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THE PROPERTY-RIGHTS MOVEMENT OR THE SAGEBRUSH REBELLION REVISITED:
A SERIES OF ANALYSES FROM AROUND THE COUNTRY

Gerald W. Williams (compiler)

USDA Forest Service

May 12, 1997

The current controversy over the "Property Rights" or "Wise-Use Movement" is especially evident in the Western states. It concerns the "rights" of people, companies, corporations, cities, counties, and states. It is not an easy controversy to dismiss as the roots of it go back more than 100 years. Land ownership and control over public domain timber land was evident as early as the 1890s with the establishment of the first Forest Reserves (name changed in 1907 to National Forests, managed by the Forest Service) and recently with the Bureau of Land Management (BLM) administered land in the West, much of which is given over to grazing and mineral development.

In the 1890s, the controversy was in opposition to the establishment of any federal forest reserves (until the auspices of the Forest Reserve Act of 1891). A number of local and state officials came to oppose the creation or expansion of existing forest reserves because they were pressured by the livestock grazing industry. Grazing herd owners did not want forest reserves, in part, because sheep, cattle, and horses were barred from using the alpine summer pastures. This point of opposition became mute as forest reserves were reopened for grazing under regulated use. Often hidden is this "agenda" was that the herders were using millions of acres of public lands for free and that they did not want any regulators to interfere.

Congress became involved in 1897 and again in 1907 when two President's established millions of acres of new national forests in several western states. In the 1897 case, Congress held up the establishment of the millions of acres of new reserves for nine months to allow "homesteaders" to find "farm land" inside the boundaries of the reserves. The result was the loss, often by land fraud, of many thousands of acres of heavily timbered land public land to developers. Ten years later, President Theodore Roosevelt declared millions of acres of new national forests just before a law became effective barring the president from establishing new national forests without consent of Congress. Several of the affected states, through their delegations to Congress, protested, but to no avail. Then, as now, the issue was economic growth. States felt the federal government was taking away the potential for extracting natural resources.

In recent years, Both the BLM and the Forest Service have been accused of "caving in" to developers, grazing permittees, timber companies, and mining operators. Other groups and organizations accuse the agencies of going overboard with environmental protection and restricting or eliminating legitimate uses (set forth by law) of these grazing and forest lands. There is probably some truth to these criticisms and allegations.

Efforts in the early 1970s by Westerners to take over management and ownership of Federal lands was called the "Sagebrush Rebellion." The idea or concept was felt, by the agencies, to be a revolution. When Ronald Reagan came into office in 1981, there was a strong feeling that the federal land management agencies were finished. There was even a widely publicized effort to sell the federal lands, especially the grazing lands, to the public. Yet, nothing substantial really happened, as the administration and the federal agencies spent a considerable amount of time and effort to diffuse the rebellion. But it was not dead, only dormant.

The Wise-Use Movement (WUM) came into being in the early 1990s. It has many similar elements as the old sagebrush rebellion, but with slightly different angles. Today, the WUM is concerned with federal ownership, federal and state "taking" (not allowing land owners "full use" of their land); home rule; agencies "out of control" with regulations and procedures; demise of resource dependent communities (mining, fishing, grazing, and timber); loss of tax dollars from exempt public land; threatened and endangered species protection on federal, state, and private land; and loss of livelihood and community.

Elements of the WUM could be seen in the earlier sagebrush rebellion, in-holders organizations, opposition to wild & scenic river designations, and similar controversies. The difference today is the widespread nature of the WUM and the political support that it has been given by members of Congress.

The following discussions give a much more detailed explanation of the WUM through a variety of observations and analyses from around the country:

  1. "Wise Use Movement Like Foes" (1993) byJack Anderson & Michael Binstein
  2. "The Wise Use Movement" (1991) fromSeattle Times
  3. "Federal Uniforms Become Target..." (1995) byTimothy Egan inNY Times
  4. "Home Rule Memo" (1995) byCarolyn Richardson
  5. "Western States Coalition - Summit II" (1995) byDick Kline
  6. "Notes from the 'Win Back the West' Conference" (1995) byNancy Ballard
  7. "Home Rule Road Show Comes to Klamath Falls" (1995) byFrank Erickson
  8. "Wise Use Threats Exposed" (1994) from The War Against the Greens
  9. "Counties w/Catron County Land Use Plan Ordinances" (1995) fromR-6 PAO
  10. "The Wise-Use Directory & Court Cases/Litigation" (1992) from theWO-PAO
  11. "County Rights Ordinance" (1995) from Ochoco NF byNorm Hesseldahl
  12. "Trends in Federal Land Ownership & Management" (1995)House Hearing.
  13. "Dr. Jerry Franklin Sounds Warning About the Future of Public Lands" (1995) byDavid Paddock
  14. "Court Strikes Down Lands Challenge" (1996) by the United Press Inter- national
  15. Oregon Society of American Foresters meeting (1996) byDarrel L. Kenops
  16. "Settlement Signed by Nye County in Suit with Feds" (1997) from theWO-PAO Forest

Service News Digest.


'Wise-Use' Movement Likes Foe

column by
Jack Anderson and Michael Binstein

Oregonian January 15, 1993

If Ron Arnold is right, former Arizona Gov. Bruce Babbitt [new Secretary of the Interior] will be to the so-called "wise-use movement" what former Reagan administration Interior Secretary James Watt was to environmentalism: a fund raising bonanza.

"They'll make us rich and famous," Arnold predicted. "I think he'll be the perfect Darth Vader."

Arnold is one of the leading wise-use gurus, part of a growing nationwide coalition of landowners, farmers, ranchers and off-road-vehicle buffs seeking to roll back environmental regulations governing public and private land use. By stoking fear and resentment in depressed timber towns and mining towns, the movement has traveled like a prairie fire across the country. The environment- ally minded Babbitt, who is Bill Clinton's choice for secretary of the interior, is helping to fuel that fire.

The wise-use movement is like a church with different denominations, an array of preachers and pulpits glued together by a common gospel: Environmentalists threaten careers, communities and even Christianity. "Its really an extremist movement," former Interior Secretary Stewart L. Udall told us. "I think their use of religion to further their cause is absurd and dangerous."

Interviews with activists across the country suggest that no rhetoric is too inflammatory:

Though perceived by some as mere rantings by the radical fringe, environmentalists are deeply troubled by the movement. "I have made a point of not taking them for granted," said David Abersworth, and National Wildlife Federation official. "They are a real threat."

Adirondack Park official in New York can testify to that. One official had her barn burned down last summer. Two years ago, park officials found three bullets lodged in their car after they sped away from a Solidarity Alliance demonstration where shots were fired. "Town supervisors here are petrified that they're going to have their house burned down if they offend these people," Sheehan said.

Dale French of the Adirondack Solidarity Alliance denounces the violence. "All we're doing is trying to protect our property and have a future for our kids," he said.

Asked about outbreaks of violence like those in the Adirondacks, Ron Arnold acknowledges that he has had "groups calling me about armed insurrection....But I have to tell them we won't be a party to any violence."


THE WISE USE MOVEMENT

Seattle Times

December 2, 1991

The following is adapted from an article in the December 2, 1991, issue of theSeattle Times. The article is a good summary of the philosophy of one of the leaders of the Wise Use movement.

PEOPLE WITH A MISSION...A loosely organized national coalition known as the Wise Use movement is emerging to combat what it sees as the anti-human bias of the environmental movement. A leading proponent of the Wise Use philosophy is Ron Arnold, executive vice president of The Center for the Defense of Free Enterprise. He and center president Alan Gottleib believe that supporters of their agenda number in the millions. Gottleib also headed the Citizens Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation. He was one of the nation's leading direct-mail money-raisers for conservative candidates and causes in the 1970s and early 1980s.

LOCAL ACTION, NATIONAL PRESS...The group's focus is grassroots organizing in small Western towns and lobbying in Washington, D.C., but the center has also been making national headlines for about a year. An article in theChicago Tribune led to stories inNewsweek,The Christian Science Monitor, theWashington Post,U.S. News and World Report, andOutside magazine.

PHILOSOPHY...The leaders of the Wise Use movement believe that the planet's resources were meant to be exploited for human gain and profit. Arnold--a former Sierra Club member himself--talks of harvesting old-growth forests, eliminating or reducing the size of many national parks and recreation areas, opening up the Arctic national Wildlife Refuge to oil drilling and repealing the Endangered Species Act.

VIEW OF ENVIRONMENTALISTS...He urges his followers to take this attitude: "One, don't believe a thing the environmentalists say. Two, go look to see if it's there (the problem the environmental movement claims). Three, act on the truth, not the theory. Don't be snookered by these activists that are out to destroy civilization." Among the myths he believes environmentalists have perpetuated: The disappearance of the spotted owl, the Ozone hole, the greenhouse effect, and acid rain.

RECENT SUCCESSES...The movement's principal successes have been in fund-raising, organization, and dissemination of the Wise Use philosophy. But the movement also is making real inroads in national legislation, according to David Alberswerth, a National Wildlife Federation official who has been following the movement. For example, Alberswerth says, the new highway and mass transit bill passed by Congress last week provides for construction of off-road vehicle trails that would open up wilderness areas--something Wise Use members have long sought. Wise Use proponents have also been successful at battling rules that result in the loss of property rights.

LIBERTARIAN BENT...Arnold supports exploitation of the environment for private gain as "a noble goal." He says the Wise Use movement is not liberal or conservative, Republican or Democrat. If anything, it's Libertarian, conservation- oriented and a defender of the environment. "We're not out to hurt the environment," Arnold says. "We love the environment more than they do."

SPEAKING ENGAGEMENTS...Arnold is in demand as a speaker. In the next few months, he is scheduled to speak to the New Mexico Cattlemen's Association, the Minnesota Wheat Growers' Association, the International Council of Shopping Centers in San Francisco, the Maine Conservation League and a Society of Professional Journalists meeting in Kennewick.


FEDERAL UNIFORMS BECOME TARGET OF WAVE OF THREATS AND VIOLENCE

by Timothy Egan

New York Times

April 25, 1995

SEATTLE, April 24 - Three weeks before the explosion in Oklahoma City, a bomb blew out windows and ripped open a hole inside the Forest Service office in Carson City, Nev.

That same week in Montana, a self-styled citizen's militia leader directed threats at several public officials, saying, "There cannot be a cleansing without the shedding of blood." At least two judges say they now fear for their lives.

And in Idaho, some Federal agencies have virtually stopped performing some of their duties, fearing violence from a handful of people who have made the Government their No. 1 enemy. To wear a uniform of the Federal Government in some counties is now seen as wearing a target.

Little noticed outside the West, this wave of violence, intimidation and threats against anyone associated with the Government has been building in a half-dozen states for more than a year.

Officials are reluctant to call it a concerted effort. In some cases, the threats consist of vows by county officials to arrest Federal employees who enforce laws governing public lands. But there have also been outright calls to arms from home-grown militia leaders and from assorted men prone to violence who have always chafed at authority, Government employees say.

The level of intimidation is such that the Forest Service and other land agencies recently sent out guidelines urging employees to travel in pairs, to always stay in radio contact and to work closer with local law-enforcement agencies.

"We've stopped doing road maintenance in one county because of concern about safety of the lives of the crews," said Jim Nelson, supervisor of the Toiyabe National Forest in Nevada. No one has been arrested for the bombing in Nevada, which happened in an office in Mr. Nelson's district.

People who monitor forest health and do such things as count fish in rivers for a living have been issued wallet-sized cards with the phone number of the United States Attorney "in case you are arrested for carrying out your duties on public lands," as the form accompanying the card says.

"People are scared and nervous," said Joe Kelly, a biologist with the Federal Bureau of Land Management in central Washington State. "They told us to watch our backs and not resist if confronted."

In the state of Nevada,and in about 30 counties elsewherein the West, some local officials have said they will arrest Federal employees if they get in the way of plans by ranchers, miners and others to assert control over public lands. Alsoin Nevada, a phone message left in a Forest Service office a few days after the Carson City blast said, "You're next." In Idaho and central Oregon, there have been physical confrontations in which public employees have had guns pointed at them.

