“Bullying” is the current watchword in schools and its demise is the motivator of a good many afterschool specials. But it isn’t limited to the academic halls of childhood. Sadly for the ranchers who face threats from representatives of federal agencies and the hundreds of thousands of dollars in litigation costs to defend their property, swirlies and being shoved in a locker seem like a walk in the park.
A Congressional subcommittee oversight hearing titled, “Threats, Intimidation and Bullying by Federal Land Managing Agencies,” was held last Tuesday. Six indi viduals,
either ranchers themselves or representing ranchers, provided testimony to the House of Representatives’ Subcommittee on Public Lands and Environmental Regulation.
Of the six individuals, the four ranchers and one county treasurer presented testimony of various examples of abuse by the Bureau of Land Management (BLM) and Forest Service (FS) personnel.
Examples included: attempted takings of water and land rights; ignoring local efforts regarding routing of projects and conservation efforts; threats of costly litigation; threats of jail time; denying, increasing the cost of, or purposefully delaying the renewal of grazing permits; regional land management decisions, the direct result of which was to reduce the number of ranchers; outright conspiracy against individuals; and the widespread failure to reprimand agency employees found guilty of wrongdoing.
Several of those witnesses mentioned a concern over, or an expectation of, retribution by their regional BLM or FS personnel for simply attending the hearing. Lorenzo Valdez, a rancher from New Mexico, who came representing a number of indigenous Hispanic ranching groups, voiced similar concerns on behalf of those he represented.
“They were uncomfortable in coming here, I believe, because they have suffered so much retaliation from the district ranger.”
The cost of battle
Much of the abuse presented in testimony revolved around water rights and litigation. Tim Lowry, who ranches out of Owyhee County, ID, related his tale of a 10-year legal battle with the U.S. over his water rights.
“The U.S. [Department of Interior] insisted that only the U.S. could hold a water right on federal land and that we must withdraw our claims,” he said. “When I did not acquiesce to their ‘convoluted legal theories’ as they were aptly described by the judge in one decision, the U.S. changed tactics.”
He characterized those tactics as the “veiled threat of financial ruin” through court cases. Lowry said over those 10 years he has accrued over $800,000 in attorney fees. Despite having been vindicated by the Idaho supreme court recently, Lowry was denied being awarded attorney fees under the Equal Access to Justice Act (EAJA). The cost, he said, wasn’t even the most disheartening element.
“What is most discouraging to me is that the U.S. knew that their position was contrary to western water law and court decisions. This was simply a continued, deliberate attempt to overthrow western water law and to send a message to other private claimants of water on federal law.”
Most of the ranchers and others who testified eventually touched on the difficulties presented by what many characterized as a broken EAJA. It was a hot topic for the subcommittee members also when it came to the question portion of the hearing.
Wayne Hage Jr., who has been carrying on his parents litigative battles with federal agencies across several cases and over many decades, responded to a question about EAJA.
“I represented myself pro se in the court, and the EAJA does not apply to me.” He explained that though he has effectively taught himself the law and has been representing his family for three years by himself, he is ineligible to receive any award of attorney fees. He estimated his representative efforts would be valued at $4.3 million.
At one point it was asked of the witnesses if the average rancher—characterized as land-rich but cash-poor— could realistically survive the financial assault of yearsand sometimes decades-long litigation. Karen Budd- Falen, land rights attorney and Wyoming rancher, answered an emphatic “No.”
“I honestly do not believe that is possible. I represent ranchers all over the West, and when you go against the federal government represented by the Justice Department that has all of the money and resources in the world, it is very difficult if not impossible to win these cases. Additionally, because we cannot easily access EAJA judgment fund monies, we don’t even have the chance to get our money back. ” She pointed out that none of the witnesses have yet received any EAJA money, despite many having had repeated cases otherwise ruled in their favor. She blamed “habitual litigants” for having distorted the purpose of EAJA, as well as costing millions of dollars in taxpayer-funded awarded attorney’s fees.
“One of the problems you have under the EAJA is that the statutory cap on your net worth only applies to businesses and individuals, because the Act was truly meant to protect small businesses and individuals.”
Budd-Falen explained that the cap is $7 million, but that does not apply to nonprofit groups. She pointed out that some “litigant environmental groups” such as the Sierra Club and the Center for Biological Diversity, have net worths many times above that cap.
Several members of the subcommittee who heard the testimonials took the opportunity to expound—directly or via political subtlety—on their various efforts to amend the EAJA. One subcommittee member, Jared Huffman (D-CA), however, used the topic of EAJA to effectively turn claims of habitual litigation back on those groups that frequently represent ranching interests.
“If we want to look at habitual litigation and that problem, I sure hope that scrutiny includes groups like the Pacific Legal Foundation, Cause of Action, the Competitive Enterprise Institute—who I see ever-present in these proceedings—who simply troll around looking for opportunities to bring property rights cases against the government, often unsuccessfully.”
Huffman also took issue with the title of the hearing. Rather than use his time for questioning the witnesses, as did the other subcommittee members, he lambasted the hearing’s title as being loaded, called some of the testimonies unsubstantiated, and took issue with some of the strong words used against federal agencies. When this happens, he said, “things quickly rise to the level of caricature and unfortunately that’s what I’m afraid we’re talking about here today.”
“I just want to express my dismay that, instead of what could be a bipartisan, serious oversight approach to incidents that I don’t think anyone on this panel would tolerate—regardless of their party—that we are once again trying to stage a whole bunch of mini-sagebrush rebellions because we don’t like the federal government.”
This, of course, drew stark criticism—politically speaking—from many of the other subcommittee members. It also inspired passionate responses from the witnesses.
Subcommittee Chair Rob Bishop closed the hearing, calling the testimonies “extremely troubling” and asking what is at stake in the issue overall. Hage responded.
“What’s at stake is my family’s property. Our water rights, our range rights, whatever you want to call them. But more than that, it’s other people. If they can get away with what they’ve done to us, then hold on; they’ll go after other people, as well.” — Kerry Halladay, WLJ Editor