A Cry for Due Process in the West:
Anatomy of a Broken System
With permission © CLIFFORD C. NICHOLS
In Otero County, New Mexico, the U.S. Forest Service recently fenced off the water in the Lincoln National Forest.
Its purpose? To keep cattle (but, interestingly, not elk) from sharing the supposed habitat of a mouse that has been declared endangered.
The result? To effect the public’s purpose of protecting an allegedly endangered rodent, the federal government has, for all practical purposes, taken from the ranchers, whose cattle are now deprived of water, the following private property:
- Their water rights;
- Their cattle, should they and their calves die for lack of access to that water; and ultimately
- Their livelihood, if the deprivation of their water destroys the continued economic viability of the affected grazing allotments, and ultimately, the entire ranch itself.
Should these ranchers be made to bear the brunt of the economic impact of the public’s purpose to protect an endangered species? Logically and constitutionally speaking, they should not. The Takings Clause of the Fifth Amendment provides, “private property [shall not] be taken for public use, without just compensation.” Therefore, logic would seem to dictate that the next question really should be, has there been any compensation given, or even offered, to the ranchers for this “taking”? Unfortunately, based on my past experience litigating such cases, I presume I am safe in believing that the short answer to this question is … not likely.
If I am correct, the next logical question would then seem to be, is there a legal remedy available to the ranchers to enforce their constitutional right to compensation? Again, logic and the Constitution would suggest that there should be. The clause in the Fifth Amendment immediately preceding the Takings Clause is the Due Process Clause. It provides that no citizen “can be deprived [by the government] of … property, without due process of law.” But in the instant case, have not the ranchers been deprived of their property without any due process being afforded them prior to the “taking”, or at any reasonable time thereafter? Sadly, in this instance I would again have to presume I am safe in assuming that the answer to this question is … most likely.
In cases like this, it is important to recognize at the outset that much, if not most, of the “due process” offered by the government is made available to ranchers operating on federal allotments only after the government has taken the actions that injure such ranchers. Usually, the government officials claim the immediacy of their actions is unavoidable due to litigation initiated, or threatened, by one of the environmental law firms that exist for the exclusive purpose of being well paid by the federal government (via legal fee reimbursements) to enforce laws like the Endangered Species Act. In other words, the government’s fencing of the water happens now and most often continues until the ranchers are able to compel the federal government and the environmentalists to admit they made a mistake — not a highly likely outcome under most circumstances, if any. Again, based on my experience.
Then, after the “taking” occurs, the first thing the law requires the ranchers to do if they are to seek a remedy is to run the gauntlet of a ridiculously futile, but expensive and time consuming, administrative appellate process. In essence, the ranchers are required to petition the very bureaucrats who inflicted the harm (i.e. the Forest Service or the Bureau of Land Management) to review the correctness of their decision and to admit they made a mistake. Likely? Not hardly. In fact, to conclude that it is almost always a waste of everyone’s time would understate the matter. But, under the law, it is mandatory. Until this appellate process is completed, the law prohibits the ranchers from taking their grievance to a court of law. Nevertheless, the injury to the ranchers’ not only continues unabated during this process, but often will only increase in terms of its adverse impact upon the ranchers livelihood during the passage of this time so wasted.
Next, the ranchers are then afforded the “opportunity” of spending an untold amount in time and legal fees to litigate the matter for possibly years in a federal court — an enterprise with little more hope of any success being obtained by the ranchers than was afforded them by the administrative appeal they just endured. In cases of this nature, judges sitting in federal courts sadly do not seem predisposed to agree with the perspective of people like the ranchers any more than did the bureaucrats and environmentalists who imposed the ranchers’ injuries for which redress is being sought. Or, to put it differently, rarely do these courts find that the United States government has made a mistake in enforcing laws like the Endangered Species Act, much less that the government owes people like the ranchers any compensation for their having done so. Typically, however, the court does deflect blame for the ranchers’ injuries from being placed at the feet of the government by further agreeing with the government that the environmental groups were correct under the law to bring the suit to compel the government to do the “right” thing. And then, to pour salt on the wound, the court will essentially reward the environmentalists for their troubles by awarding the environmentalists’ law firm huge attorneys’ fees at the same time that it denies the ranchers any compensation for the injuries or legal fees they have suffered. And then by way of delivering a coup de grace to the ranchers, the court “orders” the federal bureaucracy to continue doing whatever they feel is best to satisfy the environmentalists’ bidding. In the end, is it any wonder that, from the ranchers’ perspective, the judge soon comes to be regarded as just another federal bureaucrat, albeit in a black robe, whose authority is used to force the ranchers to accept their losses in a game quietly conducted on a fatally-sloped legal playing field? Essentially, the system has offered to the ranchers in the way of due process is nothing more than a public relations shell-game with everybody coming out a winner … except the ranchers.