Thehatred directed at Federal officials, according to those who have been threatened, has been fanned by a handful of rural talk-radio hosts, and by people writing in newsletters and computer bulletin boards, who equate the Government with an occupying Army. Initially, many public employees dismissed such talk as rabble from isolated cranks. But in recent months, some say theyhave found it increasingly hardto do their jobs' as opponents of the Government have become emboldened.

Thebombing in Oklahoma City, directed as it was against many of the Federal agencies which are most vilified in pockets of the West and Midwest, confirmed the worst fears of some Government employees.

"It has become really hard to be a Federal employee out here," said Dr. John Freemuth, a professor of political science and public administration at Boise State University in Idaho, who works with the employees of several Federal agencies. "They feel intimidated, isolated, demoralized," he said. "They wonder how they became the bad guys."

It is in Idaho, near the town of Kamiah, that James (Bo) Gritz, a longtime leader of anti-Government movements, has set up a community of armed "Christian Patriots" called Almost Heaven. He has openly challenged Federal officials to a fight, but they have steered clear, saying he has done nothing illegal.

After the Oklahoma City blast, Mr. Gritz, speaking to some followers, said the explosion in the Federal building was "a Rembrandt - a masterpiece of science and art put together." He could not be reached today to elaborate on the comment.

Also in Idaho, a militia leader, Samuel Sherwood, was quoted on March 10 by The Associated Press as saying, "Some Idaho lawmakers may betray Idaho and cling to Washington, D.C., hence the need to shoot them. Go up and look legislators in the face because some day you may have to blow it off."

In Nevada,where at least two bombs directed at the Forest Service have gone off in the last month, causing property damage but no injuries, the resentment against the Government has been led by a commissioner of Nye County, Richard Carver. He says the Federal Government has no jurisdiction over certain lands, and hebulldozed opena road in defiance of Forest Service officers who ordered himto stop.

The Forest Service has since abandoned routine maintenance and other work in Nye County because they are afraid that an employee may get hurt

Mr. Carver says the bombs, including an earlier one in 1993 against the Bureau of Land Management, have nothing to do with his movement, and he disavows violence. Like others who have followed his lead, Mr. Carver asserts that the Federal Government has no right to regulate grazing, logging, and mining on certain Federal lands.

"Weprobably are 'at war,' but we're going to win politically, not by threatening or intimidating a Federal employee," Mr. Carver said earlier this month while on a speaking tour of Washington state.

While the so called county supremacy movement in the West appears to have few links to the more violent militias, it has spawned an atmosphere that has made it hard for Federal employees to carry out their jobs, these rangers and biologists say.

"As a Forest Service employee, I'm regarded as an agent of Big Government by one side and a logger's friend by the other," said Phil Archibald, a fish biologist with the Wenatchee National Forest in Washington state. "Now, in addition to everything else, I have had to look over my shoulder."

In response to complaints from Federal workers, the Justice Department filed a lawsuit last month to stop Nye County from trying to take over Federal lands or intimidate Forest Service employees.

By far, the worst threats have been in Montana, where there is an active militia movement with close ties to the Michigan Militia. Some of the men being held in connection with the Oklahoma City bombing attending occasional session run by the militia. Federal officials say are looking at whether there was a conspiracy to attack Government on April 19 - the day of the Oklahoma City blast, and the day Federal agents attacked the compound of the Branch Davidians near Waco, Tex, two year before. The Montana militia had sent out a fax urging members to take action on that day.

An armed group of people who said they were associated with the militia movement confronted officials in Hamilton, Mont., last month. Three of those men have now been charged with felony crimes of intimidating a public official.

One of those charged, Cal Greenup, who was carrying a loaded .357 magnum, said at the time. "There cannot be a cleansing without shedding of blood." He said local officials and others had violated the Constitution. He has since become a fugitive.

Judicial officials in the case, as well as the two judges, say they have been threatened. "They've threatened to burn me, to hang me, to run me over," said Mike Reardon, the deputy prosecutor of Ravalli County, in an interview today. While many citizens have rallied to their support, others are afraid.

"There was a petition that went around supporting local officials," said Don Williamson, the city administrator of Hamilton. "Then, some of the people who signed it asked to have their names taken off because they were afraid of retaliation."

"It has become awfully hard to be a part of any government, with the threats, the intimidation, the lies that come out of talk radio," said Mr. Williamson. "People are sick and tired of what's going on. You need good people in government. What this does is keep good people away."

In Montana, Idaho, Washington and elsewhere, government employees at all levels are cast as members of a "New World Order" working to take over the United States. Last year, militia members in central Washington state alerted their members and headed north for battle, saying an imminent invasion was under way. For evidence, they cited helicopters and armed men spotted in the area. It turned out to be a field training operation of the Federal Drug Enforcement Agency and the Border Patrol.


HOME RULE MEMO

Carolyn Richardson

of the California Farm Bureau Federation to the

County Farm Bureau Presidents and Executive Directors/Managers

February 22, 1995

From time to time I have been asked by members to comment on the pros, cons, and possibilities of a grass roots political organizing effort spearheaded by a coalition of interests calling themselves "The Federal Lands Conference." This effort is generally termed the "Home Rule Movement."

I have always limited my response to a discussion of the particular situation of the affected county Farm Bureau, recognizing that the opportunities and limitations of the home rule effort depend greatly on such local variables as presence or absence of federal land or federal services, degree of urbanization, population and demographics, to name a few. I have also found it difficult to discuss the pros and cons of the home rule movement in print, because communications to county Farm Bureaus have a way of reaching people in organizations who are not sympathetic to our concerns, and I do not like to write or say anything that might be misinterpreted as criticism of the efforts of our county Farm Bureaus.

Because of the number of county Farm Bureaus currently interested in exploring the home rule idea, I believe it is now necessary for me to provide some general legal guidance. Let me make it clear at the outset, though, that I support those county Farm Bureaus who have become active in home rule efforts. It can serve as a very valuable vehicle for local grass roots political organization. Please read the concerns and criticisms expressed in the following brief discussion in the context of my general support for the goals of home rule.

PROS, CONS, AND GENERAL OBSERVATIONS

1.Scope of "Home Rule": The inspiration of the current "home rule movement" is the very real need to ensure that counties and communities which are dependent on the economic use of federal lands by their citizens are not injured by ill-considered federal agency decisions affecting access to those federal lands. The movement is not designed to accommodate frictions between state governments and local governments. Its limited goal is to influencefederal land, management. However, to the extent that it draws agricultural interests together as a local political force, and promotes county and other local governments' recognition of the value of agriculture to the economy, a home rule organizing effort can also strengthen local control against state governmental encroachment.

2.Limitations Under State Law: The present home rule effort was initiated in another state. I am not versed in the law of that state, but in California the scope of county legislative authority as against state authority over local concerns is narrowly circumscribed by our state Constitution: a) a county can legislate only over subject matters affecting health and welfare within the county, and 2) county laws maynot conflict with state law addressing that subject matter. Issues of "statewide concern" are not within the narrow home rule legislative authority of county government. An example is the management of fish and game (including state-listed endangered species): this particular limitation has proven useful to us in our efforts to invalidate some county animal rights ordinances, but it has also blocked our efforts to obtain relief for members unfairly burdened by nuisance wildlife. A final thought: if the goal is simply to give agriculture greater weight in state and county decisions affecting land uses within the county, consider a strongly protective Agricultural Element within the county General Plan.

3.Home Rule Tool Kit: Proponents of the current home rule movement are recommending that counties adopt a prescribed set of ordinances and a land use plan as tools to force federal agencies to accommodate the needs of community stability and local economic growth in their decisions affecting federal land management. Strictly speaking, this is not necessary. The laws governing the federal land management agencies--for example, the Federal Land Policy and Management Act (FLPMA), the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA)-- already require that the federal government solicit and consider public input, and consult and confer to some extent with local and state government, in promulgating significant land use decisions and policies. No new legal tools are needed to give local communities a voice in the process. Localaction is what is needed: Making full use of existing rights.

4.Protecting the Local Economy Through the Home Rule Effort: Local governments and their communities do need to be wakened to their right to participate in federal decision-making, and the home rule movement is serving a valuable function in this regard. The federal government must take into consideration the local economic effects of its actions. To take full advantage of their participatory rights, it is important for concerned local governments and their citizens to recognize that the federal land management agencies have no affirmative duty to search out evidence of adverse local economic effects; it is the opportunity and duty of the impacted community to present credible economic impact analyses that the federal agencies cannot ignore. Where there are alternatives for federal action which present different local economic impacts, solid factual data from local government and members of the regulated alternative, and may in some cases create grounds to invalidate an alternative that clearly presents avoidable economic harm. Of course, as ever, local, state and national political pressure are a great help in motivating an agency to make the proper choice.

a.This "opportunity" places the burden on our side to present a well-documented economic case, both to put the necessary facts in the record and to keep agency experts honest.

b.Economic information is of limited utility if the agency is presented with strong evidence of adverse environmental impacts that can only be addressed by limiting economic use of the federal land--NEPA exists to addressenvironmental impacts, not economic impacts. If one alter- native presents clear environmental advantages, very persuasive evidence of economic debits will be required to outweigh the environmental pluses.

Sum: To benefit from our opportunity for input on economic impacts, we must develop very good economic data.

5.Environmental Impact Input: Some people involved in the home rule movement claim that the adoption by a county of a "county land use plan" addressing federal lands within its borders will give counties a direct role in both determining the significance of alleged environmental impacts of private activities on federal lands, and selecting appropriate mitigations. I think it can be useful for counties to develop planning documents that encompass environmental prescriptions protective of productive access to federal lands within their borders, provided the limitations and challenges of such a document are recognized.

a.Caveat: I refer to the proposed county document addressing environ- mental impacts on federal lands as a "county document addressing environmental impacts on federal lands as a "county land use plan" because that term is espoused by the Federal Lands Conference. However, you must bear in mind that in California we already have state laws requiring development and adoption by each county of a county land use plan titled the "General Plan," and further dictating adherence to strict procedures including preparation of a Negative Declaration or EIR for any amendments to this planning document. Any general land use planning document that addresses lands under the jurisdiction of the county must be developed and adopted in compliance with such laws, as an amendment to (and possibly new element of) the county General Plan. No California court has yet interpreted the ability of the General Plan to address activities on lands under federal jurisdiction within the county. As noted below, I do not believe that the county can dictate management preferences to the federal government on such lands. However, state environmental, health and safety laws can regulate certain activities of lessees, permittees, and licensees on federal lands which might adversely impact the quality of the environment off the federal permittees, etc. under a "county land use plan" could have adverse consequences for our membership by creating a duplicative approval process. I therefore recommend strongly against entering into this legal briar patch:do not call the environmental input document a "county land use plan."

b.If local government is to have a meaningful voice in the environmental impact balancing process- one the federal agency can respond positively to in a legally defensible manner- the "county land use plan" and all project-specific input will have to address and resolve environmental concerns. This point is acknowledged by the home rule proponents themselves, in stating that the county land use plan must be "compatible with...federal law, including NEPA, the Endangered Species Act, civil rights laws, and state and local laws, in that order."

c.An effective "county land use plan" must be solidly supported by environmental documentation that is at least equal to the breadth and detail of any rival federal agency plan.

d.Caution: Development of a "county land use plan" may also provide an opportunity for input by people who oppose private productive use of federal lands. Look before you leap.

Sum: In order for a local environmental input/planning document to serve as a lever to persuade the federal decision maker to address potential environmental impacts of private productive access to federal lands in a manner that is economically benign to the local community, the document must come to grips with all of the environmental questions federal land management agencies are required to answer under federal law. It must offer reasonable resolutions to such questions or provide a sound basis for the agency to find unresolvable levels of impact acceptable. Under existing law, these questions cannot be ignored, and if not addressed adequately in the decision process they will overcome any economic impact concerns.

6.Ousting the Federal Government: Some proponents of home rule claim that county governments can actually take over management of federal lands within their borders through their land use plans. I seriously doubt that any county could persuade the federal government to relinquish management authority voluntarily, and I am quite sure that a federal agency cannot be forced to do so. Moreover, even if it were legally possible for counties to take over federal land management, I doubt that it would prove a workable arrangement. Ousting the federal management agencies would not oust the presence of federal law, and federal law imposes some very stringent and expensive environmental obligations on whoever is managing the federal lands. I do not believe that our county governments, which are having great difficulty in funding their existing health and welfare obligations, would even be interested in undertaking the additional financial burden of land management in compliance with FLPMA, NFMA, the ESA, etc. To provide perspective on how this aspect of the home rule movement is faring in other states, I attach copies of: 1) an Idaho state court decision,Boundary Backpackers v. Boundary County, invalidating Boundary County's Interim Land Use Plan, and 2) an informal legal opinion written by the Montana Attorney General.

