[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]






 
 THREATS, INTIMIDATION AND BULLYING BY FEDERAL LAND MANAGING AGENCIES

=======================================================================

                           OVERSIGHT HEARING

                               before the

                      SUBCOMMITTEE ON PUBLIC LANDS

                      AND ENVIRONMENTAL REGULATION

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       Tuesday, October 29, 2013

                               __________

                           Serial No. 113-50

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Raul R. Labrador, ID                 Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Mark E. Amodei, NV                   Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Chris Stewart, UT                    Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

       SUBCOMMITTEE ON PUBLIC LANDS AND ENVIRONMENTAL REGULATION

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Niki Tsongas, MA
Louie Gohmert, TX                    Rush Holt, NJ
Doug Lamborn, CO                     Madeleine Z. Bordallo, GU
Paul C. Broun, GA                    Gregorio Kilili Camacho Sablan, 
Tom McClintock, CA                       CNMI
Cynthia M. Lummis, WY                Pedro R. Pierluisi, PR
Scott R. Tipton, CO                  Colleen W. Hanabusa, HI
Raul R. Labrador, ID                 Steven A. Horsford, NV
Mark E. Amodei, NV                   Carol Shea-Porter, NH
Steve Daines, MT                     Joe Garcia, FL
Kevin Cramer, ND                     Matt Cartwright, PA
Doug LaMalfa, CA                     Jared Huffman, CA
Jason T. Smith, MO                   Peter A. DeFazio, OR, ex officio
Doc Hastings, WA, ex officio

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on October 29, 2013.................................     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     1
    Grijalva, Hon. Raul, a Representative in Congress from the 
      State of Arizona...........................................     3

Statement of Witnesses:
    Budd-Falen, Karen, Cheyenne, Wyoming.........................     5
        Prepared statement of....................................     6
    Hage, Wayne Jr., Tonopah, Nevada.............................    26
        Prepared statement of....................................    28
    Lowry, Tim, Jordan Valley, Oregon............................    13
        Prepared statement of....................................    14
    Richards, Brenda, Murphy, Idaho..............................    17
        Prepared statement of....................................    18
    Robbins, Frank, Thermopolis, Wyoming.........................     9
        Prepared statement of....................................    11
    Valdez, Lorenzo, Fairview, New Mexico........................    22
        Prepared statement of....................................    23

Additional Materials Submitted for the Record:
    Matelich, George, Sweet Grass County, Montana, Prepared 
      statement of...............................................    55
                                     



  OVERSIGHT HEARING ON: THREATS, INTIMIDATION AND BULLYING BY FEDERAL 
                         LAND MANAGING AGENCIES

                              ----------                              


                       Tuesday, October 29, 2013

                     U.S. House of Representatives

        Subcommittee on Public Lands and Environmental Regulation

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to notice, at 10:06 a.m., in 
room 1324, Longworth House Office Building, Hon. Rob Bishop 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Bishop, Young, McClintock, Lummis, 
Tipton, Labrador, Amodei, Daines, LaMalfa, Grijalva, Horsford, 
Garcia, and Huffman.
    Mr. Bishop. The committee will come to order. The Chairman 
notes the presence of a quorum. And so, the Subcommittee on 
Public Lands and Environmental Regulation is meeting today to 
hear testimony on threats, intimidation, and bullying by 
Federal land managing agencies.
    Under the Committee Rules, the opening statements are 
limited to the Chairman and the Ranking Member of the 
Subcommittee. However, I ask unanimous consent to include any 
other Members' opening statements in the hearing record if they 
are submitted to the clerk by the close of business today.
    [No response.]
    Mr. Bishop. And hearing no objections, that is so ordered.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Bishop. Let me begin, if I could, by saying how happy I 
am to have the witnesses here who will be speaking to us. Today 
we are going to hear about a number of troubling cases in which 
Federal land managing agencies have employed abusive tactics to 
extort rural families into giving up property rights, or to 
bully farmers and ranchers into making concessions to which the 
Federal agency had no legal right.
    It is not an easy thing for someone to stand up to the 
government. In fact, in most of the world, that is impossible. 
But America is different, and it should be different. We should 
not be afraid to take on the Federal Government when it 
trespasses on our rights. And the witnesses before us today are 
doing just that. I am grateful for their courage. In many 
respects, the word ``heroes'' or ``great Americans'' is too 
overused; but you, indeed, are.
    The Supreme Court has called on Congress to fashion a legal 
remedy, a cause of action, through which the victims of abuse 
can have the opportunity to seek redress in the courts. This 
hearing, I hope, is going to be the first step in getting 
Congress to protect and strengthen civil rights--and property 
rights are civil rights--of people whose property the 
government wants to take without compensation.
    Legal scholars tell us that property rights are actually a 
bundle, and that bundle includes water rights and grazing 
rights and mineral rights and access to recreation rights. And 
with one-third of America being owned by the Federal 
Government, and it being predominantly in the West, it is no 
coincidence that most of the problems that we have in dealing 
with those rights and the Federal Government are situated in 
States found in the West, the so-called ``public land States.''
    I realize that there are going to be a lot of people that 
are going to try to make this into a conservative-versus-
liberal framework. But that is simply not the case. If you read 
the two justices who put an opinion on one of these cases 
before us, you will find it is the so-called ``justices from 
the left,'' who are most emphatic about the rights being abused 
by the Federal Government.
    If I could quote Justice Ginsberg from a case that involved 
Mr. Robbins, who will testify shortly, ``The BLM officials 
mounted a 7-year campaign of relentless harassment and 
intimidation to force Robbins to give in. They refused to 
maintain the road providing access to the ranch, trespassed on 
Robbins' property, brought unfounded criminal charges against 
him, canceled his special recreation use permits and grazing 
privileges, interfered with his business operations, and 
invaded the privacy of his ranch guests on cattle drives.''
    She went on to write, ``The case presents this question: 
Does the Fifth Amendment provide an effective check on Federal 
officers who abuse their regulatory powers by harassing and 
punishing property owners who refuse to surrender their 
property to the United States without fair compensation? The 
answer should be a resounding Yes.''
    Unfortunately, the answer in reality is no, unless we in 
Congress do something to rectify the situation.
    I want to also admit that even though this is happening 
with this particular administration, it is not limited to this 
administration. These same type of actions done by land 
managers in the Forest Service, the BLM, Fish and Wildlife, 
those same actions took place not only today, in this 
administration, but they took place under both the Bush 
administrations, the Clinton administration, and the Reagan 
administration. Unfortunately, it is a pattern of habit, and a 
pattern of activity that is far too common and must stop in 
some way.
    Some will say this is simply a carry-on, or a second part 
to the hearing we had over the barricades being put up during 
the shut-down. This is more than just Barricade Part II. In 
fact, it is the reverse. Putting up the barricades in the shut-
down was an example of the attitude that has always been used, 
especially in the West, in making public land decisions that 
have harmed individuals. So that is what we are trying to go 
for, the longer picture in some way.
    There are three factors that have always been used that are 
misconceptions from the very beginning of public land 
management by the Federal Government.
    One is some people truly think that only Washington has the 
common--the overall view to make large decisions for the entire 
Nation. That is wrong.
    Second is, if there is ever a conflict between Washington 
and local government, Washington should automatically have 
jurisdiction and sway. That is wrong.
    And the third is this constant idea that the West has to be 
protected from itself by the Federal Government. That is 
incredibly wrong. Sometimes I think our constituents are 
justified in viewing the Federal Government as something like a 
hotel thief who walks down the hallway, checking every 
doorknob, hoping to find someone or find one of them that is 
unlocked.
    I am eager to hear this panel of witnesses today. I hope 
Members on both sides of the aisle will listen to their 
accounts of what happened to them, a consistent pattern of what 
is happening to them, and that we can work together to fashion 
a remedy in a bipartisan way of these abuses.
    With that, I will yield to the Ranking Member for any 
opening statement he may have.

   STATEMENT OF THE HON. RAUL GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you, Chairman Bishop, and thank you for 
holding this hearing, and for the subtlety of its title.
    First, I would like to start by saying that all Federal 
employees, regardless of rank and position, should uphold the 
highest standard of professionalism, and to provide the best 
possible service to the public. And I think that we can all 
agree that the vast majority do so. Unfortunately, like any 
company, organization, or government, there will be instances 
where employees do not live up to that standard, and they must 
be held accountable.
    Today's hearing will be an opportunity to hear from 
individuals who have had grievances with the Federal land 
managers in the past. Many of these grievances have been dealt 
with through litigation. This is a great testament to our 
American judicial system, which allows these matters to be 
dealt with accordingly. And I look forward to hearing from our 
witnesses on the progress and outcome of the litigation.
    But as we hear from today's witnesses, I think it is 
important to remember that these incidents should not be seen 
as a reflection of all public land management agencies or their 
employees. Today's witnesses will describe disputes they have 
had with BLM and the Forest Service over grazing permits and 
water rights, among other issues. But keep in mind, BLM 
administers 18,000 grazing permits and leases 155 million 
acres. And the Forest Service administers nearly 8,000 grazing 
permits on roughly 90 million acres. The vast majority of these 
are managed without any complaints.
    It is the responsibility of Federal land managing agencies 
and their employees to protect the land that is property of the 
American people. With such a broad directive, the opinions on 
how to do this are endless. In some of these cases, 
disagreement on policy is perceived as overreach by the 
authority, and land managers who, under law, carry out these 
policies are considered threatening and bullying. It is 
important to see these examples for what they are, a matter of 
difference in policy opinion. And we must not lose sight of 
that.
    And I want to say thank you, to the witnesses. With that, I 
yield the balance of my time to Mr. Horsford, who would like to 
introduce a witness.
    Sir.
    Mr. Horsford. With your permission, Mr. Chairman, thank you 
to the Ranking Member, Mr. Grijalva, for yielding time, and for 
you, Mr. Chairman, for having this morning's hearing.
    I want to welcome Wayne Hage, Jr., who is here today from 
Tonopah, which is a part of my district in Nevada. Mr. Hage and 
his family have been actively engaged for decades in a 
quintessential part of life in rural Nevada: ranching. And we 
really appreciate him traveling all this way to share his 
story.
    I wanted to let him know personally, unfortunately, I am 
going to have to leave this hearing. I also serve on the 
Oversight and Government Reform and the Homeland Security 
Committees, and they are all meeting this morning, and there 
are votes in those committees, unfortunately. But I want to 
thank you, sir, for traveling all this way to share your story. 
And I have read your testimony, and I have asked this committee 
and our staff to work with you on the issues that you raise. 
And I look forward to following up with you, as I understand 
these are issues which have been--your family has been facing 
in the courts for some 23 years now. So it clearly is not just 
this administration, but a systemic problem that needs to be 
addressed.
    And again, I thank you very much for coming here, and for 
the legacy that you and your family make to the great State of 
Nevada. So thank you very much.
    Mr. Hage. Thank you, sir.
    Mr. Bishop. Thank you. I appreciate that introduction.
    This is the point where I now ask the panel to come to the 
table, but you are already there. So let me just introduce who 
will be our panel, the single panel of witnesses.
    Starting on my left is Karen Budd-Falen from Cheyenne, 
Wyoming; Frank Robbins, from Thermopolis, Wyoming; Tim Lowry, 
from Jordan Valley, Oregon; Brenda Richards, from Murphy, 
Idaho; and then Lorenzo Valdez from Fairview, New Mexico; and, 
finally, Wayne Hage, Jr., from Tonopah, Nevada. We welcome all 
of you.
    All our witnesses have had experience dealing with the 
Federal land managers, which I think will establish a pattern 
that has, unfortunately, been all too common.
    For the witnesses, your written testimony is already in the 
record. Your oral testimony, for those who have not been here 
before, is limited to 5 minutes. You will see the clock in 
front of you. When the light is green on that clock, you are 
free to go, and your time is ticking down. When it goes yellow, 
you have 1 minute to finish up, and I would appreciate it if 
you would actually finish up before it hits the red button, 
which means your time has expired.
    So, with that, Ms. Budd-Falen, welcome back to this 
committee. It is good to see you again. We are going to start 
with you, and then we will just work down the table.

        STATEMENT OF KAREN BUDD-FALEN, CHEYENNE, WYOMING

    Ms. Budd-Falen. Thank you, Chairman Bishop and members of 
the committee.
    Over 200 years ago, America's founding fathers rejected the 
notion that all power in this Nation should come from a king, 
and that the citizens were servants, or subjects of the king's 
rule. Rather, this Nation was founded on the principle that 
each of the three branches of government was to be a check on 
the other.
    Under this carefully crafted and carefully compromised 
system, this body of elected legislators is to represent the 
citizens who send them to these hallowed halls. The executive 
branch is to implement the laws that you pass, and the 
individual citizen is protected from the abuse of the majority, 
as well as abuse from other individuals by the courts.
    The Bill of Rights was not written and adopted to give the 
Federal Government power. Rather, the Bill of Rights is a 
document that guarantees that the inalienable rights of the 
citizens are protected from the abuse of the Federal 
Government's power. But this system, where power is to be based 
in the people, is broken. And so, the checks and balances so 
carefully and skillfully compromised in the Constitution are 
broken.
    What we have now is a system that bars citizens from 
litigating against individual Federal employees in court for 
abuses of power. And what we really turned into is that all-
powerful, unelected, and unaccountable bureaucracy has set up a 
dictatorship over some of the private citizens who actually 
employ them. This bureaucratic power is wielded simply by some 
bureaucrats who use the power of Federal regulations and the 
``color of their office'' to take private property and private 
property rights. And because private citizens are barred from 
bringing their claims in the courts, we are powerless to stop 
this.
    Now, I am not here to tell you that every Federal 
bureaucrat--or actually, even a majority of the Federal 
bureaucrats are tyrants who seek to use the power of their 
offices to take private property or to eliminate free-market 
enterprise from rural economies who depend on ranching small 
businesses. Nor am I here to tell you that the abuses of 
bureaucratic power are assigned or reserved to a particular 
political party. But what I am here to tell you today is that, 
in some cases, the Federal bureaucracy is so big and so far 
removed from its elected leaders in Washington, DC on both 
sides of the political aisle, that there are cases of abuse.
    Today, if the American citizen believes that an employee of 
the bureaucracy is abusing his regulatory power given to him 
simply because of his employment, that citizen has no redress 
in the courts. And in the Frank Robbins case, although the 
Wyoming Federal District Court agreed that Frank Robbins should 
be able to bring his claims in court, and the Tenth Circuit 
Court of Appeals, in a unanimous panel that refused an en banc 
review agreed that Mr. Robbins should be able to bring his 
claims in the Federal court, unfortunately, the Supreme Court, 
based on a split decision, ruled that only Congress could 
create a cause of action to allow individual citizens to sue 
individual employees for abuses of their office.
    Justice Ruth Bader Ginsberg, writing for the dissent in 
that case, offered that there are cases in which bureaucrats go 
too far, and use the power of their office to harass and take 
private property rights. But, in the end, the court's majority 
held that it was up to Congress to create a path to court. And 
that is why we are here today.
    Members of this committee, the ownership and use of private 
property is the economic backbone of this Nation. The citizens 
here before you today are the backbones of their rural 
communities, and these small businesses provide jobs, wages, 
taxes, and spend their earning to keep their economic 
communities alive. I am the fifth generation rancher on a 
family owned ranch in Wyoming. And my ranch is just as 
important to my town of 570 people as are car-makers in 
Detroit. We are not asking for a bail-out; we are asking for a 
path into court.
    American citizens have access to the courts when State or 
local bureaucrats take their constitutionally guaranteed or 
civil rights, and Federal bureaucrats should be subjected to 
the same rules. Thank you.

    [The prepared statement of Ms. Budd-Falen follows:]

       Prepared Statement of Karen Budd-Falen, Cheyenne, Wyoming
    My name is Karen Budd Falen. I am attorney and a fifth generation 
rancher from a family owned ranch, west of Big Piney, Wyoming. I grew 
up in the same house as my father and we still own the ranch, surviving 
generations of bad winters, drought, tough cattle markets, devastating 
wildfires and now wolves. My father, like everyone testifying today, is 
tough, independent, smart and the proud owner of a small business that 
is fueling the economy in our town and feeding the Nation.
    And while my father, as well as the other ranchers and private 
property owners, can survive droughts, fires, and low market prices, we 
cannot survive the heavy hand of the Federal bureaucracy--particularly 
those within the bureaucracy who use the power of the Federal 
Government to violate our Constitutionally guaranteed rights. While 
some may claim that we are here to ask Congress to eliminate the 
Federal bureaucracy or the Federal agencies, we are not. What we are 
asking for you to do is open the court house door to individuals who 
believe that their civil and Constitutional rights are being violated 
by individual Federal employees, using the power of their offices. 
While I would absolutely agree that most Federal employees are hard 
working individuals dedicated to trying to do their jobs to the best of 
their abilities, that is not always the case. But unlike the case with 
State and local governmental employees who can be sued under the Civil 
Rights Act when they use the power of their governmental offices to 
deprive an individual of his Constitutionally guaranteed rights, there 
is not a similar option against federally employed individuals. All we 
want is the chance to go to court to present our facts; Articles I, II, 
and III of the U.S. Constitution set forth three branches of government 
and every American citizen should be allowed to access all three 
branches to redress their grievances, particularly those grievances 
alleging an abuse of power.
    i. background of bivens as applied to the protection of private 
                                property
    In 2007, the United States Supreme Court reversed decisions by the 
Wyoming Federal District Court and Tenth Circuit Court of Appeals by 
holding that a private property owner could not avail himself of a 
Bivens common law cause of action to protect his private property 
rights from ``taking'' by intimidation and harassment from Federal 
officials. Neither the Justices voting to affirm nor reverse the lower 
courts' decisions seemed to question that there had been a degree of 
harassment and intimidation against private property owner Frank 
Robbins because Mr. Robbins would not surrender an easement across his 
private property to the Federal Government, without due process and 
just compensation. However, the Justices writing for the Court's 
majority, as well as the two concurring Justices, did not believe that 
the Court should expand its 40-plus year old precedent in Bivens v. Six 
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), to the Fifth 
Amendment property protections. However, the Justices for the Supreme 
Court suggested that the U.S. Congress could create a Bivens ``cause of 
action'' to protect private property and property rights from actions 
outside the mandates of the Fifth Amendment. This testimony urges 
Congress' consideration for adopting that type of protection for 
America's property owners, and treating the Fifth Amendment private 
property protections with the ``comparative importance of [other 
Constitutionally guaranteed] classes of legally protected interests.'' 
Wilkie v. Robbins, 551 U.S. 537, 577 (2007).
    At its simplest, the Supreme Court in Bivens allowed a type of 
Civil Rights Act ``Section 1983'' claim to lie against Federal 
officials. The Civil Rights Act of 1871 prohibits governmental 
employees, ``acting under the color of state law,'' from proximately 
causing the depravation of certain Constitutionally guaranteed rights. 
The Civil Rights Act however only applies to State officials. In 
Bivens, a private individual (Petitioner) complained that agents of the 
Federal Bureau of Narcotics, acting under claim of Federal authority, 
entered his apartment and arrested him for alleged narcotics 
violations. The agents manacled Petitioner in front of his wife and 
children, threatened to arrest the entire family, and searched the 
apartment. Petitioner also alleged that the arrest was conducted with 
unreasonable force and without probable cause. Petitioner sought 
monetary damages against the Federal officials. The issue before the 
Supreme Court was whether ``a Federal agent acting under color of his 
authority'' gives rise to a ``common law'' cause of action for damages 
based upon his unconstitutional conduct. In Bivens, the Supreme Court 
agreed that it would recognize this type of common law cause of action 
for this unreasonable action in violation of the U.S. Constitution's 
Fourth Amendment protection of an individual from an unreasonable 
search and seizure. As stated by the Court, it was damages or nothing 
against the Federal officials causing this harassment. After Bivens, 
the Supreme Court recognized this same cause of action to protect 
against harassment and intimidation when dealing with Fourteenth 
Amendment protection of the ``due process'' of law and the Eighth 
Amendment's protection against cruel and unusual punishment.
    In its opinion, the Supreme Court held that Robbins had to pass a 
two-part test for his case to continue. First, the Justices considered 
whether they believed that Robbins had any alternative remedies for his 
harassment. Although the Court seemed to recognize that Robbins was 
suffering ``death by a thousand cuts'' because of the 6-year span and 
dozens of administrative charges filed against him, false criminal 
complaints against which Robbins had to defend, trespass on his private 
land by Federal officials and other forms of harassment, the Court's 
majority opinion believed that Robbins should have administratively 
challenged or otherwise fought these dozens of actions individually. 
While the majority opinion seemed to recognize that Congress had never 
created a ``step by step'' remedial scheme to remedy this array of 
harm, the majority believe that each alleged form of harassment had to 
be considered individually, despite the recognition that:

        It is one thing to be threatened with the loss of grazing 
        rights, or to be prosecuted, or to have one's lodge broken 
        into, but something else to be subjected to this in combination 
        over a period of 6 years by a series of public officials bent 
        on making life difficult. Agency appeals, lawsuits and criminal 
        defense take money, and endless battling depleted the spirit 
        along with the purse. The whole here is greater than the sum of 
        its parts.

551 U.S. at 555.

    The next step, which the Court's majority also found against 
Robbins, was whether there `special circumstances counseling 
hesitation'' against allowing Robbins to enforce a Bivens cause of 
action. With regard to this element, the majority was concerned that 
allowing a common law cause of action to protect private property 
owners from Federal officials' harassment and intimidation would ``open 
the floodgates of ligation'' against Federal officials. The majority 
also determined that ``legitimate zeal of [Federal officials] on the 
public's behalf in situations where hard bargaining is to be 
expected,'' was not harassment.
    Despite these findings, the Court's Justices recognized that 
Congress could correct this deficiency. In this regard, the majority 
opinion, written by Justice Souter, with Justice Roberts and Justice 
Kennedy, stated:

        We think accordingly that any damages remedy for actions by 
        Government employees who push too hard for the Government's 
        benefit may come better, if at all, through legislation. 
        ``Congress is in a far better position than a court to evaluate 
        the impact of a new species of litigation'' against those who 
        act on the public's behalf. And Congress can tailor the remedy 
        to the problem perceived, thus lessening the risk of a rising 
        tide of suits threatening legitimate initiative on the part of 
        Government's employees.

