Rebels with a Lost Cause

A movement of property-rights lawyers emerged from the sagebrush in the 1970s to fight a wave of environmental regulations. They are still fighting in courtrooms across the West, but their role remains ambiguous.

 

Bill Jennings, a veteran fisheries activist in Stockton, Calif., remembers the Christmas season of 2004 as "a nightmare." He adds: "It was absurd."

He's talking about how some of the West's most powerful farmers tried to throw off the yoke of environmental law. Like countless similar battles, this one came down in a courtroom, in a case titled Tulare Lake Basin Water Storage District, et al., v. The United States.

For decades, the farmers had diverted rivers and dried up a huge lake to grow hundreds of thousands of acres of crops south of Stockton, resulting in catastrophic losses of fish and birds. Finally, during a 1990s drought, wildlife agencies invoked the Endangered Species Act and withheld some irrigation water, trying to save vanishing populations of chinook salmon and Delta smelt. That triggered the farmers' lawsuit.

The farmers demanded payment for surrendering the water. They claimed that the government's environmental action violated the U.S. Constitution's Fifth Amendment, which holds that no property shall be taken without compensation. They found a sympathetic listener in Judge John Paul Wiese, at the U.S. Court of Federal Claims in Washington, D.C. In a surprising series of rulings, Judge Wiese ordered the government to pay the farmers as much as $26 million. Many believed that if the feds filed an appeal, a higher court would overturn the rulings. But five days before Christmas, the George W. Bush administration settled the case and agreed to pay $16.7 million.

The Tulare outcome hit like a thunderbolt. The farmers' lawyer, Roger Marzulla of the D.C.-based lawfirm Marzulla & Marzulla, told Greenwire, "This is the first time (the government has) been required to pay for anything" related to enforcing the Endangered Species Act. The West's leading anti-green congressman at the time, Calif. Rep. Richard Pombo, R, could barely control his glee. "This case should spell profound change for conservation policy," he told the Washington Post. A California water official, in the Los Angeles Times, called it "a devastating setback for the environment."

If the logic of the Tulare rulings spread, enforcement of many environmental laws might cost the government billions. And if the government preferred not to pay, the laws would be castrated.

More striking, Marzulla & Marzulla stood among a battalion of lawfirms dedicated to challenging environmental laws. The movement had its roots in the West and appeared to be making progress on many fronts, firing a barrage of lawsuits and claiming a run of important victories in the late 1990s and early 2000s. They'd rolled back regulations covering not only endangered species, but also cattle grazing, commercial development and many other activities. They even seemed to be on the brink of redefining government employees as criminal "racketeers."

"I think this fight is going to get a lot meaner ..." predicted Andrew Lloyd, a lawyer for Pacific Legal Foundation, another firm leading the charge, in California's West County Times in January 2005. He and others envisioned more lawsuits and more big victories.

These days, the anti-regulation lawyers still portray themselves as wizards, shooting bolts of legal lightning at the government agencies and power-hungry environmentalists who oppress them and their clients. In press releases, news and opinion articles and speeches, they boast about carrying out a crucial role.

To get a better sense of their role, I explored the legal battlefields and visited some of the movement's key Western lawfirms. I found a group of people who believe strongly in freedom and individual rights.

But their record includes some recent big defeats, and their conviction arguably outweighs their influence. I found that they may indeed be legal wizards, but more in the mode of a Wizard of Oz: They're full of sound and fury out front, but if you pull back the curtain, they're not so formidable.

 

ENVIRONMENTAL REGULATION became a formidable force in the decade and a half that began in 1964. During that time, Congress and state legislatures passed a torrent of new laws protecting wilderness and endangered species, requiring the study of environmental impacts, setting tough standards for clean water and air, and applying limits to grazing, mining, logging and driving on public lands.

The regulations poked at some peoples' livelihoods and chafed against their beliefs, especially in the West, the region with the most public land. So they began to hire lawyers to fight back. The ragtag resistance grew into a movement with the 1973 founding of Pacific Legal Foundation, headquartered in Sacramento, Calif. It's a nonprofit lawfirm, following the model of older, liberal nonprofit firms, such as those associated with the American Civil Liberties Union and environmental groups.

