundredths percent (.06%) of market value for assessment purposes on taxable real property within the district….” I.C. §25-2402(6).¹ Counties also have discretionary taxing authority: “Notwithstanding any provision of law to the contrary, a county shall have the authority to levy an annual property tax of not to exceed two hundredths percent (.02%) of market value for assessment purposes on taxable real property within the county….” I.C. §25-2401(2).
The Attorney General’s letter implies that all herd districts must be taxed. I submit that is not a correct statement of the law.
The language in the Attorney General’s letter is incomplete: After the word “district…” the omitted language is significant “… for the costs of constructing and maintaining the legal fencing and cattle guards required by the creation or modification of such a herd district.”
Arbon is neither creating nor modifying the herd district. Therefore the “mandatory tax” language is not applicable.
Additionally, the last sentence of I.C. §25-0401(1), is significant (also omitted from the Attorney General’s letter). “The provisions of this chapter (Herd District Law) shall not apply to any herd district or herd ordinance in full force and effect prior to January 1, 1090, but shall apply to any modification thereof.”
Both sets of omitted language are significant. However, inclusion of the omitted language does provide clarity that there is no mandatory tax to be collected regarding the Arbon Herd District.
I sincerely hope this answers all identified questions and issues regarding the Arbon Herd District.
If anyone has other questions, please do not hesitate to contact me.
Sincerely,