551 U.S. at 562. Citations omitted.

    The concurring opinion of Justices Thomas and Scalia opined that a 
Bivens common law cause of action should not be extended in any 
circumstances ``by the Court.'' 551 U.S. at 568.
    Finally, the dissenting opinion, written by Justice Ginsberg with 
Justice Stevens would have extended a Bivens common law cause of action 
to Robbins. They perceived the question in the Robbins case to be 
``Does the Fifth Amendment provide an effective check on Federal 
officers who abuse their regulatory powers by harassing and punishing 
property owners who refuse to surrender their property to the United 
States without fair compensation? The answer should be a resounding 
`Yes.' '' 551 U.S. at 569.
    In addition to placing the creation of a cause of action in the 
hands of Congress, the Court's dissenting opinion also suggested a 
similar statute containing enough checks to bar every complaint of 
wrong from reaching the courts. As stated by Justice Ginsberg, ``Sexual 
harassment jurisprudence is a helpful guide. Title VII, the Court has 
held, does not provide a remedy for every epithet or offensive 
remark.'' After citing several cases limiting the situations in which a 
suit for sexual harassment could be brought, she concluded:

        Adopting a similar standard to Fifth Amendment retaliation 
        claims would ``lesse[n] the risk of raising a tide of suits 
        threatening initiative on the part of Government's employees.'' 
        Discrete episodes of hard bargaining that might be viewed as 
        oppressive would not entitle a litigant to relief. But where a 
        plaintiff could prove a pattern of severe and pervasive 
        harassment in duration and degree well beyond the ordinary 
        rough-and-tumble one expects in strenuous negotiations, a 
        Bivens suits would provide a remedy. Robbins would have no 
        trouble meeting that standard.

551 U.S. at 582. Internal citations omitted.

    Based upon this Supreme Court opinion, other private property 
owners who believe that they are being harassed and intimidated because 
they refuse to turn over their private property outside the mandates of 
the Fifth Amendment have no forum in which they can vindicate their 
claims. The Robbins case now acts as a complete bar to the judicial 
branch of the government, regardless of the extreme nature of the 
Federal officials' actions. That is not to say that every action or 
decision by a Federal employee should give rise to a judicial cause of 
action, but there are cases where the harassment and intimidation is so 
severe that, in the words of the U.S. Supreme Court, ``it is damages, 
or nothing.'' However, without the intervention of Congress, now it is 
``nothing.''
                 ii. title vii of the civil rights act
    As stated above, one of the stark inequities in current statutes is 
that while State and local governmental employees can be held 
personally liable for the violation of an individual's Constitutional 
or civil rights, Federal employees acting with the same intention and 
animus cannot. This contrast is based upon Congress' adoption of the 
Civil Rights Act, which does not extend its protections to individuals 
dealing with the Federal Government. At its core, the Civil Rights Act 
of 1964 ``outlawed discrimination based on race, color, religion, sex, 
or national origin.'' Although originally the Act focused on protection 
of the rights of black males, the bill was amended to protect the civil 
rights of all individuals in the United States from abuses of those 
State and local governmental employees ``acting under color of law.''

    Title VII of the Civil Rights Act states:

        It is unlawful to discriminate against any individual with 
        respect to his compensation, terms, conditions or privileges of 
        employment because of an individual's race, color, religion, 
        sex, or national origin.

42 U.S.C. Sec. 2000(e)-2(a)(1). The regulations implementing this 
statute provide:

        Harassment on the basis of sex is a violation of section 703 of 
        title VII. Unwelcome sexual advances, requests for sexual 
        favors, and other verbal or physical conduct of a sexual nature 
        constitute sexual harassment when (1) submission to such 
        conduct is made either explicitly or implicitly a term or 
        condition of an individual's employment, (2) submission to or 
        rejection of such conduct by an individual is used as the basis 
        for employment decisions affecting such individual, or (3) such 
        conduct has the purpose or effect of unreasonably interfering 
        with an individual's work performance or creating an 
        intimidating, hostile, or offensive working environment.

29 C.F.R. Sec. 1604.11(a).

    ``For sexual harassment to be actionable, it must be sufficiently 
severe or persuasive to alter the conditions of the victim's employment 
and create an abusive working environment.'' Meritor Savings Bank v. 
Vinson, 477 U.S. 57, 67 (1986), citation and quotation omitted. ``A 
hostile work environment claim is composed of a series of separate acts 
that collectively constitute one unlawful employment practice.'' 
National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115-
117 (2002); 42 U.S.C. Sec. 2000e-5(e)(1), quotations omitted. ``In 
determining whether an actionable hostile work environment claim 
exists, we look to all the circumstances, including `the frequency of 
the discriminatory conduct; its severity; whether it is physically 
threatening or humiliating, or a mere offensive utterance; and whether 
it unreasonably interferes with an employee's work performance.' '' 536 
U.S. at 115-117 (2002). Citations and quotations omitted.
    Using this type of analysis, I believe that a statute could be 
enacted to protect private property owners from intimidation and 
harassment from Federal employees acting under color of law. Such 
statutory language could include the following:

        The attempted taking of private property or private property 
        rights by means of governmental employee harassment or 
        intimidation, under color of law, is hereby declared to be a 
        violation of Civil Rights Act. Harassment or intimidation 
        against the owners of private property or private property 
        rights constitutes such violation when (1) a property owner's 
        relinquishment of his property or property rights is made 
        explicitly or implicitly a term or condition of receipt of a 
        permit or license from a governmental agency, (2) submission to 
        or rejection of such conduct by a property owner is used as the 
        basis for the grant of or conditions included in a permit or 
        license, or (3) the conduct of the governmental employee has 
        the purpose or effect of unreasonably interfering with an 
        individual's private property or private property rights. An 
        attempted taking of private property or property rights under 
        this section can be composed of a series of separate acts that 
        collectively constitutes a significant deprivation of the 
        ownership or use of private property or property rights. In 
        determining whether the activities of a governmental employee 
        are actionable under this section, consideration can be given 
        to the frequency of the discriminatory conduct, harassment or 
        intimidation, its severity, and whether such governmental 
        action interferes with the ownership, use or legitimate 
        investment backed expectations of the property owner.
         iii. the witnesses today are not the end of the story
    Today, you are going to hear compelling and heartfelt stories of 
individual families and businesses who are only asking to be able to 
walk in the doors of the Federal courts to plead their cases. But these 
are not the only stories in existence. To prepare for this hearing, my 
office talked to over a dozen other individuals and their 
representatives who are also willing to tell you their stories and ask 
your help in getting to the courts for justice. The Constitution 
created three equal branches of government to provide a system of 
checks and balances over the actions of each other. Yet today, there is 
no adequate check over the actions of the Federal governmental 
individuals who abuse their power against the American property owner. 
We are not asking to win every case, but simply to be able to make our 
case. We respectfully request that Congress make the same avenue 
available to us as it does to other Americans.

                                 ______
                                 

    Mr. Bishop. Thank you.
    Mr. Robbins. I give you 5 minutes now to go through your 
story.

        STATEMENT OF FRANK ROBBINS, THERMOPOLIS, WYOMING

    Mr. Robbins. I appreciate the opportunity to be here this 
morning. I bought a ranch in 1994. And between the time of the 
signing of the contract and the closing of the ranch, the BLM 
acquired from the previous owner an easement, or a right of 
way, through a strategic portion of my ranch. I was unaware of 
that. After closing, they did not record their easement. The 
government failed to do that.
    A week after our closing, I got a call from Joe Vessels at 
the BLM office, stating that a mistake had been made and he 
needed to send me some papers to sign, and so forth. I said, 
``What is it?'' And the more questions I asked, the more 
irritated he got. But the end result was I said, ``I will be 
glad to look at your easement when I get to Wyoming.'' And he 
said, ``Well, if you don't mind, I am going to go ahead and 
survey the right-of-way on this easement.'' I said, ``No, no, I 
don't want you to do any surveying until we decide whether we 
are going to allow this easement to take place.'' And he 
continued to insist that he was going to. And I told him no, 
absolutely not. And he actually made me very irritated.
    So, anyway, when I returned to Wyoming, I had a meeting 
with him. As I walked into the office, he was coming down the 
hall and he smiled and his buddies were there, and he said, 
``Oh, yes, Mr. Robbins, I went ahead and surveyed that right-
of-way in,'' and walked off.
    We ended up, before that day was out, at a meeting about 
this easement, and he explained it to me this way. And I will 
repeat it to you the best I can, and you decide if you would 
like to take this deal or not. He wanted a easement across 8 
miles of my private property for a half-mile across public 
lands. He wanted to restrict my access to my personal use. He 
wanted his access to be public. And he wanted me to pay for 
this easement.
    And I said, ``Based on what you are describing to me, I 
will turn this down.'' And I said, ``I will be glad to 
negotiate with you.'' He said, ``No, the Federal Government 
doesn't negotiate.'' I said, ``OK. It is what it is.''
    And on July 16, 1995 that right-of-way that I had into my 
property was taken away. And then, on September 1, 1995--I am 
kind of giving you a 5-minute synopsis of my situation--Gene 
Leone, which was a part of the RUP, he decided to take it 
away--and this is his statement made to Ed Parodi, who was a 
BLM employee who testified on my behalf--he said, ``I think I 
finally got a way to get his permits and get him out of 
business.'' And on October 5, 1995, the SRUP was removed, which 
my guest ranch business depended on.
    In May 1996, Parodi came to my house--and this is sworn 
testimony--and he said that, ``They are out to get you from day 
one,'' that it was a shame, the petitioner's treatment of 
Robbins, that he was sick and tired of doing the dirty work of 
the petitioners, and that he had had enough of it, he must find 
a way out if he could. Parodi later testified, ``I didn't think 
I could do the job any longer. It is one thing to go after 
someone that is willfully busting the regulations and going out 
of their way to get something from the government. I only saw 
Mr. Robbins as a man standing up for the rights of his 
property.''
    I think that you are crossing a very gray area in the area 
of trespass. I made these comments when they trespassed me on 
my own private property. I said, ``Nowhere in the AMP am I 
required to give up property rights.''
    There is--I see that I am running out of time, and I am not 
even going to get close to covering this. I would like to make 
a statement of what a judge said, and I think this kind of 
gives you--or should give you--an idea of what the attitude of 
these people was. It is toward the end, here.
    The district court dismissed the case as moot, because they 
did provide the information to me the day of court. But he 
said, ``I did not condone the Barnes conduct''--Darrell Barnes 
was the head of the BLM--``This result should not be 
interpreted as a condoning of the BLM's conduct in this matter. 
Arrogance of authority and indifference to citizens' legitimate 
interests, even the appearance of such vices, should be avoided 
by public servants. The BLM's conduct in this matter is 
troubling to this court, and will not soon be forgotten. A 
matter of this nature that involves this agency--should not 
appear on my desk again.''
    One year later I was back in front of the same judge for 
the same things, and eventually they did settle and pay me in 
that particular case.
    [The prepared statement of Mr. Robbins follows:]
       Prepared Statement of Frank Robbins, Thermopolis, Wyoming
    My name is Frank Robbins and I am the owner of a ranch that 
includes private land and Bureau of Land Management (``BLM'') and 
Forest Service livestock grazing permits and preference rights, known 
as the High Island Ranch, in Hot Springs County, Wyoming. I purchased 
the High Island Ranch from George Nelson on May 31, 1994 as a cattle 
ranching and a guest ranch operation. Although I had owned another 
ranch in Montana prior to purchasing the High Island Ranch, my goal was 
to move my wife and two children to Thermopolis and make that my home--
then pass the ranch on to my children and grandchildren.
    Just prior to the sale of the ranch, Mr. Nelson granted a non-
exclusive easement to the BLM across the High Island Ranch, on a 
private road known as the Rock Creek Road. The BLM failed to properly 
record this easement so when I purchased the ranch, I was unaware of 
the BLM easement and when I recorded my title to the ranch, the BLM 
easement was extinguished.
    Upon realizing the easement Mr. Nelson had granted to the BLM was 
no longer valid, BLM employee Assistant Area Manager Joe Vessels 
contacted me to demand that I sign a new easement across my private 
lands to the BLM, and to warn me that if I did not give the easement to 
the BLM, the BLM would deny me access to my private property. Vessels 
stated to me that there would be no negotiation regarding this 
easement. Because the BLM would not negotiate to pay compensation or 
provide due process for the taking of my private property, I declined 
to just give the BLM one of my property rights. In response to my 
decision, Vessels told me that the BLM would get the easement ``one way 
or another.''
    From that point on, the BLM began engaging in a pattern of 
intentionally abusive conduct to coerce me to grant my property rights 
to BLM and to punish me for not immediately capitulating to the BLM's 
demands. For example:
    Ed Parodi, a BLM employee, was sent to my home to explain what the 
BLM would do to me if I did not acquiesce to the BLM demands. At that 
meeting, Parodi stated, ``if you keep butting heads, things are going 
to get pretty ugly'' and ``[t]hey [the BLM] have more resources, more 
time and money than you.'' ``If you keep butting heads with them, it 
will come to war.'' Parodi also stated that the BLM was out to give me 
a ``hardball education.''
    In June of 1994, Vessels twice wrote to me requesting permission to 
survey for the BLM's desired easement across the private lands of the 
High Island Ranch. I unequivocally declined to allow the survey. 
However, Vessels disregarded my clear instructions and orchestrated a 
survey anyway without my permission, then later bragged to me that I 
could not stop the BLM.
    A policy was also developed by the BLM whereby the terms and 
conditions of the High Island Ranch Allotment Management Plan (``AMP'') 
were not followed in good faith. Although the High Island Ranch AMP, 
signed by both the BLM and my predecessor-in-interest, included 
significant opportunities for flexibility for my cattle operation, the 
BLM refused numerous requests for flexibility. Additionally, a BLM 
employee, Teryl Shryack, made handwritten changes to the AMP without my 
knowledge and then tried to apply those changes to me.
    The BLM also prohibited me from maintaining a portion of the Rock 
Creek Road, located on BLM land, that was necessary for me to access 
parts of the Ranch's private property. Eventually the BLM ultimately 
canceled my access rights across BLM land to my private property.
    Under Vessels' direction, the BLM also made trouble for me with my 
neighbors. In one instance, a BLM officer urged neighbor Pennoyer to 
file a criminal complaint with the Sheriff against me (although the 
Sheriff did not follow up on the neighbor's claims.) In another 
instance, BLM employee Leone provoked an incident between Mrs. Pennoyer 
and I, whereby Mrs. Pennoyer drove a motor vehicle into and struck me 
and the horse on which I was riding.
    Vessels also charged me with repeated livestock trespass 
prosecutions, 27 in all. In these prosecutions, the BLM asserted that 
my cattle were in trespass, even though the livestock were located on 
my unfenced private property. These prosecutions were brought under the 
theory that the High Island Ranch cattle allegedly could ``access'' the 
adjoining and unfenced public lands. This legal theory has been 
rejected by the court however, I had to appeal each and every one of 
the decisions individually to try to keep my grazing permit.
    Although I was willing to grant to the BLM the right to cross my 
private land to get to BLM land for lawful purposes, the BLM wanted the 
complete and unconstrained right to trespass on my private property. 
Because BLM wanted this complete access, they took an easement which 
only allowed the BLM to maintain a 276-foot strip of fencing on a 
remote corner of a parcel owned by me and tried to argue it gave the 
agency complete and unrestrained access. Using this Fence Easement, BLM 
employees Shryack and Merrill went onto my private property. When I 
encountered the BLM trespassing and stopped them to ask what they were 
doing, Shryack and Merrill showed me the Fence Easement, claiming it 
allowed them to drive on my private property. In frustration, I tore up 
the copy of the Fence Easement and told Merrill and Shryack to turn 
around and leave, which, without any protest, they did. Several days 
later, after lying to me to get me to come to the BLM office, the BLM, 
through its law enforcement officers, notified me that I was being 
criminally charged with ``intentional interference with a BLM officer'' 
for telling Shryack and Merrill to leave my private property. Based 
upon this criminal charge, a lengthy and expensive criminal jury trial 
was held in the Federal District Court for the District of Wyoming. 
However, after only 25 minutes of deliberation, the jury acquitted me 
of all charges, commenting that I could not have been railroaded any 
more unless I worked for the Union Pacific Railroad.
    Due to the BLM employees egregious conduct, I have suffered 
significant economic injury to my business (both in terms of direct 
lost revenues for loss of my grazing use and my outfitting business) 
and personal reputation. I am only running one-half on my cattle 
numbers I once did and I cannot operate any of my guest ranching 
business on the Federal lands. I also spent a significant amount of 
money on legal fees, individually appealing all of the decisions as 
well as defending myself at a 3-day criminal jury trial. The economic 
damage to both me and my family--as well as to the local community--are 
still present today.
    Some BLM employees, and based upon the press coverage, some of the 
public, believe that I deserved to lose much of my ranch, simply 
because I would not give my private property to the Federal Government. 
However I have never had the chance to argue my case before a judge and 
jury. Administratively appealing dozens of trespass decisions before an 
administrative law judge does not even begin to address the allegations 
that have been leveled against me. My Supreme Court case was not based 
upon the facts of the case--rather the question before the Court was 
simply whether I could even get to court. That is the question before 
this Congressional Committee. Win or lose, should private individuals 
and businesses have the chance to prove that they have been harassed, 
punished and bullied by Federal bureaucrats. There needs to be more 
accountability of Federal employees and opening the courthouse door is 
one way to provide for that accountability.

                                 ______
                                 

    Mr. Bishop. Thank you, sir.
    Mr. Robbins. Thank you.
    Mr. Bishop. I appreciate your story. And, obviously, 
everything that is written there will be part of the record. If 
you have anything more you want to add to what you submitted to 
us as the written record, please feel free to do that, as well.
    Mr. Lowry, if we can go through your situation in Oregon.