Oil and tobacco corporations, chamber of commerce groups, and rightwing billionaires such as Joseph Coors (a Colorado beer baron), Richard Mellon Scaife (a Pittsburgh heir to the Mellon banking, oil and aluminum empire), and John Simon Fluor (a California mining, nuclear and oil baron) poured millions of dollars into launching Pacific Legal Foundation and similar nonprofit lawfirms across the country.

The most famous is Mountain States Legal Foundation, founded in Denver in 1976. Mountain States has helped launch two lawyers - James Watt in the early 1980s and Gale Norton in the early 2000s - to tenures as secretaries of the Interior. Each used the cabinet post to push general deregulation and the commercial uses of federal lands.

The movement has grown to include the D.C.-area Institute for Justice, which describes itself as "a merry band of litigators," run by William "Chip" Mellor, formerly of Mountain States Legal. Dozens of lawyers in private practice also jumped into the fray. Roger Marzulla is among the most prominent, as is Karen Budd-Falen, a specialist in ranchers' cases based in Cheyenne, Wyo. Both of them also had stints with Mountain States Legal. These lawyers share similar or identical goals, they're related to each other through overlapping resumes and backers, and they file briefs supporting each other's cases. Many of them got to know each other while working for Ronald Reagan, when Reagan was California's governor in the 1970s, or when he was president during the 1980s. They're also tied in with the libertarian, property-rights think tanks, such as the Cato Institute.

Those in the movement and those who study it call it by various names, including the Freedom-Based Public Interest Law Movement, or just the property-rights lawyers. For Westerners, the most accurate term would be Sagebrush Rebel lawyers: They're entwined with the angry rebellion that began in 1979, when many Western legislatures claimed authority over federal land, and continues today in local flare-ups against the feds.

The lawyers, and their clients, have some legitimate complaints. Environ-mental laws, especially in their infancy in the 1970s and 1980s, did tend toward bullying and unrealistic expectations. For instance, the Clean Water Act, the Clean Air Act, and other laws vowed to catalog and choke off hundreds of thousands of pollution sources within a few years. Anyone who didn't cooperate was subject to penalties.

"The game of politics is largely a struggle for control of the initiative," says Gregg Cawley, head of the political science department at the University of Wyoming, in a book he wrote about the Sagebrush Rebellion. Environmentalists had the initiative at the start as they set up their enforcement strategy. Then the anti-regulation forces rose up and took the lead.

sagenav
sagenav
Dec 11, 2007 10:52 AM

The "Wise Use" and "Sagebrush Rebellion" movements are dying because finally even most Republicans and conservatives are seeing the rapid growth in the west and the gobbling up of precious open space by development and industry.  The places we hunt, fish, camp and hike are disappearing, and more and more people are being crowded into what is left. 

Anonymous
Dec 19, 2007 03:45 PM


Thanks for your in-depth article on these coutrroom battles. So-called "property rights" activists, whose agenda would hurt the property and other rights of homeowners and average Americans, also push for extreme legislative proposals.


On December 13th, Sen. Wayne Allard incomprehensibly cosponsored, spoke in favor of, and voted for, a bizarre Sen. Larry Craig farm bill amendment. Fortunately, Sen. Ken Salazar was joined the overwhelming bi-partisan opposition in the 37-58 vote, e.g., Republican Senators voting no included Utah’s Sen. Bennett and both Republican senators from Alabama.



The Craig/Allard amendment would allow farm and grazing land to be condemned for private development, pipelines, and prisons. But it would ban all eminent domain to acquire land for a public park, conservation or public recreation.



One inadvertent taking of an acre would shut off all federal funding to a state or locality for five years. This would cost untold lives and suffering by denying funds needed to save people from deadly flu epidemics, natural disasters, toxic pollution, and other threats. If the original owner died, it would be impossible to end this five-year fund cutoff.



Sen. Allard’s Floor speech falsely stated "that this amendment would not affect uses of eminent domain that have been found to be justified." In fact, it would inflexibly ban eminent domain for public parks that even Justice Clarence Thomas recognized has been a quintessential public use since the Founders. In 1896, the Supreme Court unanimously held that eminent domain to acquire land for Gettysburg National Battlefield Park was "not only a public use" it had "the purpose of protecting and preserving the whole country."



The Craig/Allard approach would unconstitutionally render state and local governments obsolete. If Congress could do this for one taking, threatened federal fund cutoffs s could bludgeon states and localities into submission to federal micromanagement on every issue.