Sum: Home rule may be a useful device to let local government ride shotgun next to federal land managers, but it would not be in local taxpayers' best interest for home rule to give local government the reins.

CONCLUSION

I hope this answers your county Farm Bureau members' need for some general statement on the legal and practical questions raised by home rule, as well as on the opportunities it offers for greater local control. I will be happy to discuss the matter further and in whatever detail is necessary to answer questions you or your county Farm Bureau members may have.


WESTERN STATES COALITION -- SUMMIT III

Red Lion Hotel, Salt Lake City, Utah

January 6-7, 1995

(The following are notes and observations by Dick Kline, Public Affairs Officer for the Wasatch-Cache National Forest in Salt Lake City who attended parts of this conference)

This was the third meeting of the Western States Coalition, with earlier conferences in Denver and Phoenix. It was obvious that conference organizers were very please with the approx. 500 participants who attended the Salt Lake meeting, especially when they had estimated that only about 300-350 would attend. Although no one invited or encouraged me to attend this conference, I did so because I felt it would be a good opportunity to listen to various viewpoints being expressed by people concerned about the influence of the Federal government in their everyday lives. My attendance did indeed provide that opportunity - and my notes here are just my thoughts on items that caught my attention.

The sessions I attended were during the first day and a half of the two day conference. The last half day was devoted primarily to working sessions for local government officials and state legislators, etc. The overall agenda included a number of speakers talking to the entire group of attendees at different times throughout the conference, plus individual educational workshop sessions on six different topics during the remainder of the time.

The keynote speaker was U. S. Senator Larry Craig from Idaho. Although Senator Craig was originally scheduled to appear in person at the conference, he ended up giving his speech by telephone from Washington, D.C. due to the unexpected requirement that the Congress work the entire first week of the new session.

His talk centered on problems associated with R.S.2477, western water rights, and lack of a clear definition and understanding of ecosystem management. He mentioned that he has discussed these matters with Jim Lyons and Jack Ward Thomas. He also mentioned the Reinvention efforts of the Forest Service and likes the idea, but has reservations due to it being an initiative of Vice President Gore. (this comment drew applause from the audience)

The second speaker was Darin Bird from Utah Senator Bob Bennett's staff, who presented the video on Holistic Resource Management (HRM). Senator Bennett narrates this video entitled "New Rangeland Compact" and is a major advocate of HRM. HRM was also the subject of one of the conference workshop sessions.

(There were also speakers at lunch and dinner on the first day, but I did not attend those sessions. Luncheon speaker was Congressman W. J. Billy Tauzin from Louisiana and dinner speaker was Dr. Richard Lesher, President of U.S. Chamber of Commerce)

There were six different subjects presented during three 1-2 hour workshops during this conference. Attendees were allowed to choose the three workshops of most interest to them, but really didn't have the chance to attend all six.

The six workshops and presenters were as follows:

Rather than try to give you specific feedback on the individual workshops and speeches that were given at this Western States Coalition Conference, the listing below captures my personal observations/conclusions based on what I heard at this gathering and what I think it means to the various Forest Service folks who might read these notes:

(1) This conference was just one of many such events be sponsored by various folks who perceive the Federal government (and in some cases, government in general) as unduly interfering with their daily lives. This particular conference was heavily attended by western county commissioners, state legislators, cattle and sheep operators, and special agriculture interest reps.

(2) In casually talking with some of the participants (who knew I worked for the Forest Service), I heard that they generally feel they still have a good working relationship with, and respect for, their local Forest Service contacts. However, there is a perception that field-level Forest Service employees are just "marching to orders from above", and it's the people who are giving those "orders" who are unpopular with this segment of our public. This perception was reinforced by most of the speakers, including the members of Congress.

(3) Although there was representation of all age groups among the attendees at this conference, it was obvious that most attendees were more in the middle-aged + category. This was especially evident during the public demonstration and counter-demonstration out on the sidewalk in front of the Red Lion Hotel on the last day of the conference. The Salt Lake Tribune fairly accurately described the scene by saying "There, in front of the Red Lion Hotel in Salt Lake City, about 75 of them (demonstrators) clad in jeans, cowboy hats and boots confronted about 75 environmentalists, who wore L.L. Bean and Gore-Tex and chanted public lands in public hands". The one thing the Tribune didn't mention was the obvious age difference between the two groups. There was a lot of gray hair showing on the conference attendees and a lot of youthful exuberance showing in the environmental folks. So what point am I making here?? Just that we need to be aware of this difference as we work to resolve these various issues. Personal value systems are important to recognize. (By the way, I'm 54 years old)

(4) As I listened to the various topics being presented at this conference, I was somewhat surprised that people were using a lot of familiar terminology. "Ecosystem management" was probably the most common term being tossed around. Even though it was gratifying to hear the term being used, it was equally disappointing to hear people's perceptions of what it is and what negative impacts it's going to have on them. People were most concerned that ecosystem management will not give due consideration to humans and their lifestyles; that it will only consider maintaining the natural balance of things in the environment. Several people mentioned that their local Forest Service units (Districts and Forests) are really promoting the concept, but can't even explain what it is. Other people mentioned how difficult it's become to work with the Forest Service (and other agencies) because they don't understand the terminology and procedures we're using.

(5) Just one final, personal comment. I'm not sure if my feedback here will do you any good. I know there's a whole bunch of more significant things going on out there in relation to state's rights, home rule, etc. A lot of Forest Service and other Federal agency folks are living right in the middle of some really serious situations on these types of issues.

I'm glad I pushed myself to attend this conference. It wasn't very comfortable being there as a federal agency person - when all the discussion was anti-fed. I did a lot of active listening and think I have a better feel for the things that are bothering these folks. It's obvious that we have more reason than ever to keep the communications lines open. The most important thing I heard was that the Forest Service isn't completely broken - just has some serious dents. As you all know, there are some days that make you wonder.


NOTES FROM THE "WIN BACK THE WEST" CONFERENCE

Nancy C. Ballard

I had the opportunity to sit through the "Win Back the West" conference in Alturas, California on January 19, 1995, and these notes reflect my personal impressions. Presented by Modoc County Cattlemen's Association, speakers were moderator Hugh Comisky, Modoc County District Attorney, Mike Kelly, an advocate of "Home Rule" from Butte County, California, Wayne Hage, a Nye County, Nevada rancher currently involved in litigation with the U.S. government over property rights issues, Richard Carver, Nye County Commissioner, and Gene Gustin, Chairman of the Elko County (Nevada) Land Planning Commission. They opened with the Pledge of Allegiance. From there on, as a Forest Service employee, I had some difficulty maintaining an objective attitude. A few points stood out from the overall tone:

1) The presentation was carefully orchestrated and emotional appeals were balanced by apparently rational, factual arguments. All speakers stopped just short of anything that could be proven to be a direct threat to federal employees. They advocated action through the judicial system while setting a tone of incitement. The encouragement to illegal action was not towards violence, although violation of permits was suggested. Most speakers tried to fire up the audience and get emotions stirred. The majority of the audience was attentive but not showing a strong emotional involvement. Loud applause came in response to isolated subjects, mostly USFWS and T&E species, but was NOT reminiscent of a political rally.

2) The arguments are based on a narrow, selective view of U.S. History and Constitutional interpretation. Their basis for saying that the power concentrates at the lowest level (county) seems to originate out of the Articles of Confederation that predated the Constitution. They use Article VI of the Constitution to maintain that the Articles of Confederation are still in effect - "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation." Article I, Section 8 defines powers of Congress, with the only specific reference to federal ownership of land being "...to exercise like Authority over all Places purchased 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..." Finally, the 10th Amendment reserves powers to the states - "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Amendment 5 comes into it, providing "... nor shall private property be taken for public use, without just compensation."

3) Much of the rhetoric bears striking resemblance to elements of "New World Order" and conspiracy theory arguments.

4) If I were Native American, I think I would have been more disturbed and angered than as a federal employee. A lot of time was spent building historic claims to western lands with total omission of reference to even older claims. The rhetoric was reminiscent of "Manifest Destiny" philosophy.

Comisky

He addressed three questions, why are we here, how did we get here, and where are we going.

1) Why - he described a "real danger" of losing claim to America and the right to own property through a movement to restore some "wilderness vision" while portraying ranchers, miners, and others as thugs and villains. He emphasized the U.S. Constitution as a "good and workable blueprint".

2) How - he referenced documents limiting federal authority with all else reserved for the states and the 5th amendment "takings" language. He brought up several examples of proposed legislation that supposedly would have increased federal control over private property including the National Biologic Survey. He stated that we have forgotten the founding fathers and the basic structure of government of the people, by the people, and for the people. His second reason for being in the situation we are in is that we have forgotten our basis in Judeo-Christian culture placing Man at the pinnacle; that "animism" and other belief systems that worship nature are at the base of the environmental movement. [Just called environmentalists "pagans", I do believe, and certainly led me to question his commitment to religious freedom! Now where else have we heard someone use the "if you don't believe the way I do, you are the cause of the problem" approach??]

3) Where - hopefully going back to local control and to use of the land; power with the voting people, not the politicians and lobbyist; don't substitute "green" tyranny for "red" tyranny

In his wrap-up before the question and answer session at the end, he made it clear that ordinances for Modoc County are ready whenever the Board of Supervisors wanted them on the agenda. He said all supervisors basically supported the ordinances but there was some "minor" reluctance because of the possible loss of federal jobs, litigation, etc.

Wayne Hage

Introduced as having a pivotal case in property rights and having had his ranch taken by the federal government, Hage was a rational, intelligent speaker apparently presenting facts of history. He began by emphasizing that you have to have your facts right to succeed. He defined property (referencing John Locke), used property to describe differences between the U.S. and U.S.S.R., and proceeded into an economic argument for why the federal government has nationalized land beginning with Yellowstone Park and concluding with the recently proposed Biodiversity Act. The rational begins with the concept that all wealth comes from land, i.e. the use of renewable or nonrenewable resources. The federal government needed to control land and the associated resources as collateral for loans from the international banking community. He made direct connections between the Taylor Grazing Act and the New Deal, the Wilderness Act and the Vietnam War, and the proposed Biodiversity Act and the Clinton Health Care Plan. [Remember that he opened by urging having your facts right.] He also frequently repeated the message to read his book,Storm over Rangelands as the definitive reference. He urged that the answer to salvaging freedom is to stand up and be counted, we have the right to defend that which is ours.

After Carver spoke, Hage was brought back up supposedly to talk about the Catron County, New Mexico approach. He repeated some of his previous points and characterized this as a "do or die situation" where we must decide whether to be free people or serfs under an elite class. He described the role of water in property issues in the West where a claim to the water created "property rights" to the surrounding land. He set aside the fact that permitted grazing is a privilege with an argument that the grazing right was establishedbefore any permitting occurred by preemption of water and, thereby, the surrounding land. He pointed out that, with rare exception (patents primarily), property rights are established under state law, not federal law.

He likened the place in history of the supposed property rights established through grazing use to Native American resistance -> they stood in the way of nationalization of land for collateralization of loans. Where the Indians were removed by attempted extermination, the property rights were eliminated through establishment of National Parks, Forest Reserves, and so on with the only authority of the federal government being that it was big enough to take it.

He described three remedies to the nationalization of the land which he characterized as federal ownership by fiat. According to Hage, the traditional industry approach has been to accept federal ownership of socialized lands within administrative rules, "trying to get along". The Sagebrush Rebellion approach accepted nationalization but moved to manage socialized lands at the state or county level. His preference is to defend property rights which derive from state sovereignty and state law, the "Constitutional approach".

He stated flatly that the days of trying to get along are over. The goal [of the federal government presumably] is complete nationalization and elimination of property rights. He says his case is focusing on two questions, has nationalization of land extinguished State sovereignty and has it extinguished State property rights. [I believe water rights play a key role in his case.]

