OFTEN WHEN SAGEBRUSH REBEL LAWYERS LOSE, they complain that the judges were biased or underestimated the malevolence of government regulations. Again and again, Mountain States' Pendley, for instance, writes that judges are "ridiculous" when they rule against him.
But in many of the key cases that Pendley and his cohorts lost, the judges were appointed by President Reagan. If those judges are biased, it's more likely to be in favor of the Sagebrush Rebellion.
"Lawyers like these develop a portfolio of cases, which they present to the courts and to the public as horror stories about regulation - 'Here's my client who was just trying to do something perfectly reasonable and in came the government saying, in a ridiculous way, 'You can't do that,' " says Mark Tushnet, a Harvard University law professor who has studied the movement. "Of those cases, a few will actually come across as horror stories ... and either the government will cave in during negotiations or the court will rule in their favor. But that's a small portion of the group of cases these people assemble. They win some, and they lose quite a few that they have presented to the public in exactly the same terms. Because of their ideological predisposition, they see horror stories more frequently than the rest of us would."
They also ignore some property-rights horror stories. They've filed very few lawsuits on behalf of ranchers who are up against oil and gas companies who drill on their land. The Sagebrush Rebel lawyers also rarely represent people who say their property rights are harmed by a new gravel pit or feedlot or megadairy or racetrack next door. In the West that Pendley portrays in his book, no one lives in a city or suburb plagued by growth; no one wishes for land-use planning; no rancher or logger ever sides with any environmentalist.
Buzz Thompson, a Stanford University law professor who often favors property rights, says these lawfirms "will win a case like the Tulare case, and it's never clear to me that those victories really accomplish much. They have won a victory for that particular person, but given how unique the cases tend to be, it is very difficult to generalize out to other cases. They frequently have not changed the face of the law in a way that would reallocate power between the government and private-property owners."
The Sagebrush Rebel lawyers say they're helping to preserve rural jobs and ways of life. Their opponents say those jobs are often a form of denial. "They create a false and desperate hope that (rural communities) can evade environmental protection, and that false hope leads to great controversy, people want to fight and fight and not accept it," says Kieran Suckling, head of the Center for Biological Diversity, which applies lawsuit pressure from the green side. "There's always that hope - big-tree logging will come back, and we'll be able to put cows back on the range - and as long as (the locals) have that in the back of their minds, they're not going to move forward."
Even the lawyers occasionally acknowledge that their movement struggles. Pendley says that little has changed; the government agencies are still too insensitive. "Getting anyone to make big changes is really hard," says Budd-Falen. "Sometimes I think it doesn't matter who's president and in Congress. The bureaucracy is so huge, it just eats you alive." But they hope to hit home runs in the realigned Supreme Court, which is far more conservative than it was a few years ago: A key Bush appointee, John Roberts, is now chief justice, and Pacific Legal's Schiff says, "I think things are looking in our favor there."
JOHN SHULER DROVE A BREAD TRUCK for 15 years, ran a feed store for 20 years, and then bought his dream, a 2,200-acre ranch along Montana's Rocky Mountain Front. He raised sheep and cattle. There were lots of grizzly bears in the area, including some that had been moved there by wildlife agencies because they'd gotten into trouble elsewhere. Shuler had to do more and more intensive management, rounding up his sheep at the end of every day and keeping them in his yard at night. Even so, he kept losing sheep to the grizzlies.
One snowy autumn night in 1989, Shuler heard a disturbance. The sheep were going nuts. He came out on the porch in his underwear, and saw four grizzlies in his yard. He grabbed a rifle and waded in, shot one bear, wounded it, and all the bears fled. Next morning, he tracked down the wounded bear. He says that it charged him, and he defended himself and put it out of its misery.
The U.S. Fish and Wildlife Service charged Shuler with illegally killing an endangered species; he faced possible fines of more than $10,000. Mountain States Legal's Pendley heard about it, and got in touch. Pendley and another Mountain States lawyer came to Shuler's place, and as Shuler puts it, they "got their hands dirty," reconstructing the events, gathering evidence.
Shuler lost in a federal administrative hearing - the judge ruled that he should've hung back and let the grizzlies do their thing. So Mountain States took it to regular federal court, and lost. The feds offered to let Shuler off with a fine of just a few thousand dollars, but he refused because, he says, "The bear was robbing me." After eight years of that battle, in an appeals court, Mountain States won the case.
But the feds refused to cover Mountain States' legal bills. Pendley - saying he'd put in $225,000 worth of time and associated costs - went back to court again, asking for payment. The courts held that because the Fish and Wildlife Service's actions were "substantially justified," no payment was necessary. Mountain States got nothing for its work representing Shuler.
Shuler says he got charged by another grizzly in 1997 and had to shoot it with a shotgun. Then he got sick, sold his ranch and moved to a warmer climate. Today he lives on five acres on the outskirts of Montrose, Colo. He's 68 years old, and you can find him opening the gate in a local stockyard, where he makes a few dollars selling goats. He says Mountain States Legal Foundation is "tremendous." He also says he thinks the battle against environmental regs has gone basically nowhere. The feds, he says, still favor predators over ranchers.
Research for this story was funded partly by the Bill Lane Center for the Study of the North American West, at Stanford University.