Earthjustice and other conservation groups joined local and state government organizations in opposing this draconian infringement on federalism and traditional rights of states and localities to create public parks and conserve essential resources and recreation areas.



Glenn Sugameli



Senior Legislative Counsel



Earthjustice



Washington, DC


Anonymous
Dec 19, 2007 03:47 PM

In Ambler v Euclid the court ruled that the municipality didn't step outside the bounds of reason by imposing zoning restrictions on the developer and therefore acted within its constitutional disgression. The court states, "It cannot be said that the ordinance in this respect passes the bounds of reason and assumes the character of a merely arbitrary fiat." The Utah legislature recently made it possible for a business entity to incorporate as a municipality thereby removing the land owned by the business entity from county zoning restictions. Dean Sellers, a land developer who wants to build a ski and golf resort on several thousand undeveloped mountain acres, is currently trying to incorporate a town over the objections of some residents who worry about their property rights and the loss of the protection of county zoning ordinances. Here is an interesting article discussing how the Utah legislature decides whose fiat is arbitrary and whose is Republican:

http://www.sltrib.com//ci_7614735?IADID=Search-www.sltrib.com-www.sltrib.com

Anonymous
Dec 19, 2007 03:47 PM

Ok ......Taking a deep breath....



......IYO.....The Rebels are losing (why are we {citizens who stand up to the
gov. for their property rights} Rebels and why do you want to use that word to
describe one of your fellow citizens with a derogative name from the darker side
of our history?) Are you wanting to taint us from the start..?.?.? Why not just
call us the "N" word...? Same difference IMO...... I would call us PATRIOTS not
rebels. Does that work for you (Patriots)? I think you use it (the REBEL
inference) for one and ONLY one reason... To create a bias from the start. They
(WE) are NOT rebels, but the REAL Stewards of the land



This hit piece is so anal. The Enviros sue over the drop of the hat and the
REAL stewards of the land fight back for their given rights and they are the BAD
guys?



WHY may I ask are ALL the pristine lands in the hands (according to the LAND
grabbers) of 3rd, 4th, and 5th, generation Ranchers? HMMM......... Why is that
so, I ask again? Is it because we raped, robbed and pillaged our lands? Maybe in
the enviros mind (but then why do they enviros) covet these lands? (WEIRD huh).
Maybe we DID not Rape Rob and pillage our lands, but put back more than we took
and now they want it because it is STILL in such good shape?



OK now to the heart of all the accusations in the hit piece.



What this reminds me of is a boxer (fighter) talking to reporters after he
lost a lopsided decision but in his warped mind STILL REALLY won the fight......
Yes really won the fight because he hit (sued early and OFTEN ) hard in the
first few rounds...... only to find out he had NO legs to stand on and was beat
down in the middle rounds (property rights) and POUNDED in the latter rounds. (
I like how the author (Ray) ends with a 1989 article about a rancher
(JOHN SHULER) protecting his animals, how long ago was
that......Oh yah about 20 yrs. ago, but it was a win in Ray's mind) and a loss
for the sheep that were saved by a ranchers actions...






Ray.... Do you agree with this?



Shuler lost in a federal administrative hearing - the judge
ruled that he shouldve hung back and let the grizzlies do their
thing.
So what is their THING? Kill his sheep........ Oh yah
he use to be a bread salesman so what does he know about sensing danger to his
livelihood anyways, huh Ray?
More to come from the bottom up starting with Mr Shuler
Ranchers and Stewards of the Land OR Welfare Leeches
Aaron
Aaron
Dec 02, 2009 08:54 PM
Ranchers haven't been good stewards of the public land. All you have to do is drive through cattle country anywhere in the west and the impact of overgrazing is obvious. Compare the vegetation on the highway side of the fence to the vegetation on the grazing side of the fence. Amazingly, the highway side of the fence is always healthier. The last thing the west (or anywhere) needs is boom and bust economies. Land management, done right, actually sustains the usefulness of land resources. Land management by sagebrush rebels will make a few people rich, who will then skip town and leave the mess for everyone else to clean up.

This makes sense to people that live out east or in the midwest. We're used to having to pay for market rates for things and being held accountable for our messes.
veeper
veeper
Dec 19, 2007 03:48 PM

This was a good article. The Machiavelli in me, though, thinks that they seek to use these cases to overturn the entire principle that zoning and land use regulation is an appropriate use of the police powers of government.

