|Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal.|
by Vin Suprynowicz
JAN. 28, 2001
On Feb. 21, Ruby Valley rancher Cliff Gardner is due to appear for sentencing before Chief U.S. District Judge Howard D. McKibben in Reno. Despite an affidavit from his attorney that it was impossible to prepare a defense in the face of the court's refusal to clarify its rules or jurisdiction, Gardner was convicted Nov. 17 in federal court in Reno of grazing his cattle from time to time on government land near his Ruby Valley ranch without permission.
He could face up to a year in prison and $10,000 in fines.
Gardner makes no bones about the fact he places cattle on that land from time to time, as his family has done for 130 years since Mexican War veteran William Gardner "was discharged out of Fort Douglas there in Salt Lake in 1872 he came west with an old gun, a wagon full of kids and a handful of scrip that the government give him to claim some land."
In arid Nevada, no rancher can make a go of it on the 160 or 320 acres his grandparents were allowed to homestead. To run even 300 to 500 head of red Angus, as the Gardners do, requires thousands of acres. Thus, Western ranchers have always grazed their cattle on the adjoining public lands.
The question is: what does "public" mean? Do the ranchers have an established property right a grazing right just as both state and common law across the West acknowledge private citizens may have legitimate mining or water or right-of-way claims on that land, established both through paperwork "filings" and through years of habit and custom and adverse possession, which cannot be overturned by mere bureaucratic whim?
Or does the federal government as Judge Johnnie Rawlinson has brazenly asserted in the similar case aimed at driving Clark County cattle rancher Cliven Bundy off his Mesquite Allotment literally own all this land, with "plenary" rights to kick anybody off, any time they please?
The way Bill Clinton spent his final weeks in office waving million-acre parcels of these "public lands" off limits to human trespass with each flourish of his pen, it would certainly appear the federal government owns these lands and can use them or bar them from human use as they see fit.
There's little doubt the federal government did exercise precisely such imperial authority when these lands were territories just as Washington City can still do as it darned well pleases with the "public lands" in places like Puerto Rico and American Samoa. (Just ask the Puerto Rican folk unhappy with that little naval gunnery range on Vieques Island.)
But did the Founding Fathers really intend for the federal government to permanently own 87 percent of Nevada ... 68 percent of Utah ... 50 percent of the land mass of California ... for as long as the sun shall shine?
Why? To meet what goal of a "limited government" instituted solely to "secure the rights of all Men"? To keep these lands out of the hands of settlers, miners, ranchers, loggers out of the hands, in short, of the American people themselves?
To what purpose?
Mind you, no one objects to setting aside a few areas of particular scenic beauty as National Parks. But we're not talking here about building Wal-Marts in Yellowstone we're talking about sealing off hundreds and hundreds of miles of desolate desert scrub from the only activity for which they've ever proven to be of the slightest use grazing cattle.
When did the federal government buy these lands? Where are their deeds recorded? To whom do they pay property taxes? Or, if they're held "in common for all the people," how do I identify my one part in 250 million, so I can rent it to Cliff Gardner?
Cliff Gardner is quiet about it he's not the kind of man who shouts much. Nor does he even have unanimous support among the state's other ranchers. ("Too many of them are doing too well with the federal handouts and subsidies that are coming down," explains his wife, Bertha. "They don't want to rock the boat.")
But make no mistake. Unassuming Cliff Gardner is taking on the entire majesty of the federal government a federal government which Range magazine reports has succeeded in reducing livestock production on Western public lands by 20 percent in the past eight years; a federal government which the Reno-based magazine argues has embraced the visionary
Defiant, Cliff Gardner declares he can find "no authority whatsoever" for the federal government to "hold and manage lands within an admitted State" aside from the power granted in Article I Section 8 [of the U. S. Constitution], to purchase specific parcels "by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings," which would hardly seem to apply to the millions of acres of western grazing land.
It was "for these reasons, in 1994, that the Gardners chose to turn their livestock out upon their allotment without a permit just as he and he forebears had done prior to the establishment of the Forest Reserves," Gardner explains in the two-page written summary of the case which he'll hand to anyone willing to read it.
All Americans should be concerned, Gardner warns in the prepared summary, that "more than a third of the land surface of the United States of America is now being policed under Article IV jurisdiction" never intended for use within the 50 states, and under which the courts will not acknowledge any obligation to grant accused citizens their constitutional rights, including their "sixth amendment right to be informed of the nature and cause of a prosecution ... in order that they may prepare a defense."
(As a matter of fact, if the current governor and attorney general of Nevada really want to stop the proposed federal nuclear waste dump at Yucca Mountain if Gov. Kenny Guinn really means to leave "no battle unfought" against the waste dump, as he declared in his State-of-the-State speech last week one has to wonder why they're not joining this suit on Gardner's side. No private landowner would ever be allowed to set up a nuclear facility within the state's borders without state permission. It's only this presumption that the federal government has unlimited, extraconstitutional, territorial jurisdiction over 87 percent of Nevada precisely the presumption Gardner is fighting to expose and refute that makes such federal arrogance even remotely thinkable.)