To most reasonable minds, it would be safe to say that is NOT the kind of due process the framers of the Constitution had in mind when they wrote the Fifth Amendment. In a recent press conference called to address the fencing issue in the Lincoln, Congressman Steve Pearce appeared to sidestep answering the question, “why don’t the ranchers file a suit?” He demurred by alluding to the futility of prior attempts by ranchers to litigate these types of matters in years gone by. Perhaps a more complete and accurate answer from the congressman, however, would have been: “Given the federal laws as they presently exist, everybody who has tried such litigation in the past has found it to be a rigged process that is a tremendous waste of the ranchers’ time and money … and, because neither I, nor anyone else in Congress, has done anything meaningful to correct the systemic flaws in our body of laws that have allowed this situation to continue, it is not likely this case would be any different.” Interestingly, this more accurate characterization of the problem might have also directed Congressman Pearce to answer another question that was put to him differently than he did, as well. In response to his being asked “Do you intend to introduce any legislation [to rectify the ranchers cows being denied water]?” he said, “It’s hard to take a one-county issue to the 435 representatives in the House, with the need for a majority … the House says it’s a local issue.” He then deflected attention for responsibility to cure the problem away from himself by indicating that, because the matter involved a water issue, the problem was one that really needed to be solved by the New Mexico Governor and her State Engineer, rather than by the congressmen, like him, in Washington, D.C.
What an incredulous attempt to knowingly sidestep his responsibility to at least try to protect his constituents … pure and unadulterated political mierda de toro! He cannot possibly be ignorant of the fact that, under the protection of federal laws like the Endangered Species Act, The Clean Water Act and others like them, injuries to ranchers, loggers and miners, like those occurring right now in the Lincoln National Forest, have been happening throughout the West for decades? As such, it is anything but a “local issue” not worthy of Congress’ attention.
Surely the names Finicum, Hammond and Bundy must mean something to Congressman Pearce and his fellow 435 congressmen. If not, perhaps the members of Congress should have a meaningful conversation, sometime soon, with people like Kit and Sherry Laney or the children of Wayne Hage. Perhaps such a visit would result in Congress being better able to grasp the scope and dimensions of the problem it is being asked by ranchers throughout the West to remedy. They are all ranchers who experienced first-hand a loss of their property, their freedom and, in one instance, his life at the hands of the federal government, without being afforded any meaningful compensation or due process prior to their attempts to seek redress for injuries they suffered by taking matters into their own hands and staging public protests. 
Interestingly, when viewed from that perspective, perhaps Pearce and his fellow members of Congress could be persuaded to acknowledge the very real probability that these named ranchers are, in fact, good men and women whose true desires are simply to make a living, be good citizens, obey the laws of the land and be left alone. Importantly, however, members of Congress may also be brought to an awareness that such people also may not be too dissimilar from the men and women who were forced by the injustices of another unfair and unjust government to author the Declaration of Independence, and then several years later were blessed to be enabled to present to the world their remedy to those defects as set forth in The Constitution of the United States of America. As such, they should caution our representatives that a problem might exist that warrants their present attention,.
The bottom line is this: a legal process that only gives the appearance of affording due process to those seeking redress for injuries caused by our government, but that in fact does not do so in any practical or meaningful way that would sufficiently allow that redress to ever be attained, should not be regarded by any of us in this great nation as affording people like the ranchers in the Lincoln their Fifth Amendment rights to which they are entitled. Importantly, it should be remembered that these are rights that our nation declared, at the moment it was first conceived, to be unalienable. Whenever it is revealed that an alienation of such rights is occurring so as to compel otherwise good people to protest its government in extraordinary ways, it should not be assumed without question that it is the people who should be compelled to silently accept those transgressions by its governments. Rather in a nation that cherishes freedom, it should be the duty of those placed in positions of authority to reflect upon such protests when they occur and, ask if they are, in fact, revealing of transgressions by our government that can be remedied? For after all is said and done, are not their protests really their cry for justice — a justice they are being denied in the context of the system as it exists today?
Hopefully, men like Congressman Pearce and his colleagues would agree with this proposition. Going forward, it would assuredly help some of his constituents in the Lincoln National Forest … and hopefully others as well, to whom he and his colleagues should be held accountable throughout the West.
 I do NOT mean they were denied the due process afforded them when some of them were prosecuted. Rather I am referring to the lack of meaningful due process that, if afforded them, most likely would have prevented them from reacting out of frustration in ways that ultimately resulted in their prosecution.
© 2016 Clifford C. Nichols.
Mr. Nichols is an attorney licensed to practice law in both California and New Mexico. He has defended ranchers against the Forest Service and the Forest Guardians in federal court. He may be contacted at cnicholslaw.com.
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