December 2004     

Unexpected Help

By G.B. Oliver, III

Sometimes, help comes from the most unexpected places. For instance, I attended the trial of Hage v U.S. held in Reno, Nevada, this last May. Mr. Alf Brandt, Assistant Solicitor for the Bureau of Land Management (BLM), was doing direct examination of the BLM witnesses. Now, keep in mind, this was the takings and valuation phase of the Hage litigation. The issue before the Court (U.S. Court of Federal Claims), was how the BLM, and U.S. Forest Service, had applied their regulations to prevent Hage from using his property in water and forage. The Hage team was hoping to be able to prove that the agencies had continued to try to regulate Hage after the Court had already ruled that he owned the forage and water. They hoped to be able to get testimony from the BLM witnesses which showed that the BLM tried to enforce grazing permit regulations on Hage after the Court had issued an Order in February 2003, saying Hage did not need a grazing permit. Hage's grazing rights, the Court had held in that Order, pre-existed the U.S. Forest Service and BLM and their permit scheme.

To my amazement, and I'm sure, the amazement of almost everyone in the courtroom, except the BLM itself, Mr. Brandt asked his witnesses in direct examination all the questions the Hage team expected to pursue in cross examination. Mr. Brandt spent hours having his witnesses identify trespass notices and other documents, which were, of course, the very evidence of the taking. As a result, the lawyers for Hage had little else to do in cross examination of the BLM witnesses.

Now, we hear from our Nevada sources, that Mr. Brandt, with the help of Nevada State BLM Director, Robert Abby, has taken another unprecedented step, which could remove a formidable obstacle to ranchers hoping to quiet title their water and ranges, recognized by the courts, without expensive and time-consuming litigation. As I said earlier, sometimes help comes from the most unexpected places. I'll lay a little background, by way of explanation.

Since the time the ranges were formally adjudicated until the present, ranchers have continued to sign grazing permits with the agencies, allowing the agencies to control and regulate what the rancher owns in water and forage. Ranchers were first enticed into the co-operative grazing permit scheme by the offer of benefits under the range improvement fund. The Forest Service began doing this around 1917. and the BLM followed the same process thirty years later. Bottom line, the agencies agreed to police the unfenced range boundaries, eliminate the wild horses, and provide such things as water development and crested wheatgrass seedings. The rancher agreed to abide by the rules and pay the fees necessary to fund the agency personnel and range improvement projects.

All would probably have gone well, except, as western ranchers know, the range improvement expenditures began to disappear in the 1960s, until today, there is virtually no sign of range improvement money being spent on the ranges. Ironically, during the same time period, the agencies spent more and more money on new office buildings, new personnel, higher salaries, greater benefits, new vehicles and equipment. As we have seen, especially in the last decade, the BLM and Forest Service have turned from the task of enhancing the use of the range, to an outright effort to confiscate water rights and livestock, driving ranchers out of business.

A growing number of ranchers in the West have decided, like Hage, that the BLM and the Forest Service have overstayed their welcome. It's time for them to pay for their damage - and leave. These ranchers are filing takings cases in the U.S. Court of Federal Claims.

In a way, it's like somebody allowing a houseguest to live with them, in return for maintaining the yard and helping around the house. Then, after a time, the houseguest begins to neglect the yard, starts breaking up the furniture, and stealing the silverware. Obviously, it's time for the houseguest to pay for the damages, and leave.

The primary reason the agencies have not been held accountable, until present, for the carnage they have created, has been what is called the "administrative appeals process." For example, a rancher disagrees with the loss of his stock water and forage as the result of the agency fencing off a riparian area. The rancher, of course, is concerned about the loss of valuable property. The agency, however, addresses the issue through their "appeals process." Now, what is actually being appealed? Is it the loss of the use of his water and forage for cattle grazing? In actual fact, the only thing the agency "appeals process" can consider is the validity of the regulations the rancher agreed to when he signed the grazing permit, and how those regulations were applied. The issue of property is under State, not federal jurisdiction. The Federal District Courts cannot decide on property issues valued at more than $10,000.

Typically, to hire a lawyer and exhaust the administrative appeals process, will cost between $50,000 and $250,000 dollars. The "process" can be drawn out, leaving the rancher in limbo for years. In the end, the probability of the rancher winning this contest is about six percent (6%). That's a 94% chance of losing, despite the exorbitant expenditure of time and money in the process.

Few ranchers can afford this. The agencies know it. By tying up the rancher in the "administrative appeals process," they can wear him down and beat him, without the underlying issue of who actually owns the forage and water being addressed. Agency personnel have been known to threaten the rancher who objects to their vandalism and theft of property with: "We will break you in the administrative appeals process."

So important has the "administrative appeals process" been to maintain the agency's stranglehold on the resources owned by the western rancher, that the appeals process has, for almost ninety years, been jealously guarded and nurtured as the first, and most important line of defense against the recognition of rancher's property rights in the range. In the early years of the co-operative grazing permit scheme, the agency personnel were careful never to get so heavy-handed with their regulation that it resulted in the taking of the rancher's property. But, those in the BLM and Forest Service who understood, are mostly all dead, or at least, retired now. The people who replaced them, concluded they were no longer invited guests on the rancher's range - but that they owned the range. They could dish out their favors to their environmentalist friends, destroy the rancher's property, and even steal his livestock. It was exactly this attitude on the part of the BLM and Forest Service that resulted in the landmark case Hage v U.S.

