Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?



Newspaper column: Hage ranchers again plan Supreme Court appeal

It is like fighting the Hydra, cut off one head and two grow back.

But the federal government is no myth. It is immortal. It has the power to print money and hire an army of attorneys whose job security depends on ceaseless litigation with no risk to themselves or their livelihoods.

The first generation of Hage family ranchers has died off while fighting in the courts for their rights, but the current generation vows to press on to the U.S. Supreme Court.

In 1978, E. Wayne Hage bought the Pine Creek Ranch near Tonopah. It included 7,000 acres of private land and grazing permits for 752,000 acres of federal public land, as well as water rights. The very next year he clashed with the Forest Service when it agreed to a plan to stock elk on Table Mountain.

Hage complained that the elk would drink his water and eat his grass.

According to court records, the relationship between the rancher and federal land agents deteriorated from there.

“In 1983, Plaintiffs received 40 letters from the Forest Service charging them with various violations,” wrote U.S. Court of Federal Claims Judge Loren Smith in 2008. “In the same year, the Forest Service paid 70 visits to Plaintiffs. Following the 40 letters and 70 visits, the Forest Service filed 22 charges against Plaintiffs. Many of these complaints cited issues of fence maintenance, some of them extremely minor infractions. (One was a loose staple in a fence post.) In addition, the Forest Service insisted that Plaintiffs maintain their 1866 Act ditches with nothing other than hand tools.”

Judge Smith — citing the Fifth Amendment prohibition against “taking” private property without just compensation — awarded the Hage estate $4,220,431.20, plus interest and attorney’s fees and costs. The total has long since topped $14 million, but the Hages have not seen a dime as various appeals courts have ducked and remanded and dismissed.

Though turned down once by the Supreme Court, Hage’s son Wayne N. Hage and daughter Ramona Hage Morrison say they plan to appeal one of their cases to the high court.

The latest litigation setback came in January when the 9th U.S. Circuit Court of Appeals tossed out a Nevada federal judge’s ruling in their favor. In a 104-page opinion Judge Robert Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

The appeals court accused Judge Jones of being biased against the federal land agents and took him off the case, even though Judge Smith had reached similar conclusions about the conduct of the federal agents, calling their behavior harassment and hostility.

“First, Plaintiffs had a significant investment-backed expectation in the ditches, as these were the primary means for conveyance of water for irrigating the Ranch. The ditches were rights purchased along with the Ranch,” Judge Smith wrote. “Second, Plaintiffs offered ample evidence that the Forest Service had engaged in harassment towards Plaintiffs, enough to suggest that the implementation of the hand tools requirement was based solely on hostility to Plaintiffs. Third, the economic impact of this regulation was considerable; it would have been economically impractical for Plaintiffs to hire enough men with hand tools to perform any sort of substantial work clearing the ditches.”

Judge Smith ruled the Hage ranch had a right to access its vested water rights, but the 9th Circuit basically ruled the ranch had no right to let cattle graze while getting to that water.

According to a Hage family press release posted by Range magazine, the family sees the conflict in rulings as something the Supreme Court needs to resolve.

“It is only the Ninth Circuit three-judge panel, after a 45 minute hearing, which determined that they are better arbiters of the truth than the two judges from two separate federal courts who actually saw the evidence and heard witnesses testify over a combined period of 43 trial days,” the press release states. “The Ninth Circuit panel, in reaching their desired outcome in U.S. v. Hage has managed to significantly diminish western water law and the laws governing rights of ways for roads, ditches and canals across federally administered lands, leaving the Hages no choice but to seek relief at the U.S. Supreme Court.”

The Hages are asking for donations to help defray the cost of continued litigation.

Wayne Hage in 1997 AP photo.

A version of this column appeared a year ago in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: One judge’s bias is another’s hard-earned experience

Wayne Hage in 1997 AP file photo via R-J

Earlier this month a three-judge panel of the 9th U.S. Circuit Court of Appeals printed out for the various federal public land agencies in the West a license to steal.

The court kicked the quarter-century-old fight between the Pine Creek Ranch near Tonopah and federal land managers back to the federal court in Nevada, ordering the court to assess damages against the ranch for allowing its cattle to trespass on federal land and ordering the judge who sided with the ranch owners two years ago to be removed from the case, claiming he was biased. It also threw out contempt citations the judge had handed two federal employees.