"This question is of particular concern now that the federal government is poised to buy up all the remaining rural lands within our state," Gardner concludes. "With the money the feds will be receiving from the CARA legislation and the Southern Nevada Public Lands Act, they will have more than enough money to purchase all the remaining ranch and farm lands that lie within the State of Nevada."
# # #
It was this time of winter, two years ago, when I toured the Mesquite Allotment 60 miles northeast of Las Vegas with one of Clark County's last two cattle ranchers, blue-eyed Cliven Bundy. (Needless to say, the federals have been working to drive Cliven out of business for even longer than they've been after Cliff Gardner seven years for Cliff; eight years for Cliven. Cliven responded by "firing" the BLM "I don't sign their contracts and I don't pay their fees and I don't expect any services from 'em," he declares. And these guys all know each other; Cliff refers to Cliven having dropped by to do some deer hunting a few years back.)
At the time, Cliven and I squatted to examine some mighty spindly ground cover, the third-generation rancher explaining to me how the browsing of the plant by cattle clears room for the new, green shoots to come in each spring.
I must have expressed some amazement at the idea that cattle could survive by eating such stuff in the first place.
"A calf only learns what to eat out here because his momma shows him what to eat," Cliven responded, seriously. "At one point the tortoise people came in here and said I should just pull my cattle off the range for a few months in the spring, when the tortoises were breeding. I told them the only way I could do that would be to haul my herd to St. George and sell it, and then buy new feed-lot cattle and put them out here come summer. They couldn't see why that would be a problem. I had to explain to them that when you put cattle out on land like this, if their mommas haven't taught them what they can eat out here, they starve."
Cliven showed me areas where he'd bulldozed dirt across an occasional wash, which then filled up and became a muddy watering pond not only for his cattle, but for the quail and other wildlife that subsequently thrived there in much larger numbers than had been seen before.
Left in its natural state, the salt cedar will move in and clog a spring till there's no more surface water for wildlife or cattle, Cliven explained. Only the rancher has the incentive to dig the spring back to bedrock, install piping, and run the water to a tank where it can then be used by deer and wild sheep, as well as domestic stock.
Cliven explained to me how the process works now, if a farmer grazing the public lands tries to follow the rules when he brings in his own bulldozer for such a one-day job or even to run a piece of galvanized pipe under a dirt road. He must call the Forest Service or Bureau of Land Management, asking for an officer to come out, do a survey, and sign off that in performing such a "range alteration" he will not be dangerously infringing on the habitat of any threatened or endangered species.
(596 species were listed as "threatened or endangered" by the federal government in 1990. By 1999, the list had grown to 1,205, many of them weeds and bugs.)
Having won an "endangered species sign-off" for his one-day culvert project, the naive rancher might then assume he could proceed to do the job (at his own expense. of course.)
"You can't do a thing till they send out another guy, who has to do another survey to find out if you might be 'damaging any potential archaeological sites.' " Cliven explained. "I used to ask them, 'Gee, couldn't that guy have come along with you at the same time?' But no, you have to wait more weeks before you see that guy."
Back up near Elko, Bertha Gardner tells me they've been waiting "10 years" for a simple adjudication of the water rights to one of the seasonal creeks that flows under the road near their ranch in the Ruby Valley. Trying to play by the bureaucrats' rules is like Chinese water torture for such can-do folks. One might even begin to suspect the slow-downs aren't part of some calculated plan, as the federal government systematically reduces and abrogates grazing allotments across the West.
"They'll put me on the stand and ask how many years I have studied ecology, what college degrees I have," says Cliff Gardner, both describing his past treatment and predicting the way things are likely to go, come February in Reno.
"I'll tell 'em I've got a high school education so they'll discredit me, see. But what I plan to testify is these people here there'll be a lot of ranchers in the audience are my peers, they have the know-how to manage the range and make it pay or they'll be put into bankruptcy and driven off the land. But these BLM and Forest Service people, they get their degrees and then they come out here and they're the experts they don't have to test their theories against reality the way we have for three and four generations, that's the real teacher. They can be wrong and it doesn't matter. All they have to do is get more money for their department, grow the bureaucracy. And the way to do that is to create a villain, which is the rancher, and drive him off the land.
"So they become spin doctors. If the studies show what would really help the deer and the sage grouse is more predator control, that the wildlife does better when there's cattle on the land and their so-called preserves go to waste when they fence the cattle off, they just bury those studies, they never see the light of day if they don't match up with their theories.
They say we can't know what we're talking about because we don't have any 'peer-reviewed studies.' Well there can't be any 'peer-reviewed studies' because any of the ones that didn't fit their theories were all suppressed and hidden. I've had a lot of people sneakin' me studies who worked for the BLM and the Soil Conservation Service, because the agencies didn't want the public to know about 'em."