         STATEMENT OF TIM LOWRY, JORDAN VALLEY, OREGON

    Mr. Lowry. Chairman Bishop and members of the committee, I 
ranch in the Pleasant Valley community of Owyhee County, Idaho, 
with my wife, Rosa, and parents, Bill and Nita. And we want to 
thank you for the opportunity to describe how the use of 
threats, intimidation, and bullying are used by Federal land 
management agencies to take, without just compensation, private 
property. In this case, namely, privately held water rights.
    When the Snake River Basin Adjudication, or SRBA, began, we 
filed our water rights claims for irrigation, domestic use, and 
stock watering with documentation of the historic beneficial 
use by our predecessors in interest. The United States, through 
the Department of the Interior, filed competing stock water 
claims to the same water, and objected to ours. This put the 
issue into the SRBA court.
    The SRBA judge ordered a settlement meeting between the 
United States and us in an attempt to settle the case without a 
trial. This meeting was held at the Owyhee County courthouse in 
Murphy, Idaho, and was attended by Justice Department 
attorneys, BLM personnel, and myself.
    The United States insisted that only the United States 
could hold a water right on Federal land, and that we must 
withdraw our claims. Knowing that the United States' position 
was contrary to the Idaho constitution, Idaho and Federal 
statutes, and Supreme Court decisions, I refused to abandon our 
vested rights.
    When I did not acquiesce to their convoluted legal 
theories, as they were aptly described by the judge in one 
decision, the United States changed tactics. I was pointedly 
told that, to proceed, we would need an attorney. I was also 
pointedly told that the United States would pursue this case to 
the Supreme Court, if necessary, that it would be extremely 
expensive for us, and that we should consider the cost. This 
began a 10-year litigation battle.
    This tactic of a veiled threat of financial ruin must have 
been effective. Of all the ranchers who filed their vested 
stock water rights claims, only one other, Paul Nettleton of 
Joyce Livestock, continued through to the end. The others felt 
constrained to give up their claims, rather than incurring a 
debt that could cost them their ranch.
    After 10 long years of appeals and delays by the United 
States, and over $800,000 of attorney fee debt for us, and a 
similar amount for Paul Nettleton, the Idaho Supreme Court 
completely vindicated our position, and utterly rejected that 
of the United States. The court ruled that the United States 
cannot hold a stock water right, because it does not put it to 
beneficial use. The stock water rights belong to the stockmen 
who do put the water to beneficial use, and that the stock 
water rights are an appurtenance to the base property of the 
rancher.
    Unfortunately, despite ruling in our favor on every point 
of law, we were denied being awarded attorney fees under the 
Equal Access to Justice Act. What is most discouraging to me is 
that the United States knew that their position was contrary to 
Western water law and court decisions. This was simply a 
continued deliberate attempt to overthrow Western water law and 
to send a message to other private claimants to water on 
Federal lands.
    Sadly, the United States, through its land management 
agencies, continues to ignore the clear policy regarding water 
set by Congress. This disdain of Congress is further evidenced 
by the United States Forest Service's recent actions 
disregarding State law and attempting to take private water 
rights, prompting Representatives Mark Amodei and Scott Tipton 
to introduce the Water Rights Protection Act in order to 
protect privately held water rights from Federal takings, and 
uphold long-standing State water law.
    The question I would have, however, is that even if the 
Water Rights Protection Act becomes law, what will prevent 
these same agencies from ignoring it, as well?
    Again, I want to thank you, Mr. Chairman, and the 
committee, for holding this hearing. I feel it is imperative 
that Congress rein in these out-of-control Federal agencies.
    [The prepared statement of Mr. Lowry follows:]
         Prepared Statement of Tim Lowry, Jordan Valley, Oregon
    I am Tim Lowry and with my wife, Rosa, and parents, Bill and Nita 
Lowry, ranch in the Pleasant Valley community of Owyhee County, Idaho. 
The future of this rural, family ranching community is in jeopardy due 
to Federal Government actions, policies, and direction.
    On June 6, 1994 a public hearing was held in Boise, Idaho on 
Secretary of the Interior Bruce Babbitt's proposed Rangeland Reform '94 
regulations. In preparation for the hearing, the Natural Resources 
Committee of Owyhee County carefully studied the proposed regulations 
and identified the areas that were problematic. In order to get all the 
points into the hearing record given the short amount of time allowed 
for testimony, the testimony was divided between over 30 individuals. 
This strategy worked well except for the fact that three of those 
testifying were World War II veterans, brothers Don and Gene Davis and 
my father, who were struck by the sad irony that the hearing on 
regulations that would undermine their rights was being held on the 
fiftieth anniversary of D-Day.
    These veterans used their allotted time to very movingly explain 
how 50 years ago from that date they never dreamt a time would come 
when the greatest threat to their rights would be coming from their own 
government. I will never forget Gene Davis of Bruneau, Idaho who, with 
tears running down his face, recounted the names of his Army friends 
who had died around him on the beach that morning to preserve our 
rights and liberties.
    It is with that thought in mind that I would like to thank the 
Committee for holding this hearing. I appreciate the fact that you, who 
represent us, are concerned with abuse of power. The issue of 
preserving and protecting the individual rights and freedoms of the 
citizens of the United States is not a partisan issue, but one that is 
vitally important to us all.
    There are several examples of abuse by the BLM that could be the 
topic of my testimony. I shall relate one of them before detailing my 
main topic of the attempt of the Federal Government to usurp State law 
and steal a private property right--namely, stockwater rights.
    In 1984, our family purchased a ranch with a grazing preference 
right that lay partially within the newly designated North Fork 
Wilderness Study Area. This allotment is a common use allotment shared 
with two other permittees--the Stanfords and the Andersons. 
Approximately 1 month after purchasing the ranch, a BLM employee told 
me, off the record, that he wished he had known we were purchasing the 
ranch so that he could have warned us not to because the grazing 
allotment in the WSA was targeted in the Boise District BLM Office to 
``have its head cutoff''. I assured him that I was confident that 
working together we could solve any issues relating to grazing in the 
WSA.
    I was wrong. When some resource concerns were identified by the 
BLM, we worked with a range consultant to devise a grazing rotation 
system that would address the resource concerns and also be 
economically feasible. In order to implement the system, approximately 
3 miles of fence needed to be constructed with a little more than a 
mile of it in the WSA.
    The BLM refused to agree to the fence, citing the WSA as the 
reason, despite the fact that the Interim Management Policy for the WSA 
and the Wilderness Act allowed for such improvements. The BLM's 
solution for the perceived resource issues was to drastically reduce 
grazing.
    After a couple of years of meetings and on-the-ground tours with 
the permittees, range management experts, Congressional staff 
personnel, and conservation group representatives, the BLM issued a 
decision to build the fence. However, the decision to allow us to build 
the fence contained provisions designed to ensure that the fence would 
never happen.
    The national BLM director had issued a directive that any range 
improvements in a WSA had to be completed by September 30, 1992 when 
Congress was expected to act on designating wilderness. The Idaho State 
Director issued an order that improvements in WSA's in Idaho must be 
completed by September 30, 1991 in order to ensure that the national 
directive be met. We received word of the decision allowing us to build 
the fence the afternoon of September 26, 1991. We were told that the 
fence had to be completely finished by midnight September 30, 1991--
including the portion not in the WSA. We were also emphatically 
informed that if the fence was not completely finished, then the entire 
fence had to be removed. For three men and their wives to build 
approximately 3 miles of fence in 3 days was an impossible task in such 
rough country, and not being able to use motorized vehicles in the WSA 
portion made it even more impossible. However, neighbors heard of our 
plight and came from miles away to assist. With the generous help of 32 
caring neighbors, the fence was completed by 4:00 p.m., Sunday, 
September 30, 1991.
    On Monday morning, October 1, 1991, a BLM employee called Jeannie 
Stanford and told her to tell her husband, Mike, and me that we had to 
stop working on the fence. Jeannie informed him that the fence was 
completed and that Mike and I were simply gathering up the excess 
material from the fence line. Jeannie recounted to us that there was a 
long pause and then he told her to tell us that we could not install 
the cattle guard because it was considered part of the fence. When 
Jeannie explained to him again that the fence was done, including the 
cattle guard, another long pause ensued and then he said he had to tell 
his supervisor and hung up.
    The rotational grazing system was utilized during the 1992 grazing 
season and monitoring indicated that it was working to meet the 
resource objectives. However, in 1992 the BLM settled an environmental 
group's appeal of the fencing decision by agreeing to remove the fence. 
The fence was removed by the BLM in the fall of 1992 after only one 
season's use. Incidentally, Jeannie took pictures of the tire tracks 
the BLM made in the WSA and of materials they left scattered in it 
after the fence was removed; illustrating that two sets of rules must 
apply regarding what is allowable in a WSA. Our grazing season was 
subsequently reduced from 3\1/2\ months to 1 month and our AUMs from 
666 to 244. The Stanfords and Andersons suffered AUM reductions of the 
same ratio. Because sound scientifically recognized management tools 
were denied us, our ranch is greatly devalued and our ability to make a 
living is a huge challenge.
    It was only a few years after receiving this body blow, that the 
Federal Government forced us into court and massive debt in an attempt 
to steal our stockwater rights. The United States objected to our 
stockwater rights claims that were filed pursuant to the Snake River 
Basin Adjudication and filed its own stockwater rights claims to the 
same water.
    Before this case was to be heard, the Judge scheduled a settlement 
meeting between the United States and us to see if the case could be 
settled without a trial. At that meeting, which was attended by Justice 
Department attorneys, BLM personnel, and me, the United States insisted 
that only the United States could hold a water right on Federal land 
and that we must withdraw our claim. I knew that the United States' 
position was contrary to the Idaho Constitution, Idaho Law, Federal 
Law, and court decisions, and refused to abandon our vested rights.
    When the United States became convinced that we were not going to 
capitulate, I was told by the United States that we would need to 
retain an attorney. I was further informed that the United States would 
pursue the case to the Supreme Court if necessary, that it would become 
extremely expensive for us, and that we would be wise to consider if 
the cost would be worth the effort. Knowing that the United States' 
arguments lacked any basis in law and not willing to give in to the 
veiled threat of financial ruin, we embarked on a litigation journey 
that spanned 10 years. Of all the ranchers who filed for their 
stockwater rights when the adjudication began, only one other rancher, 
Paul Nettleton of Joyce Livestock, continued through to the end. The 
others settled with the United States rather than risk incurring a huge 
debt and losing their ranch.
    Despite the fact that the legal theories raised by the United 
States were contrary to the established law and were rejected by the 
courts at each step, the United States continued to appeal each loss 
all the way to the Idaho Supreme Court. The Supreme Court upheld the 
District Court and ruled that the United States could not hold a 
stockwater right because it was not the entity putting the water to 
beneficial use. It further ruled that stockwater rights belonged to the 
grazers who put the water to beneficial use and that the water rights 
were an appurtenance of the permittee's base property. All of the 
assertations of riparian rights and other contentions of the United 
States were utterly dismissed by the Court.
    With the appeals and delays obtained by the United States, they 
managed to extend the litigation 10 years and saddle us with attorney 
fees in excess of $800,000. Paul Nettleton owes a similar amount. I am 
convinced that those responsible for pursuing the position that the 
United States took were intelligent people who were not simply 
mistaken, but were deliberately attempting to overturn western water 
law and were sending a message to other claimants that challenging the 
United States is a costly endeavor. They had to know that water rights 
are created under State law and confirmed by Federal law, including the 
Mining Act of 1866, Act of 1870, Desert Land Act of 1877, Taylor 
Grazing Act, and the Federal Land Policy Management Act. They also had 
to be aware that courts have consistently held that water rights may be 
appropriated on Federal lands by private parties and that these rights, 
once acquired, will be afforded all protection. In spite of the clear 
and unambiguous policies enacted by Congress and the consistent 
recognition of those policies by the courts, they pursued their 
illegitimate theories ignoring Congressional policy and Supreme Court 
decisions.
    During the 10-year litigation ordeal we were worried about the 
escalating attorney fees that we could not afford, but we were certain 
that at a successful conclusion, attorney fees would be awarded under 
the Equal Access to Justice Act. Unfortunately, the Idaho Supreme Court 
determined that as a State court, it lacked jurisdiction to apply the 
EAJA to this case and rejected our EAJA claims. They reached this 
decision despite the fact that the Nevada Supreme Court, in a similar 
type of case, awarded attorney fees to the prevailing private party 
litigant, holding that ``it would be an injustice to deprive a 
prevailing party of attorney fees and costs merely because that party 
chose to litigate in a State court, as specifically authorized by 
Federal statute.''
    The EAJA clearly provides at 28 U.S.C. Sec. 2412(b) that ``any 
court having jurisdiction of such action'' may award attorney fees and 
expenses to the prevailing party against the United States. The 
McCarran Amendment gave jurisdiction to State courts over the United 
States in water rights adjudications. Therefore, State courts are the 
``any court having jurisdiction'' and thereby should have authorization 
to award attorney fees under the EAJA.
    Because we believed that the Idaho Supreme Court erred in its 
decision regarding awarding attorney fees, we filed an appeal of that 
portion of the Supreme Court of Idaho's decision with the Supreme Court 
of the United States. We had hoped that the United States Supreme Court 
would take the case in order resolve the conflicting opinions of the 
Idaho Supreme Court and the Nevada Supreme Court. Unfortunately, they 
did not take the case, leaving the conflicting opinions intact.
    Congress needs to amend the EAJA to clarify that State courts 
having jurisdiction over the United States in an action are included in 
the definition of courts in the EAJA. Failure to do so will act as a 
deterrent to private parties trying to protect their rights against 
unwarranted and unjustifiable litigation and actions initiated by the 
Federal Government. The EAJA was designed to protect the rights of 
individuals and small businesses in litigation against the United 
States by leveling the playing field given the extreme disproportionate 
resources at the disposal of the United States.
    Many other instances of abuse could be cited which have led to the 
present time where a scenario is unfolding in the Owyhee Resource Area 
of the Boise BLM District that threatens the viability of the family 
ranches, the economy of Owyhee County, and circumvents provisions of 
the Owyhee Initiative Agreement which led to designation of wilderness 
and wild and scenic rivers in Owyhee County. The BLM is under a court 
order to complete the Environmental Impact Statements on a large number 
of allotments for the permit renewals by the end of 2013. Although the 
BLM has known this for several years, they are now at this late date 
rushing through the process.
    This does not allow time for meaningful consultation, cooperation, 
and coordination with the affected permittees as required. With time 
rapidly running out, it is questionable if the majority of the 
decisions will be issued in time for comments, protests, and appeals 
before the end of 2013. Permittees are wondering how their due process 
rights are going to be affected. By bunching up all these decisions and 
issuing them at the last minute, the BLM will effectively negate the 
science review process of the Owyhee Initiative Agreement which was the 
foundation for an agreement to designate wilderness and wild and scenic 
rivers in Owyhee County. There will simply not be enough time or 
personnel available to perform a science review of all the decisions.
    I want to again thank the Committee for holding this hearing. If 
family ranches are to remain intact, a functioning un-fragmented 
landscape maintained, the economy of Owyhee County protected, and 
access for recreationalists preserved, then this broken, dysfunctional 
land management must be fixed. More importantly, we all have a sacred 
obligation to not let the sacrifices of Gene Davis' fallen friends be 
in vain. We must not allow the rights and freedoms they died for to be 
lost through bureaucratic tyranny.

                                 ______
                                 

    Mr. Bishop. Thank you. I appreciate your testimony. I 
appreciate your shout out to Tipton and Amodei. It is going to 
be much more difficult to work with them now in the future. I 
apologize for that.
    [Laughter.]
    Mr. Bishop. Ms. Richards.

          STATEMENT OF BRENDA RICHARDS, MURPHY, IDAHO

    Ms. Richards. Chairman Bishop and members of the 
subcommittee, I am here today in my capacity as the Owyhee 
County Treasurer and tax collector representing Owyhee County, 
Idaho. I have served in this capacity for the past 8\1/2\ 
years. And, in addition to serving as treasurer, my husband 
Tony and I ranch in Owyhee County, where our sons are carrying 
on this business into a fifth generation. I have extensive 
experience in natural resource issues, and, along with my 
accounting background, this lends well to my position as 
treasurer in a county that largely depends on public lands and 
the ranching communities for its economic backbone.
    Owyhee County is comprised of 4.9 million acres, with a 
population of only about 11,000. The county is 77 percent 
Federal land, 6 percent State land, leaving only 17 percent 
privately owned, which comprises the tax base of our county. 
The communities in the county are rural and small, and the 
decisions that are made on public lands have direct impacts and 
effects on these communities, thus affecting the county and the 
businesses within. Our beef industry in the county produces 
over 19.76 million pounds of edible meat per year, which is 
enough to feed 300,000 people, which is the entire population 
of the city of Boise and our county.
    It has become apparent over the past 20 years in our county 
that threats, intimidation, and bullying do not always present 
themselves in obvious ways or methods, but that does not make 
them any less damaging, any less wrong. Nor does it lessen 
their impact. These quieter, behind-the-scene forms often have 
more significant impacts and damages over a longer period of 
time. It would take me several hours to go over the numerous 
ways the county has been affected over the past years of 
actions and non-actions by the BLM, but today I will give you 
several recent examples.
    The Gateway West Power Transmission Line is an example of 
the BLM bullying their way to push through the system to get 
their end result. After hundreds of hours of meetings involving 
elected officials, the residents, environmental groups, the 
power company, and other interested parties, an agreed-upon 
route was chosen, with everyone signing off on it, and 
presented. Soon after that was presented, a representative from 
the BLM in Washington, DC flew out, and that one person was 
able to negate this entire process, and put the lines back over 
private land, much to the distress of the county and those land 
owners, as it affects the value of the property, and thus, the 
tax base.
    Grazing permit renewal is another challenge we constantly 
face in our county. Lack of action by the agency in the early 
1990s continues to this day to have direct effects on the 
county, with legal counsel and consulting fees spent protecting 
their property rights and grazing rights. Both the county and 
the individuals have spent hundreds of thousands of dollars to 
protect these rights, and the costs are still accruing.
    However, the cost of losing would be even higher, as it 
changes the entire dynamic not only of the communities within 
our county, the county's economic base, but it also eliminates 
some of the prime wildlife habitat and water resources in the 
West.
    The county also has a county land use plan and a signed 
coordination agreement between the county commissioners and the 
Bureau of Land Management outlining protocol and expectations 
for monthly coordination meetings. Yet, over the past 3 years, 
our commissioners have had to send over 25 letters to the BLM, 
asking them why they were not coordinated or communicated with 
on different issues.
    The Owyhee Initiative was developed and designated 
wilderness and wild and scenic rivers, first in an agreement 
signed off by all the collaborative groups, and then in 
legislation. During the past year, we had many meetings where 
we were working on the wilderness management plan, only to find 
out that, internally, the BLM was also working on guidelines 
that negated one of the main principles we had brought forward 
with the initiative agreement. And, ironically, that factor 
that is not allowed in the new guidelines is one that the BLM 
had awarded the permittee an environmental stewardship award on 
a national level for that practice.
    Each of these examples holds either direct or indirect 
impacts to our county. As treasurer, the economic stability of 
the county is first and foremost in my mind, as it is of our 
county commissioners. We still continue to stand up to the 
threats and intimidation, because we believe in the property 
rights and doing what is right, and hope that justice will 
prevail.
    We hope that by presenting this information, it may help 
you to see the need for changes in the law to protect these 
rights, and not to allow actions by our government to be taken 
in the matter of threats, intimidation, or bullying, whether 
first and foremost, or a quieter action, but to be done in the 
ways that were intended, and in ways that you can hold your 
head up, be proud of the results, and find success in 
supporting them.
    Thank you for this opportunity.
    [The prepared statement of Ms. Richards follows:]
          Prepared Statement of Brenda Richards, Murphy, Idaho
    I am Brenda Richards, and I am here today in my capacity as the 
Owyhee County Treasurer, representing Owyhee County, Idaho. I have 
served in this elected position for the past 8\1/2\ years. In addition 
to serving as the Owyhee County Treasurer, my husband, Tony and I ranch 
in Owyhee County. My extensive experience in natural resource issues, 
along with my accounting background lend well to my position as 
treasurer in a county that largely depends on the ranching community 
for its economic backbone.
    Owyhee County is Idaho's oldest county and was established and 
settled, as many places in the western United States were, around its 
natural resources. In our county those two draws were mining of gold 
and silver and grass for cattle and sheep grazing. The gold and silver 
are not nearly as abundant as they once were; the renewable natural 
resource of grass continues to help sustain the county. Owyhee County 
is Idaho's oldest county and is the second largest county in the State 
of Idaho covering 7,639 square miles--or 4.9 million acres. Yet the 
population of approximately 11,000 in the entire county averages out to 
1.2 people per square mile. Owyhee County is 77 percent public lands; 6 
percent State land; leaving a mere 17 percent privately owned land. 
That 17 percent is the tax base of the entire county. Owyhee County 
does receive PILT (Payment in Lieu of Taxes) for the public lands in 
our county, but every year the county has to wait and see what will 
actually be allowed for that payment though we certainly feel this is 
the Federal Government's duty of paying the property tax owed to the 
county as those acres cannot be developed or taxed in any other way.
    Of the 4.9 million acres in the county, approximately 191,700, or 
about 4 percent, are agriculture with just a bit over 4.5 million acres 
in rangeland, and of that approximately 3.7 million of those rangeland 
acres are Federal lands. With the numbers just given, you can see that 
a very small amount of the land in our vast county serves as the 
private, taxable base, yet this privately owned tax base is largely 
dependent upon the Federal lands for rangeland grazing accompanying 
their private lands through their BLM permits. In addition, the 
communities in this county are rural and small, and whatever decisions 
are made for the public lands have effects on those communities.
    Over the past 20 years in this county there is one thing that has 
become very apparent. Threats, bullying, and intimidation do not always 
present themselves in obvious ways or methods, but that does not make 
them any less damaging, any less wrong, nor does it have any less 
impact. As a matter of fact, these quieter, ``behind the scenes'' forms 
of threatening, bullying or intimidating often have huge impacts and 
significant damages over a longer period of time. I would like to share 
with you a few examples of the Bureau of Land Management actions that 
can certainly be seen as threats and intimidation to Owyhee County and 
the residents that live here.
    No matter that the tax base in the county may only be 17 percent, 
those taxpayers and the county are responsible for providing services 
within the county, some are mandated by either Federal or State laws, 
and some are elected county services. Many of those services, such as 
roads maintenance, law enforcement, safety matters, and search and 
rescue are provided to all--whether you live in the county, visiting 
the county's vast area, just passing through. With Owyhee County's 
close proximity of being not much more than an hour away from the 
Treasure Valley with its larger urban population, there are many 
visitors each day that come across the Snake River to enjoy its vast 
expanses that surround our rural, and some very remote, communities. 
Owyhee County offers diverse recreational experiences both motorized to 
non-motorized, hunting, fishing, and sight-seeing, wilderness 
experiences, white water rafting at the right time of the year, and a 
host of other activities. Many of these activities are on the public 
lands, but much of it is either accessed by going through, around, or 
across the small amounts of private ground. Almost any BLM decision 
that is made has an effect in some fashion on the county's well-being 
and that of its rural communities due to the large amount of Federal 
land around each of these communities. Often the costs of these 
decisions, both financially, and also to the health of the natural 
resource are not fully vetted, leaving that expense on the local 
taxpayer's budget.
    One such decision we have recently been dealing with in Owyhee 
County is the Gateway West transmission line. The county residents, and 
those of us serving as their elected officials have attended hundreds 
of hours of public meetings, written pages and pages of comments, and 
found ways we thought could be used to compromise to and solution. The 
player in this game that we have found to be playing by their own set 
of rules--and truly that is a form of bullying when you are aware you 
can get away with it--is the Bureau of Land Management. Early on in 
this process the lines were to come across the public land, leaving as 
much private ground as possible (remember the ratio of private acres to 
public in Owyhee County) alone as the necessary power lines were to be 
brought in. This was agreed to by the power company, the diverse 
interest groups attending these meetings such as conservation and 
recreational groups, the county elected officials, and the residents. 
After all this was agreed to over months and months of meetings--some 
of them even held in Ontario, Oregon that people attended--and all of 
them documented with minutes, the Washington BLM office, in one 
person's decision, negated all that time, money, and effort by putting 
it right across much of the limited private ground in our county. This 
is one example of costs to the county in attending and participating in 
the government's dog and pony shows of public meetings for months and 
months; resources and time spent to have maps made of the outcome of 
those meetings proposed routes; legal advice on the matter; time 
invested, only to have that thrown back in the face and put where they 
wanted it any way. This cost comes down to the county and the taxpayers 
here in more than one way. The initial investments of time, money, and 
sincere participation in a process to come up with a viable solution 
with the other ``players'' in this process, most who do not even live 
in the county, but have conservation, recreational, or special 
interests in the area is the first cost; the second is the cost to the 
county and the land owners as their property is devalued due to huge 
transmission lines being placed across their land; and last, this cost 
goes out to those land owners who have not had the decision directly 
affect them, but will feel the indirect impact of tax increases as the 
same services are still required to be met within the county, but the 
tax base of some property has decreased leaving that hole to be filled 
by those properties whose value held to absorb the increase that will 
be required in the county tax levy rate. Does this not pose a direct 
threat to the county, through a process that surely can be viewed as 
intimidating?
    Ranching has long played a role in Owyhee County and continues to 
do so today. Since the early 1990s, the challenges from the Bureau of 
Land Management and their decisions, or lack thereof have had 
significant impact on the county government and the residents within 
the county. These impacts have been financially, emotionally, and on 
the ground. Probably the longest running threat and intimidation within 
Owyhee County has been that which has come from the BLM neglecting to 
fulfill their obligations of renewing permits; neglecting to gather 
necessary information in a consistent, accurate, timely manner lined 
out in their own guides; not involving the permittees as is required by 
those same rules and regulations; and the results of all of this is the 
permittees and the county then end up in court battling on the same 
side as the BLM to defend their rights, permits, and livelihood. This 
is at the expense of the county and the permittee as the BLM has the 
Federal Government to cover their attorney costs and time, which means 
it costs all taxpayers and those in our county twice.
    Prior to 1997 the BLM failed to complete the permit renewal work 
that necessary to keep 10-year grazing permits current, and as stated 
before, public lands ranching is the backbone of this vast county that 
is 77 percent Federal land. Grazing continued for over half the permits 
by annual authorizations since the permits had been allowed to expire 
by the BLM. The 1995 changes to the BLM grazing regulations required a 
valid grazing permit in lack of action by the agency have direct 
effects on the economic base and also on costs of litigation to 
challenge these decisions order to graze on public lands, so this 
immediately put the permittees out of compliance due to BLM lack of 
doing their job, and brought radical environmental groups to file suit. 
The lack of action by the agency had, and is still having direct 
effects on the economic base of the county and the land owners here as 
the costs of litigation to challenge these decisions continue to be 
paid. The threat to the economic viability of the county, and the 
threat to the land owner and permit owner cannot be ignored as this is 
the backbone of the county. Legal counsel and consulting to protect 
themselves and their interests can cost an individual hundreds of 
thousands of dollars, but the cost of losing that is even higher to 
them and the county, not to mention it is a property right. Costs to 
defend several of these cases already have come in, with $100,000 for 
one allotment to reach a permit renewal; and two others at $55,000 
currently where they are not even half way through defending themselves 
to get to the end result of the permit being renewed.
    As I have mentioned several times, the economic backbone of Owyhee 
County and the rural communities is largely dependent on the ranching 
industry and grazing on public lands. The beef industry in Owyhee 
County accounts for approximately 19,760,000 pounds of edible meat per 
year--which is enough to feed 300,000 people or the entire population 
of our county plus the population in the State capitol city of Boise. 
The total number of acres these ranches occupy is at just over 435,000, 
and the approximate assessed value for the county is $28,815,299. 
Please realize this is the assessed value for county tax purposes, not 
what the land could be sold for if it was to be parceled out and 
developed, yet much of this private land is remote, and assures 
unfragmented habitat and water sources for many forms of wildlife. Many 
of these ranches are located in small, very rural communities 
throughout the county that have schools and smaller businesses 
depending on their success to keep those communities healthy and 
vibrant. Because of that, and because of the continued unpredictability 
and up and down relationship the county has had with the Bureau of Land 
Management, the county developed a county land use plan in the early 
1990s in an effort to address matters relating to State and Federal 
lands and to help protect their interests and assure input in 
decisions. The plan is reviewed regularly and updated, with most recent 
update to this plan being 2009, and reviews are more regular.
    The county also has a signed Coordination Agreement with the Bureau 
of Land Management that dates back more than 15 years. This agreement 
was also established to help assure the county--which in turn 
represents the residents--is included and involved in decisions the 
agency makes. As the largest land owner in Owyhee County, these 
decisions often have significant impacts or effects on or within the 
county, which in turn can also affect the economic stability and well-
being of the county, and have effect on the livelihood of the 
residents. Over the years the Coordination Agreement has been in 
effect, the Owyhee County Commissioners spend a tremendous amount of 
time reminding the BLM of their obligation to coordinate; reinforced by 
the signed coordination agreement. In the past 3 years over 25 letters 
have been addressed to the BLM by the commissioners on matters and 
decisions that have direct effect on the county. Many of letters have 
been written when the BLM either intentionally, or due to lack of 
management's attention or new management, ignores the coordination 
process. The number of times this happens could certainly be seen, not 
only as a veiled threat to the county in that the BLM does not feel 
they have to comply, but it also comes across as a form of intimidation 
trying to get the county to back off of expecting them to follow the 
law and requirements of including them in decisions and planning 
processes.
    Both of these have taken much time, resource and dedication by the 
elected officials, those participating in the public meetings to 
develop these and then keep them updated and reviewed, and the 
different groups, agencies, and others that use these in their 
decisionmaking process within Owyhee County. The one agency that has 
given the county the most problem with these aspects is again, the BLM.
    Every one of these examples given have either direct or indirect 
impact to the county financially. The cost to our county residents on 
grazing decisions is astronomical, and the county has often weighed in 
over the years with their own financial contribution to the litigation 
because it is a vital component of the economic stability within the 
county. The economic stability of the county is first and foremost in 
my mind and duty as county treasurer, as it is with the commissioners. 
The costs to both the individuals and the county have effects on those 
communities as to dollars that could be spent in schools, business, or 
other areas having to go to threats and litigation caused by BLM 
decisions or lack thereof. The permit renewal process continues here in 
the county under a court ordered mandate now. That mandate came down in 
2008, yet the BLM did not start on the 125 out of 150 permits included 
in that order until 2012 and the deadline is December 31, 2013. If that 
deadline is not met, the court stated the BLM will be held in contempt. 
Even though the process was not started in a timely matter, the ones 
paying the ultimate price, both financially and in emotional duress are 
the taxpayers. The documents the BLM is putting out to be reviewed and 
commented on, and ultimately end up having to be challenged are over 
500 pages long, and some of them are over 1,000. If that is not 
intimidating to a common person, I do not know what is. Yet, the county 
and our land owners will not take it lying down. We will stand up to 
intimidation and threats and bullying because we believe in our 
property rights, in doing what is right, and have hope that justice for 
what is right will prevail. The cost to the county in tax dollars, 
time, and stress is substantial, but the people of Owyhee County prove 
to be resourceful, resilient, and show the American grit that settled 
the West in the first place and continues to capture the trust and 
wonder of many people not only in the United States but across the 
world. We only hope that by presenting some of these aspects we have 
had to fight for years to continue to remain viable, productive and 
responsible citizens in our county that we love, that the very laws and 
Federal agencies threatening our existence may be changed to protect 
those rights and to not allow things to be done in bullying or 
threatening or intimidating ways, but in ways that you can hold your 
head up and be proud and successful in supporting.
    Thank you for the opportunity to share this testimony with your 
subcommittee, and I would stand for any questions.

