Rebels with a lost cause
December 21, 2007
Editors Note: This is the first in a two-part series on a movement of Western property-rights lawyers that emerged in the 1970s to fight a wave of environmental regulations and how their battle continues today. The second installment will run in the Dec. 30 edition of the Aspen Times Weekly.Bill Jennings, a veteran fisheries activist in Stockton, Calif., remembers the Christmas season of 2004 as a nightmare. He adds: It was absurd. Hes talking about how some of the Wests most powerful farmers tried to throw off the yoke of environmental law. Like countless similar battles, this one came down in a courtroom, in a case titled Tulare Lake Basin Water Storage District, et al., v. The United States. For decades, the farmers had diverted rivers and dried up a huge lake to grow hundreds of thousands of acres of crops south of Stockton, resulting in catastrophic losses of fish and birds. Finally, during a 1990s drought, wildlife agencies invoked the Endangered Species Act and withheld some irrigation water, trying to save vanishing populations of chinook salmon and Delta smelt. That triggered the farmers lawsuit. The farmers demanded payment for surrendering the water. They claimed that the governments environmental action violated the U.S. Constitutions Fifth Amendment, which holds that no property shall be taken without compensation. They found a sympathetic listener in Judge John Paul Wiese, at the U.S. Court of Federal Claims in Washington, D.C.
In a surprising series of rulings, Judge Wiese ordered the government to pay the farmers as much as $26 million. Many believed that if the feds filed an appeal, a higher court would overturn the rulings. But five days before Christmas, the George W. Bush administration settled the case and agreed to pay $16.7 million. The Tulare outcome hit like a thunderbolt. The farmers lawyer, Roger Marzulla of the D.C.-based law firm Marzulla & Marzulla, told Greenwire, This is the first time [the government has] been required to pay for anything related to enforcing the Endangered Species Act.The Wests leading anti-green congressman at the time, Calif. Rep. Richard Pombo, R, could barely control his glee. This case should spell profound change for conservation policy, he told the Washington Post. A California water official, in the Los Angeles Times, called it a devastating setback for the environment. If the logic of the Tulare rulings spread, enforcement of many environmental laws might cost the government billions. And if the government preferred not to pay, the laws would be castrated. More striking, Marzulla & Marzulla stood among a battalion of law firms dedicated to challenging environmental laws. The movement had its roots in the West and appeared to be making progress on many fronts, firing a barrage of lawsuits and claiming a run of important victories in the late 1990s and early 2000s. Theyd rolled back regulations covering not only endangered species, but also cattle-grazing, commercial development and many other activities. They even seemed to be on the brink of redefining government employees as criminal racketeers. I think this fight is going to get a lot meaner, predicted Andrew Lloyd, a lawyer for Pacific Legal Foundation, another firm leading the charge, in Californias West County Times in January 2005. He and others envisioned more lawsuits and more big victories. These days, the anti-regulation lawyers still portray themselves as wizards, shooting bolts of legal lightning at the government agencies and power-hungry environmentalists who oppress them and their clients. In press releases, news and opinion articles and speeches, they boast about carrying out a crucial role. To get a better sense of their role, I explored the legal battlefields and visited some of the movements key Western law firms. I found a group of people who believe strongly in freedom and individual rights. But their record includes some recent big defeats, and their conviction arguably outweighs their influence. I found that they may indeed be legal wizards, but more in the mode of a Wizard of Oz: Theyre full of sound and fury out front, but if you pull back the curtain, theyre not so formidable. A movement is bornEnvironmental regulation became a formidable force in the decade and a half that began in 1964. During that time, Congress and state legislatures passed a torrent of new laws protecting wilderness and endangered species, requiring the study of environmental impacts, setting tough standards for clean water and air, and applying limits to grazing, mining, logging and driving on public lands. The regulations poked at some peoples livelihoods and chafed against their beliefs, especially in the West, the region with the most public land. So they began to hire lawyers to fight back. The ragtag resistance grew into a movement with the 1973 founding of Pacific Legal Foundation, headquartered in Sacramento, Calif. Its a nonprofit law firm, following the model of older, liberal nonprofit firms, such as those