Mike Kelly

He is an advocate of "home rule" from Butte County, California and was the "fire-and-brimstone preacher" of the group. He cited the 10th Amendment as the basis of power concentrating at the bottom with the state supreme over the federal government. The state has a responsibility to defend the U.S. Constitution and the citizen functions to keep government from falling into error. We are in danger of total government control in the name of environmentalism. He referenced House Rule 4157 (California??) as the beginning of return of federal lands to the state, the demise of the U.S. Fish and Wildlife Service, revenue coming to the state for the lands, etc. He urged preparing and planning for an orderly transfer. He advocated using existing U.S. Code to fight the federal bureaucracy. He was not particularly careful of his facts, referring to an "ooey-gooey" sucker in Pyramid Lake [chui chub, perhaps], whooping cranes on the east slope of the Sierra Nevada, and 32 species of colusa grass proposed for federal listing. His line "It's not a government of the BLM, by the Forest Service, for the Fish and Wildlife Service" drew one of the most enthusiastic responses of the day from the audience.

Dick Carver

Much of what he said, I had seen reported from other similar gatherings. He makes it plain that he wants "them" to take him to jail and prove he is wrong and says "they" can't do it. He uses the fact that he is not in jail as proof that he is right. He displays what he says is a copy of the Constitution that he carries in his shirt pocket.

According to him, Nye County based their resolution on the 10th Amendment, ordering the federal government to cease and desist immediately. He holds that the Nye County approach is a political strategy, NOT a legal question and maintains that there is no documentation to support FS and BLM right to own and manage land or have criminal law enforcement jurisdiction. He supports this with claims of agency failure to provide the proof in response to FOIA requests. An interesting argument I had not heard before was that the laws out of the Constitution are the only ones we have to live with, NOT Supreme Court decisions.

Carver takes apparent pleasure in threatening federal employees with arrest connected with violating their oath to uphold the Constitution (by exerting federal jurisdiction over state land). A careful review of video tape would probably show that he never actually threatened or incited physical violence but it could be a subtle distinction. He warned "...I'm telling you bureaucrats that represent the federal agencies that you had better back off because, if you don't, we'll take your house, we'll take your car, and you'll be out on the welfare lines."

He asked all elected officials to stand and be recognized at the beginning, then did the same for federal agency employees. He invited the federal employees to come down front where they could look him in the eye. (No one took him up on that.) The only one he singled out for attention was the Forest Special Agent who was sitting well to the back and gave no reaction to the jibes. He also invited any FBI or CIA, whom he said he was sure were there, to stand. His answer to grazing permittees and others is to ask the FS/BLM to provide documentation of their right to own and manage the land and, when they can't, to go to the County government as the controlling entity.

Gene Gustin

He had a much briefer, apparently less practiced presentation about what Elko County is doing. He advocates establishing a body with fact-finding authority for the county government which he likened to a quasi-grand jury. He mentioned needing the ability to distinguish theory from reality and to question what you are told. He referred to "smoke and mirrors" more than once. He also recommended using FOIA's as a discovery process. He made a point of not knowing a whole lot about this but...

Questions and Answers

I left before they adjourned but while I was there relatively few hands were raised. Questioners who were recognized conveniently set the speakers up to reiterate their main points. No question during the half hour I listened challenged any premise.

1) With regard to how to deal with the questions of needing NEPA documentation before grazing permits can be reissued:

Hage - read his book; build a record on Constitutional lines. He used the example of removal of livestock because of utilization levels, advising not to fall into either complying or arguing the resource information. Instead, he suggested a written reply that you are glad to comply, this is the decrease in my herd resulting from the action, and here is the bill for the value lost to my operation. He further recommending sending the bill with interest annually until the FS/BLM responds by sending you to court to collect, saying that you have what you want at that point

Carver - the "Carver Recipe", i.e. you will comply when FS/BLM provides documentation of Constitutional jurisdiction or you will rely on County jurisdiction, followed up by going to the County for support.

Gustin - suggesting recording the "right" at the county courthouse, but he didn't elaborate on what he meant.

Comisky - pointed out that the County can get FOIA information and litigate more cheaply than an individual

2) on the general topic of compromise:

Hage - DON'T, you either have property you are willing to defend or you don't so where is the room for compromise

3) Carver stepped in at this point to briefly outline the Catron County approach (no question solicited this) - simply put, Catron County identified their custom, culture, and economic stability, then required the feds to follow their own regulations (custom & culture comes out of one of the pieces of legislation, PRIA I think)

4) Don Collis, a local outfitter/guide, explained his situation with relation to a special use permit for a pack station and asked advice:

Hage - up against FS administrative arguments, need to really search the records for an origin of rights, e.g. water rights.

Carver - the Carver Recipe

4) something to do with exchanging federal control for state control, specifically California [I couldn't hear all that was said but it seemed more of a statement than question and I couldn't capture the intent.]:

Hage - tie property right to something pre-dating the State government, including something that was never patented

Summary

Hage and Carver offer two different approaches. Hage relies on interpretation of "property" to give rights under State sovereignty to find relief from federal control through the courts. His personal case has not been settled yet.

Carver rests on control at the lowest level and advocates ignoring federal jurisdiction and federal law despite not having tested his approach in the Supreme Court yet. He chooses to ignore, in his presentation, that those laws still exist until revoked by Congress or overturned in court and that anyone following his approach puts themselves in jeopardy of criminal proceedings. (After all, he is still not in jail as he points out repeatedly. But the wheels of justice sometimes turn slowly and I have inside information that his actions have not been overlooked!)

By the end of the day, I felt bashed, even though I got no negative reactions directed at me, personally, from those I knew in the audience. Carver's statements, in particular, focus on individual employees rather than the agency. What is a little frightening is how easily one could buy into this, especially in the uncertainty of the current situation with permit reissuance and so on. The arguments seem based in fact if one doesn't perceive or want to perceive the narrow focus. After all, it is the Constitution of the United States of America that is held up repeatedly as the basis of what they are advocating.

They offered no ideas on how the county or state was to manage the land if it was turned over to them, no recognition of the scope of that task or recollection of the history of rangelands prior to federal control. One of my coworkers describes them as "rainmakers", selling hope. Reality doesn't have a lot to do with it. In hindsight, the relatively quiet tone of the crowd suggests that the speakers weren't getting the emotional fervor that they may have expected. Maybe there was too much interest in reality, not enough in dreams.


HOME RULE ROAD SHOW COMES TO KLAMATH FALLS

Frank Erickson, PAO

Winema National Forest

KLAMATH FALLS, April 22--A crowd of over 200 gathered in Klamath Falls Saturday to hear speakers address the question, "Public Lands: Who Owns Them and How Should They Be Managed." Curiously, the answers provided by the two key speakers were quite different from one another.

HAGE: FEDS OWN THE LAND, BUT WHO MAKES THE RULES?

Wayne Hage, rancher, author and plaintiff in the Hage vs. United States suit over grazing issues in Nevada, contends that are no longer any public lands. What had been the public lands became Federal lands when Congress passed the Federal Land Policy Management Act of 1976. That heralded the government's intent to keep the lands rather than disposing of them, reneging on earlier promises. But, claims Hage, the Federal estate is subject to prior existing rights--grazing, mining, water--and the Federal government may be a landowner with rights no greater than those of any other private landowner: no authority to promulgate regulations or to employ a police force to enforce them. "The argument is not over who owns the land, but who exerts the legislative jurisdiction, that is, who makes and enforces the rules." Hage documents his position with numerous historical and legal references, most of which are contained in his bookStorm Over Rangelands. His concluding remark was "If you think the Federal government has been oppressive in the past, you've seen nothing yet."

CARVER: ALL THE FEDS OWN IS THE TONOPAH POST OFFICE...

In contrast, Hage's Nye County neighbor, Commissioner Dick Carver, prefers the term "public lands" and contends that the only Federal lands in Nye County are the Tonopah Post Office and a military reservation. The public lands, including the national forest and BLM lands, belong to the county, he says. Carter speaks with the intensity of a Bible belt preacher and uses his pocket-size Constitution the way a minister might use the holy bible: gesturing with it and quoting chapter and verse to support his points. And his central point is this: "The Federal government has the power to do only four things: print money, regulate commerce, establish post offices and post roads and raise armies and declare war. I don't believe the Forest Service or Bureau of Land Management fall into any of these categories." As he often does in his presentations, Carver at one point asked anyone in the audience who could prove him wrong to speak up. A man in the front row stood up and patiently waited for Carver to acknowledge him. Carver continued speaking and the man continued standing until one of the conference organizers walked forward and asked the man to sit down.

Nye County has passed resolutions asserting their ownership of public lands and rights-of-way within the county. Last July 4th Carter personally reopened a closed road on the Toiyabe National Forest with a bulldozer, defying a Forest Service law enforcement officer's orders to stop. The Department of Justice has since filed suit against Nye County which, in Carter's words, "...is exactly what we wanted them to do. There is no way they can win this suit. And we have nothing to lose. If we don't stand up we will have no timber, no mining, no grazing, no recreation and no private lands." Carter has since reopened a second closed road and supporters of the movement have set a goal of raising $1 million for a Nye County Constitutional Defense Fund.

OKLAHOMA CITY BOMBING "PREDICTABLE"

Both Hage and Carter referenced the bombing of the Oklahoma City Federal Building. Both condemned the act, but Hage added "...the result was predictable given the frustration people feel toward government." Said Carver, "The bombing of the Forest Service office in Carson City was an inside job by the Federal government. I'm not sure about Oklahoma City. But who would trust the Federal government after the cover-up of the Kennedy assassination?"

WHO WAS THERE

The audience included many of the Klamath Basin farmers I've seen at recent Bureau of Reclamation hearings. Klamath County Commissioners Henzel and McMillan were present. I saw only a few people I recognized as being associated with the timber industry. I missed several of the presentations because I found myself engaged in spirited discussions in the foyer with home rule proponents. (There were few other Feds present to pick on.) I spoke with Dick Carver personally for about an hour. Carver and I carry identical pocket versions of the Constitution and the local newspaper reporter photographed us standing side-by-side with our dueling Constitutions. In our private conversation Carver invited me to go to work for the county; in his public presentation he pointed me out as a person who WOULD soon be working for the county. I had lunch with Mark Pollot, an attorney with the Constitutional Law Center in Boise. I asked him point blank if he felt the Federal government could own the national forests, and in careful lawyer-talk he responded that he thought they could but shouldn't, and that Congress should keep only the "crown jewels" like Yellowstone and Yosemite and sell the rest.

COMMENTS AND THOUGHTS

I've followed the home rule movement since it took root in Klamath County in 1992, but this was my first journey into the "belly of the beast". Here are a few observations and thoughts. I invite comment on them.

  1. This movement is nothing to trifle with. The proposed solutions may seem extreme, but the frustrations people are feeling are very real.
  2. We need to be prudent and compassionate in the exercise of our duties. We need to uphold the law, but needlessly fanning the flames of this movement would be imprudent.
  3. Hottest potential issues:
  4. When the Home Rule Road Show comes to your town, attend! Discussions with participants may be difficult, but our only hope for understanding and compromise lies in meeting with people face-to-face. The leaders may be unyielding, but the participants are by-and-large hard working people who are simply fearful of the big Federal government.
  5. Don't equate zealotry with ignorance. There is much to learn from these people. I may not agree with Wayne Hage, but he's nobody's fool. I'm now reading Storm Over Rangelands.

TOPIC: Wise Use Threats Exposed

ENVIRONMENTALISTS: AN ENDANGERED SPECIES?

DATE: 12/6/94

WASHINGTON, Dec. 6, -/E-Wire/-- Death threats, dog killings, shootings, arsons, rape, bombings and assaults have become the price many environmentalists are having to pay for speaking out in defense of the earth, according to a newly published book, "The War Against the Greens" (512 pages. Sierra. $25).

"The book relies on police records, interviews and historical research to shed light on tactics more often associated with union- busting goons and anti-civil-rights vigilantes," reports Newsweek magazine (Oct. 24).

In "The War Against the Greens" author David Helvarg, an award-winning journalist and private investigator, travels across America to document how anti-environmental violence, designed to silence or intimidate "tree-huggers" in rural and low-income communities, is one of a range of tactics being used by a small but militant cadre of anti- environmental organizers who call themselves either "Wise Use" or "Property Rights" activists. Working in alliance with Western resource industries, major wetlands developers, foreign-owned gold mining companies, the logging industry, the NRA, Japanese ORV manufacturers, the Heritage Foundation, followers of the Rev. Sun Myung Moon and other forces on the political right, they have committed themselves to rolling back 30 years of environmental reforms broadly popular with the American public.