Hage took his case to the U.S. Court of Federal Claims, which does have jurisdiction over property issues, saying, in effect, if the U.S. wants this ranch so badly they are willing to replace my livestock with elk, convert cattle trails to mountain bike and hiking trails, create wilderness areas, subject the range improvements to theft and vandalism, and even steal the ranch's livestock, then pay for it.

As a result of the rulings so far in Hage, there are about seven other ranchers around the west who have also filed takings claims, with numerous others, preparing to do so.

Now, back to Alf Brandt and Bob Abby. These men have apparently concluded the "administrative appeals process" no longer works. Their perversion of the process, to the extent of transferring, destroying and stealing ranchers' property, has resulted in potential takings claims against the government in the range of $200 to $300 million dollars to date, with more coming. In other words, stealing cattle and transferring or destroying the rancher's property, doesn't pay.

When I say the perversion of the "administrative appeals process," which has made their time-honored method unworkable, let me give an example of what I mean. The Nevada BLM first encountered this in the case of Cliven Bundy, a rancher in Clark County. The BLM, at the behest of their environmentalist friends, decided to drive Mr. Bundy out of business, over the Desert Tortoise. The Desert Tortoise has been thriving in the area before, and since, livestock grazing began in southern Nevada, more than 160 years ago. This, of course, did not deter the environmentalists from having the tortoise listed on the endangered species list. The fact that Mr. Bundy owns substantial water rights, which would be forced on the market for pennies on the dollar, if they could bankrupt him, may have had something to do with it. Bundy's ranch is a relatively short distance north of water-starved Las Vegas.

When Bundy recognized the game plan the BLM had in store for him, he determined not to renew the permission he had given the BLM to control of his range, and instead, stand on his vested water rights for stock grazing under Nevada law. Without a grazing permit, there was no federal question remaining under which the BLM could enforce its rules. In a pique, they went to Federal District Court to obtain an Order for the removal of Bundy's cattle from "public lands." But remember, Bundy asserted his claim to the water and forage on these lands under State law. The Federal District Court denied the Order, citing the fact that property issues were the exclusive jurisdiction of the state. Federal District Court did not have jurisdiction.

Rebuffed, the BLM then went to Nevada State Court to obtain an Order. The State Court also refused, citing a lack of "standing" by the BLM in State Court. Our American form of government was set up this way for the very purpose of preventing the kind of mischief the BLM was proposing. Bundy has been operating his ranch under the state water law without a grazing permit from the BLM, for over sixteen years, to the great frustration of the BLM. Both the BLM, and the Forest Service, saw Bundy's actions as a threat to the very existence of the agencies which have built a giant bureaucratic empire on the backs of western ranchers over the years. This is the dilemma Mr. Brandt and Mr. Abby were facing.

Brandt and Abby decided the thing to do was to have their "law enforcement" personnel issue criminal citations for violation of agency rules on "public lands." Brandt, Solicitor for BLM, has reportedly been diligently schooling even the Force Service "law enforcement" people on the correct procedures.

Now, the astute reader will immediately see two problems with this approach. The law, (Sec 1701 (G)(6) Session Laws), states all civil and criminal jurisdiction on the national resource lands is reserved to the states. It also says that the feds cannot interfere with the police power of the state. Bottom line, the federal courts do not have the power Mr. Brandt and Mr. Abby wish they had, and neither the BLM or Forest Service have any grant of law enforcement authority, which would allow them to issue a valid criminal citation.

But, let's look at the opportunity which is presented to the rancher in the event he's issued a citation. Let's assume a rancher finds himself hauled into Federal District Court for having unauthorized livestock on the "public lands," when in reality, his livestock are on his own adjudicated grazing allotment. The real issue the rancher wants answered is: are these lands "public lands," as charged, or does the rancher have an inheritable right to use these lands through ownership of vested water rights?

Under the rules of the Court, the rancher has the right to petition the Court for a Declaratory Judgment from the United States Court of Federal Claims on the issue of title. This is a relatively simple process. It is the opportunity the agencies have withheld from the ranchers for almost ninety years through their burdensome, time-consuming, and expensive "administrative appeals process," where you could seldom, if ever, win.

A petition for Declaratory Judgment would be supported by an exhaustive chain of title, the key document. The United States Supreme Course has held in Bardon v Northern Pacific Railroad Co., that "lands to which rights and claims of another attach are not public lands." The vested water rights shown in the exhaustive chain of title proves an inheritable right to use these federal lands. In other words, the rancher has the ownership of the fee.

For those who may want to avail themselves of this opportunity to quiet title to their range, Paragon, and the Nevada Livestock Association, have been sponsoring seminars on searching your title. People can contact Paragon for further information on this. Every rancher should have an exhaustive chain of title in his possession.

It would appear that Alf Brandt has done it again. If their citation process works, it will throw a door wide open which has been effectively locked for several generations. Watching Mr. Brandt's demeanor in the courtroom, I am sure his intent is not to assist or give comfort to the western rancher, but again, sometimes, help comes from the most unexpected places.

G.B. Oliver, III, is the Executive Director of the Paragon Foundation, Inc.