There are two ways the rebellion can win.

First, they can find a case that would lead to the Court overturning Ambler v. Euclid (the Roe v. Wade of the property rights movement).

Or, they can use these cases to show how "tyrannical" government is and do as they successfully did in Oregon - enact by law what they cannot achieve through the courts. Enact Measure 37-type regulatory takings. Even when Oregonians awoke to the travesties of the Measure, the concept of regulatory takings remains in Oregon law, thus chilling any effort to use land use regulations to protect the public.

Anonymous
Dec 21, 2007 01:53 PM

In Meyer v Nebraska, 1923, the Supreme Court said that when any law "passes the bounds of reason" it is an "arbitrary fiat" The term "arbitrary fiat" assumes there is an objective measure by which laws can be judged to be either just or unjust, constitutional or unconstitutional. The best interest of the community and its individuals is the measure. This case overturned a Nebraska English Only law which, in the judgment of the Supreme Court, was imposed by "arbitrary fiat" against the best interest of the people.
Town of Euclid v Ambler (1926) set an important precedent in property law: "The Supreme Court found that the zoning ordinance was not an unreasonable extension of Euclid's police power and did not have the character of arbitrary fiat, and thus it was not unconstitutional."
Mr. Justice Sutherland, who dissented in the above Meyer v Nebraska, wrote the majority opinion that zoning ordinances in Euclid, Ohio were not an "unreasoned arbitrary fiat" but were intended and seemed likely to protect the best interests of the community. The Supreme Court ruled against the property owner and in favor of the governing body.
Two years later, In Nectow v The City Of Cambridge, Mr. Justice Sutherland wrote "...a court should not set aside the determination of public officers in such matters [unless] it is clear that their action 'has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public[277US183,188] safety or the public welfare in its proper sense.'" (Euclid v Ambler, supra, p. 395 (47 S. Ct. 114). It was after examining the specific location and circumstances of the Nectow property and measuring the rights and obligations of the community against those of the individual owner, that the court ruled against the City of Cambridge zoning ordinance and in favor of the property owner.
Euclid v Ambler and Nectow v Cambridge affirm both the constitutionality of the community's police power and the bounds placed on that authority by pragmatism and sound reason. If the current public debate managed to overturn Euclid v Ambler, there would be no way to define and balance the rights and obligations of governments and individuals with respect to zoning ordinances and environmental rules.
"Police power is the capacity of a state to regulate behaviors..." In the case of land use, police power is the right of the community to alter or change property rights in the name of the common good. This principle is distinguished from "eminent domain" which is the community's right to expropriate private property for public use. In the 5th and 14th amendments, the constitution obligates government entities to proceed through due process of law and to provide just compensation.
Courts have held that land use can be altered by the communities police power to such an extent that the changes can be considered "compensable expropriations" or "takings" under the constitutional principle of eminent domain provided by the 5th and 14th amendments. Such applications of police power are called "regulatory takings". The Minnesota House of Representatives House Research gives some history:
search: minnesota eminent domain regulatory takings
...[an ordinance or regulation may place] demands on the use of private property that are so onerous that it amounts to a taking...In [such] instances, called regulatory takings, the property owner brings an inverse condemnation action to compel the government to begin eminent domain proceedings and compensate the owner. ...Lingle v. Chevron, U.S.A., Inc., 125 S. Ct. 2074, 2081 (2005) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)).
...There are two situations in which a court could find that a regulation is clearly a taking,
1. If the regulation requires an owner to allow a physical invasion of the property, however minor, the owner must be compensated. 2. When the regulation denies the owner of all economically viable use of the property and the regulation is not merely an explicit statement of common law limitations already present in the title, the taking is compensable.
...a court [may] analyze a regulatory takings claim under a three-part test:(1)By assessing the economic impact of the regulation on the owner and (2) how it interferes with distinct legitimate, investment-backed expectations and by determining whether it is (3) a physical invasion or a “public program adjusting the benefits and burdens of economic life to promote the common good.”
...the focus is not on the government’s purpose, but on the property owner’s rights.
...The U.S. Supreme Court has held that under the federal constitution, a temporary regulation that denies all economically viable use of property is not a per se taking.
...Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (A permit to expand a store and parking lot conditioned on the dedication of a portion of the property for a greenway pedestrian/ bicycle path was held a taking.)