                                 ______
                                 

    Mr. Bishop. Thank you, Ms. Richards. So we have heard of 
problems in Wyoming and Idaho. Now let's go down to Northern 
New Mexico and see the same situation appearing.
    Mr. Valdez.

       STATEMENT OF LORENZO VALDEZ, FAIRVIEW, NEW MEXICO

    Mr. Valdez. Honorable Chairman Bishop and members of the 
committee, with all due respect, and with your permission, I am 
a resident of Rio Arriba County, New Mexico, in the north-
central part of the State, valleys and pastures that have been 
used by----
    Mr. Bishop. Mr. Valdez, could I just ask you to move the 
mic closer to you? I don't know if you can move it physically 
there, as well. Thank you.
    Mr. Valdez. I am a descendent of Native American tribal 
peoples and colonial settlers that came up with the first herd 
to come into the United States proper, 7,000 head driven by 
native peoples and families out of Chihuahua Santa Barbara 
region, 1590. That was the first cattle herd that was brought 
to the United States, and it actually was brought primarily by 
Native Americans, including Mexico as America. They settled 
themselves in the New Mexico mountains, where pastures were 
cycled in the way that wildlife uses them, upland, lowland 
cycling, the natural way of using the environment for the 
purposes of producing beef.
    I am here on behalf of two allotments, Jarita Mesa and 
Alamosa Grazing on the Carson National Forest. I, myself, graze 
on the Santa Fe National Forest, just across the Chama River 
from my friends. They were uncomfortable in coming here, 
because--I believe, because they have suffered so much 
retaliation from the district ranger, Diana Trujillo.
    The Jarita Mesa and Alamosa Grazing Association members are 
Hispanic stockmen who graze cattle on the Jarita Mesa and 
Alamosa Forest Service livestock grazing allotments, both of 
which lie within the El Rito Ranger District on the Carson 
National Forest. The two allotments are all part of the 
Vallecitos Sustained Yield Unit, an area of the Carson National 
Forest designated by an Act of Congress for special treatment, 
because of the mix of intermingled private land and Federal 
lands, and its particularized uses. Dating back to before the 
Treaty of Guadalupe-Hidalgo between Mexico and the United 
States, the ancestors of the rancher members of the Jarita Mesa 
and Alamosa Grazing Association have been grazing livestock on 
these lands for generations. And, in fact, most of these 
families were grazing livestock in this area before the United 
States Forest Service existed.
    Beginning in the 1920s and accelerating into the 1940s, the 
Forest Service instituted management practices that were 
calculated to and did result in a drastic decline in the number 
of livestock the Hispanic residents within the communities 
located in or near the Carson National Forest and the Santa Fe 
National Forest were allowed to graze. These reductions 
continued into the mid-1960s. Unlike the predominantly Anglo 
ranchers in other areas of New Mexico and Arizona, the Hispanic 
ranchers in Northern New Mexico generally ran small herds of 
livestock, and were dependent on the availability of their 
former common lands that were within their land grants for 
survival.
    Over the past 7 or 8 years, the permittees and grazing 
associations in the Jarita Mesa and Alamosa allotments have 
repeatedly exercised their First Amendment rights to petition 
their congressional delegation. For this activity, Diana 
Trujillo, the district ranger, retaliated and desired to punish 
them for engaging in speech critical of Forest Service 
policies. They filed suit eventually, because she refused to 
reduce the wild horse herd which was 12 to 14 head, and 
currently runs at about 150 head, severely impairing the 
ability to provide fodder for the livestock.
    They filed suit. And despite adequate proof that 
retaliation had occurred, the Federal District Court, in a 115-
page ruling on January 24, 2013, found that the ranchers had 
pled sufficient facts to show a possible retaliatory motive, 
but citing Wilkie v. Robbins, they could not sustain a Bivens 
cause of action, even though there was ample evidence that the 
judge saw regarding bad behavior.
    And we are seeking remedy from Congress, which is the only 
body able to give it to us. Thank you.
    [The prepared statement of Mr. Valdez follows:]

       Prepared Statement of Lorenzo Valdez, Fairview, New Mexico
    Honorable Committee Chair Representative Hastings, Subcommittee 
Chair Bishop and all the Members of this Committee. I want to thank the 
Committee for this opportunity to present testimony on a very serious 
matter that will take Congressional and Presidential action to remedy. 
The management of the National Forests and Grasslands falls on 
shoulders of the staff of the United States Forest Service, who have 
the very important charge of keeping our public lands productive. The 
ecosystem services produced by those lands meet the needs of life in a 
concentric circle, or connectivity, the closer you are to the land, the 
more dependent you are on the land. Human needs or services are 
generally grouped into three categories economic, social and cultural. 
We all understand that the ability of the ecosystem to deliver services 
depends on the well-being of the whole, including all dependent 
species, humans included. There is no time in human existence when we 
have not managed the landscape to serve our needs; some critters do 
that also to a lesser extent. It has evolved into a very complex 
management task worldwide with important decisions to be made. 
Regardless of what stressors you believe or agree with, there is no 
doubt that to have those services in the future, we have to protect 
them now. And there lies the dilemma; power dictates management, and 
the constructs that emerge in the discourse affiliate closely with 
power emerge as specific actions on the ground. Power differentials in 
the United States are supposed to be tempered by Justice, a 
responsibility borne by all branches of our government.
    I was asked to come here today to tell a story of how unjust acts 
in managing Forest lands push people closest to the landscape off of it 
and create scenarios that are replete with what the esteemed Economist 
and Nobel Laureate, Dr. Ronald Coase termed ``negative externalities.'' 
``Mr. Coase's revolutionary insight was that you and I have a shared 
interest in minimizing the total harm suffered.'' ``The Problem of 
Social Cost,'' Ronald Coase, a Pragmatic Voice for Government's Role; 
Robert H. Frank. Victimizing folks or creating unmanaged casualties is 
not an efficient option. That process is inefficient. The Government 
has a responsibility to mitigate the ``negative externalities'' to a 
Federal action. On the ethical or moral plane, I turn to Pope John 
XXIII's Encyclical for Pacem in Terris, Establishing Universal Peace in 
Truth, Justice, Charity and Liberty; ``when one reflects that it is 
quite impossible for political leaders to lay aside their natural 
dignity while acting in their country's name and in its interests they 
are still bound by the natural law, which is the rule that governs all 
moral conduct, and they have no authority to depart from its slightest 
precepts.''
    My livestock graze on lands in the Santa Fe National Forest, Coyote 
Ranger District which was titled originally as a Spanish Land Grant to 
Juan Bautista Valdez in 1807. I do not like the term ``Permittee'' when 
referring to indigenous Northern New Mexico Forest users. We were 
denied U.S. title by the Court of Private Land Claims. My family has 
been in the Jemez Mountains for thousands of years; I am descended from 
southwest tribal ancestors as are most Northern New Mexico Villager 
commonly called Hispanic but most scholars refer to the group as indio-
hispano. On the colonial side we have been grazing cattle since 1590; 
we are the first herders on U.S. soil. We brought 3,000 year old 
grazing culture to the new world. I run 20 pair and a bull, on an 
allotment that includes 15 relatives; some of them are near full blood 
Native American. Together we run 750 pair and 20 bulls. These 
historical and social elements also apply to the folks that are the 
focus of this tragic narrative. I agreed to bring their message to you 
because they couldn't be here. It is however my story as well, I was 
intimately involved with these folks as Rio Arriba County Manager. The 
message is that the ``government'' has a duty to hold its managers 
accountable, just like I was as County Manager. All the constitutional 
protections should be available to those on public lands including the 
courts as appropriate. There are many good managers in the Forest 
Service ranks, we have such managers ``this year'' on the district I'm 
in; they carried us through to rainfall this year, and they could have 
done what was done in this story. I have supplied for the record a 
research document by Dr. David Correa that provides a more painful look 
at the history of the Vallecitos lands that are at the basis of this 
story.
Jarita Mesa and Alamosa Grazing Association Ranchers
    The Jarita Mesa and Alamosa Grazing Associations' members are 
Hispanic stockmen who graze cattle on the Jarita Mesa and Alamosa 
Forest Service livestock grazing allotments, both of which lie within 
the El Rito Ranger District of the Carson National Forest. The two 
allotments also are part of the Vallecitos Federal Sustained Yield Unit 
(``Unit''), an area of the Carson National Forest designated by an act 
of Congress for special treatment because of its mix of intermingled 
private and Federal lands and its particularized use, dating back to 
before the Guadalupe-Hidalgo Treaty between Mexico and the United 
States. The ancestors of the rancher members of the Jarita Mesa and 
Alamosa Grazing Associations have been grazing livestock on these lands 
for generations, and, in fact, most of these families were grazing 
stock in this area before the United States Forest Service existed.
    Beginning in the 1920s and accelerating in the 1940s, the Forest 
Service instituted ``management'' practices that were calculated to and 
did result in a drastic decline in the number of livestock the Hispanic 
residents within the communities located in or near the Carson National 
Forest and the Santa Fe National Forest were allowed to graze. These 
reductions continued into the mid-1960s. Unlike the predominantly Anglo 
ranchers in other areas of New Mexico and Arizona, the Hispanic 
ranchers in Northern New Mexico generally ran small herds of livestock 
and were dependent on the availability of their former common lands 
(common lands designated by the King of Spain or Mexico prior to the 
creation of the National Forest) for survival.
    Over the past 7 or 8 years, the permittees and grazing associations 
in the Jarita Mesa and Alamosa Allotments have repeatedly exercised 
their First Amendment rights to petition their Congressional delegation 
and other elected officials for the purpose of protesting what they 
believe have been unlawful actions by Forest Service officials that 
have served to destabilize and degrade the private property rights and 
cultural/social fabric of the communities where these ranchers reside. 
The lawful conduct of the ranchers has been met by punitive acts by 
Forest Service officials, particularly Forest Service District Ranger 
Diana Trujillo, including the reduction of their grazing permits. These 
ranchers believe that they can prove that many of the decisions by the 
Forest Service District Ranger were motivated by a desire to punish 
them for engaging in speech critical of Forest Service practices and by 
racial animus and a bias against traditional Hispanic culture and its 
traditional agro-pastoral way of life.\1\ Based upon such animus, the 
Forest Service has made it nearly impossible for these ranchers to 
sustain their grazing permits which results not only in a loss of their 
private property but in the slow destruction of their cultural fabric.
---------------------------------------------------------------------------
    \1\ This bias has subtly existed against this land use and the 
relationship of these ranchers to the land for many years. For example, 
in 1935, Roger Morris, a Forest Service grazing assistant, issued a 
report concerning grazing issues entitled ``A Dependency Study of 
Northern New Mexico,'' wherein it was stated that ``[Hispanos] are 
sedentary in character living in the present and with no thought for 
the future. They accept conditions as they are and make the best of 
them with no idea of conserving the natural resources much less 
enhancement of them. They would remain in place to the point of 
extinction by starvation and disease before they would migrate.''
---------------------------------------------------------------------------
    For example, the Forest Service understands that wild horses are 
eliminating forage and damaging the soil, and that any significant 
increase in the size of the wild horse herds in this area could 
significantly impact the local Hispanic communities in an adverse 
manner because it eliminates forage needed for the permitted cattle. 
Despite this knowledge and the existence of the Forest Service Region 3 
Policy, the District Ranger decided to increase the wild horse herd 
beyond the numbers authorized in its 1982 Management Plan from the 12-
14 head to between 20 and 70 head. However, the Forest Service 2002 
Decision Notice expressly provided for measures to be taken to reduce 
the herd if it ever exceeded that number, recognizing that allowing the 
wild horse herd to increase to even 120 head ``may cause some 
permittees to be forced out of the livestock business by competition 
for forage from the wild horses.'' However, in disregard for the needs 
of these local ranchers who live within the Vallecitos Federal 
Sustained Yield Unit, the Forest Service has now allowed the wild horse 
herd to increase far beyond the number permitted by the Forest 
Service's 2002 decision. In fact, Forest Ranger Trujillo has chosen to 
allow the wild horse herd to grow to over 150 head, rather than attempt 
to alleviate this problem so as to be responsive to the needs of the 
Hispanic people in the area.
    To deal with these problems, the ranchers sought the assistance of 
then-U.S. Senator Pete Dominici in May 2006. Senator Dominici took up 
the issue with one of Ranger Trujillo's supervisor. Upset with ranchers 
for their having exercised their right to petition the government for 
redress of grievances, on July 5, 2006, Ranger Trujillo issued a 
decision ordering all cattle removed from the Jarita Mesa Allotment by 
July 31, 2006. Her decision was purportedly based on a reported June 
22, 2006 inspection of range conditions that found the ocular estimate 
of forage stubble height was less than 1-2 inches at each of the key 
areas visited by Forest Service. On July 20, 2006, ranchers Sebedeo 
Chacon, Gabriel Aldaz, and others appealed Ranger Trujillo's decision 
based upon the significant rains since June 22, 2006 which greatly 
improved conditions on the range. In light of these changed 
circumstances, the ranchers implored the Forest Service to recognize 
that there was no justification for forcing them to go through the 
significant economic harm that would accrue as a result of having to 
remove all their cattle prior to the end of the permitted grazing 
season in October, 2006. Ranger Trujillo refused but, after 
Congressional inquiry, was forced to reverse her position.
    Ranger Trujillo then tried to force an end to the grazing season in 
September 2006, instead of on October 31, 2006, based on an allegation 
that the permittees had failed to meet certain conditions she had 
imposed. At the end of the grazing season, rancher Chacon was having 
difficulty locating a small number of cattle that had strayed in the 
forest. This is a common problem and is due, in part, to the number of 
hunters and wood haulers who come onto the allotments and leave gates 
open and the fact that these allotments cover thousands of acres in the 
mountains. According to Ranger Trujillo, on October 5, Mr. Chacon had 
17 cows that needed to be located and removed. On October 6, 2006, only 
4 days after her arbitrarily imposed removal ``deadline,'' Ranger 
Trujillo issued a decision suspending 20 percent of Mr. Chacon's 
authorized grazing for 2 years, a decision which had a profound 
economic impact on Mr. Chacon and his family, costing him tens of 
thousands of dollars. Mr. Chacon believes that he was singled out for 
disparately harsh punishment by Ranger Trujillo because she perceived 
him, correctly, as a leader of the permittees in the area due to the 
letters he had written to government officials protesting Ranger 
Trujillo's conduct.
    On June 1, 2009, Mr. Chacon and Thomas Griego responded to Ranger 
Trujillo with a letter signed by 26 permittees which criticized her 
poor management style and her mismanagement of the two allotments. The 
letter was also sent to the New Mexico Congressional Delegation, 
Governor Richardson, and Ranger Trujillo's immediate supervisor, 
Kendall Clark. In the letter, the ranchers' stated that they were 
insulted by Ranger Trujillo's past letters and accused her of 
attempting to intimidate them. The ranchers pointed to Ranger 
Trujillo's unsuccessful effort to force them to remove their cattle 
from the allotments during July 2006. The ranchers also alleged that 
Ranger Trujillo and her staff had continually failed to install needed 
cattle guards or to fix plugged ones, and that Ranger Trujillo then 
used the fact that cattle would drift from one allotment to another, as 
a basis to threaten and/or sanction the permittees.
    According to the ranchers, in retaliation for these letters, in 
2010, District Ranger Trujillo made a decision to reduce the ranchers' 
use of their allotments by 18 percent--a decision that ignored the 
scientific analysis in a Forest Service environmental assessment 
(``EA'') that such a reduction was not necessary. Despite the fact that 
it was a well-established practice and policy of the District Rangers 
in the different ranger districts within the Carson and Santa Fe 
National Forests (as well as in other Forests) to adopt the Proposed 
Action in the EA (the proposed action would have maintained the status 
quo with regard to permitted use), Ranger Trujillo disregarded the 
analysis contained in the EA and, making good on her predetermined 
decision to punish the ranchers by selecting an alternative calling for 
a substantial reduction in grazing. The decision of the Forest 
Service's Interdisciplinary Team contained in the EA did not support 
the action of Ranger Trujillo. However, Ranger Trujillo was angry with 
and determined to retaliate against Plaintiffs for having the temerity 
to point out her errors and criticize her mismanagement of the two 
allotments and the entire Sustained Yield Unit.\2\
---------------------------------------------------------------------------
    \2\ In order to create the appearance that her decision was based 
on science rather than an arbitrary determination to punish Plaintiffs 
for having engaged in conduct protected by the First Amendment, Ranger 
Trujillo falsely stated that the Forest Service had determined the 
current level of permitted livestock to be ``unsustainable.'' In fact, 
the EA had not concluded that the current level of livestock grazing 
was unsustainable but had proposed that grazing continue at current 
numbers under Alternative 2. Furthermore, despite the fact that the 
2002 Decision Notice on the wild horse herd required the Ranger to 
attempt to reduce the wild horse herd by taking certain measures set 
forth in that decision, Ranger Trujillo failed even to consider any 
alternative that would achieve the required reduction in the wild horse 
herd prior to reducing the number of Plaintiffs' livestock permits. 
Instead, Ranger Trujillo claimed the herd contained only 67 horses when 
2010 Forest Service documents showed the herd was over estimated the 
herd was over 100 and, as a 2011 Forest Service survey showed, was 
close to 150. Ranger Trujillo had to know that the herd had grown well 
beyond 67, figure from a 2008 estimate, because almost no horses had 
been removed in the 2\1/2\ years since the study. In sum, although the 
EA proposed action was Alternative 2 (status quo) Ranger Trujillo 
selected Alternative 3.
---------------------------------------------------------------------------
    Although the ranchers had availed themselves of all known 
administrative and other remedies, on January 20, 2012, they filed a 
case in the Federal District Court for the District of New Mexico 
alleging, among other things, that they were being singled out through 
harassment and intimidation by Ranger Trujillo under color of law in 
retaliation for the ranchers' exercise of their First Amendment right 
of free speech and the right to petition the government for a redress 
of grievance. The Federal District Court, in a 115-page ruling on 
January 24, 2013, found that the ranchers had pled sufficient facts to 
show a possible retaliatory motive against them. However, citing to 
Wilkie v. Robbins, 551 U.S. 537, 550, the court held that the ranchers 
could not sustain a Bivens cause of action against Ranger Trujillo 
personally for damages sustained due to her acts of intimidation and 
harassment allegedly undertaken in retaliation for the ranchers 
exercise of rights guaranteed to them by the First and Fifth Amendment 
guaranteed rights. See Jarita Mesa Livestock Grazing Association, et 
al. v. United States Forest Service, et al., Civ. No. 12-69-JB 
(Memorandum Opinion and Order, Docket 49, filed January 24, 2013). In 
essence, this meant that the district ranger remains free to engage in 
further acts of retaliation and the ranchers have no way of deterring 
her unconstitutional conduct.

