Rebels with a lost cause
December 24, 2007
Karen Budd-Falen bases her law practice in a remodeled house in downtown Cheyenne. A tall rosebush hides her firm’s sign. To find her, you have to know where she is. And ranchers around the West do: She’s a member of a prominent Wyoming ranch family, the Budds, and her husband, Frank Falen, comes from a prominent Great Basin ranch family. Her father-in-law, John Falen, was featured on the cover of a 1991 Newsweek, with cowboy hat and horse, beside the headline, “The War for the West: Fighting for the Soul of America’s Mythic Land.” She and her husband have law degrees from the University of Wyoming.
Sitting in her office, she wore blue eye shadow and a yellow dress with a whimsical pattern of sheriff’s badges and tiny cowboy boots. She talks of growing up on her family’s ranch outside a wisp of a town, Big Piney, doing chores when she was tiny: “Driving the feed truck for my dad in the winter, I’d be on my knees on the seat, and my sister would be down on the floor working the pedals, and my dad would be on the back [pitching off hay for cattle] ” if you made the truck jerk when you put it into gear, it knocked him off the back, and you’d get into real trouble.”
She comes across as pleasant but headstrong, and admits to getting impatient when she worked in the bureaucracy of James Watt’s Department of Interior and in the late-1980s Mountain States Legal Foundation. During her time at Mountain States, she says, she had to get every lawsuit approved by the nonprofit’s directors, and they preferred cases that would help them raise money.
“I like making decisions and then acting on it,” Budd-Falen says. “I’m really cause-oriented, I really believe in ranchers and farmers and what they do. That’s the reason I went to law school. I don’t love the law. To me, the law is the way I’m helping the people I love.”
Over the years, Budd-Falen has represented ranchers who’ve challenged grazing regulations everywhere in the West. She says she’s not sure of her win-loss record. She’s proud of two rulings by the appeals court in Denver: She forced the feds to do more analysis when designating critical habitat for endangered species, meaning commercial activities must be taken into account. But she lost two lawsuits trying to block wolves in the Southwest. For several years, she’s attacked the Grand Canyon Trust’s purchases of ranchers’ grazing permits in Utah ” that group’s campaign to reduce grazing through business deals ” and she’s lost two rounds in that case.
Budd-Falen says her most important environmental case involved Frank Robbins, a wealthy Alabaman who bought several big Wyoming ranches and got into a dispute with the federal Bureau of Land Management. The agency’s local staffers cited Robbins for many violations of grazing regulations, characterizing him as a scofflaw, but he says they were merely trying to force him to accept a road easement across his land. Budd-Falen tried a novel tactic: She sued the staffers as individuals, invoking RICO, an anti-racketeering law; basically, she cast them as gangsters seeking to extort Robbins.
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In racketeering cases, plaintiffs can collect big payments from defendants, so a victory could’ve ruined the staffers’ personal finances. Budd-Falen appeared close to that spectacular win in 2006, when the court of appeals in Denver OK’d the basis of the claim, meaning the case could be tried on the facts. If every federal staffer enforcing regulations could be charged as a racketeer, then no staffer would risk enforcing anything.
That notion was too much even for the Bush administration: Its lawyers appealed to the U.S. Supreme Court. Though conservative Republican presidents appointed seven of the nine Supreme Court justices, last spring the court ruled unanimously against Budd-Falen on the racketeering question. The high court said the racketeering law wasn’t intended to expose federal employees to extortion charges whenever they push the envelope with regulations and that fear of such charges “could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the government and the public.”
Robbins says he spent more than $1 million on his nine-year battle against the feds, and now he’s going to sell his ranch and move. Even “liberals ought to be outraged,” Robbins says. “I think employees of the federal government should be accountable. As long as the apathy continues, the government gets bigger and bigger.”
Budd-Falen calls the Robbins case “the most frustrating thing I’ve been through.”