"These extremists have projected fear into the political process," the book quotes Chuck Clarke, former director of Washington State's Department of Ecology who now works as a regional director for E.P.A. "In Washington they had a hard core of 200 or so who would turn out for every meeting and protest. A few hundred people with a canned speech and canned concerns can have a tremendous impact, even if 85 percent of the public disagrees with the protesters."

"Helvarg demolishes the fiction that anti-environmentalism is a grass- roots movement by demonstrating its massive corporate underpinnings. This powerful investigative reporting should find wide readership," says Publishers Weekly. Kirkus Review agrees: "His investigation reveals that Wise Use/ Property Rights activists are few in number and need to resort to intimidation and violence to be effective in local confrontations....A thought-provoking and timely expose."


COUNTIES WITH CATRON COUNTY LAND USE PLAN ORDINANCES

Update--3/5/96

  1. Del Norte, CA
  2. Modoc, CA
  3. Siskiyou, CA
  4. Boundary, ID *
  5. Custer, ID
  6. Lemhi, ID
  7. Oneida, ID
  8. Owyhee, ID
  9. Washington, ID
  10. Beaverhead, MT
  11. Granite, MT
  12. Teton, MT
  13. Catron, NM
  14. Eddy, NM
  15. Hidalgo, NM
  16. Lincoln, NM
  17. Luna, NM
  18. Sierra, NM
  19. Grant, NM
  20. San Miguel, NM
  21. Coos, OR - 5/16/95 (initiative)
  22. Douglas, OR - 9/16/95 (initiative)
  23. Grant, OR - 3/28/95 (measure)
  24. Jackson, OR - 2/96 (limited county commissioners measure)
  25. Klamath, OR - 6/29/95 (five county ordinances)
  26. Lake, OR - County letter requesting purchase of NFS lands.
  27. Morrow, OR - 7/29/92 (ordinance)
  28. Union, OR - 11/8/94 (measure)
  29. Wallowa, OR - 11/8/94 (measure)
  30. Wheeler, OR - 3/28/95 (initiative, but not ratified by County Commission)
  31. Uintah, UT
  32. Benton, WA - No NFS land within county
  33. Chelan, WA - 11/21/94 (resolution)
  34. Ferry, WA - 7-24/95 (resolution)
  35. Okanogan, WA - 6/12/95 (resolutions & ordinance)
  36. Walla Walla, WA - 12/28/93 (ordinance)

COUNTIES DELIBERATING FORMAL ADOPTION OF CATRON COUNTY LAND USE PLAN ORDINANCE

  1. La Plata, CO
  2. Moffat, CO
  3. Carter, MT
  4. Fallon, MT
  5. Jefferson, MT
  6. Teton, ID
  7. DeBaca, NM
  8. Chaves, NM
  9. Elko, NV
  10. Humboldt, NV
  11. Nye, NV
  12. Otero, NM
  13. Taos, NM
  14. Torrance, NM
  15. Clackamas, OR - two groups considering putting measures on ballot
  16. Lewis, WA - committee formed to propose a measure
  17. Skamania, WA - "County Freeholders" may put advisory on 5/96 ballot
  18. Big Horn, WY
  19. Sheridan, WY
  20. Washakie, WY

COUNTIES WHERE ISSUE OF GREATER LOCAL CONTROL OVER FEDERAL ACTIONS HAS BEEN DISCUSSED

  1. Sierra, CA
  2. Alpine, CA
  3. San Miguel, CO
  4. Pitkin, CO
  5. Adams, ID
  6. Clark, ID
  7. Clearwater, ID
  8. Idaho, ID
  9. Power, ID
  10. Madison, MT
  11. Douglas, NV
  12. Lyon, NV
  13. White Pine, NV
  14. Harney, OR (Per T.Schmidt, 2/7)
  15. Rich, UT
  16. Summit, UT
  17. Clallam, WA
  18. Ferry, WA
  19. Grays Harbor, WA
  20. Stevens, WA
  21. Johnson, WY
  22. Uinta, WY

* 1/28/94 article in theSPOKESMAN-REVIEW (Spokane, WA, newspaper) reports that the Boundary County's "wise-use" movement ordinance, which ruled that state and federal agencies had to meet county requirements and consult with commissioners before making decisions on use of public lands, was ruled illegal by the District Court.


THE WISE-USE DIRECTORY

April 14, 1992

Alliance for America - Umbrella Organization founded in 1991 in St. Louis; linked in press accounts to National Inholders Association and Multiple-Use Land Alliance; outgrowth of September 1991 "Fly-In for Freedom" in Washington, DC.

Allred, Buddy - Catron County, NM, commissioner at the time that Catron County adopted the land use plan and ordinance setting off "Sagebrush Rebellion II. (Now chair of the Coalition of Arizona and New Mexico Counties for Stable Economic Growth.)

American Farm Bureau Federation - Large organization sometimes associated with the Wise Use Movement; Herb Manig, assistant director for natural resources; Don Rawlins, director for natural resources; organization pointedly does not associate itself with the Center for the Defense of Free Enterprise.

American Freedom Coalition - Robert Grant, founder and president; signatory to Wise Use Agenda; Alan Gottlieb and Ron Arnold of the Center for the Defense of Free Enterprise are affiliated with this organization; publishesAmerican Freedom Journal; sponsors Wise Use workshops; major sponsor is the Unification Church of Rev. Sun Myung Moon.

Arnold, Ron - Partner with Alan Gottlieb in the Center for the Defense of Free Enterprise in Bellevue, WA; credited with naming the Wise Use Movement; Texas native and ex-Sierra club activist; advises the National Federal Lands Conference; wrote the introduction to theWise Use Agenda; also affiliated with the American Freedom Coalition, another signatory to the Wise Use Agenda.

Blue Ribbon Coalition - Pocatello, ID based (Idaho Falls, ID, based in another source) umbrella organization of the Wise Use movement; Clark Collins, president and executive director; Henry Yake, former president; distributes theBlue Ribbon newsletter (Ed Wright, editor) to business, industry, and recreation groups; members include the Motorcycle Industry Council, the International Snowmobile Industry Association.

Brooks, Connie - Attorney formerly with the Mountain States Legal Foundation, now in private practice; active in property rights issues.

Budd, Karen - Cheyenne, WY, attorney; author of Catron County, NM, land use ordinance; represents Richard Manig in allotment guidelines suit and Bud Eppers in "split estate" suit; served under James Watt in Interior prior to law school; after law school served at Mountain States Legal Foundation; fifth generation Wyomingite; father Dan Budd is in the Wyoming legislature; cousin Bob Budd is head of Wyoming Stockgrowers Association; husband Frank Falin is a law student and was featured on the cover ofNewsweek magazine; conducts seminars with Karl Hess on county plans and ordinances for the National Federal Lands Conference.

Center for the Defense of Free Enterprise - Publisher of theWise Use Agenda; Alan Gottlieb, president; Ron Arnold is associated with this organization based in Bellvue, WA; advisory board has included Defense Sec. Cheney and Sens. Cochran, D'Amato, Hatch, and Nickles; sponsored three conferences establishing the Wise Use movement, one of which was the "Multiple Use Strategy Conference" in Reno, NV, in 1988; another 1988 conference was in Las Vegas; a July 1990 conference was in Nelsonville, OH.

Citizens Against Wilderness - Anti-Wilderness organization; Linda Hoag is the North Carolina president.

Collins, Clark - President and executive director, Blue Ribbon Coalition.

Communities for a Great Northwest - Libby, MT, based organization founded by Bruce Vincent, president of a family logging firm.

Cushman, Charles - Head of the National Inholders Association; head of the Multiple-Use Land Alliance; advisor to the National Federal Lands Conference.

Ebell, Myron - Washington, DC, lobbyist for the National Inholders Association.

Eppers, Bud - New Mexico rancher represented by attorney Karen Budd; advisor to National Federal Lands Conference; president of the Federal Lands Legal Foundation; past president of the New Mexico Cattlegrowers Association.

Federal Lands Legal Foundation - Bud Eppers, president; Margaret Cabbard, administrative secretary; attorney John Marvel is on the Board of Litigation; the foundation is supporting Wayne Hage in his suit over confiscation of cattle.

Foundation for Research on Economics and the Environment - Seattle, WA, organization; Karl Hess of The Land Center is a senior associate.

Gabbard, Margaret - Administrative Secretary, Federal Lands Legal Foundation, Boise ID.

Gardner, Bruce - Nevada rancher; speaker at schools, universities, and civic clubs on the benefits of grazing.

Gerber, Grant - Attorney and founder of the Wilderness Impact Research Foundation, Elko, NV (1986), which is dedicated to "educating the public about the damage wilderness causes society, the economy, and even wildlife".

Gottlieb, Alan - President of the Center for the Defense of Free Enterprise, Bellvue, WA; also affiliated with the American Freedom Coalition, another signatory to the Wise Use Agenda; headed the Citizens Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation; was one of the nation's leading direct-mail money-raisers for conservative candidates and causes in the 1970s and early 1980s; his early career was with the Young Americans for Freedom and the Youth Against McGovern; owns KBNP business news, a radio network with 60 affiliates; pleaded guilty in 1984 to filing false income-tax returns.

Grant, Robert - Founder and president of the American Freedom Coalition.

Grass Roots for Multiple Use - Montana-based organization founded in 1990 by Mike Nichols.

Hage, Wayne - Nevada Rancher, along with wifeJean is suing Forest Service over confiscation of his cattle, past president of the National Federal Lands Conference author of bookStorm Over Rangelands (1989).

Hess, Karl - Las Cruces, NM, planning consultant; consulting firm is called The Land Center; one author of Catron County, NM, land use plan; former Forest Service employee; conducts seminars with Karen Budd on county plans and ordinances for the National Federal Lands Conference; Ph.D. in range ecology; senior associate with Foundation for Research on Economics and the Environment in Seattle.

Hiser, Dick - Carbon County, WY, rancher, active in attempting to enact a land use plan based on Catron County, NM.

Hoag, Linda - North Carolina president of Citizens Against Wilderness.

Hookano, Thomas - Attorney, along with Mark Pollot and John Marvel, for Wayne Hage; partner with Keck, Mahin and Cate, San Francisco, CA; worked in public interest law in California, was with the Justice Department in Washington, DC during the Reagan administration.

Kaiser, Ruth - Executive director of the National Federal Lands Conference.

Land Center, The - Las Cruces, NM, consulting firm owned by Karl Hess, Alex Thal, and Ron White; instrumental in drawing up the Catron County, NM, land use plan and ordinance that are the prototype for plan and ordinances being considered in more than 45 counties throughout the West.

Lee, Robert G. - Professor of forest resources, University of Washington, Seattle; expert on timber-dependent communities; quoted on development of the Wise Use Movement.

Lucas, David - South Carolina developer who was awarded a million-dollar settlement in a takings case. The State successfully appealed the case.

McKay, Louis "The Phantom Duck" - Founder, with Rick Sieman, of southern California-based Sahara Club.

Manig, Herb - Assistant Director for Natural Resources, American Farm Bureau Federation.

Manig, Richard - Catron County, NM, rancher, represented by attorney Karen Budd in a suit over guidelines for allotment management plans; vice president of the National Federal Lands Conference.

Marvel, John - Attorney, along with Thomas Hookano and Mark Pollot, representing Wayne Hage; 4th-generation rancher from Nevada; member of the Board of Litigation for Mountain States Legal Foundation and Federal Lands Legal Foundation; director for the National Federal Lands Conference.

Mountain States Legal Foundation - Founded in 1977; attorney John Marvel is a member of the Board of Litigation; Karen Budd worked for the foundation; William Pendley is the chief legal officer. Former Sen. Jim McClure is a member of the board, according to the Utah Woolgrower newsletter. Former Interior Secretary James Watt has been involved with the foundation.

Multiple-Use Land Alliance - Battle Ground, WA; backs Wayne Hage in takings suit; shares letterhead with National Inholders Association; Hage suit is supported by Federal Lands Legal Foundation; headed by Charles Cushman; legislative office headed by Myron Ebell.