                                 ______
                                 

    Mr. Bishop. Thank you, I appreciate that. Once again, your 
full testimony is part of the record. If there is anything 
additional you have, we will be happy to have that.
    OK, Mr. Hage, we will come to you and show that this goes 
through several generations.

         STATEMENT OF WAYNE HAGE, JR., TONOPAH, NEVADA

    Mr. Hage. Chairman Bishop and members of the committee, 
thank you for having me here today.
    Yes, it does go several generations. In fact, my father and 
my mother were first involved, filed the first action in the 
court against the Federal Government for takings. We have 
buried both of them. The case outlasted them. My dad then--
before my dad died, he had remarried to Congresswoman Helen 
Chenoweth of Idaho. We lost her, as well, and buried her, as 
well. And the second executor of my mother's estate--or, sorry, 
the first executor of my mother's estate, we also lost him, as 
well. So we have gone through quite a few people here, and now 
it fell on my shoulders.
    Talking about governmental abuses, for the most part it is 
all a matter of record in three courts. The takings court, 
Federal takings court, court of claims, the ninth circuit, and 
the Federal District Court of the State of Nevada. Most of it 
is on record. I can highlight some of the abuses that have 
taken place.
    One thing I will say, though, is what Judge Jones talked 
about in the Federal district court case that is still pending 
on appeal to the ninth circuit, what he talked about in those 
few instances--and the record is rich with his language--is 
very, very few of the instances that actually took place. 
Because when we went to that court, we were not--we were just 
trying to defeat the claim that we were trespassing, and we 
were trying to prove that, no, we were exercising our property 
rights, and just trying to make an honest assertion of those 
rights.
    The actual abuses that were highlighted was evidence that 
was presented by the Department of Justice, through their own 
witnesses, trying to show that I was a bad guy. And it 
backfired on them, instead. So, I mean, the record is just a 
small record in front of that court. But in actuality, the 
abuses were so great I can tell you stories that would make the 
hair stand on the back of your neck.
    But the main thing--and I don't want to say too much here 
today, because we always get retribution from the Federal 
employees, and they are never held accountable. Now, in our 
case, they were supposed to be held accountable. Two of the 
employees were sent to the U.S. Attorney for prosecution of 
conspiracy, because the judge found conspiracy between--by the 
BLM and by the United States Forest Service against our family 
to deprive us of our water rights and our grazing rights.
    Now, nothing has happened so far. The judge even told the 
U.S. Attorney, he said, ``I think you have a problem with this. 
I think there is a conflict of interest, and I think you need 
to find a U.S. Attorney from a different district, because your 
office is involved.'' So it goes higher up.
    During the contempt hearing, the judge found two of the 
Federal employees--a Mr. Tom Seley and Mr. Steve Williams--in 
contempt of court for trying to pursue their own action and 
their own remedy outside the courtroom, even after, as he 
explained, they brought the case against me, they chose the 
jurisdiction.
    So, when they were held in contempt--and this was, I 
thought, very revealing--they flew--in the contempt hearing 
they flew a lot of the Department heads from Washington, DC and 
the regional office to testify on behalf of the Federal 
employees, which was very kind of them to make that trip out 
there. However, the thing that became very apparent, when on 
the stand and being asked the questions, they said, ``We 
expected this behavior out of the employees.'' Now, keep in 
mind, that was the behavior that the court found contemptuous 
and that the court was outraged with. They said they expected 
that behavior out of them.
    So, this is not just--I mean it is isolated employees, yes. 
It is not, by any means, every single employee. But these guys 
were getting their direction, evidently, from the top. Now, I 
am probably going to get retribution for just being here and 
talking to you about this. I will take it. I hope they don't--
well, I will take it. I am still in court.
    But anyway, I do feel that we have a good system of law in 
the United States. Our court systems are still very good. And 
there is a reason for all these court rules and the court 
process. And I have found it to be, actually, very just in many 
cases.
    What I would like to see is a remedy, a remedy to where 
they would be held accountable to the law, just the same as we 
are. I mean we are darn sure held accountable. And thank you 
very much.

    [The prepared statement of Mr. Hage follows:]

          Prepared Statement of Wayne N. Hage, Tonopah, Nevada
    Since 1978 the employs of these agencies have demonstrated a 
disregard for my families' property rights and have punished us for 
making an honest use and assertion of these rights. The reason I 
accepted the invitation to testify here today is that I believe that it 
is so important for Congress to be aware of the atrocities that are 
being committed against my family and countless other ranchers. It is 
worth the risk or retribution from the agency employees. I would not be 
surprised if the BLM, USFS, and DOJ try to make my life difficult 
because I am testifying before this committee.
    Many ranchers have a problem with the BLM and USFS. They have 
conducted themselves in a criminal manner and destroyed many ranchers. 
I personally have been at the receiving end of this criminal conduct. 
This problem however does not stop with the Hage family. The number of 
other ranchers that have suffered like my family is too numerous to 
count. I know many. In fact you can talk to almost any rancher who has 
to deal with the BLM and USFS and hear about another incident where a 
Federal employ has broke the law and was never held accountable. You 
will only once in a great while hear of minor punishment.
    My family has spent over 23 years in the court protecting our 
property and liberties from these Federal employs. During these 23 
years we have had eight published decisions and findings of Takings of 
our property by the Federal agencies, and findings of Conspiracy by the 
Federal employs.
    Three courts have been witness to and addressed the government 
threats, intimidation and bullying. The Ninth Circuit Court of Appeals 
overturned a criminal conviction obtained by the USFS against my father 
for cleaning out brush from a ditch with hand tools.
    The Federal Court of Claims trial Judge realized and found that it 
would have been futile for the Hage family to comply with all of the 
demands of the BLM and USFS employs. He thus ruled the Federal 
Government had taken our water rights. As potential cost to the 
taxpayer of $14,000,000 for the criminal acts of employs of the BLM and 
USFS.
    The Chief Judge of the Federal District Court of the District of 
Nevada was so shocked by their behavior that he had found and ruled 
that the Federal Government employs engaged in a conspiracy against the 
Hage family. He also was convinced that the employs of the BLM and USFS 
would not stop and therefore gave my family a permanent Injunction 
against the Federal Government. (I pray that the Ninth Circuit Court of 
Appeals does not overturn the injunction, it is our only protection.)
    The employs of the agencies, namely Tom Seley of the BLM and Steve 
Williams of the USFS were also held in contempt of court for trying to 
seek their own remedy after they realized the court process was not 
going their way.
    The bosses (agency heads some from Washington DC) of Tom Seley of 
the BLM, and Steve Williams of the USFS, testified in a show cause 
hearing for their contempt that they expected Seley and Williams to 
conduct themselves in this manner that the court found contemptuous and 
which shocked the conscious of the court. This tells me the problem 
goes to the agency heads. The conduct, which the court saw as unlawful 
and vindictive was actually expected out of the Federal employs by the 
Agency heads.
    The Federal District Court of the District of Nevada has referred 
the Tonopah BLM Field Manager and the Austin Forest Ranger to the U.S. 
Attorneys office for the District of Nevada, for prosecution of the 
conspiracy against my family, but then explained that there is a 
possible conflict of interest. The Court then suggested that a U.S. 
Attorney from another district handle the case. To this date I am not 
aware that anything will be done to hold these employs accountable for 
this conspiracy. I also do not expect that the U.S. attorney will ever 
hold these employs accountable for their actions. Thus they know they 
have enough protection from prosecution that they will not be deterred 
from acting this way in the future. It is for this reason and others 
that I believe I will be punished by employs of the BLM, USFS and DOJ 
for testifying before this committee. The dangerous part of this is 
that now the Federal employs will be braver than ever.
    One of the main problems is that the employs of the USFS and BLM 
have the protection of the DOJ lawyers. They will go to great lengths 
to protect the employs of the USFS and BLM even to the extent of 
violating their ethics rules. One example; The USFS claimed that we 
needed a `special use permit' to maintain a July 6, 1866 Act ditch 
right of way with heavy equipment. The July 6, 1866 Act ditch right of 
way is a Congressionally granted and recognized right of way that 
preexisted the USFS and did not have any requirements or limitations 
for obtaining any permission for its maintenance and use. The USFS 
however claimed we could not maintain our July 6, 1866 Act ditch right 
of way without first obtaining a `special use permit' from them, or we 
could only use hand tools. Even though we believe the USFS is incorrect 
in requiring us to obtain a `special use permit,' (which supposedly 
they can deny) for any maintenance, we chose to only use hand tools to 
remove `brush' that was obstructing water flow in the ditch. 
Nonetheless, the USFS prosecuted my father for cleaning this ditch. The 
prosecution was overturned by the Ninth Circuit court of appeals. 
However the DOJ lawyer, Elizabeth Ann Peterson, in clear violation of 
the ethics rules and with no support of the record, represented to the 
Federal Circuit Court in the case Hage v. U.S. that my father was using 
`heavy equipment' and a dozer to clean this ditch. She argued that 
since we did not first seek a `special use permit' from the USFS and 
were not denied this permit that our case was not ripe. The Federal 
Circuit Court based its ruling on these misrepresentations of the facts 
and partially overturned the decision in Hage v. U.S. on the grounds 
that the case was not ripe because we did not first seek and get denied 
a `special use permit' from the USFS. Again the USFS even argued that 
we did not need this `special use permit' if we only used hand tools, 
and the facts are only hand tools were used. Thus one intentional lie 
from a DOJ lawyer cost my family immeasurable hardship.
    I have included some excerpts from the case U.S. v. Wayne N. Hage, 
Executor of the Estate of E. Wayne Hage, and Wayne N Hage, 
Individually. Case No. 2:07-cv-01154-RCJ-VCF. I find it best to read 
the Judges own words on this matter.
    In the present case, the Government's actions over the past two 
decades shocks the conscience of the Court, and the burden on the 
Government of taking a few minutes to realize that the reference to the 
UCC on the Estate's application was nonsensical and would not affect 
the terms of the permit was minuscule compared to the private interest 
affected. The risk of erroneous deprivation is great in such a case, 
because unless the Government analyzes such a note in the margin, it 
cannot know if the note would affect the terms of the permit such that 
the acceptance is in fact a counteroffer.
    The Government revoked E. Wayne Hage's grazing permit, despite his 
signature on a renewal application form, because he had added a 
reference to the UCC to his signature indicating that he was not 
waiving any rights thereby. Based upon E. Wayne Hage's declaration that 
he refused to waive his rights--a declaration that did not purport to 
change the substance of the grazing permit renewal for which he was 
applying, and which had no plausible legal effect other than to 
superfluously assert non-waiver of rights--the Government denied him a 
renewal grazing permit based upon its frankly nonsensical position that 
such an assertion of rights meant that the application had not been 
properly completed. After the BLM denied his renewal grazing permit for 
this reason by letter, the Hages indicated that they would take the 
issue to court, and they sued the Government in the CFC. The 
Government, having already denied the renewal grazing permit 
arbitrarily, then chose to interpret the initiation of the CFC Case as 
a refusal to appeal its administrative decision, despite the issuance 
of further protests by the Estate's attorneys. The Government refuses 
to consider any applications from Hage at this point. The entire chain 
of events is the result of the Government's arbitrary denial of E. 
Wayne Hage's renewal permit for 1993-2003, and the effects of this due 
process violation are continuing.
    In 2007, unsatisfied with the outcome thus far in the CFC, the 
Government brought the present civil trespass action against Hage and 
the Estate. The Government did not bring criminal misdemeanor trespass 
claims, perhaps because it believed it could not satisfy the burden of 
proof in a criminal trespass action, as a previous criminal action 
against E. Wayne Hage had been reversed by the Court of Appeals. During 
the course of the present trial, the Government has: (1) invited 
others, including Mr. Gary Snow, to apply for grazing permits on 
allotments where the Hages previously had permits, indicating that Mr. 
Snow could use water sources on such land in which Hage had water 
rights, or at least knowing that he would use such sources; (2) applied 
with the Nevada State Engineer for its own stock watering rights in 
waters on the land despite that fact that the Government owns no cattle 
nearby and has never intended to obtain any, but rather for the purpose 
of obtaining rights for third parties other than Hage in order to 
interfere with Hage's rights; and (3) issued trespass notices and 
demands for payment against persons who had cattle pastured with Hage, 
despite having been notified by these persons and Hage himself that 
Hage was responsible for these cattle and even issuing such demands for 
payment to witnesses soon after they testified in this case.
    By filing for a public water reserve, the Government in this case 
sought specifically to transfer to others water rights belonging to the 
Hages. The Government also explicitly solicited and granted temporary 
grazing rights to parties who had no preferences under the TGA, such as 
Mr. Snow, in areas where the Hages had preferences under the TGA. After 
the filing of this action, the Government sent trespass notices to 
people who leased or sold cattle to the Hages, notwithstanding the 
Hages' admitted and known control over that cattle, in order to 
pressure other parties not to do business with the Hages, and even to 
discourage or punish testimony in the present case. For this reason, 
the Court has held certain government officials in contempt and 
referred the matter to the U.S. Attorney's Office. In summary, 
government officials, and perhaps also Mr. Snow, entered into a 
literal, intentional conspiracy to deprive the Hages not only of their 
permits but also of their vested water rights. This behavior shocks the 
conscience of the Court and provides a sufficient basis for a finding 
of irreparable harm to support the injunction described at the end of 
this Order.
    The Court will not award punitive damages under State law, because 
there is not ``clear and convincing'' evidence of ``oppression, fraud, 
or malice, express or implied'' on behalf of Defendants. See Nev. Rev. 
Stat. Sec. 42.005(1). Defendants clearly had a good faith belief in 
their right to use the land as they did and had no intention to 
disregard the right of others. This does not prevent a trespass claim, 
but it does prevent punitive damages.
    Defendants are also entitled to an injunction, as outlined, infra. 
There is a great probability that the Government will continue to cite 
Defendants and potentially impound Defendants' cattle in the future in 
derogation of their water rights and those statutory privileges of 
which the Government has arbitrarily and vindictively stripped them.

    IT IS FURTHER ORDERED that to the extent not inconsistent with this 
Order, the Court adopts Defendants' Proposed Findings of Fact and 
Conclusions of Law (ECF No. 392).

    The conspiracy ruling was much more limited than what it could have 
been. Had we presented all of our evidence the court would still be 
trying to write its decision.
    It is warming to know that with regard to the Courts that we still 
have the Rule of Law. Although as I have found out it is nearly 
impossible to defend a persons property and rights in the courts due to 
the financial burdens and the length of time involved. (My Mother and 
Father filed the original case and were not able to live long enough to 
see the end of the litigation. My stepmother died before there was an 
end to the litigation and it is looking like my siblings and I may be 
in old age before this is concluded.) However, there it is becoming 
very apparent that there is no rule of law with regard to the employs 
of the BLM, USFS and perhaps the DOJ, there we have the rule of man. I 
remind Congress that Aristotle explained that the difference between a 
correct form of government and perverse form of government is that the 
former is the Rule of Law and the latter is the rule of man.

    What solution may I offer?

    The Citizens of this great country need to have the means to hold 
the employs of these agencies accountable for their actions. I believe 
that only if they are held accountable will they stop the Threats, 
Intimidation and Bullying. To accomplish this we need at least two 
things from Congress:

  1.  We need harsh penalties to be placed upon the employs who break 
            the law and violate a persons rights. They are using the 
            color of law in the performance of their actions, and they 
            have the force of the Federal Government to protect them.
  2.  There must be an easier way to be able to hold them accountable. 
            One of the biggest problems is that they claim their 
            actions are actions of the Federal Government and thus they 
            claim sovereign immunity. The individual is then forced to 
            go up against the full force and might of the Federal 
            Government and prove that it was not an action of the 
            government in order to proceed. This is a very difficult to 
            do. We need to take the sovereign immunity away from 
            Federal employs who break the Law.