associated with the American Civil Liberties Union and environmental groups. Oil and tobacco corporations, chamber of commerce groups, and right-wing billionaires such as Joseph Coors (a Colorado beer baron), Richard Mellon Scaife (a Pittsburgh heir to the Mellon banking, oil and aluminum empire), and John Simon Fluor (a California mining, nuclear and oil baron) poured millions of dollars into launching Pacific Legal Foundation and similar nonprofit law firms across the country. The most famous is Mountain States Legal Foundation, founded in Denver in 1976. Mountain States has helped launch two lawyers James Watt in the early 1980s and Gale Norton in the early 2000s to tenures as secretaries of the Interior. Each used the cabinet post to push general deregulation and the commercial uses of federal lands. The movement has grown to include the D.C.-area Institute for Justice, which describes itself as a merry band of litigators, run by William Chip Mellor, formerly of Mountain States Legal. Dozens of lawyers in private practice also jumped into the fray. Roger Marzulla is among the most prominent, as is Karen Budd-Falen, a specialist in ranchers cases based in Cheyenne, Wyo. Both of them also had stints with Mountain States Legal. These lawyers share similar or identical goals, theyre related to each other through overlapping resumes and backers, and they file briefs supporting each others cases. Many of them got to know each other while working for Ronald Reagan, when Reagan was Californias governor in the 1970s, or when he was president during the 1980s. Theyre also tied in with the libertarian, property-rights think tanks, such as the Cato Institute. Those in the movement and those who study it call it by various names, including the Freedom-Based Public Interest Law Movement, or just the property-rights lawyers. For Westerners, the most accurate term would be Sagebrush Rebel lawyers: Theyre entwined with the angry rebellion that began in 1979, when many Western legislatures claimed authority over federal land, and continues today in local flare-ups against the feds.
The lawyers, and their clients, have some legitimate complaints. Environmental laws, especially in their infancy in the 1970s and 1980s, did tend toward bullying and unrealistic expectations. For instance, the Clean Water Act, the Clean Air Act, and other laws vowed to catalog and choke off hundreds of thousands of pollution sources within a few years. Anyone who didnt cooperate was subject to penalties. The game of politics is largely a struggle for control of the initiative, says Gregg Cawley, head of the political science department at the University of Wyoming, in a book he wrote about the Sagebrush Rebellion. Environmentalists had the initiative at the start as they set up their enforcement strategy. Then the antiregulation forces rose up and took the lead. We realized we needed to counter what the liberal, socialist [environmental] groups were doing, says James Watt, who earned his law degree in his home state at the University of Wyoming. Watt served as the first boss of Mountain States Legal, running it until 1980, when Reagan picked him to be secretary of Interior. Environmentalists Im not talking about the members of the groups, Im talking about the leaders were really not concerned about the environment. They were concerned about the form of government we would have. They wanted big government that was too intrusive on individuals freedom, Watt says. While Watt held the throne at Interior, he supported ranching, mining and logging. Though he resigned after only 33 months atop the Interior, hes a Sagebrush hero. Now retired and shuttling between homes in Arizona and Wyoming, Watt still talks a fiery game. The battle rages on, he says, because environmentalists and their allies in government are still too dictatorial … [they] should work with the users, the locals who will benefit from using these public lands. Mountain States Legal scored another apparent political victory in 2001, when Gale Norton became George W. Bushs Interior secretary. Shed worked for the law firm in the early 1980s, and though she was less abrasive than Watt, her ideology echoed his during her tenure at Interior. But Norton and Watt left little lasting imprint on the ground nothing on the scale of the bedrock environmental laws, nothing even as noticeable as President Bill Clintons environmental legacy, which includes the restoration of Western wolves and 23 new or expanded national monuments, orchestrated by Interior Secretary Bruce Babbitt. Watt quit amid controversy over his frank manner of speaking, and Congress and environmentalist lawsuits stalled many of his policies. Watt was certainly noticeable as a symbol, he did personify the Sagebrush Rebellion and the takeover [of Interior] by Western resource industries, but surprisingly little happened during his reign, says Charles Wilkinson, a University of Colorado law professor who served as a Clinton adviser and has authored 13 books about law and natural resource issues.