Pacific Legal Foundation, the biggest Sagebrush Rebel law firm, employs about 30 lawyers and an equal number of support staff, and is headquartered in Sacramento, in a tinted-glass building neighbored by tech companies. At the landscaped entrance, a tiny electric-powered waterfall sings over mossy boulders. On its website, Pacific Legal vows to battle the “tyranny engendered by overzealous bureaucracies, government red tape, ignorance or indifference of our courts and elected officials, and a complex maze of laws and regulations that are strangling our personal and professional lives.”
Rob Rivett has been with the firm for 32 years and is now the president. A clock on his office wall bears the goofy, grinning faces of the Three Stooges. Every hour, it sounds the Stooges’ chant of triumph over other people’s foolishness, NyukNyuk.
Pacific Legal’s biggest win against environmental regulations came in a 1987 Supreme Court case, Nollan v. California Coastal Commission. That case also involved a kind of extortion: The coastal commission had tried to force a homeowner to grant public access across a beach, in return for permission to build a bigger house. In a five-to-four ruling, the Supreme Court held it was an unconstitutional taking. That was a major inspiration for the movement.
“We’re trying to establish and shake the law,” Rivett says. “A lot of what we do takes time to prevail, and the point is, we just don’t give up.”
But Pacific Legal’s next big Supreme Court win ” a 2006 case challenging federal regulations on private wetlands ” has had murkier repercussions: Judges in other wetlands cases and the relevant agency, the Army Corps of Engineers, continue to protect wetlands that Pacific Legal thinks do not merit protection.
And in another heralded environmental case, Alsea Valley Alliance v. Evans, Pacific Legal claimed victory prematurely. Representing Oregon developers and farmers against streamside regulations, Pacific Legal sought to redefine what a species is, claiming that hatchery-raised salmon are identical to dwindling wild salmon. Although biologists scoff at that notion ” it would also mean that breeding programs alone could preserve all kinds of rare animals and plants ” U.S. District Judge Michael Hogan in Oregon ruled in Pacific Legal’s favor in 2001, on technical legal grounds. The victory, however, was short-lived: Federal agencies dragged their feet in changing salmon policies, and environmentalists filed countersuits. This year, Judge Hogan said his ruling had been misinterpreted, and the feds can show preference to wild fish. And a judge in Washington ruled, flat out, that hatchery fish can’t be counted toward population goals.
Pacific Legal has appealed those rulings. Meanwhile, the salmon runs are still protected. “We have essentially the same regulatory result we had [before Alsea],” says Damien Schiff, a Pacific Legal lawyer handling environmental cases.
In other Endangered Species Act cases, Pacific Legal has found it nearly impossible to knock species off the list of protected wildlife, losing lawsuits on cave bugs, the California tiger salamander, the southwestern arroyo toad, the Puget Sound orca and 15 California vernal-pool species. The lawyers have occasionally whittled down the sizes of critical habitats, but even that can be grueling.
Consider how two tiny desert fish ” the spikedace and loach minnow ” have fared in the courtroom eddies: Both fish were put on the endangered species list in 1986. Environmentalists then demanded the designation of critical habitat, so in 1994 the feds designated 254 miles of rivers and streams. Then Budd-Falen forced the government to re-evaluate, enviros sued over that, and in 2000 the feds came back with more than three times the original critical habitat (898 miles). Both sides returned to court, and this year the feds reduced the total to 522 miles ” still more than twice the original amount. So Pacific Legal has filed another suit.
The battle over critical habitat for two other high-profile species ” the southwestern willow flycatcher and the Mexican spotted owl ” has had the same frustrating pattern in court: Victories by Sagebrush Rebel lawyers have ironically led to even bigger habitat designations. The legal arguments seem endless.
The case of the most famous Sagebrush Rebel rancher, Nevadan E. Wayne Hage, has dragged on in various courts for 17 years. The skirmish began when the government yanked Hage’s grazing permits because he allegedly ignored regulations; Hage demanded compensation, but his side hasn’t gotten it yet. He died last year, and his most ambitious contention ” that he actually owned the federal land ” has been tossed out.