    Thank you for allowing me to testify before this committee

                                 ______
                                 

    Mr. Bishop. Thank you. I appreciate your testimony. You 
could have gone on to the hair-raising stories; I had my hair 
cut specifically for this.
    [Laughter.]
    Mr. Bishop. Representative Grijalva hasn't done that, but I 
did.
    For a questioning period, we will turn to the members of 
the committee. You have 5 minutes, again, for questioning.
    I am going to yield my time originally to Mr. Tipton--I 
think you were here first--if you have questions for this 
panel.
    Mr. Tipton. Thank you, Mr. Chairman. And I would like to 
thank all the panel for taking the time to be able to be here.
    Mr. Chairman, you are probably like me. I am a little 
disturbed when I am hearing Mr. Lowry talk about intimidation 
when it comes to being able to protect those private property 
rights, when I hear Mr. Hage talk about being worried about 
retribution for simply coming here to be able to tell your 
story about being able to protect a private property right.
    Mr. Hage, could you maybe expand just a little bit more for 
us? Your family spent 23 years, you have gone through both your 
folks passing away, 8 different court cases, in terms of trying 
to be able to protect your private property rights. And that is 
part of the reason we appreciate Mr. Lowry pointing out, as 
well, the water rights protection bill that Mr. Amodei and I 
have introduced.
    Do you believe it is important that the Federal 
Government--that Congress, specifically--finally address this, 
and tell those agencies that it is your water, and it needs to 
be protected as a private property right?
    Mr. Hage. Oh, for sure, it is very important. I mean, even 
Aristotle will tell us, you know, the difference between the 
correct form of government and a perverse form of government is 
whether we have the rule of law or the rule of man. And we 
don't have the rule of law with some of these agencies, with 
some of the individuals in some of the agencies. I am not going 
to just say agency only. I am going to say, you know, certain 
individuals in some of these agencies. And when that rule of 
law breaks down, well, then there is nothing protecting us.
    Now, you can tell the agency to stop doing what you are 
doing, but unless you give the actual people the power to hold 
them accountable, they are not going to hold each other 
accountable. In other words, the bosses are not going to hold 
them accountable. I am convinced of that. I have seen that in 
the past.
    So, it is a matter of great importance, in my opinion. We 
have got some great decisions out of the courts. But still, 
there is no remedy for us, no guarantee that our property 
rights are going to be held sacred or valid.
    Mr. Tipton. Under Equal Access to Justice have you ever 
been reimbursed for your financial costs?
    Mr. Hage. No, no, I have not. Now, there is a reason for 
that, too. It is still on appeal, so the time has not told. So 
in the court process that has not completely gone through. When 
the appeal is over, there is a certain time period afterwards 
that we get to submit our bill. And, supposedly, under the 
Equal Access to Justice Act, we will get reimbursed for the 
cost.
    However, myself personally, I won't. I represented myself 
pro se in the court. And the Equal Access to Justice Act does 
not apply to me. The lawyer that I hired to represent my 
father's estate, that will get reimbursed. But myself, 
personally, I devoted 3 years and studied the law myself to try 
to defend myself in these courts. We got a really great 
decision, but I am out every penny of it.
    Mr. Tipton. Yes. Mr. Valdez, your family has been here 
since the 1500s. Did you put that water to beneficial use when 
you described bringing in those first cattle herds, before the 
Forest Service even existed? Did your family feel that they 
were putting that water to good beneficial use?
    Mr. Valdez. Absolutely. In fact, we engaged with the people 
that were already there in expanding on irrigation 
infrastructure to enhance production of fodder for winter use, 
and we improved springs, and continued to improve water supply 
sources on Federal public lands.
    Mr. Tipton. Would you concur that it is important at this 
time that we do pass that message, we do pass through Congress 
the--what is just your right, to be able to hang on to that 
private property water right that is so dear to the West?
    Mr. Valdez. Absolutely. Water is everything,
    Mr. Tipton. Great. Mr. Lowry, you talked about compiling 
better than $800,000, I believe it was, in terms of costs, just 
to be able to protect your private property rights. How is your 
family going to be able to sustain that? You had mentioned 
about intimidation, and many people just dropping out and 
giving up under the threat of Federal intimidation. How is your 
family dealing with that?
    Mr. Lowry. Well, we are surviving. I would say one thing, 
that I do want to give compliments to our attorneys who fought 
that case. They have not been pressuring us to get that paid. 
They are giving us a very generous amount of leeway on that. 
Otherwise, we would be out of business right now. And not to 
put too fine a point on it, $888,440.07 was the last bill.
    And, if I could address the question you posted to the 
other two gentlemen on the importance of passing the Water 
Rights Protection Act, I would concur with that. And I think, 
in addition to that, I do not believe that the agencies are 
going to give up, because it has been an ongoing policy for 
decades to obtain the water.
    I read a transcript of a speech that Secretary----
    Mr. Bishop. We are out of time, I am sorry. We will come 
back to those questions again, as well. And I will ask how you 
came up with $.07, too.
    But, Mr. Grijalva, do you have questions?
    Mr. Grijalva. Yes. Thank you, Mr. Chairman. A long 
question, and hopefully some--for the panelists, all of them.
    The Federal Land Policy and Management Act of 1976 requires 
that BLM manage public lands ``in a manner that will protect 
the quality of scientific, scenic, historical, ecological, 
environmental, air and atmospheric, water resource, and 
archeological values that, where appropriate, will preserve and 
protect certain public lands in their natural condition that 
will provide food and habitat for fish and wildlife and 
domestic animals, and that will provide for outdoor recreation 
and human occupancy land use.''
    I understand, from all the testimony of the witnesses, that 
there are grievances with Federal land management agencies over 
specific cases. But, correct me if I am wrong, and from what I 
understand you are not saying that BLM or the Forest Service 
never has a legitimate reason to restrict grazing and other 
uses to protect land that is the property of the entire 
American people. Am I correct in that assumption, from the 
witnesses, that there is a--just go down----
    Ms. Budd-Falen. Yes, you are correct.
    Mr. Grijalva. Sir? Do you feel----
    Mr. Robbins. I would say that they do have a management 
right. And I don't think any of us would disagree with that.
    Mr. Grijalva. OK, thank you. Sir?
    Mr. Lowry. Yes, Congressman, I agree with that. They have 
the right and a duty and the responsibility to manage, and 
manage according to the law and to the Constitution, sir.
    Mr. Grijalva. And the law we are referencing is the 1976 
law that I am referencing.
    Mr. Lowry. Yes, and I believe not only FLPMA, but all laws 
pertaining----
    Mr. Grijalva. Ms. Richards?
    Ms. Richards. I would also agree that the land management 
agencies have the charge to manage correctly.
    I would also add to what you have stated with the laws. 
They also require that economic analysis is done on their 
decisions, allow for multiple use and----
    Mr. Grijalva. OK.
    Ms. Richards [continuing]. That sound science is used to 
make those decisions.
    Mr. Grijalva. Sir?
    Mr. Valdez. I agree that FLPMA generally outlines the 
responsibilities of land management. In our particular area, we 
dispute that the government legitimately acquired the lands 
that they are managing; that is a separate issue. And I think 
they have to manage in the----
    Mr. Grijalva. That is the land grant issue that----
    Mr. Valdez. Yes.
    Mr. Grijalva. Historic--yes. Sir?
    Mr. Hage. Yes, sir. Thank you. I do agree with your 
statement about FLPMA concerning public lands. The one thing 
that I will highlight, though, is they can manage those lands, 
but even with the savings clauses in FLPMA, they cannot do so 
with--and destroy property----
    Mr. Grijalva. OK.
    Mr. Hage [continuing]. Private property in that respect.
    Mr. Grijalva. One more follow-up question for all the 
witnesses. In 2000, the Public Lands Council v. Babbitt, the 
Supreme Court looked at the language in the Taylor Grazing Act 
of 1934, which was intended to address the deterioration of 
Western range lands due to over-grazing them. Ranchers argued 
that new regulations infringed on their rights to graze. The 
Supreme Court unanimously ruled that there was no right to 
graze. Land management decisions should be guided by broader 
public interests.
    I would like our witnesses' view on this case. Do you 
believe it was correctly decided? Do you believe the Federal 
Government has a duty to protect those grasslands, forests, and 
wildlife for future generations? And, when ranching activities 
threaten these natural resources, that these activities should 
be regulated? And I will just go down.
    Counsel.
    Ms. Budd-Falen. Your Honor, actually, what the United 
States Supreme Court said is that a challenge to the Bruce 
Babbitt regulations as a whole was incorrect. But if you read 
the concurring opinions, particularly that of Justice O'Connor, 
she said that, absolutely, individual instances of abuse, or 
individual instances of challenge to the grazing regulations 
based on----
    Mr. Grijalva. But the fundamental issue of no absolute 
right to graze, and the land management decisions must be 
guided by a broader public interest, that is the crux of that 
decision.
    Ms. Budd-Falen. But she didn't--they didn't say that, 
blanket, there was no absolute right to graze. What they said 
was that the Taylor Grazing Act was in full force and effect, 
and they upheld the tenth circuit's ban on saving the land or 
creating the land for----
    Mr. Grijalva. Yes, but----
    Ms. Budd-Falen [continuing]. Use.
    Mr. Grijalva. You have me at an advantage or disadvantage, 
depending on your point of--on your frame of reference. I 
didn't go to law school, but that is kind of the text that I 
looked at.
    Sir.
    Mr. Robbins. Well, when we bought these ranches, we bought 
a preference right and we paid for a permit. And these go back 
before there was even a State. My ranch goes back to 1871, 
before the State of Wyoming was even incorporated. And those 
rights have been with the ranch since then. I lost----
    Mr. Grijalva. Yes, you don't agree with the decision.
    Mr. Robbins. I don't agree with it, and I say that since 
2004 I have not had those grazing privileges. OK?
    Mr. Grijalva. Thank you.
    Mr. Bishop. Mr. Daines, do you have questions?
    Mr. Daines. Thank you, Mr. Chairman. I represent the State 
of Montana, so we are very familiar with the issue of public 
lands, Federal lands, and private property rights.
    I have to tell you that the title of this hearing is 
``Threats, Intimidation, and Bullying by Federal Land Managing 
Agencies.'' Boy, the last few weeks out in Montana we have had 
hunters trying to walk across public lands to be shut out, 
trying to access State lands to be shut out and closed to the 
public. And I have had many, many hunters come to me and say, 
``Steve, for the first time we realized these aren't public 
lands, they are government lands.'' And the government is 
shutting out these lands to their own people, and it is 
outrageous.
    Well, let me pivot back over to the panelists here, and 
thanks for the testimony. Some of my constituents have had 
similar experiences with the Federal Government operating near 
public lands in Montana. I will tell you the Federal Government 
must be a better steward of public resources, and must become a 
better neighbor of the private landholders.
    It is interesting to hear many of you talk about the cost 
of litigation you have had to endure with the Federal 
Government. In Montana we witnessed that firsthand with these 
fringe extreme groups that fight our Forest Service in court, 
holding up and stopping important timber sales. In fact, I 
think region one has one of the worst trends, worst records of 
habitual litigants of any region. And to make this situation 
worse, adding insult to injury is when these groups receive 
compensation from the Federal taxpayers when they prevail for 
the Equal Access to Justice Act.
    Now, it is my understanding that EAJA was intended to help 
citizens who are directly harmed by the Federal Government. 
That is the small business owner, the private rancher, many of 
you who have testified here today. However, I also understand 
you are having a hard time maybe getting compensated for your--
for the work that you have done fighting on behalf of your 
rights.
    First of all, Mr. Lowry, do you think we should have some 
reforms to the Equal Access to Justice Act that might 
facilitate helping the people it was originally intended to 
help, which was the little guy, not the habitual litigant?
    Mr. Lowry. Yes, Congressman. Thank you. In our particular 
case--you have probably seen in the written testimony--the 
Idaho Supreme Court denied awarding EAJA claims on their belief 
that it was--State court did not fall under the jurisdiction of 
that. And there is a Nevada Supreme Court that takes a 
different view. And I think that could be resolved by amending 
EAJA. And I would suggest, in the definition section on 
``court,'' that it would state that court includes State courts 
having jurisdiction over the subject matter.
    They had to do that with veterans' courts. I read the 
Congressional Record on why veterans' courts is listed under 
``court,'' and it was because veterans' courts were not 
awarding EAJA fees. And so it was amended to redress that 
problem. So I think it could be handled the same way.
    Mr. Daines. I appreciate that input. And I am a cosponsor 
of Representative Lummis of Wyoming's--her Government 
Litigation Savings Act, which is going to help improve this 
law. And I look forward to working with her and the team here 
to that end.
    Perhaps--could you also expand--we talked a bit about 
looking out for the little guy, which was the intent of EAJA in 
the first place, the private land owner, the little guy who was 
taking on the Federal Government? Could you also maybe expand 
on the needs for Equal Access to Justice Act reforms that might 
address the habitual obstructionist lawsuits that are a big 
problem in many of the Western States? Yes, please.
    Ms. Budd-Falen. Thank you. That is actually one of the 
problems that the Governmental Litigation Savings Act is 
supposed to take care of, are these habitual litigants.
    One of the problems that you have under the Equal Access to 
Justice Act is that the statutory cap on your net worth only 
applies to businesses and individuals, because the Act was 
truly meant to help protect small businesses and individuals. 
So there is a $7 million net worth cap. But that doesn't apply 
to litigant environmental groups, such as the Sierra Club, 
whose net worth is $56 million. They can get attorney's fees. 
Center for Biological Diversity's net worth is $10 million. But 
because they are ``non-profit public interest,'' they can be 
awarded attorney's fees.
    And so, often what you have is not just awards, but simply 
the Justice Department willing to settle these cases with these 
groups, some of which, for undefined amounts that are not 
noticed to the public, and so at this point, without any 
transparency, this Congress and members of the public have--
absolutely have no idea how much in attorneys' fees are going 
to groups that are worth $56 million, and could certainly 
afford their attorney, whereas these individuals who are 
fighting for their livelihoods cannot get that same money, 
because they own land.
    Mr. Bishop. Thank you. I am sorry, I am going to have to 
cut you off there. I appreciate it.
    Mr. Huffman, do you have questions?
    Mr. Huffman. Thank you, Mr. Chair, and thanks very much for 
the witnesses.
    You know, I think our Federal Government, our Federal land 
managers, should always be good neighbors. They should always 
comply with the law. And so, I am always concerned when I hear 
where a court has actually found wrongful conduct. I appreciate 
your testimony, Mr. Hage.
    But I do think it is important also to acknowledge that BLM 
administers 18,000 grazing permits in this country, that the 
U.S. Forest Service administers 8,000 such permits. And if we 
could stipulate that we should be concerned when there is a 
violation of law and when there is bad conduct, and if it were 
approached in that manner there would be a spirit of great 
bipartisanship in trying to make sure there is accountability 
and lessons learned and better conduct from that.
    But when we title hearings with loaded terms, such as 
today, when we bring forward not only cases that have been 
validated by courts, but cases that are unsubstantiated 
hearsay, all manner of allegations, when we characterize the 
Federal Government as a hotel thief, going room to room, trying 
to find who they can fleece, things quickly rise to the level 
of caricature. And, unfortunately, that is what I am afraid we 
are talking about here today.
    So, I just want to express my dismay that, instead of what 
could be a bipartisan serious oversight approach to incidents 
that I don't think anyone on this panel would tolerate, 
regardless of their party, that we are once again trying to 
stage a whole bunch of mini-sagebrush rebellions because we 
don't like the Federal Government. And that is just not a 
constructive place to be.
    If we want to look at habitual litigation and that problem, 
I sure hope that scrutiny includes groups like the Pacific 
Legal Foundation, Cause of Action, the Competitive Enterprise 
Institute, who I see ever-present in these proceedings, who 
simply troll around, looking for opportunities to bring 
property rights cases against the government, often 
unsuccessfully. And we could certainly take a good, hard look 
at some of the frivolous litigation that is constantly being 
asserted in the name of property rights. But, again, we don't 
see that kind of balanced approach. And I just want to express 
my concern.
    With that, I will yield the balance of my time to the 
Ranking Member, Mr. Grijalva.
    Mr. Grijalva. I appreciate it. Ms. Richards, the Gateway 
West Transmission Line, a route that you suggest would go 
through the heart of the specially designated public land, the 
Birds of Prey National Conservation Area, which Congress 
established 20 years ago. And last year, on behalf of the 
county initiative, you wrote to Secretary Salazar saying, 
``Let's pause the permitting process, convene a collaborative 
effort to address that.'' Obviously, more local work needed to 
be done on the route.
    When the BLM released their final Environmental Impact 
Statement for public comment in April, the Agency said it might 
delay making a decision on parts of the line in your area in 
order to continue to work with local stakeholders. Do you 
support that BLM decision?
    Ms. Richards. The BLM decision that we have right now we 
currently do not support. There was a totally collaborative 
effort that took part, including former BLM employees that 
worked at the Birds of Prey that have the history and the 
scientific background to--for the county on this matter.
    Mr. Grijalva. So the decision to hold in abeyance any final 
decision on the route in those areas that you raised as 
concerns in your letter, you don't agree with that decision by 
the BLM?
    Ms. Richards. I am sorry. I am not understanding what you 
are asking.
    Mr. Grijalva. When the BLM released that final 
Environmental Impact Statement in April, the Agency said it 
might delay making a decision on parts of the line in your area 
that were raised to Secretary Salazar in order to continue to 
work collaboratively with local stakeholders to find the best 
solution. My question is, do you support that decision by the--
--
    Ms. Richards. I support the decision to delay that, but I 
would also, with due respect, say that we have gotten a letter 
since, in September, that shows the lines still coming across 
our private ground. That came from the BLM, from the 
Washington, DC level.
    Mr. Grijalva. So, in response to the request for 
collaboration, there is a pause in the permitting process. The 
statement itself says, ``We are not going to go forward with 
that route until we have more involvement.'' You support at 
least that part of the involvement. It kind of seems opposite 
of bullying and threatening at this point, doesn't it?
    Ms. Richards. I do support that part of the involvement, as 
long as it is upheld by both parties, the agencies and those 
that are in the county.
    Mr. Grijalva. OK, thank you.
    Mr. Bishop. Thank you. You all should have seen what I 
wanted to call this hearing. This is a soft version of it.
    [Laughter.]
    Mr. Bishop. Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman.
    You have been an excellent panel. I represent northeast 
California, the top of the State where it borders Nevada and 
Oregon. So we feel a great kinship to you folks from the other 
Western States. Indeed, we feel like all of us in the West are 
targeted by urban areas, the East Coast, people that--
understand what we do or seem to have an appreciation for it in 
agriculture, in ranching, in resource management and 
extraction.
    And to the idea that somehow farming and ranching are 
harmful to the Federal lands, the public lands, I have never 
seen any really good evidence of normal practices, good, sound 
stewardship, having it be harmful. It seems to be a shift in 
opinion by those that govern or regulate us, a different type 
of people in government these days than what maybe previous 
generations--that look at it not as just public lands, but 
their lands, or government lands, as was asserted a while ago.
    So, to hear that--what you all go through, it really breaks 
my heart, what you have to do to defend things that have been 
practices of your families or your neighbors or your 
neighborhoods for decades or, in the case of Mr. Valdez, even 
centuries of what you have done in good faith as good stewards.
    And so, I appreciate greatly your willingness to fight 
back. Because, again, like in the area where I represent, the 
area of Siskiyou County, places like that, they do feel like 
they are being abused and that people show up with more ideas 
or more visions for how they should manage their land, or a 
reintroduction of the gray wolf to their area. Now, if you have 
ever seen what those creatures do to livestock, to game, they 
are not happy with more government intervention thinking that, 
oh, wouldn't it be nice to introduce these species, et cetera.
    So, to get to Mr. Lowry there, you talked about a $888,000 
bill so far that maybe your legal team is working with you on 
that. If you have already been rejected--well, is that the 
final answer under Equal Access to Justice there, or do you 
have any other recourse, as that was, again, brought on by a 
Federal action that you were even in that court?
    Mr. Lowry. No, we have no other recourse. We applied to the 
U.S. Supreme Court concerning the Idaho Supreme Court's 
decision on that issue, on the awarding of attorney fees. And 
we were hoping that perhaps, with the differing opinions 
between the Idaho and the Nevada Supreme Courts, that they 
would take that case, but they did not. So, as I understand it, 
we have exhausted our abilities in that arena.
    Mr. LaMalfa. So, to a farmer or rancher at my level, our 
level, that is real money. How does a person come up with that 
at the end of the day?
    You know, Mr. Hage, you have been through--I have known 
your family name for many years before I have been in this role 
here, and I don't want to ask you personally what your numbers 
are, but I imagine they are pretty extensive, as well.
    And one more side question, too. Did you grow up with the 
idea that you were going to become--you are an attorney, 
correct?
    Mr. Hage. I am not a licensed attorney; I am a pro se 
litigant.
    Mr. LaMalfa. OK.
    Mr. Hage. Yes.
    Mr. LaMalfa. But you have done much--is that what you grew 
up to do?
    Mr. Hage. No, sir, your Honor. I grew up on the back of a 
horse in the middle of the sagebrush. But it is what I had to 
do in order to protect our rights.
    Talking about numbers, I mean, our number is just about 
as--well, it is outrageous. It is about--4.3 million is what I 
currently owe on one attorney bill, and quite a bit on another 
attorney bill. How do we get compensation? We are hoping that 
the court will give us compensation in the court of claims. And 
the trial court certainly awarded it to us, but the appeals 
process has been years and years. And----
    Mr. LaMalfa. Does anybody on this panel feel like--that 
your access to justice, when you have to bring lawsuits to 
defend yourself, that these are frivolous?
    Mr. Robbins. I have spent around a million dollars myself, 
and it is absolutely not frivolous. And I would be glad to meet 
with Mr. Huffman and discuss what he considers frivolous.
    And when they try to put you in jail for 2 years, when they 
audit you within 3 weeks of winning that decision, and all the 
economic losses from the guest ranch business to running 50 
percent for the last 10 or 12 years, it is $20 or $30 million 
worth of losses to us and to that community, 15 jobs, just in 
the guest ranch business, that went away. It is huge for a 
small community of 4,000 in the whole county. We are the 
largest ranch there, the largest agricultural enterprise there, 
even at 50 percent. So, it is huge for us, and we would like 
some relief.
    Mr. LaMalfa. Thank you all for coming the distance you have 
come here today, and for fighting back, and for not just taking 
it sitting down. So we all appreciate it, and we will be with 
you.
    I yield back.
    Mr. Bishop. Thank you. Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chairman. You have all told 
heartrending stories of threats by your own government, of 
everything from jail time to financial ruin. My colleague from 
California says that this is caricature. Caricature is defined 
as exaggerations by means of often ludicrous distortion. Do any 
of you--would any of you want to make a reply to that charge?
    Mr. Robbins. I will make a reply. I had a meeting in--with 
the Department of the Interior and the BLM in Washington, DC. I 
brought to that meeting--there were 12 people in the room. I 
was sitting at the end of this table with Department of Justice 
microphones here, Department of Justice lady here, on the 
right. I brought the transcript from the trials. I proved 
perjury against the number two man in the organization. I read 
the transcripts, turned to the Department of Justice lady and 
said, ``What are you going to do?''
    She said ``Oh, well''--I said, ``Let me tell you, folks. If 
they had just proved perjury on me, they would be hauling me 
out of here right now.'' And everybody in that room didn't say 
a word. You could have dropped a pin in that room. Every one of 
them in that room went just like this. They know the power of 
the Federal Government. And that has been back in 2004. Nothing 
has been done to any of them for perjury.
    The reason I didn't get to go to court is because I had so 
much perjury involved in the case that they were going to lose, 
and that is why it went to the Supreme Court. It is ridiculous 
that somebody that is abused the way I have been abused cannot 
get his day in court. That is all I wanted, give me my day in 
court.
    Mr. McClintock. Anyone else want to respond?
    Ms. Richards. If I could respond on behalf of our county 
and the county residents, we are plagued right now with a 
permit renewal process that is 150 out of--or 125 out of 150 
allotments in our county, which, as I stated, is 77 percent 
Federal land.
    It is not caricature when those small rural communities are 
affected. We have schools, we have small businesses that are 
dependent upon that. And when we have agency people that are 
making decisions that are not coordinating as they are charged 
with on the county level, and those citizens do not have any 
recourse, it is time for a change in the law.
    So, I would say that when you go out to these small rural 
communities and see these people and how it affects their 
lives--Tim Lowry is from Owyhee County. We know how that has 
affected him. We have many others in there. We have got current 
cases right now where one is only a third of the way into the 
process, and they are at $55,000.
    And so, I would say that it definitely has effect, and we 
definitely need a change, and it is definitely something that 
needs to be heard, because it is out there.
    Ms. Budd-Falen. Your Honor, the other thing that I would 
say is that we are only asking to be able to go to court. I am 
not telling you that all these people would win, I am not 
telling you that every Federal employee is bad, that every 
employee has an agenda. But each of these people here have 
suffered through individual employees.
    When we were called for this hearing, I personally just did 
some research, because I don't represent a group. We found 12 
additional stories of people that have these kind of stories, 
but we don't have a recourse. We don't have a way to go to 
court and plead our facts.
    Mr. McClintock. Well, let me ask you this.
    Ms. Budd-Falen. That is what this is.
    Mr. McClintock. What would you have Congress do? How much 
of this requires changes in law, and how much of it extends to 
the attitude of public officials?
    Ms. Budd-Falen. You can't legislate the attitude of public 
officials any more than you can legislate the attitude of the 
citizens here. But right now it is up to Congress to waive the 
sovereign immunity of individuals, so that we have a cause of 
action in court. If we bring a frivolous case, a Federal judge 
has all the power under the Federal rules of civil procedure to 
dismiss the case. You can bring sanctions against the attorney.
    We are not asking to be able to bring all sorts of 
frivolous cases against general policy. We need Congress to 
waive the immunity of Federal officials, just like Congress did 
with State officials and local officials under the Federal 
Civil Rights Act, so that we can bring our individual cases to 
a Federal court and have a Federal judge look at the rule of 
law and make a determination.
    Mr. McClintock. Sovereign immunity, I think, is itself a 
puzzling concept in a republic like America. In the European 
countries, sovereignty flows from the government. America has a 
very different foundation, and that is its sovereignty flows 
from the people. The people are sovereign, the government is 
their servant. And it seems to me that we are moving more and 
more toward a European model vision of sovereignty, where your 
rights are derived not from what the founders call the laws of 
nature and of nature's God, but rather, from the government, 
itself.
    And, as the French discovered when they tried to mimic the 
American Revolution, if you place that source of rights within 
the government, you have a very, very unstable situation. And 
maybe that is something we need to consider.
    Mr. Bishop. Thank you. Mr. Amodei? Happy to have you come 
back. Do you have questions for this panel?
    Mr. Amodei. Just briefly. Mr. Hage, thank you for your 
testimony. You used to be in my district, but obviously you 
didn't like the representation. So you fixed that.
    [Laughter.]
    Mr. Amodei. Can you tell me if the folks in your statement 
that are with the Federal land management agencies in Nevada--
does Mr. Seley still work for BLM in Nevada?
    Mr. Hage. He retired--talking about Mr. Seley, Congressman. 
Mr. Seley retired, I believe it was, right at the end of May. 
And I think it was right about the time the decision in my case 
came down.
    Mr. Amodei. OK.
    Mr. Hage. He retired at the same time----
    Mr. Amodei. Was he headquartered out of the Ely office, the 
Tonopah District?
    Mr. Hage. No, he was----
    Mr. Amodei. Where was he?
    Mr. Hage. He was right there in the Town of Tonopah. He was 
in the Tonopah field office, as they call it, in the Battle 
Mountain Grazing District.
    Mr. Amodei. The Battle Mountain District, OK. And what 
about Mr. Williams? Still employed by the Forest Service?
    Mr. Hage. I assume he is. I have no idea. Now, my 
correspondence with the Federal agency no longer has Mr. 
Williams's signature on it. It was another individual. I do 
believe he is still there. I haven't heard that he is retired. 
I believe I would have heard that----
    Mr. Amodei. But he is out of the Austin Ranger District?
    Mr. Hage. Austin Ranger District in the Toiyabe National 
Forest, yes.
    Mr. Amodei. Thank you. Thank you, Mr. Chairman, I yield 
back.
    Mr. Bishop. Thank you. Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. I have a quick 
question for Ms. Budd. You got into a little exchange about a 
Supreme Court decision with the Ranking Member, and you seemed 
to have a different interpretation. The Ranking Member seemed 
to be interpreting the Supreme Court decision as there is no 
right to grazing. And I kind of heard you going back and forth.
    Can you explain that decision, in your opinion, what you 
think it means? It seems like it was being mischaracterized a 
little bit by the Ranking Member, so I just want to make sure 
that we understand that Supreme Court decision better.
    Ms. Budd-Falen. Certainly, sir. The case is Public Lands 
Council v. Babbitt. It was a case that was brought as a general 
challenge to the regulations that Bruce Babbitt put into place 
when he was Secretary of the Interior that, in the Public Lands 
Council's view, actually changed the focus of grazing under the 
Taylor Grazing Act.
    If you look at the Federal Land Policy and Management Act, 
it does not repeal the Taylor Grazing Act. It adds additional 
things to be considered, but it never repealed that Act. The 
case was brought in the Federal District Court in Wyoming. It 
went to the Tenth Circuit Court of Appeals. The Tenth Circuit 
Court of Appeals actually rejected some of the range land 
reform regulations and accepted others, but it did so only on 
the basis that, because the regulations were changed as a 
whole, and not considering specific fact situations, that 
certain portions of those regulations could go forward.
    The Supreme Court, and particularly the concurring 
opinions, said that, ``When we view these regulations as a 
whole, they may or may not be valid. But you are free to bring 
individual factual situations challenging these regulations in 
individual places.'' And that concurring opinion was by Sandra 
O'Connor.
    Mr. Labrador. All right, thank you. Ms. Richards, welcome. 
It is good to have you here again.
    How has the BLM's management of the Gateway West project 
negatively impacted Owyhee County, which is in my district, by 
the way?
    Ms. Richards. Yes. I guess--and thank you for allowing us 
to be here today--some of the negative impacts have been, as I 
indicate in my testimony, there have been hundreds of hours 
that have been spent not only from residents of the county, but 
we have environmental groups, many of the environmental groups 
that are participants on the Owyhee Initiative. And, as Mr. 
Grijalva alluded to, we also--the initiative wrote a letter of 
concern about the steps that were being taken.
    The county has produced numerous maps to help in this 
coordination. They have gone out and ground-truthed a lot of 
the paths. And we have actually hired people to look at the 
Birds of Prey aspect and make sound, science-based resolutions 
about the project that we could have, going forward.
    Mr. Labrador. And I think you testified that the Birds of 
Prey experts are actually disagreeing with the Federal 
authorities over here. Isn't that correct?
    Ms. Richards. Actually, on the local level they are, and we 
have former employees that are retired now that are in 
consulting that have also wrote opinions of that.
    Mr. Labrador. OK. And I think you were just recently 
quoting the Idaho statesman speaking favorably about the 
collaborative process. Isn't that correct?
    Ms. Richards. You are correct. Rocky Barker did come out to 
an event that was held in the Owyhee. And yes, we are still in 
favor of collaborative processes, inviting all----
    Mr. Labrador. So you are not here testifying against the 
collaborative process.
    Ms. Richards. Absolutely not.
    Mr. Labrador. Which--it seems like that was what was trying 
to be implied by Mr. Grijalva.
    Ms. Richards. Correct.
    Mr. Labrador. So, tell me why you think the collaborative 
process works, and why you think, in this case, the Federal 
agencies are actually not complying with the collaborative 
process?
    Ms. Richards. I am going to make a clarifying statement 
there. The collaborative processes work, as I indicated in 
response to Mr. Grijalva's question, when both sides are 
playing by the same rules. What we see as veiled threats or 