At one point the Hage family, which owns the ranch, was awarded $14 million by a federal judge because the government actions amounted to a “taking” of the value of the ranch’s grazing and water rights, but an appellate court said the case was “not ripe” because the family had not exhausted all administrative appeals. In a sort of Catch 22, the 9th Circuit said the statute of limitations had run out on such claims.

In a scathing opinion, Circuit Court Judge Susan Graber accused Nevada federal court Judge Robert Jones of bias against the federal agencies.

Graber wrote that Jones harbored animus toward the federal agencies. As evidence of this she quoted him as saying during a hearing, “In my opinion, not only in this case but in many cases, the government has been all too ready to — in the name of revoking or suspending or limiting grazing licenses, the government has been all too ready in the history of Nevada to impair otherwise suspected and substantiated rights of landowners.”

One person’s alleged bias is another’s expression of hard-earned experience. As can be attested to by many ranchers across Nevada, that is precisely how many agents of the Bureau of Land Management and the U.S. Forest Service too often behave.

In 1978, E. Wayne Hage bought the Pine Creek Ranch and its 7,000 acres of private land and grazing permits for 752,000 acres of federal public land, as well as water rights. His clash with the federal agencies soon began. In 1983 alone he received 40 letters from and 70 visits by the U.S. Forest Service alleging violations of grazing permits. One notice gave the family five days to replace a single fence post staple on a mountain a 20-mile horseback ride away.

Hage died in 2006 and his son now runs the ranch and continues the legal battle.

Hage was criminally convicted for damaging and removing government owned trees while repairing his water channels, but the conviction was overturned by the 9th Circuit. Twice the feds fenced off the ranch’s water sources, and twice confiscated and sold Hage’s cattle.

In a 104-page ruling Judge Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He further stated that the government had interfered in the case by urging others to apply for Hage’s grazing permits, by applying themselves for Hage’s water rights and by issuing trespass notices against witnesses soon after they had testified.

The appellate court shrugged off this behavior by saying the agents “took lawful actions, within the scope of their statutory and regulatory obligations, that had no effect whatsoever on the case before the court.”

Jones had ruled that the ranch had a right to allow its cattle to access its water rights and that grazing near the water was incidental, awarding damages to the government for that grazing of $165.88.

In the 2013 trial a forest ranger actually testified in his deposition that despite the right to use water, there was no right to access it. He said someone with water rights but no grazing permit would have to lower a cow from the air to drink the water.

The San Francisco-based judges dismissed any notion that the Hage family had any right to access their own water, if while en route they graze. You can lead a cow to water but you can’t let it graze.

an attorney for the Hage estate, has said he plans to challenge the decision, either by asking for a rehearing by a larger panel of the 9th Circuit or by seeking a U.S. Supreme Court review.

Perhaps the Nevada federal judge who next handles this hot potato should award the government their $165.88 in damages.

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.

Circuit court slaps down judge and rules against rancher

One person’s bias and prejudice is another’s accurate assessment.

On Friday the U.S. 9th Circuit Court of Appeals kicked the decades-old Hage ranch case back to the federal court in Nevada, ordering the court to assess damages for the ranch allowing its cattle to trespass on federal land and kicked the federal judge who sided with the ranch to be removed from the case.

The case involves the estate of E. Wayne Hage and his son Wayne N. Hage and has been going on since 1979.

Federal Judge Robert Jones had ruled in favor of the Hages, whose ranch is near Tonopah and even cited two federal land managers for contempt. The circuit court tossed all that.

This is what the court said about Judge Jones:

A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies. Unfortunately, the judge’s bias and prejudgment are a matter of public record. On the first day of the 21-day trial, the judge stated: “the Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases.”

“[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious.” “Your insistence upon a trespass violation, unwillful —your arbitrary determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this court.”

At a pretrial motions hearing, the judge advised a third-party rancher that he could file a lawsuit against the government and that “[h]opefully you’ll get Judge Jones because I’m very receptive to Mr. Hage’s lawsuit.” Addressing Hage, the judge stated: “You have a court that’s very receptive and sympathetic to your claim.”

At a separate pretrial motions hearing, the judge stated: “In my opinion, not only in this case but in many cases, the government has been all too ready to — in the name of revoking or suspending or limiting grazing licenses, the government has been all too ready in the history of Nevada to impair otherwise suspected and substantiated rights of landowners.”

