The emotional stories of hardships drew the attention of several of the committee members. Rep. Tim Leonard (R-25) in particular asked about the current vehicles available to ranchers to address issues of mistreatment. Answers from both supporters and opponents of the bill described avenues that are both expensive and time consuming. This was a point Sylvester discussed at length.

Kerry Halladay

Western Livestock Journal
Law took aim at federal power

Issues are rarely black and white, and even less so when those issues deal with human needs, emotion, and business. Insert laws into the mix, and the situation just gets grayer.

Last Wednesday saw the first and last hearing of a Colorado state bill (link opens PDF) that sought to limit the power of federal agencies. The bill aimed to make any action taken by a federal employee that might negatively affect the use of a public grazing allotment a felony.

The ill-fated bill did not live long—only 22 days from introduction to effective death—but was created with the goal to send a message to government. The bill’s proponents described it as an effort to level the playing field between ranchers operating on the public land and federal employees.

“When the federal government abuses Colorado landowners, we have a duty to act,” said Colorado House Rep. Kimmi Lewis (R-64), also a rancher, who sponsored the bill. “This bill gives allotment owners the ability to fight back and get real relief from federal overreach.”

Roni Sylvester, one of the bill’s drafters, described it as an effort to serve notice to government employees. “The present law is not being enforced,” she told WLJ.

The Colorado House Committee of State, Veterans, and Military Affairs heard testimony from numerous ranchers, business representatives, and other stakeholders for several hours before a packed house. Though acknowledging the problems public lands ranchers face, particularly regarding the unequal balance of power, the committee ultimately voted 6 to 3 against moving the bill forward— effectively killing it. Committee members cited concerns with the bill’s underlying assumptions and potential indefensibility in court.

The bill and its death

Colorado House Bill 17-1141— the Equal Protection from Federal Employee Personal Attack Act— would have made certain actions taken by “a federal employee acting under color of law” a felony punishable by up to five years in prison and a $500,000 fine.

These actions would have included any that would deprive “a range allotment owner of any property right appurtenant, inherent, or related to the range allotment” and “for which the deprivation offends due process or is a physical or regulatory taking without the payment of just compensation.”

The bill provided for the affected public lands grazer to pursue action against the individual federal employee and be entitled to damages. It would have effectively stripped immunity from federal employees. This was just one of many problems opponents of the bill cited.

“It’s our position that the bill, as composed, violates federal law, long-standing case law, and would not be upheld in either state or federal court,” pronounced Cody Doig, attorney with C.E. Brooks and Associates, during his testimony accompanying the Colorado Cattlemen’s Association.

Doig described the bill as resting on presumptions that “range allotments give rise to property rights in federal lands. This is incorrect. Under federal law, Congress explicitly provided that a grazing preference right does not give rise to ‘any right, title, interest, or estate in or to the lands.’” He elsewhere noted that the bill’s assumption “that a licensee or a permittee has a property right in the surface, meaning of the forage,” was again incorrect. He additionally explained that it was in “fundamental conflict with the Taylor Grazing Act.”

Doig called the bill unconstitutional or otherwise indefensible on four major points: the Constitutional Property Clause (Article IV, Section 3, Clause 2); the Constitutional Preemption Doctrine Under Supremacy Clause (Article VI, Clause 2); the Taylor Grazing Act; and case law dealing with public lands grazing allotments and the immunity of government officials.

Very briefly, the Property Clause grants Congress authority over federal property, including federal land. The Preemption Doctrine Under Supremacy Clause states that federal laws are “the supreme law of the land.” The Taylor Grazing Act and associated case law outlines that a right to graze is not a compensable property right. And case law dealing with even federal employees who admitted to active harassment of a rancher still were not stripped of their immunity and could not be personally sued (Wilkie v. Robbins).

“Ranchers are entitled to fundamental fairness and procedural due process in their dealings with federal agencies—and that needs to be acknowledged—but what this bill attempts to do is to provide compensation for rights that don’t exist in a permit,” Doig summarized.

The majority of committee members echoed these concerns in their ultimate vote to kill the bill.

During witness testimony, several witnesses additionally suggested the bill would have a chilling effect on government employees conducting their jobs. One witness suggested it would even embolden some in the ranching community to take violent opposition against federal employees.

Practical problems

The testimonies delivered during the hearing showed a stark divide. On the one hand, opponents pointed out numerous fundamental statutory and legal problems with the bill as described above. On the other hand, supporters told emotional anecdotes of abuse at the hands of federal employees and intense frustration with what they see as no practical means of redress. Many of these stories were quite familiar to anyone who ranches on public lands.

Barbara Leininger, who with her husband bought a 22,000-acre public/private ranch in southeastern Colorado, described how their arid range containing no live water was examined for a potential watershed improvement effort. She told the committee their district ranger told them they had no rights against the government in the process.

Elisabeth Erickson-Noe, a fifth-generation Colorado rancher and the Media Coordinator for the Colorado Independent CattleGrowers Association (CICA), told a story dealing with potential archeological sites within the Timpas Grazing District where her family’s allotment is located and from which the U.S. Forest Service was trying to remove grazing. She reported that each different federal employee claimed different statutes supporting the removal of grazing, yet would not answer questions nor provide evidence that cattle were causing damage to the archeological site.