possibly, I would say, intimidation is when the Federal agency 
goes along, leads everybody to believe that they are playing by 
the same rules, and then oversteps their boundaries by changing 
the rules in the middle as, I would say, of a card game.
    Mr. Labrador. Can you give an example of how that happened 
in Owyhee County?
    Ms. Richards. Actually, there have been two of them. One of 
them was in a wilderness management plan, where the BLM wrote 
new guidelines after legislation was passed on something they 
already agreed on.
    The other would be in the Gateway West Transmission and 
what came forward from a collaborative effort, and then what 
came down as the preferred alternative.
    Mr. Labrador. Thank you. And I want to welcome Mr. Robbins 
and Mr. Hage, Jr. Mr. Hage, Jr. was actually the stepson of my 
predecessor, who was a very fine congresswoman from the State 
of Idaho. So thank you very much for all of you being here, and 
thank you for your service. And I think it is a shame that 
anybody would imply that anything that you do is a caricature. 
And I think it is a pretty shameful statement, and I hope 
someone can retract that.
    Thank you very much, and I yield back my time.
    Mr. Bishop. Thank you. Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman. I want to thank all 
of our witnesses for being here, especially our witnesses from 
my home State of Wyoming. And I want to thank Mr. Robbins and 
Karen Budd-Falen for making this long trip.
    Now, let me get this straight, Mr. Robbins. I just came out 
of a different hearing, so I want to make sure I understand the 
facts. You own a ranch in Hot Springs County. The BLM reduced 
your grazing allotment, canceled your right of access across 
BLM land to your own property, charged you with 27 livestock 
trespasses on to BLM, brought criminal charges against you 
which were dismissed by a jury after only 25 minutes of 
deliberation. Is my memo correct? Is that what happened to you?
    Mr. Robbins. You left--well, they did reduce, but they have 
eliminated--I haven't had a grazing permit since 2004. So----
    Mrs. Lummis. And most of these actions stemmed, as I 
understand it, from your refusal to grant the BLM an easement 
across your own property. Is that true?
    Mr. Robbins. I discussed that in the beginning. And they--I 
know it is hard for a lot of people to believe, that they would 
be so intent on doing something like this. But it really comes 
down to an attitude that you have to understand, that is when 
they ask you something they expect you to say yes.
    Mrs. Lummis. Yes.
    Mr. Robbins. And when you say no, then it creates an 
atmosphere that led to the intimidation that has been 19 years 
and going. And that intimidation included trying to put me in 
jail for 2 years, and also, you know, within 3 weeks I got an 
IRS audit, and it was a direct tie between the----
    Mrs. Lummis. Did you ever meet a woman by the name of Lois 
Lerner?
    [Laughter.]
    Mr. Robbins. No, but----
    Mrs. Lummis. I digress.
    Mr. Robbins [continuing]. She is probably calling right 
now.
    Mrs. Lummis. I apologize for that. Hey, Mr. Robbins, were 
you aware of the BLM's expired easement when you bought the 
property?
    Mr. Robbins. No, I was not. It was a conspiracy of sorts. 
And, really, what I would have to say to you is that the 
previous owner was under the threat of blackmail. He was in a 
very bad financial position. He could not resist this, because 
they would not have transferred the permits, and it would have 
killed the deal. He kept it quiet until after--and I wouldn't 
have known about it until after the event, unless they called 
and didn't have their recorded easement. That is the only way--
--
    Mrs. Lummis. Yes, because, as I understand it, they failed 
to record it under Wyoming law when the ranch was sold to you, 
so you had no knowledge of this easement. Am I correct about 
that understanding?
    Mr. Robbins. That is right, yes.
    Mrs. Lummis. OK. Did the BLM ever give you any 
consideration to your offers to sell them an easement?
    Mr. Robbins. Well, you know, I explained that earlier. The 
8 miles to their half-mile, and public versus private, and then 
I get to pay them for that privilege, I told them then that I 
would have been willing to negotiate something. But under the 
circumstances, I was not willing to do that. And they said----
    Mrs. Lummis. Ms. Budd-Falen----
    Mr. Robbins. They said to me that the Federal Government 
does not negotiate.
    Mrs. Lummis. Only with terrorists, apparently. OK.
    Ms. Budd-Falen, did the BLM have any other options at their 
disposal to get the easement that they didn't pursue?
    Ms. Budd-Falen. Absolutely. The Fifth Amendment provides 
that the Federal Government can take private property, but it 
has to be for a public purpose with due process and just 
compensation. But, rather than going through those 
requirements, the BLM--specific employees, in this instance--
simply believed that they could harass and blackmail Mr. 
Robbins into just giving up an easement outside of the Fifth 
Amendment protections.
    Mrs. Lummis. Mr. Robbins, these dozens of legal actions 
against you, you won a few of those on the merits. Isn't that 
correct?
    Mr. Robbins. I did. Actually, I began a process--I actually 
believed that the system was not broken at the time, and I 
began to fight these trespasses. I fought three of them, $111 
worth of trespass fees. I spent $250,000 to defend myself 
there. I proved in that hearing perjury was--the second guy in 
there was impeached by the court, and I still lost. OK? I lost.
    Mrs. Lummis. At any point during this nearly decades-long 
harassment campaign against you, did you ever consider just 
giving in to the BLM, just to make it go away?
    Mr. Robbins. I wish I could say yes to that, but I just--
you know, what is right is right, and what is wrong and wrong.
    Mrs. Lummis. Yes.
    Mr. Robbins. And if I had to give up everything, I was 
willing.
    Mrs. Lummis. Ms. Budd-Falen, back to the legal side. While 
a majority of the Supreme Court declined to recognize that Mr. 
Robbins had a claim against the BLM for the entire course of 
conduct, they did, nonetheless, recognize the need for an 
effective remedy for people in Mr. Robbins' situation. Is that 
correct?
    Ms. Budd-Falen. Yes, both the majority opinion written by 
Justice Roberts, as well as a very strong dissent written by 
Justice Ginsberg, both recognize that Congress should give us a 
path to the Federal court.
    Mrs. Lummis. I want to apologize to you for what you have 
been through, and thank you for your tenacity in upholding the 
constitutional rights of Americans.
    Mr. Chairman, I yield back.
    Mr. Robbins. Thank you.
    Mr. Bishop. Thank you. Allow me to ask a couple of 
questions. Let me follow up on where Mrs. Lummis was, 
originally.
    Ms. Budd-Falen, if Congress fails in some way to take up 
the court's challenge to find a legislative remedy, is there 
any way that a poor rancher--which is our ranchers here, land 
rich and money poor--or a modest means rancher, could they ever 
survive the kind of assaults we have heard about today?
    Ms. Budd-Falen. Mr. Chairman, I honestly do not believe 
that is possible. I represent ranchers all over the West. And 
when you go against the Federal Government, represented by the 
Justice Department that has all of the money and resources in 
the world, it is very difficult, if not impossible, to be able 
to win these cases.
    Mr. Bishop. All right.
    Ms. Budd-Falen. Additionally, because we are not as easily 
accessed--Equal Access to Justice Act for judgment fund monies, 
we don't even have the chance to get our money back. None of 
these people have received payment for their work.
    Mr. Bishop. For all of you, keep in touch with Mrs. Lummis. 
We will be talking about EAJA later on, as well.
    Let me--Mr. Robbins, let me follow up with the kind of 
approach that Mr. Amodei was starting with Mr. Hage. The ones--
the BLM people that were egregious in their conduct, were they 
ever punished administratively by the agency, to your 
knowledge?
    Mr. Robbins. No, there wasn't ever any--some of them got 
promotions, OK? And a few retired. And I don't know the----
    Mr. Bishop. But none were demoted or fired.
    Mr. Robbins. No, nobody was fired.
    Mr. Bishop. What about the one guy who basically came to 
your aid and would not push the attack, admitted some of his 
colleagues were out to get you? What did his honesty get him 
with the agency?
    Mr. Robbins. He had to--he retired and left the agency and 
moved completely out of the area to protect himself, basically, 
from--there was a lot of animosity. I have to admit, though, 
that there were a lot of people within that organization down 
there that were actually on my side.
    When I rode a mule around that office for 21 days in the 
middle of the winter, I created a lot of friends inside the 
organization. And they would feed me lunch and different things 
and say, ``Don't tell anyone what is going on here.'' But there 
were a lot of people inside the organization that were not 
agreeing with what was going on besides Ed Parodi.
    Mr. Bishop. I appreciate that. And telling me about riding 
a mule is too much of a straight line, but I am going to resist 
it.
    Let me ask two other questions of you. Justice Ginsberg 
said that the BLM officials invaded the privacy of your ranch 
guests during a cattle drive. To what was she referring?
    Mr. Robbins. They followed our guests and videotaped us. 
And this particular time, they were on a hill and the ladies 
that were on the drive with us only had sagebrush to do their--
to go to the bathroom. And the positioning of the BLM, they 
were videotaped in that process of going to the restroom. And 
it created such a hostility, you know, that our guests, you 
know, ``We get this kind of treatment back in New York City; we 
don't need to come to Wyoming to have to go through this,'' so 
it really put us out of business, was a part of putting us out 
of business, because of that, those threats.
    It was every day. Every day they were there, videotaping 
us, sitting there watching, creating all sorts of hindrances--
--
    Mr. Bishop. I hope they got copyrights on it. Listen, I 
have one last question for you. How, in heaven's name, did you 
come up with $.07 that you owed? Was there a tax added to it or 
something?
    Mr. Lowry. I would have to defer that to the billing 
department of the attorneys.
    Mr. Bishop. All right. Thank you, Mr. Lowry.
    Mr. Valdez, do you think that the problems you faced were 
directed at you personally in New Mexico, or other Hispanic 
ranchers who were similarly situated by the people who were in 
authority and showed some hostility? Was this personal?
    Mr. Valdez. This one individual who was dealing with the 
folks on Jarita Mesa and Alamosa definitely made it personal, 
and it was personal attacks. And it is a lot of people, it is 
not a few. I, myself, am not on those allotments, but I work 
closely with them.
    Mr. Bishop. Then if, indeed, you face something that is--
what you think is vindictive and retaliatory, what response do 
you have? What options do you have in that situation?
    Mr. Valdez. Well, there is a case filed in Federal District 
Court, the first case filed by traditional villagers in 
Northern New Mexico, by the way, against the Forest Service in 
this type of environment.
    Mr. Bishop. So, court access, going back to what Ms. Budd-
Falen said, is really the only thing we have to deal with, and 
we have to make sure that that has a fair access, which is what 
the Supreme Court told Congress it needed to do. Not going 
through the court system, but that Congress had to make sure 
there was a judicial remedy for that.
    I have a couple other questions, but my time is almost up 
here. Let me----
    Mr. Valdez. May I just say that is what the judge in this 
case recommended. That was the only remedy.
    Mr. Bishop. OK, thank you. I appreciate that. Mr. Grijalva, 
do you have other questions?
    Mr. Grijalva. Yes, a couple. In the Babbitt opinion, I 
think it is stated pretty clearly, just for the record, so that 
it is not misconstrued, what I was trying to say, it says that 
there is no absolute security for grazing permits. And I think 
it is--I think that sets the tone of that decision, and that is 
why I was following up with other questions.
    Also, the--again, to set the record a little bit straight, 
when I was commenting on the Gateway, the reason I asked the 
questions about the collaborative effort, and the fact that 
there was a positive response on behalf of BLM and the 
Secretary to allow more time for route examination which--that 
was being opposed by the area, I wanted to make sure that we 
understood that, in some instances--because today we are 
hearing a lot of individual issues, and rightfully so--that 
that was an effort to kind of avoid litigation, avoid a 
lawsuit, avoid bringing that whole project to a halt. And so, I 
think that has to also be noted, to try to come to consensus 
and avoid a lawsuit.
    The other point is that even though this hearing is 
entitled, ``Threats, Intimidation, and Bullying by the Federal 
Land Management Agencies,'' and we have had some instances, 
this hearing is not about policy disputes, but it is about 
those kinds of actions that my colleague, Mr. Huffman, pointed 
out that should not be tolerated at a professional level at any 
place. And I appreciate people bringing that to light.
    Because we are not having policy disputes, Ms. Richards, 
have there been any instances in which a BLM employee has 
personally threatened, intimidated you, bullied you? And, if 
so, can you identify that BLM employee involved, and describe 
how he or she threatened, intimidated, or bullied you?
    Ms. Richards. Mr. Grijalva, I am here on behalf of Owyhee 
County, and we do have situations like that. We do have 
incidents that are on the record, they are in the court case in 
the grazing permit renewal process. In respect to those 
individuals and possible retaliation for the names, I am 
choosing not to bring that forward, because I do not want to 
put those individuals into that capacity.
    However, I am going to ask to clarify two things here. The 
Gateway West may very well end up in litigation, not from the 
predatory environmental groups, possibly, but from our county 
aspect, due to the county is the only one--the individuals 
cannot file a lawsuit, but the county government can file for 
the economic aspect.
    Second, in the PLC v. Babbitt, one of the things that the 
county advocates for is that it did affirm the property right 
interest of preference as a grazing right in there.
    So, again, I am not going to go into--we do have specifics, 
there have been employees. That started clear back in the 
1990s. Those employees, a couple of them, now work in the 
Oregon BLM offices. They are in court records back in Idaho. 
And just to protect those interests that are still in 
litigation, I am not going to bring that forward at this time.
    Mr. Grijalva. I appreciate that. And I think there is a 
balance to be sought here that--I am not going to sit here and 
say that what you provided to us under oath is not the truth, 
but I think there are other stories dealing with collaboration, 
communities working together, solving problems before they 
become bigger problems that I think also is part of a fair 
hearing.
    And thank you for the hearing, Mr. Chairman.
    With Mr. Valdez, I kind of--you know, I think we could 
solve a lot of the problems, sir--and being a student of all 
that stuff--that we just implement the Treaty of Guadalupe-
Hidalgo, and we wouldn't be having this hearing, and some of us 
would be better off, and some wouldn't. But that is a whole 
other story.
    [Laughter.]
    Mr. Grijalva. Thank you, Mr. Chairman.
    Mr. Bishop. I am assuming that was a yield back, then, 
right?
    Mr. Grijalva. I yield back, sir.
    Mr. Bishop. Fine, good, good. Do you have other questions? 
Mr. Tipton.
    Mr. Tipton. I just have, really, one more, Mr. Chairman. 
And I would like to follow up, really, on my good friend, the 
Ranking Member's question, in regards to feeling threatened, 
intimidated, and bullied.
    Mr. Lowry, when the BLM came to you and said that only the 
United States can hold a water right on Federal land, and that 
you must withdraw your claim, did you feel a little bullied, 
intimidated, and threatened?
    Mr. Lowry. I felt intimidated walking into that room, a 
room full of Justice Department attorneys, BLM personnel, who 
had been dedicated to the--trying to obtain those water rights 
in the adjudication, and being told that we had no position, no 
legal position to hold a water right, that we were mere 
permittees there at the permission of the U.S. Government, and 
had no rights.
    The only thing is I didn't feel too intimidated, because I 
knew what my rights were, I knew what the congressional policy 
had been since the mid-1860s, and I knew what the court 
decisions, including the U.S. v. New Mexico, had said. So, I 
knew going in what my rights were. But the pressure was 
applied.
    Mr. Tipton. That is the good part about being a Westerner, 
a little harder to be able to intimidate. I saw Mr. Valdez 
nodding his head up and down, as well.
    Just for clarification, private property rights, water 
rights in the Western United States, you own them. How much was 
the Federal Government willing to compensate you for those 
water rights?
    Mr. Lowry. They were not willing to compensate anything.
    Mr. Tipton. So the Federal Government can just jump in, 
take your private property rights, take your water rights that 
you paid for, you have developed, with no compensation. That is 
their opinion?
    Mr. Lowry. That was the course they were taking, and what 
was being attempted, yes.
    Mr. Tipton. OK. Mr. Robbins, how intimidated, bullied--
well, you aren't intimidated, I can tell--but bullied and 
threatened have you felt?
    Mr. Robbins. Well, actually, I came from Alabama, 
originally, and I really thought that the government--I had 
worked with the farmer services. I thought they were looking 
out for my best interest. I learned differently, when I got to 
Wyoming, that that was not the case.
    Let me just say as far as intimidation, I have got the 
actual quotes from sworn testimony from two employees: Leone, 
saying, ``I think I finally got a way to get this permit, get 
his permits and get him out of business''; and Parodi, which 
testified on my behalf, states that--he was a BLM employee, 
also--states that this statement became a daily admission of 
Leone, and an attitude shared by the other defendants in the 
case.
    So they--when they make their mind up to go after someone, 
they can certainly intimidate you, and it comes from every area 
and every power within government.
    Mr. Tipton. Well, thank you. And, Mr. Chairman, again, 
thank you for holding this hearing. I think that, from the 
testimony that we have heard today--yes, sir, Mr. Lowry, do you 
have one more comment?
    Mr. Lowry. If I could, Congressman, I would like to add 
seriously that it was quite intimidating, and that is evidenced 
by the fact that, of all the ranchers that filed for their 
stock water rights in the Snake River Basin adjudication, as I 
mentioned in my testimony, only two of us went through to the 
end. The rest could not, or felt they could not, because of the 
overwhelming disparity in the resources between themselves and 
the U.S. Government to defend their rights. And they have lost 
their rights in the Snake River Basin adjudication because they 
could not and would not--and I understand their position.
    Mr. Tipton. Mr. Lowry, I think that is ultimately very 
important to be able to note, because this is just not a Forest 
Service water grab, it is a BLM water grab in the West. That is 
the lifeblood of the Western United States. And I will 
certainly take issue with anyone who feels that--our ranchers 
who have those BLM permits on Forest Service lands, they are 
some of the best custodians, actually, of our public lands, 
going in and supporting those who value the environment. Nobody 
but our farmers and ranchers value it more.
    So I thank you again for holding this hearing, and I thank 
all of you for taking the time to be able to be here. I yield 
back.
    Mr. Bishop. Thank you. Mr. Huffman, do you have other 
questions?
    Mr. Huffman. Just very quickly, Mr. Chair. I appreciate the 
witnesses, once again. I will just close with what I said at 
the outset in my remarks. Our Federal Government should always 
be a good neighbor, should always comply with the law, and all 
of us should be concerned when there are incidents that suggest 
misconduct by Federal employees.
    So, I appreciate the testimony. I am sorry that some of 
those experiences occurred in this--in the situation of these 
witnesses. And there is a way of having the conversation about 
holding our government to high standards and making sure there 
is accountability that could be constructive. And I hope that 
we can perhaps, at another time, have that more constructive 
conversation about how to do that. Thank you for your 
testimony.
    Mr. Bishop. Mr. Amodei, do you have other questions?
    Mr. Amodei. Just briefly, Mr. Chairman. Ms. Budd-Falen, are 
you aware of any draft legislation to kind of deal with--I mean 
in Mr. Hage's testimony he says, ``Hey, we need to do a couple 
things.'' Is there any--and I am sorry if there was testimony 
to that while I was gone, but is there anything out there that 
has been drafted in terms of speaking about governmental 
immunity or things like that in extraordinary cases where, in 
sum, where a judge finds people in contempt, and finds that 
they have perjured themselves? Are you aware of anything?
    Ms. Budd-Falen. No, I have never seen any draft 
legislation. But I can tell you that we would be happy to work 
with both sides of the aisle to come up with a solution.
    Mr. Amodei. And then, just finally--and this may be 
something for staff--but have any of you or the organizations 
you are affiliated with done a litigation study to say, you 
know, of all these times, like the Hage deal, and whoever 
else's, when these go to court, how often does the Department 
of Justice prevail, versus the permittee? I know it doesn't go 
very often. It is phenomenally expensive, and that.
    But have we done anything to kind of say, hey, when people 
finally get to the point where they are saying, ``You know 
what, I am tossing it all in and I am going to court, even 
though that is expensive and time consuming,'' what the 
likelihood is that they prevail, or if they come out in some 
sort of a stipulated agreement? Is there any track record of 
that?
    Ms. Budd-Falen. The problem is, Mr. Amodei, that we can't 
affirmatively bring those kind of cases. Frank Robbins tried to 
affirmatively bring a case. The Jarita Mesa permittee is trying 
to affirmatively bring a case, and they lost those cases.
    Mr. Amodei. Well, I am talking about the permitting cases, 
not the----
    Ms. Budd-Falen. Oh, the grazing cases?
    Mr. Amodei. So it is like when you say, ``Hey, I am suing 
you because you don't have an easement across my land.'' I am 
talking about the substance, not the abuse of discretion.
    Ms. Budd-Falen. Actually, your Honor, the problem is that 
the Federal Government, because the Administrative Procedures 
Act requires only an administrative record review, the only 
thing the Court ever sees is the record that the agency creates 
and the agency wants the Court to see. So, while there are 
cases where we are successful, we are starting so far behind 
the Federal agency in terms of litigation strategy and 
information, we can't depose Federal witnesses, we can't get in 
our own information.
    And so, I would tell you that the court system right now is 
stacked against us, and that we do not prevail near as much as 
the Federal Government prevails.
    Mr. Amodei. OK. Finally, if you went to one area first, 
would you go to the Administrative Procedures Act first and 
make changes in that that are specific to land use things, or 
would you try to go in an overall global thing for all Federal 
employees?
    Ms. Budd-Falen. I think that they are apples and oranges. 
The Administrative Procedures Act only applies to Federal 
agency decisions and policies made based on an administrative 
record, and that is not what we are talking about. Those are 
the tools that are brought against these individuals to force 
them into compliance.
    Mr. Amodei. Well, but I am thinking, if I may, that if the 
Administrative Procedures Act was made to allow you the ability 
to depose and create more due process and change that 
administrative procedure, that it may be more fruitful, in 
terms of providing a quicker, cheaper, rather than marching to 
Federal court to make the administrative processes more user-
friendly.
    And you don't have to answer that today, but you can get 
back to me and say, you know----
    Ms. Budd-Falen. I would be happy to do that. My initial 
thought, quite honestly, is what we need to do is to actually 
tie this to the Civil Rights Act, because that Act already 
waives sovereign immunity for State employees and local 
employees. And if you read Justice Ginsberg's dissent, that is 
actually where she believed that a cause of action should be 
placed, as part of the Civil Rights Act.
    Mr. Amodei. OK, thank you. Thank you, Mr. Chair. I yield 
back.
    Mr. Bishop. Thank you. Or just empowering States.
    Mr. LaMalfa, do you have other questions?
    Mr. LaMalfa. Oh, just a quick follow-up. You know, the idea 
that this isn't threatening or bullying, I mean, just ask an 
elderly ranching lady up in my area what it feels like to have 
two agents show up with badges and a gun on the hip and wearing 
the boss, shiny sunglasses, like that, saying, ``You need to 
sign this form that has to do with your water rights, or you 
could be subject to arrest and have your rights read to you,'' 
you know, when her husband is not home. And so--no, that is not 
threatening or bullying in any way.
    So, when you have abuse after abuse, and people that are 
normally just productive people that are good citizens, that 
are paying their taxes and part of the community having to get 
wrenched out of the farms and ranches and homes to go to 
Sacramento in California, or come back here to Washington, DC, 
this is really not what you prefer to be doing. And so, for 
anybody who had the notion that it is anything different than 
that, then they are way out of touch, because your traditions--
our traditions, I am a farmer, too--go back hundreds of years, 
thousands of years, even.
    And for us to not take action here with, you know, Mrs. 
Lummis's bill or other efforts that are--we want to be 
effective in letting you feel like you don't need to use legal 
remedies to just do what you do. If we do anything short of 
that, then I think we are falling down on our jobs. And so, 
that is what I am back here to try and do and trying to help 
you with. So I really, really want to encourage you to keep 
fighting the battle with your neighbors.
    And I am sorry, sir, for your neighbors that couldn't do 
the battle, because I don't know how you afford $800,000 or 
millions of dollars to do this, knowing how it is for many 
ranchers and farmers and timber operators. Maybe you should all 
apply for non-profit status, too, and then you will be 
eligible, like those $56 million organizations, to get 
compensated for something you didn't bring upon yourself.
    So, I greatly appreciate, and God bless all of you. So, 
thank you.
    Ms. Budd-Falen. Thank you.
    Mr. Bishop. Mrs. Lummis, do you have more questions?
    Mrs. Lummis. I do, Mr. Chairman. I would like to follow up 
a little bit with Ms. Budd-Falen about the line of questioning 
Mr. Amodei was pursuing about a congressional remedy. Certainly 
the Supreme Court declined to recognize Mr. Robbins' claim 
against the BLM for the entire course of conduct, but they did 
recognize the need for an effective remedy. They just thought 
it should come from Congress, and not be fashioned by the 
court. So, that is what I want to pursue, Ms. Budd-Falen.
    You took a cue from Justice Ginsberg's dissent, which would 
have expanded the Bivens Doctrine, as I understand it. So that 
would suggest a remedy similar to that for sexual harassment. I 
would like you to expound on, if you were crafting some 
legislation, taking a cue from Justice Ginsberg, what kind of 
parameters would you put around this to make sure that there is 
not a flood of challenges to any and all Federal decisions a 
property owner might not like, but is narrowly targeted to the 
type of egregious conduct that we have seen here, as was 
applied to Mr. Robbins?
    Ms. Budd-Falen. I think that the first thing that I would 
do is look at the pattern or practice of the individuals. I 
think one bad agency decision is something that we can remedy, 
or at least we can challenge under the Administrative 
Procedures Act. But these people didn't suffer just one bad 
decision; it was truly an animus by the Federal individuals, 
that they can name, against their rights.
    One of the things that Justice Ginsberg also talked about 
was that the Fifth Amendment protections for private property 
were not receiving equal consideration under the laws, as were 
the Eighth Amendment protection against cruel and unusual 
punishment, or Fourth Amendment protection against unwanted 
search and seizure. And she argued that we need to raise the 
Fifth Amendment's protections for property rights to the same 
level as the other constitutional guarantees.
    Mrs. Lummis. Does that include access to the courts that 
right now is not as--Federal courts?
    Ms. Budd-Falen. Yes, that includes that. Because, right 
now, the only way you can get a ``Bivens cause of action'' is 
if you bring a cruel and unusual punishment case or an unwanted 
search and seizure case, and it has to be a physical search, 
not the kind that Frank Robbins had to endure, where Federal 
officials actually broke into his private guest lodge on his 
private land to search through things.
    Mrs. Lummis. Mr. Chairman, if I might ask, I know that Ms. 
Budd-Falen, based on her representation of clients with regard 
to these specific types of cases, has a unique area of 
expertise. I wonder if I might ask that you give us some 
suggested language that you think could be narrowly tailored to 
address these ``death by 1,000 cuts'' situations that amount to 
a course of conduct that constitutes harassment that could be 
narrowly construed by the court to prevent a bevy of 
litigation, but nevertheless protects American citizens' Fifth 
Amendment rights appropriately, and provides them, at times 
when appropriate, access to the Federal courts.
    Obviously, I am asking you to do something pro bono from 
Congress----
    Ms. Budd-Falen. I would be pleased to help you. These 
citizens need a path to court. They need some relief. Other 
Fifth Amendment--and American citizens don't have the push and 
the backbone, because they are afraid and because they have 
permits that, if the Federal Government decides they don't like 
you, they can punish you. And I would be happy to work on 
legislation to try to protect these citizens and their 
neighbors from this abuse.
    Mrs. Lummis. I would be most grateful for that help, 
because I do think that we need the assistance of someone who 
can help narrowly construe such a cause of action that will 
address these types of really egregious courses of conduct by 
Federal agencies that even, you know, our colleagues in the 
Minority recognize are entirely inappropriate, given our 
constitutional rights and Fifth Amendment rights.
    So, thank you all, once again. Mr. Chairman, I yield back.
    Mr. Bishop. Thank you. Ms. Budd-Falen, would you take 
Representative Lummis' request, verbal request, as an actual 
question that would ask for a written response to come back to 
the committee?
    Ms. Budd-Falen. Yes. Yes, I would.
    Mr. Bishop. Thank you. I appreciate that.
    We have had four people here talking to us about--these are 
questions--four people talking to us about situations that have 
happened to them. These are not isolated situations, 
unfortunately. I think these are simply the tip of the iceberg 
that is going down there. And I appreciate your willingness to 
come and share, even though all of you have mentioned that 
there is some trepidation in doing so, because you still 
actually have fear of retribution, intimidation, just by being 
here at this particular time. It also does go to some kind of 
policy issue. It is not just access, it is policy.
    Ms. Richards, you mentioned, in talking about the 
collaboration process that was done in Idaho, that you had made 
a decision that was supposedly done on your wilderness areas, 
and then the wilderness management plan was changed that 
contradicted the collaboration that had been agreed, and also 
had been passed in legislation. Is that accurate, then?
    Ms. Richards. Correct, Mr. Chairman.
    Mr. Bishop. What recourse did you have for that?
    Ms. Richards. Right now, the recourse that we have, the 
Owyhee Initiative concept started in 2000. In 2009 we signed an 
agreement with the Tribes, the county, and diverse 
collaborative groups. And that agreement is quite extensive, 
and I will ask to send that within this time period so you have 
that for the record. Within that, the wilderness management 
took a lot of time on designating the boundaries, and also 
activities that would be grandfathered in. Those are in 
recorded minutes that are signed off by the committee.
    After the legislation was passed in 2009, about 2011 we 
started working, we were brought into the process of making 
comments on the draft wilderness management plan for the Owyhee 
Wilderness Area. BLM has been at the table, we are actually 
assigned a BLM person that participates in all of our meetings, 
is supposed to bring information, help us in making our 
decisions, and the collaborative effort came forward on that.
    And just earlier this year, we were to the process where we 
thought we were done with our comments to go forward. And, lo 
and behold, we found out that, at the same time we were working 
on this, the BLM had issued new guidelines that were internally 
drafted for internal guidelines on wilderness management, and 
those were issued in July of 2013. And, as I stated in my 
testimony, they go contrary to one of our permittees who had 
won a national award, and that was supposed to be taken care of 
in that wilderness policy as an allowed practice.
    Mr. Bishop. So what your testimony is telling us is also a 
deeper systemic problem, that issues may be settled, but then 
within the agencies they are making internal regulations that 
change what had been settled, that even change what had been 
legislatively decided at the same time.
    Ms. Richards. Correct. And the effects upon this permittee, 
again, he has no initial recourse to come back and challenge 
it. On the county level, though, we are challenging, because it 
was an agreement that we went into. The goal of the Owyhee 
Initiative is the economic stability of our county livestock 
grazing system.
    Mr. Bishop. All right.
    Ms. Richards. So I would agree with your statement.
    Mr. Bishop. That is one of the things extremely troubling 
for us.
    Mr. Hage, I think I will--let me end with you, if we could. 
You mentioned that what treatment you received was supposedly--
the local officials were supposed to expect that behavior. 
What, in reality, is at stake in this issue in your case, 
beyond the effect on you, personally?
    Mr. Hage. What is at stake is my family's property, our 
water rights, range rights, whatever you want to call them. But 
more than that, I mean, it is other people. If they can get 
away with what they have done to us, then hold on. They will go 
after other people, as well.
    Mr. Bishop. And so we are really talking about what we deal 
with--private property rights, what we deal with----
    Mr. Hage. Yes, our whole issue is private property rights.
    Mr. Bishop [continuing]. The entire bundle, for everyone.
    Mr. Hage. Yes. And to make something clear, I mean, I don't 
know--myself, as the judge explained it, and as I understand 
it, he said, ``Look, the Federal Government cannot break the 
law. The Constitution does not allow for it. If there is any 
law-breaking going on, it has to be done by the individual in 
the agency, not the agency itself, not the Federal Government, 
but the individual.''
    So, what we are talking about is law-breaking, not 
something in general that would be just bad government or bad 
agency. We have got to get down to the heart of the matter and 
only punish that which was done wrong.
    Mr. Bishop. Thank you, I appreciate that.
    Are there any other questions we have?
    [No response.]
    Mr. Bishop. If not, I want to thank the witnesses for your 
testimony, for you coming here today. As I said, unfortunately, 
these are not the only isolated examples we can find. I think 
your examples show a deeper problem, and truly a systemic 
problem that we need to address as best we can, not only in 
access, but in how policies are originated.
    Members of the subcommittee may have additional questions 
for the witnesses, including the verbal one, and we would ask 
that you would be able to respond to those in writing. The 
hearing record is going to be open for 10 days to receive 
responses.
    If there is no further business, without objection, we 
stand adjourned.
    [Whereupon, at 12:08 p.m., the subcommittee was adjourned.]