Meanwhile, similar lawsuits ” filed by one of Hage’s neighbors, Benjamin J. Colvin, and a New Mexico ranch couple ” have gone badly. The feds had also charged them with overgrazing and canceled their permits. Judges dismissed the Colvin case last year, upholding the federal government’s actions. In the other case, the New Mexico Supreme Court said this year that the ranchers are “attempting to wage a battle lost at the turn of the [19th] century …”
Silver-haired Ladd Bedford, a private-practice lawyer based in a San Francisco penthouse, says he’s put about $2 million worth of hours and associated costs directly into the Hage case and been paid no more than $500,000 by Hage’s family and Stewards of the Range, a Boise group run by one of Hage’s daughters.
The Hage case “is a metaphor for the property-rights movement falling off its tracks,” says John Echeverria, head of the Environmental Law Policy Institute at Georgetown University in D.C., who often opposes the Sagebrush Rebel lawyers. “The participants in the [Hage] case don’t seem to be willing to admit that the case has collapsed.”
But nowhere are the movement’s reversals more stunning than in the wake of the Tulare Lake Basin ruling in California. Other farmers, under federal pressure to modify their irrigation for the benefit of endangered fish, have hired Roger Marzulla’s D.C. law firm to press similar lawsuits demanding compensation. Three of those cases have been shot down. First, in Klamath, Ore., a hotbed of rebellion, Marzulla represents farmers demanding $1 billion for surrendering water to salmon. But Court of Claims Judge Francis M. Allegra, in rulings in 2005 and 2007, found that most of the Klamath farmers’ claims of property rights in their federal irrigation water were a “fantasy.” Judge Allegra dismissed that case.
In Stockton East Water District v. United States, Court of Claims Judge Christine Odell Cook Miller ruled against Marzulla last year and this year, holding that the government doesn’t have to pay two California water districts to surrender water for fish in the San Francisco Bay Delta ecosystem. She cited “the competing needs of a rapidly growing population in a historically arid region and the mitigation of damage to the ecosystem,” and said, “tossing the problem into the litigation hopper is breathtakingly ineffective.”
Most relevant, Judge John Paul Wiese ” the same judge who ruled for the Tulare farmers ” has done “an about-face,” says Echeverria. That happened in a water case Marzulla pressed for the Casitas Municipal Water District in California. Judge Wiese ruled in March that the government doesn’t owe those farmers any money for making changes to help steelhead trout. Wiese said a Supreme Court ruling that upheld planning regulations in the Lake Tahoe area influenced his turnaround.
All three of those water cases are also being appealed.
Marzulla, who is blind, graduated first in his class at the University of Santa Clara law school, hiring people to read lawbooks to him and listening to lawbooks on tape. He ran Mountain States Legal from 1981 to 1983, and then was in charge of all environmental litigation at Reagan’s Justice Department. He blames “the anti-property rights movement, primarily environmentalist forces” for his losses in the water cases: Green lawyers “launched an extensive campaign” of legal briefs that confused the judges.
Often when Sagebrush Rebel lawyers lose, they complain that the judges were biased or underestimated the malevolence of government regulations. Again and again, Mountain States’ William Perry Pendley, for instance, writes that judges are “ridiculous” when they rule against him.
But in many of the key cases that Pendley and his cohorts lost, the judges were appointed by President Reagan. If those judges are biased, it’s more likely to be in favor of the Sagebrush Rebellion.
“Lawyers like these develop a portfolio of cases, which they present to the courts and to the public as horror stories about regulation ” ‘Here’s my client who was just trying to do something perfectly reasonable and in came the government saying, in a ridiculous way, ‘You can’t do that,'” says Mark Tushnet, a Harvard University law professor who has studied the movement. “Of those cases, a few will actually come across as horror stories … and either the government will cave in during negotiations or the court will rule in their favor. But that’s a small portion of the group of cases these people assemble. They win some, and they lose quite a few that they have presented to the public in exactly the same terms. Because of their ideological predisposition, they see horror stories more frequently than the rest of us would.”