National Cattlemen's Association - Umbrella organization representing a spectrum of groups associated with livestock production and marketing; the Association's agenda includes preserving public land grazing rights and fees; associated with the Public Lands Council.

National Council for Environmental Balance

National Federal Lands Conference - Bountiful, UT, organization assisting in the county planning movement; advised by Ron Arnold of the Center for the Defense of Free Enterprise, attorney Karen Budd, Charles Cushman of the National Inholders Association and the Multiple-Use Land Alliance, and New Mexico rancher Bud Eppers; conducts seminars led by Karen Budd and Karl Hess; Wayne Hage is past president of the conference; Richard Manig is vice president; Ruth Kaiser is the executive director; publishes monthlyFederal Lands Update; not a membership organization, but accepts $75 sponsorships; Nevada attorney John Marvel is a director.

National Inholders Association - Battle Ground, WA; allied with Wayne Hage in takings suit; Hage suit is supported by Federal Lands Legal Foundation; shares letterhead with Multiple-Use Land Alliance; headed by Charles Cushman; legislative office headed by Myron Ebell.

Nickols, Mike - Founder of Montana-based Grassroots for Multiple Use.

Our Land Society - Idaho-based organization; publishes Our Land magazine; mailed material on Senate letterhead signed by Sens. Symms, McClure, Burns, Thurmond, Helms, and Stevens.

Oregon Lands Coalition - Organization representing timber workers, ranchers and off-road vehicle users, among others.

Pacific States Legal Foundation - West Coast organization similar to the Mountain States Legal Foundation; probably the organization referred to in the media as the California-based public-interest legal organization in which such attorneys as Mark Pollet and Thomas Hookano were involved.

Pendley, William Perry - Chief legal officer of the Mountain States Legal Foundation.

People for the West - Active in opposition to the Greater Yellowstone Vision; said to be backed by mining interests launched by the Western States Public Lands Coalition.

Peterson, Robert - Beaverhead County, MT, commissioner, quoted as opposing Wilderness; works to prevent changes to 1872 hard-rock mining law.

Pollot, Mark - Attorney, along with Thomas Hookano and John Marvel, for Wayne Hage; associate in Keck, Mahin, and Cate, San Francisco, CA; worked in the land and natural resources division of the Department of Justice; was the principal author of Executive Order 12630, the federal Takings Executive Order; Hage suit is supported by Federal Lands Legal Foundation.

Public Lands Council - Organization devoted to preserving public land grazing rights and fees for Western cattle and sheep ranchers; associated with the National Cattlemen's Association and American Sheep Industry.

Rawlins, Don - Director of natural resources for the American Farm Bureau Federation.

Sahara Club - Southern California-based organization of off-road motorcyclists, miners, ranchers, and loggers; founded by Rick Sieman and Louis "The Phantom Duck" McKay.

Sieman, Rick - Founder, with Louis "The Phantom Duck" McKay, of southern California-based Sahara Club; professional off-road racer; conducts "Dirty Trick Workshops" for anti-environmental groups.

Thal, Alex - Co-owner, along with Karl Hess and Ron White, of The Land Center.

Utah Association of Counties - Long anti-wilderness history, now active in county planning and ordinance issue; at one time asked Karl Hess to write county plans, but is reported to have changed their position on the issue of plans.

Vincent, Bruce - Founder of Communities for a Great Northwest, based in Libby, MT; head of family-operated logging company.

Western Livestock Journal - Denver-based publication characterized as rallying ranchers to organize against environmentalists; editor is Fred Wortham.

Western States Public Lands Coalition - Made up of the Public Lands Council, the National Cattlemen's Association, the American Farm Bureau Federation, and the American Sheep Industry; launched People for the West.

White, Ron - Co-owner, along with Karl Hess and Alex Thal, of The Land Center.

Wilderness Impact Research Foundation - Founded by A. Grant Gerber in 1986; 231 affiliated groups include the American Farm Bureau Federation, American Forest Council, American Mining Congress, American Motorcyclist Association, and the American Petroleum Institute; stages conferences, produces videos, lobbies, and testifies.

Wise Use Agenda - Twenty-five point program adopted by more than 240 Wise Use Movement groups and published in book form in 1989 by the Free Enterprise Press, publishing arm of the Center for the Defense of Free Enterprise.

Wortham, Fred - Editor of the Denver-based Western Livestock Journal, characterized as rallying ranchers to organize against environmentalists.

Wright, Ed - Editor ofBlue Ribbon, the newsletter of the Blue Ribbon Coalition.

Yake, Henry - Former president of the Blue Ribbon Coalition.

COURT CASES

The following is a summary of some of the current litigation regarding range management issues. These summaries are based on documents filed by the plaintiffs in court and are not intended to be legal assessments.

LIST OF CASES

McKinley v. United States: Reduction in permitted number of livestock, Cibola NF.

Hage v. United States: Alleged taking of private property resulting from permit actions, Toiyabe NF.

Intermountain Ranches Ltd. v. United States: Alleged taking of private property resulting from permit action, Humboldt NF.

Nevada Land Action Ass'n. v. United States: Challenge to Toiyabe NF Forest Plan.

Federal Lands Legal Foundation v. United States Forest Service: Development of allotment management plans, 16 western states.

Bell v. United States Department of Agriculture: Procedural challenge to grazing permit modification, Toiyabe NF.

Rogers v. Borden: Cattle trespass onto private property, Six Rivers NF.

Poorbaugh v. United States: Negligence and inverse condemnation claims, Carson NF.

LITIGATION

McKINLEY V. UNITED STATES: The complaint, filed on August 20, 1991, alleged that the Forest Service improperly reduced the number of cattle authorized under the permittee plaintiff's grazing permit on the Cibola NF in New Mexico. Plaintiff claims the FS violated the Administrative Procedure Act (APA), National Forest Management Act (NFMA), Federal Land Policy and Management Act (FLPMA), Multiple-Use Sustained-Yield Act (MUSYA), and Executive Order 12630. Plaintiff also contends that the condition of the range on the allotment has improved during his tenure as a permittee and requests that the agency's decision to reduce the permitted number of cattle be remanded for further consideration and that the court issue a declaratory judgement requiring Forest Service compliance with all applicable laws and procedures. Representing plaintiff are Harold Stratton of Stratton & Calvin in Albuquerque, New Mexico, and Karen Budd of Madison, Dray & Thompson in Cheyenne, Wyoming. An answer to the complaint and a motion for summary judgement were filed on October 21, 1991. Plaintiffs filed a cross-motion for summary judgement on December 19, 1991. Defendant's reply brief was filed on January 20, 1992. The parties tentatively agreed that oral argument would be waived to allow the court to expedite its decisions, based upon the administrative record and pleadings. The parties are currently awaiting the court's decision.

HAGE V. UNITED STATES: Complaint was filed September 26, 1991, and alleged that the Forest Service has taken permittee plaintiff's private property without just compensation contrary to the fifth amendment by reducing, suspending, or canceling certain portions of the plaintiff's grazing permit on the Toiyabe NF. Plaintiff also alleges that the introduction of elk to the allotment on which he grazes cattle is taking of private property. Plaintiff seeks damages of $28.4 million for the taking of his ranch, cattle, grazing permit, and water rights. Representing plaintiff are John Marvel of Marvel & Hansen in Elko, Nevada, and Thomas Hookano and Mark Pollot of Keck, Mahin & Cate in San Francisco, California. The parties are currently engaged in discovery. Plaintiff and one of his employees have been indicted on two criminal counts of timber theft. Trial in this criminal case is scheduled for April.

INTERMOUNTAIN RANCHES LTD. V. UNITED STATES: This complaint, filed October 9, 1991, alleged that the FS failed to comply with the APA and took property without just compensation as a result of their January 23, 1991, administrative decision (affirmed on appeal on June 28, 1991, and September 10, 1991) to cancel plaintiff's sheep grazing permit on the Humboldt NF. Plaintiff maintains that the decision to cancel the permit was decided without prior notice, opportunity to comply, and evidentiary record or discretion. Plaintiff seeks declaratory judgement in the first claim and seeks compensation for a taking without just compensation in the second claim. Representing plaintiff are Robert Orton of Marsden, Orton, Cahoon & Gottfredson of Salt Lake City, Utah, and John Manzoni of Las Vegas, Nevada. The answer was filed on December 26, 1991.

NEVADA LAND ACTION ASS'N. V. UNITED STATES: The complaint seeking declaratory and injunctive relief was filed on November 15, 1988. Plaintiffs sought review of Humboldt and Toiyabe NF LRMPs, alleging that implementation of the plans will adversely affect livestock grazing on the forests. The complaint alleged that:

FORPLAN and Minimum Management Requirement (MMRs) were unlawfully developed and restricted the range of alternative analyzed.

LRMP standards and guidelines act as environmental constraints that are biased against livestock management and were unlawfully promulgated.

Emphasis upon wildlife and dispersed recreation violate NFMA by not promoting the economic stability of local communities.

Emphasis on non-commodity uses violates MUSYA

The LRMPs were formulated with factually and legally insufficient economic data

Many standards and guidelines violate State water quality law

Public participation with permittees in LRMP development was inadequate

The LRMPs were based upon insufficient inventory data

The LRMPs make excessive wilderness recommendations which constitute an illegal dominant use

Plaintiffs sought declaratory and injunctive relief enjoining the government from taking any action pursuant to, or in furtherance of, the LRMPs until the FS has complied with all applicable laws. Plaintiffs are represented by John Marvel and W. Brett Hanson of Marvel & Hansen, Elko, Nevada, and Constance Brooks and W. Hugh O'Riordan of Davis Wright Tremaine, Portland, Oregon, and Boise, Idaho.

On September 18, 1989, the government filed a motion for partial summary judgement on the first five claims of the complaint, arguing that the plaintiffs had failed to raise these issues during administrative appeal. The government also sought to sever the litigation into two cases, one for each forest plan. On October 27, the government filed a cross-motion to limit judicial review to the administrative record.

On December 18, 1989, the court denied without prejudice plaintiffs' motion to extend discovery and the government's motion to limit the record. The court indicated that both motions could be refiled once the court ruled on the government's motion for partial summary judgement. On February 22, 1990, the court denied the government's summary judgement motion, but granted the government's alternative request to remand the issues of the first five claims to the agency for administrative consideration and development of a record.

The Chief of the FS issued an administrative appeal on those issues on September 28, 1990. Briefing was completed and oral argument held in August 1991. On February 23, 1992, Judge McKibben issued a favorable ruling in this case. To summarize, the court ruled that:

FORPLAN is an analytical tool and not a statement of agency policy. Nor was any evidence presented that the use of FORPLAN was biased against the plaintiffs.

MMRs are mathematical planning representations, not substantive rules. Use of MMRs did not violate NFMA or APA rulemaking requirements.

The alternatives considered were adequate and were not improperly restricted by FORPLAN.

The technical and factual determinations were supported in the planning records. The public involvement requirements of PRIA are not applicable to the development of forest plans, and the agency did meet applicable public involvement requirements.

The Toiyabe LRMP adequately considered range resources along with other multiple-use values, as well as taking into account economic considerations.

The plaintiffs made no showing that they had lost any valid water rights as a result of Toiyabe LRMP.

The agency is entitled to rely upon its own experts; there was no evidence that the FS relied upon inadequate data.

Plaintiffs' concerns regarding plan implementation were more appropriately addressed outside this litigation. The court noted that plaintiffs could petition the agency to amend the LRMP if the plan's estimates of outputs were substantially different than those anticipated.

FEDERAL LANDS LEGAL FOUNDATION V. UNITED STATES FOREST SERVICE: This complaint, filed September 26, 1991, alleged that the FS failed to promulgate regulations under Section 8 of the Public Rangelands Improvement Act (PRIA) regarding the development of allotment management plans "in careful and considered consultation, cooperation and coordination with the lessees, permittees and landowners involved." The complaint and attached affidavits allege that, as a result of the failure to promulgate Section 8 regulations, permittees have been denied due process, subjected to inconsistent requirements, delays, and the input of special interest environmental groups, all of which have cost the permittee time and money. Plaintiff seeks declaratory and injunctive relief which includes halting any ongoing or proposed allotment management planning until such a time as regulation to implement Section 8 of PRIA are promulgated. Representing plaintiffs are Lee Peters of Hubert & Hernandez of Las Cruces, New Mexico, and Karen Budd of Madison, Dray & Thompson in Cheyenne, Wyoming.

