“Rebel” cowboys say we have no right to kick their cattle off our public lands
The author is a writer, editor, and muckraker for Forest Service Employees for Environmental Ethics, a group that advocates for sustainable use of public lands.
You’ve probably heard about Cliven Bundy. He’s the Nevada rancher who in April led a ragtag bunch of self-styled militiamen in fending off federal agents who tried to confiscate his cows for grazing on public lands without permits.
Well, there’s a case making its way through the courts now that could make the Bundy standoff look like child’s play.
The case involves another Nevada rancher, Wayne Hage, who grazes cows on public land without permits – just as his father (also Wayne Hage) did before his death in 2006. In 2007, federal land managers charged Hage Jr. with trespass. But last year, U.S. District Judge Robert C. Jones sided with Hage, finding that the government had trampled the rancher’s rights — particularly his right to utilize water sources on federal land.
Here’s the detail that makes the case a potentially Really Big Deal: Jones ruled that as long as Hage’s cows were within half a mile of one of his valid water rights, the rancher couldn’t be charged with trespass — even if he lacked a grazing permit. The judge also ruled that Hage’s cows must be allowed to wander across public lands to access those water sources.
Across the West, there are thousands of valid water rights used by ranchers. If the Jones ruling stands, vast stretches could suddenly become off-limits to oversight by federal land managers, says Katie Fite, Biodiversity Director for Western Watersheds Project, which acts as a watchdog on public lands grazing. “The agencies effectively won’t be able to regulate grazing.”
If that happens, beef production could become the de facto highest and best use of hundreds of millions of acres that belong to you and me. And that would be bad for the land, and the climate, too.
More than half of the American West is publicly owned, and managed by the federal government. Huge stretches of that — about 250 million acres — are open to grazing by cows and sheep. That makes ranching the most extensive commercial use of public lands there is, bigger than logging or mining or even recreation.
By law, the Bureau of Land Management and the U.S. Forest Service must regulate grazing in a fashion that ensures the health of the land. In fact, though, short-staffed agencies often are unable to adequately oversee such vast areas. Environmentalists point to myriad examples of overgrazing leading to degraded pastures and streams. According to the Western Watersheds Project, public lands grazing is the single greatest source of non-point water pollution in the West.
There’s this impact, too: Cows belch and fart. A lot. They can’t help it. Combine the emissions of hundreds of thousands of cows loose on the public land and you get a whole lot of methane — a potent greenhouse gas. Nearly a quarter of all the methane produced in the U.S. comes from cows, according to the Environmental Protection Agency.
Despite these concerns, cows remain a fixture on public lands. The ranchers have powerful politicians on their side. And they have something else going for them — a romanticized public perception of ranchers as rugged individualists, as cowboys.
“That image of the western rancher, the John Wayne stuff, still has resonance,” said Jon Marvel, who founded Western Watersheds Project. “The imagery and mythology is powerful.”
Bundy, of course, tapped into that mythology, which comes with a vein of intense antigovernment sentiment. In that infamous April showdown, dozens of self-styled “sagebrush rebels” showed up to square off against armed BLM agents. Many of the protesters were armed. Fearing violence, the government backed down.
The crux of Bundy’s argument — and the crux of the entire antigovernment philosophy of the Sagebrush Rebellion — is that the federal government does not have authority to manage those 250 million acres. The rebels claim those acres should be managed by the states, instead.
“We’re after freedom. We’re after some liberty. That’s what we want,” Bundy said at the height of the standoff. “I’ll do whatever it takes to gain our liberty and freedom back.”
However popular such rhetoric may be with the “Don’t Tread on Me” crowd, it has been a consistent loser in the courts. Judges have repeatedly acknowledged the government’s right to manage activities, including grazing, on public lands.
In fact, Judge Jones recognized the government’s right to manage grazing on public lands. In its lawsuit, the government documented many instances in which Hage’s cattle grazed on federal land without the required permits. Jones found Hage guilty as charged, albeit in only two of those instances, fining him a grand total of $165.88. (Those were the only two cases, according to the judge, where the government proved the cows were more than half a mile from a water source.)
But Judge Jones made a major caveat involving water rights, which are at the center of the Hage case. Those water rights are administered by the states, not the feds. Many of them date back a century or more, long before Congress put laws on the books governing federal management of grazing on public lands.
That, in large part, is what has people concerned. In his ruling, Jones emphasized the primacy of those water rights. “The Government has abused its discretion in the present case,” he wrote, “through a series of actions designed to strip the [Wayne Hage, Sr.,] Estate of its grazing permits, and ultimately to strip Defendants of their ability to use their water rights.”
Hage runs his cattle in the remote Monitor Valley, which is about 200 miles north of Las Vegas. I spent some time there earlier this summer. It’s a striking, lonely place — a broad sagebrush plain flanked by rugged mountains that rise abruptly to the west and east. No paved roads pierce the Monitor Valley. There’s not a single power line.
To an observer who lives in a soggy place like western Oregon (that would be me), the Monitor Valley seems devoid of water. It’s not. Water sources dot these lands.