The judge explained in detail: We all know what that game is about. . . . And the game, just for the record, even though the government in many cases didn’t have the right to insist upon a permit, because asking for a permit would be an additional limitation on the right of use of a property right[], nevertheless, the government in many cases has insisted upon it, and then, when they denied or suspended or revoked the right, they said you no longer have the right. So that’s what that game is all about.

During the contempt hearings, the judge stated: “I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for [animal unit months], for trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

Wayne Hage

To many Nevada observers it is Judge Jones who has an accurate view of the events and deeds taking place on federal land here and the circuit court judges who are prejudiced and uninformed.

In 2013, Sen. Dean Heller took the floor of the Senate to agree with Judge Jones.

“The court found that for more than two decades, federal officials entrusted with responsibly managing public lands actively conspired to deprive Wayne Hage, and his father’s estate, of their grazing permits and their water rights,” Heller said. “In its decision, the court ruled that ‘the government had abused its discretion through a series of actions designed to strip the Estate of its grazing permits, and of the ability to use water rights.’”

He added, “The Framers of the Constitution believed that private property rights were sacred. The 5th and 14th Amendments specifically prohibit the government from depriving citizens of ‘Life, Liberty, or Property, without Due Process of law.’ And those amendments are there for a reason.”

The court ordered the Nevada district court to enter a judgment for the government on all claims and to calculate appropriate damages.

The liberal court has once again sided with the bureaucrats over the citizens who are being run over roughshod.

Hage ruling

Hage contempt

Newspaper column: Federal bureaucrats ignored state and local input on land use plans

You have the right to remain silent.

No, you have the obligation to remain silent, because if you don’t you’ll be slapped with the very thing you’ve worked against for four years at the cost of millions of dollars and countless man-hours — listing of the greater sage grouse under the Endangered Species Act (ESA) — and then be sent to bed without your supper.

Talk about being treated like the proverbial red-headed stepchild.

This essentially is what the U.S. Attorney for Nevada has said in reply to a federal lawsuit that seeks an injunction to stop draconian land use restrictions, which almost entirely ignore state and local input, despite repeated promises of cooperation, coordination and adherence to strict scientific standards.

U.S. Attorney Daniel Bogden’s reply to the suit filed by Attorney General Adam Laxalt could be paraphrased thusly: Shut up, sit down, move to the back of the bus, or we’ll list the damn bird anyway.

Greater sage grouse (BLM photo)

“Finally, the government’s interest and the public interest weigh strongly against an injunction,” states Bogden’s reply. “Numerous stakeholders, including state and local governments, participated in a four-year process to create a landscape-level framework for protecting Sage-Grouse and avoiding the need to list the species under the ESA. That process was based on the best available science and on extensive good faith negotiations with interested parties. An injunction would diminish the protections for Sage-Grouse, undermine the collaborative effort that went into the Plan Amendments, and could have implications for FWS’ (Fish and Wildlife Service) recent decision not to list the species. Accordingly, the motion for a preliminary injunction should be denied.”

The part about participation is true — sort of like the condemned man participating in the firing squad — but the claims of best available science, good faith negotiations and collaborative effort are entirely bogus.

Bogden repeatedly tells the court the injunction should be denied because the claims are not “ripe.” Though the plans have been drafted and appeals have been denied, the plans have not yet been fully implemented.

Translation: No one may sue the federal bureaucracy until it has actually carried out its threat to put you out of business, making it impossible to afford to hire a stable of attorneys to fight the bottomless taxpayer well of cash for the next two or three generations.

Witness the saga of the Hage family ranchers who have been fighting in federal court since 1991 over water and grazing rights for their ranch near Tonopah. A judge awarded them $4 million but a federal appellate court in 2012 remanded the case to a lower court, saying it was not “ripe,” because the family had failed to “exhaust administrative remedies.”

With utter disregard for economic realities, Bogden also argues that the plaintiffs have failed to demonstrate “imminent irreparable injury,” providing merely speculation.

It is merely speculation that Elko County anticipates an annual loss of approximately $31 million of agricultural productivity.

It is merely speculation that the Ninety-Six Ranch owners say “restrictions threaten the survival of the ranching operation and devalue the ranch’s land and resources because, a reduction in or cancellation of its grazing permits will threaten the viability of its business and significantly reduce the saleable value of the Ranch.”