Norton, who left Interior in 2006 and is now with Shell Oil in Denver, has a one-dimensional legacy: oil and gas drilling, which, thanks to the federal backing she provided, goes whole-hog in industry sweet spots around the Rocky Mountains. Still, she was an unimportant secretary of Interior, Wilkinson says, because the public-lands policy of this administration is being made by Vice President Dick Cheney, not the secretarys office. Cheney, with his longtime roots in the oil industry, by many accounts wields more power than President Bush. It didnt matter who was secretary of Interior. The numbers gameIn the nations courtrooms, the Sagebrush Rebel lawyers win and lose more cases than can fit in any magazine story. The lawyers believe theyre generally doing good work. But their impact is as unclear as it was in the Department of Interior. The mission of Mountain States Legal Foundation is summed up by the title of William Perry Pendleys latest book: Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on Americas Frontier. Pendley has been the firms president and chief lawyer for 18 years. His staff includes about a half-dozen other lawyers, headquartered in a small office park in suburban Denver, across from an insurance agency, a dentist and Pilates Plus. An American flag on a tall pole marks the buildings entrance, with a plaque that says Old Glory. Inside the headquarters there are more plaques engraved with names: Rocky Mountain family oil companies (Yates, Kennedy, McMurry, Anschutz, Dugan), notable ranching operations (Page Land and Cattle Co.), loggers and an aircraft-tour company. Theyre some of the donors who support Mountain States work, most of which is done on a pro bono basis for free, or a relatively small cost to clients. At his desk several weeks ago, Mountain States Legals Pendley wore a blue Oxford shirt, gray slacks and black cowboy boots. He had a short, brush haircut, pale blue eyes, chiseled face. Hed decorated his office with mementos of his five years in the Marine Corps and several years in the Reagan administration, along with mining and cowboy knickknacks and samples of his kids artwork. Born and raised in Cheyenne, son of a union pipefitter, Pendley has college degrees in political science and economics, as well as a University of Wyoming law degree. Hes 62 years old and no longer works seven days a week; an evangelical Christian, he takes Sundays off. Asked whether his religious beliefs come into his law practice, Pendley says yes: Some of it is, What would the Lord do? How do you treat human beings? But his religion, he says, doesnt determine which cases he takes to court. His book talks about environmental elitists sitting in their glass towers in New York City and San Francisco, their ivory towers in prestigious colleges, and warns theyre a juggernaut trying to destroy local cultures and economies in the West. Pendley is a kind of modern Western celebrity. He appears on TV and radio talk shows, rural libraries circulate his book, and hes a popular speaker at conventions of mining and ranching groups. When Mountain States Legal presses a lawsuit, it creates excitement in the press and affected communities, due in part to Pendleys reputation as well as the Norton/Watt connection. The firms biggest win, according to Pendley, was a 1995 U.S. Supreme Court ruling against affirmative action in highway contracts. Among its environmental cases, Mountain States won a $2 million settlement for a New Mexico landowner who handled wastewater from oil and gas wells; the feds gave him permission to dump the wastewater in potholes on federal land and then withdrew it, causing him to lose his business. The federal claims court ruled in 2001 that it was an unfair taking, and eventually the government grudgingly paid him.But overall, in the dozens of environmental cases Pendley profiles in his book, Mountain States Legal has lost far more often than its won. The environmental cases tend to be especially difficult. Theyre almost always three-sided: The rebels sue the government and then environmentalist lawyers jump in, or environmentalists sue the government demanding tough regulations and the rebels jump in. They have to climb mountains of administrative records and find their way through the fog of environmental laws, which often contain contradictory phrases meant to placate different interests. Its very difficult to sue the government and win these kinds of cases whether the plaintiff is a rebel or an environmentalist, says law professor Wilkinson. In an analysis of all lawsuits filed against the U.S. Forest Service from 1989 to 2002, on the basis of the 1976 National Forest Management Act, the plaintiffs won only 28 percent of the time, for instance. The courts give heavy deference to the government agencies, Wilkinson says. In cases with wide implications, Mountain States Legal has tried to block Clintons wolves and monuments, discourage the Colorado Division of Wildlifes lynx-reintroduction effort, overturn a ban on oil drilling in a million acres of national forest along Montanas Rocky Mountain Front, and kill a public-access law that says anyone can walk stream banks on private property in Montana. Representing oil companies and off-road drivers and ranchers and other property-rights advocates, Mountain States Legal lost all those court cases. Im after more than win-loss statistics, though; Im interested in the psychology. After losing one case, Pendley vowed: Well keep tilting at this windmill until we find a way to go to court and win. When I ask him if he sees himself as a Don Quixote figure, he says no. But he adds, We take the impossible cases the cases no one else will take. If these were easy cases, private attorneys would be representing these people, because private attorneys look for slam-dunks and easy payoffs. He repeats the image: Were really on a Mission Impossible challenge, he says an attitude that makes any victory noteworthy. Listening to himself, he laughs, and calls himself an eternal optimist. Ray Ring is High Country News senior editor.Research for this story was funded partly by Bill Lane Center for the Study of North American West, at Stanford University.