On February 25, 1992, defendants filed their opposition to plaintiffs' motion for temporary restraining order and preliminary injunction. The government also filed a motion to dismiss or, in the alternative, motion for summary judgement. The preliminary injunction hearing is scheduled for April 30, 1992.

BELL V. UNITED STATES DEPT. OF AGRICULTURE: The complaint, filed by grazing permittees on January 31, 1992, alleged that the agency violated Federal law and agency policy regarding incorporation of Humboldt NF land and resource management plan standards and guidelines in grazing permits. The complaint alleges violations of:

NFMA Section 1604 (I)

Range management regulation, 36 CFR 222.2 (b), 222.3 © (iii)

Appeal regulation, 36 CFR 251.86 (a), 251.93 (a), 251. 99 (a)

Due process and takings clauses of the Constitution

NEPA and APA

Plaintiffs request that the court order the deletion of Humboldt LRMP S&G's from grazing permits of two named plaintiffs and any of the other plaintiffs permits which will expire during the litigation. Plaintiffs also request that the court order the agency to prepare NEPA documents and allotment management plans for the plaintiffs' allotments. Plaintiffs are represented by Laura Schroeder of Schroeder & Lezamiz Law Offices, Elko, Nevada. Defendant's answer is due on March 30, 1992.

ROGERS V. BORDEN: Plaintiff alleged that the FS's negligence in failing to enforce permit terms and conditions resulted in a permittee's cattle straying from an allotment on the Six Rivers NF onto plaintiff's property and causing damage thereon (complaint filed on August 23, 1991). Other issues in contention resulting form this incident include allegations that the agency violated plaintiff's civil rights, conducted an unconstitutional search and seizure, overburdened an easement, and intentionally inflicted emotional distress. Plaintiff seeks declaratory relief concerning the relative rights of the parties under the easement, $4.54 million in compensatory damages, and

$5 million in punitive damages. Oral argument was held in February, 1992, on the government's motion to dismiss the plaintiff's civil rights claims.

POORBAUGH V. UNITED STATES: Plaintiff filed a complaint on September 23, 1991, seeking damages for negligence and inverse condemnation by the FS. Plaintiff alleges that the agency negligently allowed recreationists to trespass on plaintiff's private property adjacent to NF land and also failed to prevent cattle permitted to graze on NF land from trespassing on plaintiff's property. Plaintiff also alleges that the government has inversely condemned a portion of his 20-acre parcel by improperly erecting a fence to separate plaintiff's property from the adjacent Federal lands approximately 25 feet onto plaintiff's property. Plaintiff has alleged unspecified damages in excess of $20,000 resulting from the alleged negligence and inverse condemnation. Representing the plaintiff is Martin Threet in Albuquerque, New Mexico. The defendant filed an answer on December 26, 1991, which generally denied plaintiffs allegations, arguing that the plaintiff's claims sounded in tort, and therefore the claims court is without jurisdiction to decide this case. A preliminary status report was filed on February 14, 1992.


United States Department of Agriculture
Forest Service
Ochoco National Forest
P.O. Box 490
Prineville, OR 97754

(503) 447-6247

File Code:1600

Date:Jan. 17, 1995

Subject:County Rights Ordinance

To:All Employees

A petition to place a "local control" ordinance on the March ballot in Crook County has been successful. In March, residents of Crook County will be able to vote on the following question: "Shall the people of Crook County recognize federal government's lack of authority to possess unconstitutionally held land in Crook County?"

The petitioners contend that the federal government has no authority to own or manage any public lands except for forts, arsenals, dock yards and needful buildings. They say that federal ownership and management of national forests, parks, and BLM lands is not authorized, and that these lands should come under county jurisdiction.

You are liable to be asked to discuss this with your friends and neighbors as the election nears. Here is some information you may find helpful during these discussion.

" Oregon was admitted as a state into the union by the Oregon Admission Act of February 14, 1859. Section 4 of that Act offered several propositions to the people of Oregon granting certain lands to the future state. These propositions were offered with a condition which the people accepted by the Act of June 3, 1859. This condition reads as follows:

the people of Oregon shall provide by an ordinance irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States...

The Court of Appeals held in 1955 in the case ofClackamas County, Oregon v. McKay, 326 F.2d 342, 345

the public domain in Oregon passed to the United States when Oregon was admitted. Such a provision was implicit in the Act of admission.

The Court of Appeals relied on a Supreme Court case,Gibson v. Chouteau, 80 US 92 (1871).

Obviously, the initiative, if enacted, cannot undo the promise the people of Oregon made when they were admitted as a state into the union."The Office of General Counsel also provided answers to three questions that were asked of a District Ranger on another forest, when such an ordinance was being considered there. These questions had been asked of the Ranger by a local citizen. (General Counsel responses are in bold following each question.)

"1. Was I aware of any documentation that the Forest Service owns the National Forest?

The United States owns the National Forests, not the Forest Service. In accepting Congress' conditions to Oregon joining the Union, the people of Oregon agreed not to interfere with the United States' administration of the public lands in Oregon. Act of June 3, 1859. The Constitution gives Congress the power to make regulations respecting property of the United States (Art. 4, Sect. 3, Clause 2).

2. Was I aware of any documentation that proved that the Forest Service had any jurisdiction over the National Forest?

After the Congress created the National Forests, their administration was transferred to the Secretary of Agriculture by the Act of February 1, 1905, 33 Stat. 628. Congress also gave the Secretary the authority to make regulations for the administration of the National Forests (16 U.S.C. 551).

3. Was I aware of any power of delegated authority to administer the National Forest?

The Secretary delegated most of his authority to an Assistant Secretary (7 CFR 2.19) who in turn delegated it to the Chief of the Forest Service (7 CFR 2.60)."

Last week I represented the Forest Supervisor at a meeting with the Prineville BLM where we developed a strategy for responding to questions about the ballot measure. BLM has authorizations from Congress similar to those I've outlined above. We do not intend to challenge the proponents of the ballot measure - they're fully within their rights to place this question on the ballot. If asked, we will respond to them or to the media that our attorneys have advised us that such a measure is not constitutional, but we will not debate the issue. Our job is to administer the lands under our stewardship, according to the laws of the United States as those laws presently exist.

The Forest Supervisor and BLM District Manager plan to attend any local meetings about the ballot measure, and to answer any questions which may arise about the management of National Forests or BLM lands. They will not debate the constitutionality issue.

Please refer any questions from the media to your Ranger, the Forest Supervisor, or to me.

/s/ Norman L. Hesseldahl

NORMAN L. HESSELDAHL

Public Affairs Officer


HEARING SUMMARY

DATE: March 2, 1995

COMMITTEE:House Resources

SUBJECT: Trends in Federal Land Ownership

USDA WITNESS:None

MEMBERS IN ATTENDANCE: Young (R-AK), Hansen (R-UT), Allard (R-CO), Chenoweth (R-ID), Doolittle (R-CA), Calvert (R-CA), Torkildsen (R-MA), Pombo (R-CA), Shadegg (R-AZ), Cubin (R-WY), Kildee (D-MI), Vento (D-MN), and a few other members who were their only briefly.

MEMBERS OPENING REMARKS:Young--large Federal acreage locked up for preservation. More private land being acquired and locked up. Affecting the economic base of local communities. Looking forward to hearing from "victims of this abuse".Hansen--Wants public to know just how much is being locked up. Discussion on the Wilderness Act indicated that only a small amount of land, around 20 million acres, would become Wilderness. Now we have 95 million acres and still growing.

It appears the Republican agenda of this hearing was to set the stage for future evaluation of the "negative economic impacts of Federal land ownership."Especially the "locking up" of land in some type of preservation designation and elimination of commodity production and/or contribution to the local economy. Other hearings will follow this theme.

Young promised that there would be in-depth oversight hearings on this issue and others as soon as the first 100 days and the "Contract with America" are completed in the House.

TESTIMONY:John Anderson, GAO.Summarized the findings in the GAO report "Federal Lands: Information on Land Owned and on Acreage With Conservation Restrictions", January 1995. The report was requested by Young (R-AK) and Pombo (R-CA). The report evaluates the changing land ownership of the 4 primary land management agencies, with emphasis on increased Federal ownership and increasing acres with conservation restrictions.GAO confirmed that this was only the first report and a more detailed and in depth analysis of Federal land ownership would be submitted later in the year.During Q&A's there was discussion of a GSA and BLM land ownership report as neither being accurate.

Several members asked questions on additional details they wanted out of the next report that GAO is working on to include information on all lands owned by all levels of government and all agencies of government. They were focusing on lands that do not pay taxes. Members also asked for summary of lands that have other restrictions such as no hunting, Nature Conservancy purchases, Lands in Federal Highways, energy corridors, DOD lands, CA desert, COE, owls, PACFISH, etc, etc, etc.

An interesting exchange took place between Kildee (D-MI) and Young (R-AK) as to whether the designation of Wilderness was truly the will of the people with Young asserting that the local population should be in agreement with any such designation or other lockup before Congress Acts and if they don't agree then designation should not occur.

Q's regarding legislation vs administrative "lock-up". GAO response:

Legislated lockupAdmin lockup

National Park Service

93%

7%

Forest Service

93%

7%

Bureau of Land Management

34%

66%

GAO said in Q's that the distinction between NPS, BLM, USFS, and USF&WS refuges is blurring. What lands are being managed for is moving closer and that is because of conservation restrictions. Members also pointed out decisions such as President's plan, salmon, etc.FS & BLM are moving away from multiple use management and closer to a preservation management philosophy.

Vento made the point that some of the lands listed as having conservation restrictions also are open to oil and gas leasing, hunting, and other uses.

Panel 2: Anna Sparks, former Humboldt (CA) County supervisor. Testified on the negative impacts of Redwood NP on the local economy. Cost 3,000 jobs in the county. Tourism hasn't met NPS predicted increases. Only one former logger works for the NPS. 72% of children in area receive some kind of public assistance support. Complained about the lack of timber production from the Six Rivers NF.

Hon. Bob Lessard, Chairman MN State Senate Committee on Environment and Natural Resources.Upset that traditional uses are being restricted. Disturbed about Voyager NP. Visitor use is less than 20% of NPS predictions when park was created. Parks are not good for the local economy.

John Baranek, Courtland, CA.Best steward of the land is private landowner. Testified in opposition to the way Refuges are created, in particular argued against the need for the Stoney Lakes Refuge in CA. Condemned USF&WS as a "power hungry bureaucracy" whose presence casts a shadow on real estate market. Recommended that USF&WS be "leashed" and made to follow the same regulations as the FS and BLM on land acquisition.

Dr. Terry Anderson, Political Economy Research Center.Indicated the recreation programs in the FS are money losers. Recreation use on private land, for a fee, puts money into the economy while public land recreation doesn't. If Wilderness acreage is going to be increased, than make the users of the Wilderness pay a fee for that use.

Q's and other points:Young made a point that he's working to change the social agenda of locking up the land. Stated he is going to work on de-authorizing programs. Feels that natural resource agencies have been infiltrated by preservationists--he intends to flush them out. Feels that the NPS should be dismantled and give the parks to the States, along with the money to run them. States manage cheaper. FS needs $6/acre to manage while the States need only $1/acre.Doolittle wants to work with Sparks to develop legislation to transfer the Redwood NP to the State.

Copies of the witness list and testimony will be on file in Legislative Affairs, 5SW, Auditors Building, as soon as they are received from the Committee.

LEGISLATIVE AFFAIRS CONTACT: Larry Hudson,205-0581:W01C


Revised version of remarks prepared by David Paddock

December 15, 1995

DR. JERRY FRANKLIN SOUNDS WARNING ABOUT THE FUTURE OF PUBLIC LANDS

Speaking Before Natural Areas Association at Annual Conference

[The following remarks were taken from the keynote speech of the Natural Areas Conference banquet. This article was prepared by David Paddock, Executive Director of the Natural Areas Association with the assistance of Dr. Franklin]

Dr. Jerry Franklin, speaking at the 22nd Natural Areas Conference in Fayetteville, Arkansas, in October, 1995 warned that the future of the federal lands is, for the first time in many decades, under serious attack. The challenge to continued federal ownership and management of these lands is being mounted by powerful congressional interests and their allies. However, Dr. Franklin also stressed that some environmental groups and scientists are unwittingly assisting in creating a case for disposal of federal lands and for virtual elimination of the associated federal land management agencies.

