While media attention has been focused on a brace of Bunkerville Bundy brothers bunking with some buddies bearing arms in federal buildings in a wildlife refuge near Burns, Ore., in a futile gesture of protest over the mistreatment of a local ranching family by federal land agencies, those same federal land agencies have been literally washing away a 40-acre tract of private land nestled in the middle of the Ash Meadows National Wildlife Refuge northwest of Pahrump while a court battle drags on without resolve.
In 2009 Victor Fuentes and his wife Annette, who operate a retreat called Little Patch of Heaven for their Ministero Roca Solida (Solid Rock) church, were told the U.S. Fish and Wildlife Service planned to reroute a stream that had run through their property since at least the 1880s in an effort to reintroduce speckled dace, an endangered minnow.
On Christmas Eve 2010, heavy rains caused the stream to overflow its new man-made banks and flood the church property with water and mud, causing $86,000 in damages.
On behalf of the Fuentes and their church the Center for Justice and Constitutional Litigation (CJCL), the legal arm of the Nevada Policy Research Institute, filed a damage claim with Fish and Wildlife. The agency did not even acknowledge receipt of the claim.
CJCL then filed a federal lawsuit.
Meanwhile, according to CJCL Director and Chief Legal Officer Joseph Becker, the property flooded again in October increasing the property damage to $225,000. He noted that the recent floods etched the landscape with six-foot deep gullies and now every time it rains there is more flooding.
While Becker sympathizes with the plight of the Oregon ranchers now serving lengthy prison terms, though not necessarily the armed occupiers, he sees the Fuentes case as “much more important and much more substantial and much more righteous, because we have a situation where the Fuentes purchased for $500,000 a simple private property,” but the government has deprived them of the use of the property — what is called a “takings” under the Fifth Amendment.
Becker said in a recent interview, “We really want the court to deal with this in ways that don’t involve armed militia, that kind of thing. We’d like it to be addressed on the merits in court. Believe me, the Fuentes are very frustrated. The church is very frustrated that they’ve spent all this money and we’re now five years into not having water at a camp that — at least since the 1800s and longer we’re quite sure — had this stream traversing it. That was a big part of the reason they purchased this property. It is a major reason so they could do their baptisms, their river baptisms, their scripture, et cetera.”
The case was last argued in federal court in July and a decision is pending, but the statute of limitations on the initial vested water rights taking will run out in August.
The case is caught in a sort of legal No Man’s Land. The government has redefined a claim to mean anything that originates from the same set of facts is one claim. This is to prevent plaintiffs from receiving double compensation for the same damages, but the Fuentes case involves multiple constitutional violations, each of which or in combination could result in differing levels of compensation.
“So they (the government) went in, they violated their free exercise right (of religion under the First Amendment),” the attorney explains, “they violated their substantive due process right, their procedural due process right, they committed a tort of negligence by flooding them out with their own water by moving the waterway, but the other thing they did is they did a taking …”
There is no way to determine the level of damages until the court decides whether the Fuentes will ever get their water rights restored.
Fuentes — a Cuban refugee who swam seven miles of open ocean in the dark from near his home in Santiago, Cuba, to Guantanamo Bay to gain political asylum — has been disturbed by the lack of justice he has received in his adopted country.
“I fled that government,” he has said. “That’s not the government I wanted to find here.”
There seem to be a number of people these days saying that about their own federal government bureaucrats and their refusal to be accountable for their actions.
A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.