Cliff will stage his slide show at the drop of a hat, documenting the way Western wildfires have become more severe of late not only larger and more frequent, but burning hotter and destroying even mature plants that might have survived earlier, milder fires a phenomenon that Cliff links directly to the ever larger areas now closed to cattle grazing, thus allowing excess plant growth to go unused, the excess drying into fuel, awaiting the first lightning strike or careless campfire. (He might add the vast expanses now closed to logging even to clear away deadfalls.)
"And will they ever admit, 'Gee we made a mistake?' " Cliff asks. In answer, he shows slides of the impromptu truck parking lots and tent cities that spring up as federal contracts feed the growth of the new Western "fire suppression industry," whose participants he and Bertha describe as often more interested in lackadaisical "fire-watching" than fire-fighting.
Bertha relates the story of a young woman of their acquaintance who was hospitalized for third-degree burns, acquired saving her ranch from a wildfire which Cliff had helped the new firefighting teams "knock down the night before," but which sprang back to life when the government contract laborers failed to watch it through the night, as the local men had advised.
"The plants developed in an ecosystem where they need to be browsed to clear room for the new growth each year and all the studies show this, so they bury the studies and just declare, 'The cows cause erosion; the cows drive the deer and the birds away,' " Cliff continues. "Well, why do they need to keep buying up more land to expand their preserves? The birds abandon their preserves and go where the cows are grazing, because the cows fertilize the water and churn the sediments and stir them up, and that's where you get your insect growth; ungulates are a vital part of the ecosystem. (But) do you think they'll let me testify to all that?"
# # #
What Cliff Gardner is insisting on is that - even if we agree the federals are to "administer" all these lands, punishing "trespassers" like Cliven Bundy and Cliff Gardner we must still ask under what jurisdiction their courts and other officers are to operate as they do so: under Article III of the Constitution, which establishes the Supreme Court "and such inferior Courts as the Congress may from time to time ordain and establish" ... in which case defendants like Cliff Gardner have a right to a trial by a jury of their peers, a right to due process and equal protection all the rights guaranteed by the Bill of Rights?
Or is the federal jurisdiction over these lands in fact a "territorial" jurisdiction, as established under Article IV of the Constitution, which would appear to set no such due-process restrictions on the power of Congress to "dispose of and make all Needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
(Such "territories" being originally assumed to contain little but ... not to put too fine a point on it ... rogue French trappers and rascally redskins.)
Most Nevadans most Americans would doubtless respond that folks like Cliven Bundy and Cliff Gardner (Americans born and bred) are citizens of both the United States and the sovereign state of Nevada, and that in any action brought against them by the U.S. government of course they enjoy all the Constitutional rights to due process guaranteed by the Fourth, Fifth, Sixth, Eighth and Ninth Amendments.
Cliff Gardner keeps trying to get Judge McKibben to confirm that. But for some curious reason, whenever Gardner makes a court filing asking for just such a confirmation of his due process rights, Judge McKibben he just lay low and don't say nothin'.
Motion denied without comment. Motion denied without comment. Motion denied without comment.
"Before we can argue about how many cows are on the land, we need to know whether we have constitutional rights under the Sixth Amendment; Is this an Article 3 or an Article 4 court?" Gardner says. "We need to know the rules and the jurisdiction.
"I ask: 'Will Gardner's constitutional rights be respected?' They respond: 'Mr. Gardner has what he has and I'm not going to get into that.' ... They don't want to rule that Constitutional rights don't apply; they just keep denying motions to answer that question. They certainly don't want to say it's an Article Three court, because then state law applies. And the state recognizes grazing rights; we wouldn't then be under the Taylor Grazing Act, et cetera.
"So how can I prepare a defense?"
It sounded to me like a question the judge should be able to answer after all, how can any government agency commence exercising its powers without first agreeing to cite chapter and verse of its constitutional authority and jurisdiction; without first clarifying the extent and limits of its authority?
I called Judge McKibben. The judge explained he had taken my call as a courtesy, but that he couldn't answer any questions about a pending case. "You could present to me a summary of his concerns, and I could take them under consideration, but I wouldn't be able to comment," the judge explained.
"And that would include the jurisdiction?" I asked. "Mr. Gardner says he can't get an answer as to whether his case in your court falls under Article III jurisdiction or Article IV jurisdiction. So when you say you can't comment, would that include telling me whether this case falls under the jurisdiction of Article III of the Constitution or Article IV of the Constitution?"
"What it includes is that I can't comment on the case," Judge McKibben replied. "You have expressed to me what his concerns are. I can tell you this, that if you file something in court, I always prepare an order and you can read that order. But I don't want to be quoted on that."
"So you can't even say whether just speaking in general now all defendants have their due process rights under Article 3 and the Bill of Rights when they appear in your court?"
"The canon of ethics prevents me from speaking about a pending case, and we have an ethical obligation not to do that," was all the answer Judge McKibben would give me.
And I'm quoting him on that.
Vin Suprynowicz is assistant editorial page editor of the
Las Vegas Review-Journal.
28 jan 2001