Most conservationists have assumed that the federal lands would always be there to underpin national conservation programs, including conservation of biological diversity. This is no longer a safe assumption, Dr. Franklin charged. The current Congress includes a number of powerful legislators and associated staff, who are committed to disposal. He indicated that this movement is far more than another "sagebrush rebellion" or the product of "wise use" advocates. It is well organized and incorporates a variety of tactics designed to remove lands and resources from federal management and to make them more accessible to commodity interests.

Dr. Franklin proposed that one central strategy is to push the concept of allocating the federal lands to "dominate use" by asserting that integrated use of lands for multiple objectives and ecosystem management have "proven to be failures scientifically and socially." Once the allocations of federal lands have been identified then "appropriate" institutional arrangements for their management would be made. For example, a national timber corporation might be established to manage productive forest areas on current federal lands. This would follow example of the "New Zealand model" in which the government of New Zealand divided their public forest lands into (1) highly productive areas, which were assigned to a national timber corporation for intensive management as tree farms, and (2) other approach to disposal of federal lands might be more acceptable to the public than outright sale of federal lands but would still divert the most productive to commodity interests.

A variety of other tactics are a part of this multi-faceted assault on federal land ownership and management, Dr. Franklin charged. Examples include proposals to eliminate national park properties (the park closure commission), to sell ski areas on federal lands to private interests, to remove the national grasslands from the jurisdiction of the Forest Service, and to dispose of the public domain lands currently managed by the Bureau of Land Management.

Discrediting the federal land management agencies is also an important element of the strategy, especially with the major changes in skills and attitudes of federal resource professionals that have occurred during the last decade. Many commodity interests and their supporters in Congress no longer feel that agencies and agency personnel will reflect their interests, even if key laws are repealed or overridden with riders. They believe that most of the "good ol`boys" that had similar agendas have retired from the agencies and been replaced by a much more diverse workforce whose primary concern is with resource stewardship.

Much of the campaign to dispose of public lands is a "stealth" effort, according to Dr. Franklin. Political strength is probably not sufficient for major changes or repeal of key environmental laws, such as the National Forest Management Act, in open debate on the floors of the House and Senate and current support is declining. Hence, many changes are being attempted through such devices as riders on appropriation bills and through the reconciliation process, making opposition very difficult.

Dr. Franklin feels that some environmentalists, environmental organizations, and scientists are helping to create conditions favorable to disposal of the federal lands. Almost every action proposed by federal agencies is subject to some environmental challenges slowing or stopping implementation of approved plans-- creating the gridlock that allows critics to argue for dominant use.

In the Pacific Northwest, for example, the current science-based federal forest plan goes far beyond anything environmentalists would have been able to achieve through regular political processes. Yet, even reservation of over 3/4 of the federal lands from timber harvest--18,000,000 out of 24,000,000 acres--has proven unacceptable to some environmental groups, such as those committed to termination of all timber harvest on national forest lands. Such groups apparently do not understand that the failure of the current federal plan almost certainly will not be "greener" solutions but, rather, major reallocations of lands and resources.

Environmentalists have also continued to attack the credibility of the agencies--doing the work of their political opponents, in Dr. Franklin's opinion. Where aggressive challenges were appropriate ten years ago environmentalists have often failed to recognize the fundamental changes that have occurred in the agency workforce and ethics. "Commodity interests need not work hard to destroy the credibility of the agencies," Franklin said, "the environmentalists are doing it for them."

Dr. Franklin charged that even the science of conservation biology has provided support for proponents of dominant use and disposal of federal lands. Most conservation biologists have focused on reserves. Few have spoken or written about--let alone emphasized--the importance of conserving biological diversity on unreserved lands or "matrix." Yet, this is where most biological diversity must ultimately be preserved.

Dr. Franklin noted that the efforts to dispose of the federal lands should NOT be characterized simply as proposals by commodity interests. For example, major segments of the timber industry would suffer significant negative consequences if major changes in federal land status occurred. For example, in the Pacific Northwest, habitat conservation plans developed by large timberland owners in cooperation with federal agencies are anchored on the federal land management strategy; failure of the plan or disposal of federal lands would again destabilize the entire forest land base of the Pacific Northwest, returning the region to the regulatory uncertainties of the last decade.

In concluding, Dr. Franklin emphasized that the threat to the integrity of the federal lands is very real. He challenged members of the Natural Areas Association to think analytically about the importance of the public lands so as to be prepared to participate in the public debates that are likely to occur. He asked members to help bring the political agenda and tactics of proponents of disposal into the open so as to create the forum for debate and noted that individuals working with their representatives in Congress currently have a more influential voice than scientific associations; unfortunately many of the individuals involved in the disposal effort have little regard for objective information, including science.

Dr. Franklin encouraged members to acknowledge the critical role of the matrix. "We cannot and should not divide the world simply into commodity lands and reserves," he said, "because the future of biological diversity is in the matrix." Finally, "recognize the very real changes that have occurred in attitudes in the federal agencies and support agencies and agency personnel whenever possible. They are our allies in conservation efforts, not our enemies, and are under as great a threat as the federal lands." "These are subversive times," Dr. Franklin noted."For several generations we have assumed that there would always be the public lands. This assumption is no longer warranted. The greatest efforts are necessary by those who value the contribution of such lands and agencies."


Court Strikes Down Lands Challenge

Copyright 1996 United Press International. All rights reserved. The following news report may not be republished or redistributed, in whole or in part, without prior written consent of United Press International.

LAS VEGAS, Nev., March 14 (UPI)--In a blow to grassroots efforts to seize power from Washington, a U.S. District Court judge Thursday struck down a Nevada challenge to federal ownership and management of public lands.

In his 22-page opinion, Chief Judge Lloyd D. George of the District of Nevada reaffirmed the authority of the U.S. government over national parks, forests and other public lands.

"The United States owns and has the power...to manage and administer the unappropriated public lands and the national forest system lands and within Nye County, Nevada," George wrote.

Nye County is one of dozens of counties, mainly in the West, that have challenged federal control of public lands. This movement is often referred to as the Sagebrush Rebellion II" or "home Rule" movement.

U.S. Attorney General Janet Reno praised George's decision.

Public lands, she said, are "owned by all Americans, to be managed by the United States. That's the rule of law. The court made it clear that Nye and other counties are no exceptions to this rule," Reno said in a statement issued by the Justice Department in Washington.

The case stemmed from two resolutions passed in late 1993 by Nye County commissioners. One claimed the state, not the federal government, owned public forests and other land. Another claimed county ownership of every past, present or future road on public land.

After the resolutions were approved, local authorities threatened to prosecute federal employees who worked in the county, one of the largest in the United States, with vast acres of forest and desert that are administered by the Bureau of Land Management and national Forest Service.

County officials occasionally resorted to more confrontational tactics.

On July 4, 1994, a Forest Service employee fled after trying to block a county bulldozer from plowing a road in violation of federal regulations.

Two days later, County Commissioner Dick Carver filed an affidavit with local authorities threatening the federal employee with criminal charges.

The U.S. government filed suit against the county on March 8, 1995.

Arguing on behalf of the government, Justice Department attorneys claimed Nye County was, in effect, asking the courts to "redraw the map of the United States, and to rewrite 150 years of American history."

George agreed.

In his decision, George was occasionally scathing. Referring to one of the disputed Nye County resolutions, George wrote: "As an attempt to formally express the opinion or will of the Nye County Board of Commissioners, the resolution offers only an example of poor writing."

In Washington, Assistant U.S. Attorney General Lois J. Schiffer said George's "unambiguous" ruling would help protect threatened public employees, especially those with the Forest and Park services and the Bureau of Land Management.


Date: 5/21/96From Darrel L. Kenops (Willamette National Forest)

Subject: Oregon Society of American Foresters 1996 Annual Meeting in conjunction with Northern California SAF Section Annual Meeting, Ashland, OR. May 8 thru May 10, 1996.

Devolution of Public Lands (A Federal Example)-Transfer of Oregon and California Lands from BLM, USDI To The State of Oregon. Curry County Commissioner Rocky McVay stated the purpose and need. State Forester Jim Brown pointed to specific issues and why this is occurring and what needs to be done. He mentioned the Western Governors Public Land Law Review Report that will be available in June, 1996. Oregon Gov. Kitzhaber Co-Chairs this committee. Specifically I heard Jim rationale as follows:

1) Congress has choices on who manages public lands and there is a need for Congressional review of USDA-Forest Service and USDI-BLM Organic Acts so the land managing agencies can gain back responsibility and accountability now spread between several federal agencies (i.e. EPA, F&WS, NMFS, et al.). The emphasis should be to harmonize these laws while still keeping land management standards high.

2) Improve public participation at the beginning not end of the process and use natural not artificial alternatives for determining effects and outlining probable actions.

3) Only have one level of appeal at the forest plan level and after those are resolved project implementation proceeds without appeal possibilities.

4) Moving O&C lands from BLM to the State of Oregon is good because state lands can be: a) managed as trusts while protecting public benefits and meeting beneficiary purposes-a clarity of purpose in which the State Forester and his staff have lots of experience in; b) States use goal oriented rather than federal agency issue oriented planning; c) states can be inclusive at the grassroots in their public involvement and that involvement holds up over time so successful implementation can occur; d) States use cutting edge adaptive management and can move faster to adapt than the Federal Government; e) innovation and stewardship ethics are deeply embedded in their work culture and approach to doing business; f) states have consolidated decision making capabilities.

Glenn Spain-Pacific Coast Federation of Fishermans Associations spoke to this possibility of Federal lands transfers from the perspective that he does not see natural resources gridlock, but sees change and looking for new ways to do business. It's a dynamic tension between property rights that are about 500 years old; public trust doctrine which sets the parameters, sidebars to private land ownership in our American society and stewardship doctrine where are concerned about cumulative and neighborhood effects of individual actions. He opposes the O&C Transfer because a) watersheds are units, b)state standards are less protective than Federal Standards, c) option 9 Northwest Forest Plan is barely legal, d) almost all O & C lands lap over into Tier 1 & Tier 2 Watersheds, infeasibility of local governments picking up the management costs that go with Federal lands, f) increase in ESA, Clean Water and Magnusson Act vulnerability, g) Indian Tribe claims on these lands predate public land status and would need to be resolved, h) Treaty Rights with Canada due to the linkage of the fisheries, I) mining claims that would need to be bought out.


Excerpt from:

FOREST SERVICE NEWS DIGEST

April 25, 1997

DISCLAIMER: The following summaries of news stories and editorials reflect the content and tone of the original articles. Appearance of an article in this digest does not imply agreement nor endorsement by the Forest Service of facts or opinions contained in any article. The digest does not evaluate the accuracy of the information reported.

SETTLEMENT SIGNED BY NYE COUNTY IN SUIT WITH FEDS -- Nye County (NV) Commissioners approved and signed a settlement agreement last week (in the lawsuit filed against them by the federal government in 1995) admitting federal ownership of the public lands in their county. In the agreement, the United States acknowledges that Nevada and Nye County possess concurrent jurisdiction over public lands with respect to law enforcement and protection of public health and safety; it also agrees that the state and county have a right to participate in the management process of the public lands. Though he expressed his disapproval of a segment of the agreement which deems Nevada's Sagebrush Rebellion law unconstitutional, County Commission Chairman Dick Carver heralded the agreement as a victory for the county. However, not everyone shared Carver's view of the agreement. For instance, Spring Creek resident and public lands advocate Ed Presley criticized the commissioners for "signing away Nevada's sovereignty."The Elko (NV) Daily Free Press 4/22/97

EDITOR'S NOTE: Copies of the full-length articles are available from WO Public Affairs for 30 days following their appearance in the Digest. Send a DG message with your name, mailing address or fax number, date of FSND, and articles requested to FSND:W01B or call 202-205-1760. FSND editor: Liz Hale. Internet:http://www.fs.fed.us/fs/news/fsndex.htm

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