It is merely speculation that the “termination of Paragon’s (Paragon Precious Metals) rights under the General Mining Law to explore its only project creates such substantial, imminent, and irreparable harm that it will likely destroy Paragon’s business.”

It is merely speculation that for Quantum Minerals the “sudden termination of Quantum’s rights under the General Mining Law to explore its only project will destroy Quantum’s business.”

It is merely speculation that changes in land use plans will jeopardize Western Exploration’s $32 million investment.

Nothing to be concerned about. When those things happen the federal land agency bureaucrats will still have their jobs and pensions, and that’s not speculation.

The claim the federal government has been collaborative in reaching its decisions is a joke. Laxalt’s lawsuit uses a variant of the word “ignore” 22 times.

Before Laxalt filed suit, appeals by Gov. Brian Sandoval to both the head of the state BLM and the national BLM were summarily snubbed with cursory explanation.

A hearing on the request for an injunction is scheduled for Nov. 12 in Reno in front of U.S. District Judge Miranda Du.

This whole case is illustrative of the real problem with having 85 percent of Nevada land under the tight-fisted control of power-drunk Washington bureaucrats.

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.

The suit: Nevada v Dept of Interior Am Complaint

U.S. attorney’s reply to suit.

Branding at the Ninety-Six Ranch:

House subcommittee hears tales of federal land managers abusing their power

(Elko County Commissioner Grant Gerber begins at about 50:00 and again at 2:30:00.)

Broadcast live streaming video on Ustream
The House Subcommittee on Public Lands and Environmental Regulation picked up with part II this past week with its hearing on “Threats, Intimidation and Bully by Federal Land Managing Agencies.” Previously Nevada rancher Wayne Hage testified in Part I.

Grant Gerber testifies before Congress.

Grant Gerber testifies before Congress.

Elko County Commissioner Grant Gerber testified federal managers used to be “friendly, they came to the ranch, we worked with them, but over the years that’s changed. …

“They’re predominantly from outside the area and do not develop connections with the locals,” said Gerber. “Many start out with a belligerent attitude, even a commanding presence. They’re especially offended if anyone opposes any federal government actions.”

He told one officer who ticketed some men for illegally cutting firewood, even though the men had a permit. The officer thought he was in a wilderness study area, but he was on the wrong mountain.

Gerber also pointed out that the livelihoods of ranchers rest on the “whims” of BLM managers who are not even following their own rules. He also noted rancher Cliven Bundy tried to cooperate with the BLM but they denied him and other ranchers the right to profitably graze the range as they had done for generations.

BLM carries out the order of one federal judge, while ignoring the order of another

A number of people have noted that the BLM was just carrying out a federal judge’s order when it bungled its attempt to roundup rancher Cliven Bundy’s cattle from federal public land in the Gold Butte area.

Federal Judge Lloyd George authorized the BLM to confiscate Bundy’s cattle and the agency dutifully attempted to do so.

Wayne N. Hage testifies before Congress.

But in September 2012 another federal judge, Robert Jones, found that in the Hage Ranch case Tonopah BLM manager Tom Seley and Humboldt-Toiyabe National Forest Service ranger Steve Williams were in contempt for witness intimidation and attempts to circumvent the jurisdiction of the court over issues of grazing and water rights that were being litigated in federal court. The judge said there was “intent to deprive this court of jurisdiction by intimidation of witnesses and threats against witnesses.”

Judge Jones ordered from the bench, “Mr. Seley can no longer be an administrator in this BLM district. I don’t trust him to be unbiased. Nor can he supervise anybody in this district.”

A year later the son of the ranch owner who brought the case, Wayne N. Hage, testified before Congress that nothing was done to the two men cited. One still holds the same office and Seley retired.

In written testimony, which followed somewhat his spoken testimony, Hage stated:

“It is warming to know that with regard to the Courts that we still have the Rule of Law. Although as I have found out it is nearly impossible to defend a persons property and rights in the courts due to the financial burdens and the length of time involved. (My Mother and Father filed the original case and were not able to live long enough to see the end of the litigation. My step Mother died before there was an end to the litigation and it is looking like my siblings and I may be in old age before this is concluded.) However there it is becoming very apparent that there is no rule of law with regard to the employs of the BLM, USFS and perhaps the DOJ, there we have the rule of man. I remind congress that Aristotle explained that the difference between a correct form of government and perverse form of government is that the former is the Rule of Law and the latter is the rule of man.”

I guess some judicial orders are more equal than others.