Looking into the Hage case, I examined every stockwatering right in Nye County, Nev., which includes Hage’s Pine Creek Ranch. I found nearly 850 valid stockwatering rights there, most of them located in the northern part of the county, where Hage runs his cows. Almost all of them are on land managed by the Forest Service or the Bureau of Land Management.
Using Google Earth, I drew a mile-wide circle around each of the valid stockwater rights in Nye County. Those circles show the areas where federal officials will not be able to ticket ranchers for grazing cattle or sheep without a permit. They encompass more than 330,000 acres.
The actual amount of land affected by the Jones ruling is significantly greater. That’s because many water rights are listed for “irrigation” purposes, but include language that specifies that the water can also be used for stockwatering. With the exception of Hage’s permits, my investigation did not include those irrigation rights in the total.
Also, I treated each water source as a single point — even when the original permit specified that a length of stream or ditch is all part of the water source. And the total acreage affected also does not include land over which cows would be allowed to travel, as specified in the Jones ruling, as they move from one water source to another.
In other words, the Jones ruling could affect a whole lot of land.
The Hage case dates back to 1978, when Hage, Sr., and his wife, Jean, purchased Pine Creek Ranch for about $2 million. Their son, Wayne, Jr., was 2 years old at the time. The ranch, a modest collection of buildings, barns, fences, and trees, sits near the southern end of the Monitor Valley.
In addition to roughly 7,000 acres of private land, Pine Creek Ranch included permits to graze cattle on more than 750,000 acres of land administered by the Forest Service and BLM — an area about as large as Rhode Island. Hage also obtained rights to use water at nearly 200 streams, wells, and springs.
When he bought the place, Hage, Sr., was not dissuaded by word from local ranchers that the federal land managers were difficult to work with. “My dad bought it knowing that there was a problem down there, but he had worked with the federal agencies in the previous ranch in California, and got along with them,” Hage, Jr., told Fox News. (Hage declined to comment for this report.) “And he felt, I can work with these folks. Come to find out you can’t get along with somebody when they’re actually trying to take your property.”
Conflicts arose from the beginning. Just a year after buying the ranch, the Forest Service allowed state wildlife officials to release nonnative elk in the mountains above the Hages’ ranch, which Hage opposed on grounds that they would damage fences and compete with his cows for water and forage.
A long line of disagreements arose in the decade that followed. Forest Service officials on numerous occasions requested that the Hages remove cattle from areas they considered overgrazed, and to fix fences. They also successfully prosecuted the elder Hage after he cleared shrubs from a ditch on public land — a conviction that was later overturned.
The Hages claimed agency officials were pursuing a concerted campaign of harassment and intimidation in an effort to drive them out of business. They suspected the government wanted their water rights.
In 1991, the Forest Service canceled some of the Hages’ grazing rights and impounded and auctioned off more than 100 of their cows. The Hages, who had always considered the 750,000 acres of public land where they grazed cows to be part of their ranch, filed suit seeking $28 million in compensation.
Hage, Sr., published a book in 1994 called Storm over Rangelands: Private Rights in Federal Lands, which became something of a classic among antigovernment activists sympathetic to the Sagebrush Rebellion. (A new copy will set you back $139.20 on Amazon.)
In 2002, a U.S. Court of Federal Claims judge ruled that Hage did not need a permit to exercise his rights to the water and forage that he had used in the past. That same judge, six years later, ruled that federal officials owed Hage more than $14 million in damages and attorney fees, an award that was later overturned by a U.S. Court of Appeals.
Hage, Sr., died of cancer in 2006. The government charged Hage, Jr., with trespass a year later for grazing his cattle on public lands without a permit. The younger Hage immersed himself in law governing land use and property rights. He represented himself during the trial overseen by Jones, telling Fox News it was cheaper for him to learn the law than to hire an attorney.
So there’s been a lot of United States vs. Hage litigation over the years. The latest action — Judge Jones’s ruling — had immediate impacts on Hage’s ranching operation.
Jones’s ruling did not preclude the agencies from requiring ranchers to obtain grazing permits. In fact, Jones ordered Hage to apply again for grazing permits. He also ordered the Forest Service and the BLM to issue Hage the permits. (Hage has followed through on that order. Agency officials say they are in the process of gathering information about the condition of those allotments while their lawyers appeal Jones’s ruling.)
Jones also laid out strict guidelines governing what the agencies can and cannot do in regulating Hage’s use of the public range. For example, he said the agencies must ask his permission if they seek to issue trespass or impoundment orders, and that they cannot reduce the forage available to Hage’s cows by more than 25 percent for any period of time.
Such action, Jones wrote, is necessary in light of “the obvious continuing animus against Hage by the government officials charged with administering his permits and the government land on which he has water rights.”
The judge’s action also had immediate consequences for two longtime government employees: Thomas Seley, who was manager for the BLM Tonopah field office but has since retired, and Steven Williams, chief ranger for the Forest Service’s Austin and Tonopah districts. Jones held both in contempt of court and referred their cases to federal attorneys for possible prosecution. He said they had conspired against Hage as the trial was proceeding.