Lorene Bonds, President of the CICA and a member of the Range Allotment Owners Association, described her family’s experience of “being bullied” by federal employees who wanted to cut their grazing by 40 percent. She asked the committee if they could survive having their income cut by 40 percent.

The emotional stories of hardships drew the attention of several of the committee members. Rep. Tim Leonard (R-25) in particular asked about the current vehicles available to ranchers to address issues of mistreatment. Answers from both supporters and opponents of the bill described avenues that are both expensive and time consuming. This was a point Sylvester discussed at length.

“[Federal employees] are paid to go to all of these meetings, but we are not. We have to take time off of work, and we accrue a tremendous amount in down time because we have to hire someone to finish calving out or to crawl out from under the combine to go into town. Then we have the cost of fuel and meals out and maybe a motel,” she explained to WLJ, and echoed in her testimony.

“When you have a frivolous action put on you by a federal employee—whether it’s the sage-grouse or the Preble’s jumping mouse or any of these things—that’s money out of our pockets. It’s never reimbursed. It’s a really insidious way of taking property without just compensation.”

Cattlewoman Kimmi Lewis, sponsor of Colorado HB17-1141, testifies before House Committee on Veteran’s Affairs–Facebook photo

Rep. Kimmi Lewis, House District 64, makes her opening remarks on House Bill 17-1141. (Facebook post)

Norman Kincaide’s testimony in favor of HB 17-1141, Equal Protection from Federal Employee Personal Attack, 1:30 P.M. February 22, 2017, Location: Capitol Building, 271, Old Supreme Court

Ordinary citizens operate at an informational, financial, legal, and regulatory disadvantage vis a vis federal government employees, agencies and their NGO contractors and front organizations. This was evident during the campaign to defeat the Canyons and Plains NHA initiative for Southeastern Colorado in 2014, which would have included 7 counties and over 8 million acres, 85% of which was and still is private property.

The residents of southeastern Colorado were at an informational disadvantage compared to the National Park Service and Canyons and Plains of Southeast Colorado and their partners and contractors who had been prepping the region for an NHA feasibility study for perhaps 10 years before the residents were informed of this project.

The following issues came to light concerning the NPS and their partners in the NHA endeavor: failure to disclose management plan, private property and sunset issues, lack of transparency in the NHA feasibility study process, the appearance of impropriety, potential conflicts of interest, gaining access to private property under false pretenses, misrepresenting who was a partner to the NHA feasibility study, failure to adhere to the terms of a contract for a federal government program (NHA), disrupting a public presentation opposing the NHA (April 30, 2014, Eads), failure to answer questions concerning a federal government program (NHA) in a public meeting opposing the NHA (May 5, 2014, OJC), and, most of all, disrespect toward the residents of Southeastern Colorado.

The designation of the Canyons and Plains NHA over such a vast area with its viewshed restrictions using Section 106 of the Historic Preservation Act as the regulatory engine, would have been tantamount to a regulatory taking of private property without just compensation. The amount of collusion, deceit and duplicity necessary to undertake such an elaborate scheme over such a long period of time for a purely honorary designation can only be speculated upon.

Two FOIAs were requested concerning the Canyons and Plains NHA, the first by Southeast Colorado Private Property Rights Council, February 2014, the second by Colorado Independent CattleGrowers Association, July 2014. Even with what the FOIA documents disclosed, there was still no clear understanding of the whole NHA initiative, its origin and overall implementation plan. The only way the ordinary citizen can find out what the federal government is doing to undermine their private property rights and local sovereignty is to file a FOIA request.

Farmers, ranchers, business and property owners had to take time from conducting business and disrupt their lives in order to prevent the NPS and their partners from imposing another layer of government with its attendant regulatory designs upon all of southeastern Colorado. While operating at an initial informational disadvantage the citizens of Southeastern Colorado informed their friends and neighbors, who in turn addressed their county commissioners to pass resolutions against the NHA.

NPS employees and their partners resented having their grand scheme challenged and ultimately defeated in the public arena. The spiteful attitude of NPS and Forest Service employees toward the residents of Southeastern Colorado as a result of the defeat of the NHA was clearly evident in their behavior.

This truculent attitude by federal government employees toward ordinary citizens seems to pervade government agencies from the IRS to the EPA to the Forest Service to the BLM and in the case of the Canyons and Plains NHA, the NPS. Federal government employees carry this arrogant, belligerent attitude into the field.

Farmers and ranchers have no recourse as they manage and traverse their grazing allotments and private property where they may encounter an incompetent, belligerent or corrupt federal employee on a regular basis. What is an ordinary citizen supposed to do when faced with a malicious federal government employee? Is it too much to ask that ordinary citizens have equal protection from federal government employees who always retain an informational, financial, legal, and regulatory advantage?

Therefore, I fully support the passage of HB17-1141, to serve notice upon federal employees that they may no longer freely infringe upon constitutional rights of citizens through deceit, duplicity, harassment, intimidation, physical or regulatory takings or by any other means that deprive range allotment owners and other citizens of due process.

Free Range Report