                                ------                                


            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

   Prepared Statement of George Matelich, Sweet Grass County, Montana
                 the saga of the cherry creek ``road''
    The Black Butte Ranch was purchased by George Matelich and Michael 
Goldberg (the ``Owners'') in May of 1997. The ranch is located in Sweet 
Grass County, Montana, adjacent to property owned by descendants of the 
original homesteaders. Prior to purchasing the property, the Owners did 
``due diligence'' in examining the title, and checking on what appeared 
to be an old jeep trail on the property. After finding no easements 
recorded, and no documentation suggesting that the jeep trail was a 
public road, they closed on the purchase and took possession of the 
property. Upon taking possession of the land the Owners closed a gate 
through which people had reportedly occasionally used the jeep trail to 
access the Gallatin National Forest. This trail extends from the 
Boulder Road through the adjacent property and the Black Butte Ranch to 
the National Forest boundary. In January of 1999 the Owners were sued 
by the Public Lands Access Association, Inc. (``PLAAI'') who claimed 
that Cherry Creek ``Road'' was a public road, notwithstanding the fact 
that the County did not claim the road, and refused to claim it under 
R.S. 2477. In defense of the suit, the Owners filed a quiet title 
action, naming the PLAAI, the United States Forest Service (``USFS'') 
and the public at large as defendants. A FOIA request disclosed that 
the USFS was engaged with PLAAI in planning the litigation and 
strategic options for opening the road, including condemnation. 
Nevertheless, rather than litigate the issue on its merits, the USFS 
filed a Disclaimer of Interest, disclaiming any interest in Cherry 
Creek ``Road''.
    The PLAAI litigation was resolved by a settlement agreement in 
which the Owners agreed to allow limited public access on the Cherry 
Creek ``Road'' for a period of 10 years, after which the parties all 
agreed the owners could shut the gate and permanently discontinue the 
access. The quiet title action proceeded to judgment, which was entered 
in favor of the Owners. The decree included a finding that the use of 
the Cherry Creek ``Road'' for the past 60 years had been permissive, no 
prescriptive easement existed, R.S. 2477 did not provide for access 
under the circumstances and that Congress did not envision rights of 
way for hunting, fishing, snowmobiling and similar activities when 
enacting R.S. 2477. Additionally, the easement granted to the public 
for a 10-year period could be extinguished after August 3, 2009, and 
the Owners' interest in the property was free and clear of any and all 
estate, right, title, lien, encumbrance, interest or claim by any 
third-party defendants. No appeal was filed after judgment was entered. 
Following the conclusion of the litigation, and after the court had 
entered the judgment in the quiet title case, the USFS revised its 
Travel Management Plan for Gallatin Forest. As part of that process, 
the USFS closed other existing roads and area access into the forest, 
and labeled all but the pipestem of land through the Owners' property 
for the Cherry Creek ``Road'' as ``roadless.'' The USFS essentially 
limited the travel access alternatives to the one that had been 
litigated, and in which they had disclaimed all interest.
    Pursuant to the settlement agreement, after the 10-year period had 
run in 2009, the Owners exercised their rights as contained in the 
agreement and closed the gate to the jeep trail (Cherry Creek ``Road'') 
traversing their property.
    Shortly before the end of the 10-year period, the USFS made an 
attempt to reach an agreement with the Owners for access to this area, 
including a potential land exchange, as well as pursuing the purchase 
of an easement over the Owners property. The Owners declined to sell an 
easement to the USFS which would have had the effect of splitting their 
property, but did offer to engage in a land exchange, even offering at 
their own expense to build the new road on USFS administered lands. The 
USFS rejected all offers for limited access, and in a Letter to the 
Editor published on June 17, 2010 in the Big Timber Pioneer, made it 
clear that the only alternative the USFS was willing to consider was a 
road with unlimited vehicular access across the Owner's property.
    Sometime in 2010 the USFS notified Congress of their intent to 
pursue acquisition of the Cherry Creek ``Road'' through eminent domain. 
The Owners followed, bringing their story before the Montana 
Congressional Delegation and other relevant Federal parties. After the 
expenditure of countless hours and hundreds of thousands of dollars 
over the course of 3+ years, the matter was finally settled; the Owners 
are building a road at their own expense on their own land and will be 
granting a perpetual easement to the public as the settlement required.
    The Owners were fortunate in that they had the resources to fight 
the USFS and ultimately build a road at their own expense that did not 
result in the splitting of their property. That they had to do this at 
all is a matter of public policy which cries out for a systemic remedy. 
The Owners were forced into this situation only through the USFS 
wielding the cudgel of eminent domain authority. The USFS did not 
pursue this road access because they needed to, rather the USFS did so 
because they wanted to, and because by their own actions in closing all 
other access and designating the entire area as ``roadless'' they 
created a lack of public access. The record is clear that numerous 
other access points to this area of the Gallatin existed. The record is 
equally clear that in the ensuing decade following the litigation in 
which they professed no interest, the USFS took actions which had the 
obvious impact of vitiating the court decision. In all likelihood they 
behaved in such a fashion because they were confident that they had the 
unfettered power to simply take property they wanted, regardless of 
need. This crude and purposeful abuse of the Federal Government's power 
of eminent domain must be remedied.
    The Government's power of eminent domain has always been viewed as 
one that should be used sparingly and with great restraint. 
Preservation of private property rights is a fundamental right of our 
constitution, subject to taking only when there is a public need that 
has been proven and when appropriate compensation is provided.
    However, there is no sufficient compensation to assuage 
disingenuous behavior of the Government in purposefully turning a want 
into a need to justify condemnation.
    Thank you for this opportunity to tell our story and express our 
opinions.