The federal government is appealing the contempt findings, too. Meanwhile, as he awaits his new grazing permits and results from the Ninth Circuit Court of Appeals, Hage continues to graze his cattle on public lands.
What happens next? Both sides say they’re confident that they will win at the Ninth Circuit.
“We feel we have a high probability of prevailing at the appeals court,” says Terry Padilla, who manages grazing for the Forest Service’s Intermountain Region. “Judge Jones was pretty harsh and unique in his ruling.”
Pollot, the attorney who represents the estate of Hage, Sr., is also optimistic that his side will prevail. The feds’ argument relies heavily on previous court rulings affirming the government’s right to manage grazing on federal land. But Pollot points out that that this case pivots not on 20th century grazing laws, but on laws dating back to the nineteenth century that established private water rights before there was any federal ownership of lands in the West.
“Arguments to the court that, ‘Gee, this is going to impact a lot of land’ don’t hold up against the fact that the law is the law,” he told me.
Mary Wood, director of the of the Environmental and Natural Resources Law Program at the University of Oregon, says that while the Ninth Circuit has a reputation for being one of the most liberal courts in the nation, it’s tough to tell which way it will rule.
“I think they tend to follow precedent just like most courts,” Wood told me. “Judges tend to be very careful as a class. I would think the outcome of this case would be very difficult to predict.”
In addition to seeking a reversal of the Jones decision, federal attorneys are asking the Ninth Circuit to appoint a judge other than Jones to reconsider the case, a request that is made rarely and even more rarely granted.
The government’s opening brief attempts to show that Jones entered the trial with preconceived notions about federal land managers, and with his mind made up on many points. The brief quotes Jones as telling Hage at one hearing: “You have a court that’s very receptive and sympathetic to your claim.”
On the first day of the trial, according to the government’s opening brief, Jones said: “Now, to the Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases. Your insistence upon a trespass violation … is undoubtedly going to fail in this court. Who knows at the circuit level, or not. And maybe that’s what you’re gambling on.”
At one point during the trial, Jones said he had recently purchased a copy of Storm Over Rangelands.
If the Ninth Circuit Court of Appeals upholds the Jones decision, the actual on-the-ground impacts will be significant, but the scale of the impacts remains unclear.
Currently, Judge Jones’s decision applies only to Hage and the historical extent of his grazing allotments on Forest Service and BLM lands in central Nevada. But by appealing the case to the Ninth Circuit, the federal government opened the possibility that those findings, including the half-mile buffer around water rights, could be extended to the nine western states covered by the appeals court.
If Hage loses at the circuit level, he is expected to appeal to the U.S. Supreme Court, meaning the case could, in theory, affect public lands grazing across the country.
Even then, however, it remains to be seen just what ranchers will be allowed to do. In his decision, Jones emphasized that the grazing that can occur within a half-mile of valid water sources must be “incidental.” “Wherever there is no grazing permit,” he wrote, “the cattle must not be willfully placed on or near federal land for the purpose of grazing thereupon except to the extent incidental grazing cannot reasonably be prevented while the cattle are watering.”
Federal land managers would still be able to issue grazing permits and to regulate grazing that takes place more than half a mile from a water right. Also, the ruling presumably would not immediately impact the vast majority of allotments managed by federal agencies on which ranchers hold valid permits.
And ranchers such as Hage and Bundy, agency officials say, are distinctly a minority. I recently sat down with Steven Williams, the Forest Service district ranger who was held in contempt of court by Jones, in his office in Tonopah, Nev. Williams says the agency has good working relationships with most ranchers. He says when a violation is found — for example, when cows wander onto land that is closed to grazing — a phone call takes care of the problem 90 percent of the time.
But agency officials and environmental advocates worry that if the terms of the Jones decision are affirmed, regulation of public lands grazing would become much more complicated. As a practical matter, agency officials say, it would be nearly impossible to determine whether a particular cow is within a half mile of a valid water source and whether, when it eats, the grazing is intentional or incidental. Land managers also express concern that ranchers may stop bothering to apply for permits altogether.
In the meantime, federal land managers are left to make due with scant resources for overseeing the massive public lands cattle ranching industry. Williams currently has one range technician who is responsible for monitoring all grazing allotments in the Austin and Tonopah ranger districts, an area of more than 2 million acres. The Tonopah Ranger District alone, at about 1.12 million acres, is the largest ranger district in the lower 48 states. He’s trying to hire a second technician, but the position is currently unoccupied.
Ultimately, the Hage case involves more than a rancher’s right to access water sources. It gets at a much broader question: What is the best use of our public lands?
Ranchers and their supporters cling to their cowboy persona. In fact, though, ranching is much different now than it was decades ago. Across the West, the self-reliant mom-and-pop ranchers of yesteryear are giving way to corporations that run cattle on public lands with one goal in mind — maximizing profits. If Hage wins, those corporations may find that’s much easier to do.