The Federal Government’s Hidden War on Citizens and Private Property
Mateusz PerkowskiCapital Press
The recent spectacle at the Malheur National Wildlife Refuge in Oregon has cast a spotlight on federal land disputes, but it’s not emblematic of the broader conflict.
Armed protesters taking over a federal building provide excellent fodder for the national media, but the actual fight between ranchers, environmentalists and federal agencies is occurring under the public’s radar.
The real battles over federal land management often take place in courtrooms, and though they seldom receive much attention, these lawsuits have a meaningful impact on how ranchers do their business.
According to attorneys who represent natural resource industries, the recent actions by self-proclaimed militia members have not helped in this ongoing struggle.
“It’s only scratching the surface about what the ranchers’ problems are,” said Scott Horngren, an attorney with the Western Resources Legal Center.
Protesters at the Malheur National Wildlife Refuge have made grandiose demands for the divestment of federal lands, but on-the-ground disagreements generally involve narrower and more complex property rights issues.
“Occupying a wildlife refuge where you’re not normally grazing or cutting timber is probably not the best way to make that point,” Horngren said.
Ranchers who lease grazing allotments from the U.S. Bureau of Land Management and U.S. Forest Service are more likely to butt heads with these agencies over the use of easements for travel or to access water rights, said Mark Pollot, an attorney for the estate of Wayne Hage, a rancher who died in 2006 whose family continues to battle the federal government in court.
“Water rights are useless if you can’t get to and from them,” said Pollot.
When Western U.S. territories accepted statehood, they had to abandon claims to land owned by the federal government, but that did not nullify existing easements and other rights owned by private citizens, he said.
Contrary to the occupation of the national refuge headquarters, which is unlikely to accomplish anything, ranchers can win significant victories when they use legal means to stand up for their rights.
The story of Hage — a Nevada rancher and icon of ranchers’ “Sagebrush Rebellion” against federal agencies — is a key example.
After decades of legal wrangling with the U.S. Forest Service, Hage’s estate won $4.4 million from the federal government in 2008 after a judge ruled the agency had unlawfully deprived him of access to water rights, road easements, fences and other improvements his family owned on public land.
That award was later overturned for procedural reasons, but the case is still pending before the U.S. Court of Appeals for the Federal Circuit.
In 2013, another federal judge issued an injunction prohibiting the Forest Service from impeding Hage’s cattle from accessing water sources.
Government officials engaged in an “intentional conspiracy” to deprive Hage of his water rights and due process rights in a manner that “shocks the conscience,” the judge found.
That ruling was challenged by the agency and is now under review by the 9th U.S. Circuit Court of Appeals.
These conflicts serve as a microcosm of the tensions between ranchers and federal land managers.
“It comes down to the broader issue of who gets to control the water resources and the infrastructure of the West,” said Pollot, Hage’s attorney.
Tensions between ranchers and federal agencies also arise due to pressure from environmental groups.
Local federal land managers traditionally had practical experience in the livestock industry, but now they’re more likely to focus on avoiding lawsuits over the National Environmental Policy Act, said Karen Budd-Falen, an attorney in Cheyenne, Wyo., who represents ranchers.
“All they do is sit at their desks and write NEPA (National Environmental Policy Act) documents,” she said.
When the public sees the militia takeover of the refuge headquarters, though, they don’t realize that ranchers have legitimate grievances with federal agencies that have been recognized by judges and lawmakers, Pollot said.
Even so, the federal government would be wise to consider why such displays of public anger are recurrent in the rural West, he said. “You should at least ask yourself if you’re doing something to contribute to it.”
Heated disputes over federal land management are nothing new, but the episode in Oregon and the 2014 standoff at the Cliven Bundy ranch in Nevada are “an old story with a new twist,” said Char Miller, a professor of environmental analysis at Pomona who has studied the longstanding debate over Western lands.
“They’ve left the civic arena and they’re ignoring the judiciary,” he said. “This is a new stage for the so-called Sagebrush Rebellion.”
The occupation may serve as an outlet for frustration among some rural residents who feel modern urban society has passed them by, but it’s a setback for ranchers and other who want to rely on legal means to achieve change, Miller said.
“This is a very self-centered, myopic rebellion,” he said. “It has undercut the capacity of people with legitimate complaints to voice those complaints.”
Reposted by Reagangirl.com 2/15/16