Compensation for land lost to eminent domain is a well established fact of law. Compensation for regulatory takings is a developing principle. It's a slow and ponderous process, but I don't think it's the lost cause Mr. claims. I think the Superfund was set up to provide tax dollars to help individuals pay for the environmental clean-ups the community demands of them. In Utah, I believe, the government pays part of the cost when environmental law forces a gas station to replace a leaking storage tank. If this is so, it doesn't seem unreasonable to think that the community would be willing to compensate people for loss of property rights to environmental regs under the right circumstances.
Using due process and just compensation as a cynical way of putting zoning regulation and environmental protection beyond the practical fiscal reach of local governments and seeking the arbitrary fiat of popular referendums and bias legislatures, developers slow the process and obfuscate the issues. The burden Measure 37 litigation is placing on Oregon courts can be seen by going this address and clicking; impending M37 claims litigation.
and here is another article about Dean K. Sellers, the sagebrush rebel developer who is trying to secede from the zoning ordinances of Wasatch County, Utah by forming his own personal little town in Heber Valley. The newspaper makes him sound like some kind of whacked out bully tycoon wannabee challenging town councils to a duel, throwing money at the little people, bulldozing his God given right-of-way through their backyards, threatening to sue anyone who gets within reach of his overweening ego.
If these addresses don't work and you're still interested, you can go to sltrib and search sellers.
Heber is a beautiful mountain valley overhung on the west by an11,000 foot mountain which is part of a high ridge on the other side of which are the Cottonwood Canyon resorts where no Olympic venues were allowed. Park City is just up the road on this side of the ridge and its a busy center of development, including a ski jump, a luge course, a bankrupt K-mart out near the Freeway and imposing stone and timber houses on the brow of every hill and covering almost every meadow.
Deer Valley has a parking lot, lodge and transit lift not 10 miles from Heber City, the main population center of Heber Valley. Heber was a Swiss settlement and there are a lot of well built frame houses with fancy, gingerbread trim and a few pioneer stone houses. The politicians of Heber Valley don't like ski resort developments and have blocked at least one from crossing over the ridge from Big Cottonwood Canyon.
There is a large reservoir at each end of the valley which supplies municipal water to Salt Lake and Utah valleys about 20 or 30 miles across the mountains to the west as the crow flies. They didn't like the reservoirs but I don't think they liked the stretch of restored and preserved riparian environment the federal government imposed below the upper one or the 1 unit per ten acres zoning restriction in the pastures in that part of town. Its a cow town like Steamboat but with mostly Mormons to whom God has said, "Yea, flesh also of beasts...are to be used sparingly...and only in times of winter, or of cold, or of famine." The Mormons of Heber Valley have almost the same high birth rate as Utah Valley to the west.
They are doing a lot of building, but the obvious variations in zoning restrictions reflect the tension between developers and conservationists. I believe they just approved a brand new Walmart. Developers were advertising that the Walmart would pay enough in property tax to lower residential property tax.
250 Mexicans were recently arrested, imprisoned and deported from Heber Valley and I have a feeling the local conservative Republican politicians instigated and encouraged the Social Security/border patrol operation. The feds probably told them they would have to keep the Mexicans at McDonald's or the bird refuge up on the other end of the reservoir.
I think one of these newspaper articles said that Mr. Seller's thousands of acres were restricted to one unit for each 160 acres at the time he bought them or got an option or whatever. I have a feeling he is one of the lobbyists who got the legislation passed allowing him to form the town which would allow him to make his own zoning rules. He's probably a front for Heber City land owners. The serious problems with property referendums like Oregon's measures 7 and 37 are obvious.
With an "arbitrary fiat" being one that doesn't accord with any objective measure of good and with land developers and land use planners running around screaming "tu quoque" with a stamped and certified complaint and summons stuffed in his back pocket, it's not going to be all that easy to decide whose fiat is evil and whose good up there in the valley of decision.
In one of those articles is a map that shows highway 40. If you drive through Heber and stay on 40 past Daniel and Mr. Seller's property, you eventually come to Steamboat. If you turn left at the 7-11 just outside Steamboat and follow the road through the Routt National Forest you come to the magnificent broad meadows and pine forests where they held the Rainbow Gathering a couple years ago. It's like nowhere else on earth up in there.