They also ignore some property-rights horror stories. They’ve filed very few lawsuits on behalf of ranchers who are up against oil and gas companies who drill on their land. The Sagebrush Rebel lawyers also rarely represent people who say their property rights are harmed by a new gravel pit or feedlot or megadairy or racetrack next door. In the West that Pendley portrays in his book, “Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on America’s Frontier,” no one lives in a city or suburb plagued by growth; no one wishes for land-use planning; no rancher or logger ever sides with any environmentalist.
Buzz Thompson, a Stanford University law professor who often favors property rights, says these law firms “will win a case like the Tulare case, and it’s never clear to me that those victories really accomplish much. They have won a victory for that particular person, but given how unique the cases tend to be, it is very difficult to generalize out to other cases. They frequently have not changed the face of the law in a way that would reallocate power between the government and private-property owners.”
The Sagebrush Rebel lawyers say they’re helping to preserve rural jobs and ways of life. Their opponents say those jobs are often a form of denial. “They create a false and desperate hope that [rural communities] can evade environmental protection, and that false hope leads to great controversy, people want to fight and fight and not accept it,” says Kieran Suckling, head of the Center for Biological Diversity, which applies lawsuit pressure from the green side. “There’s always that hope ” big-tree logging will come back, and we’ll be able to put cows back on the range ” and as long as [the locals] have that in the back of their minds, they’re not going to move forward.”
Even the lawyers occasionally acknowledge that their movement struggles. Pendley says that little has changed; the government agencies are still too insensitive. “Getting anyone to make big changes is really hard,” says Budd-Falen. “Sometimes I think it doesn’t matter who’s president and in Congress. The bureaucracy is so huge, it just eats you alive.” But they hope to hit home runs in the realigned Supreme Court, which is far more conservative than it was a few years ago: A key Bush appointee, John Roberts, is now chief justice, and Pacific Legal’s Schiff says, “I think things are looking in our favor there.”
John Shuler drove a bread truck for 15 years, ran a feed store for 20 years, and then bought his dream, a 2,200-acre ranch along Montana’s Rocky Mountain Front. He raised sheep and cattle. There were lots of grizzly bears in the area, including some that had been moved there by wildlife agencies because they’d gotten into trouble elsewhere. Shuler had to do more and more intensive management, rounding up his sheep at the end of every day and keeping them in his yard at night. Even so, he kept losing sheep to the grizzlies.
One snowy autumn night in 1989, Shuler heard a disturbance. The sheep were going nuts. He came out on the porch in his underwear, and saw four grizzlies in his yard. He grabbed a rifle and waded in, shot one bear, wounded it, and all the bears fled. Next morning, he tracked down the wounded bear. He says that it charged him, and he defended himself and put it out of its misery.
The U.S. Fish and Wildlife Service charged Shuler with illegally killing an endangered species; he faced possible fines of more than $10,000. Mountain States Legal’s Pendley heard about it, and got in touch. Pendley and another Mountain States lawyer came to Shuler’s place, and as Shuler puts it, they “got their hands dirty,” reconstructing the events, gathering evidence.
Shuler lost in a federal administrative hearing ” the judge ruled that he should’ve hung back and let the grizzlies do their thing. So Mountain States took it to regular federal court, and lost. The feds offered to let Shuler off with a fine of just a few thousand dollars, but he refused because, he says, “The bear was robbing me.” After eight years of that battle, in an appeals court, Mountain States won the case.
But the feds refused to cover Mountain States’ legal bills. Pendley ” saying he’d put in $225,000 worth of time and associated costs ” went back to court again, asking for payment. The courts held that because the Fish and Wildlife Service’s actions were “substantially justified,” no payment was necessary. Mountain States got nothing for its work representing Shuler.
Shuler says he got charged by another grizzly in 1997 and had to shoot it with a shotgun. Then he got sick, sold his ranch and moved to a warmer climate. Today he lives on five acres on the outskirts of Montrose, Colo. He’s 68 years old, and you can find him opening the gate in a local stockyard, where he makes a few dollars selling goats. He says Mountain States Legal Foundation is “tremendous.” He also says he thinks the battle against environmental regs has gone basically nowhere. The feds, he says, still favor predators over ranchers.