May 19, 2014
On Aug. 4, 1989, the U.S. Fish and Wildlife Service published an emergency rule listing the Mojave population of the desert tortoise as endangered. This started a chain of events that brought Cliven Bundy, the Bureau of Land Management and the desert tortoise to headlines around the country 25 years later.
Karen Budd-Falen, an attorney who specializes in environmental law and property rights, represented Cliven Bundy and his neighbors in a lawsuit when the USFWS issued the decision that required the BLM to revoke the ranchers' grazing rights.
"When the desert tortoise was listed, the USFWS said to the BLM that you have to eliminate livestock grazing in southern California, Nevada and Arizona. These are not normal grazing permits in Southern Nevada. These are ephemeral permits," the attorney based in Cheyenne, Wyo., said.
An ephemeral permit allows ranchers to graze on the lands that fall under the permit only in years when, due to above-average rainfall, an unusual abundance of annual forage suitable for livestock forage is present. "The way the permits are set up in Nevada, you're off until you can force yourself back on," Budd-Falen said. "That's one of the difficulties of grazing down in those really desert areas."
Budd-Falen went to trial for the ranchers in Las Vegas in late 1989, arguing that there was enough forage and cover to support continued grazing without harming the tortoise. The end decision was that there had been plenty of rain and the forage could support the grazing and the tortoises.
"One of the things you always hear is 'innocent until proven guilty,'" Budd-Falen said. "That doesn't work with the Endangered Species Act or litigating against the federal government. You have to prove that you're not doing what they say you're doing. Even if the ranchers win in the short term, they can't afford the financial or emotional cost to keep up with it in the long-term."
Such was the case with the Clark County ranchers. The ephemeral permits allowed the BLM to tell them again the next year that conditions wouldn't support grazing. "The next year the BLM issued the same force and effect decision, so the ranchers had to go through the same court process to keep doing what they had been doing for 60-70 years," Budd-Falen said.
"The ranchers contend, and I agree, that livestock grazing doesn't negatively affect desert tortoises. There's so much space out there. I think the scientific evidence shows that this isn't the problem for the tortoises. Tortoises may have problems that they should be on the list, but I don't think grazing is one of those problems."
When the USFWS issued the decision regarding the desert tortoise, it didn't affect only ranchers. The mandate effectively stopped all development in the area around Las Vegas that the desert tortoise called home.
After a while, according to Budd-Falen, the homebuilders around Las Vegas decided they needed to get back to building houses. "The homebuilders made this deal with the county that if they paid $550 an acre, they would be able to build, even if it was on tortoise habitat. It ended up passing as a state law. The developers could pay money and run over as many tortoises as they wanted."
One of the projects that received money from the development fund was the Desert Tortoise Conservation Center. According to the Nevada BLM's website, "The Desert Tortoise Conservation Center was established in 1990 to receive wild tortoises in harm's way from development. The Center has taken in unwanted pet tortoises since 1996 in the Las Vegas area. The Center is scheduled to close in December 2014 due to funding issues. All healthy tortoises at the Center will be relocated to sites that will support the recovery of the species. Healthy tortoises will not be euthanized."
Mike Senn, assistant field supervisor for the Southern Nevada field office of the USFWS, said the funding for the conservation center has diminished in recent years because of the decline in development around Las Vegas.
While development has slowed, it is still one of the major concerns for the desert tortoise, which is now listed as threatened, rather than endangered, said Dan Balduini, public affairs officer for the USFWS in Nevada. "Loss or damage to habitat is a big threat to the desert tortoise," said Balduini, "In the Las Vegas valley that's urban sprawl."
Some of the money from the fund was used to buy the ranchers' grazing rights, and in some cases, their private property as well.
"I believe nobody was forced to sell if they didn't want to," Budd-Falen said. "The fact is, the ranchers sold. Most of these weren't very big ranchers. Most were older, their kids didn't want the ranch. They used the 'slush fund' to pay the ranchers for their preference rights. Some of the ranchers wanted to move, so we worked on 1031 exchanges so they could move and not have to fool with the desert tortoise. Cliven Bundy didn't want to participate in either of those and he wasn't forced to. While I agree that the desert tortoise and Endangered Species Act clearly started this, there was some attempt made to work with the people who didn't want to fight with them anymore. Some of those ranchers are still on their private property, but quit running cattle."
One of Bundy's claims is that he shouldn't pay fees to the federal government because the federal government can't own property, according to the constitution.
Budd-Falen says she wasn't part of Bundy's decisions or court cases after the initial case in 1989. "I was not around or part of the decision when Cliven quit paying his grazing fees. I think that is breaking the law. While I have absolutely read the constitution and understand that the constitution requires the federal government to own only military and post offices, saying 'I'm standing only on the constitution,' ignores 200 years of court precedent."
According to a BLM statement, in 1993, "The BLM modified Mr. Bundy's permit for the Bunkerville allotment to lower the number of cattle allowed to graze and limit when and how grazing could occur. Mr. Bundy refused the permit and subsequently stopped paying grazing fees. The BLM then cancelled Mr. Bundy's grazing permit." The BLM issued orders requiring Bundy to remove his cattle in 1998 and 1999.
The BLM's decisions were upheld by the U.S. District Court of Nevada in 1998, the Ninth Circuit Court of appeals in 1999 and the Interior Board of Land Appeals in 2008.
Budd-Falen said individuals are not often in a position to represent themselves in cases like this. "I rarely think the self-help method is the way you should go," she says. "I'm not saying you should hire a lawyer every time you breathe, but the biggest mistake landowners make is pretending supreme court precedent doesn't exist and saying, 'I stand only on the constitution.'" She says landowners need to be aware of what the proper channels are and follow them, whether that's through administrative appeals or letting their congressional delegation handle the issue.
While Budd-Falen says the BLM handled the Bundy situation in the way the law dictated, she doesn't agree with the show of force.
"The BLM had lots of other options, starting 15 years ago when he quit paying his grazing fees. Everyone was armed. To have such a show of almost military force I don't think is called for under the law either. There wasn't any reason for the BLM to think, 'If we just bring a big enough army he's not going to do anything.' For the BLM to turn this into some sort of military operation is totally outrageous and completely unnecessary. "
Budd-Falen said she sees fault on both sides. "This country is based on due process. Due process gives both Cliven and the BLM a way to handle this through the courts. I think we have to handle it that way. If the court isn't handling it in the right way, go to Congress and get the law changed."
Beyond Clark County
The media has reported that 52 ranchers were forced off their land by the BLM's desert tortoise management decision. Budd-Falen says the number in Clark County, Nevada, was far smaller than that, and all voluntarily gave up their leases, except Bundy. The 52 ranchers affected, Budd-Falen says, were in all three states that had land leases modified by the desert tortoise designation, Arizona, Nevada and California.
Budd-Falen represented ranchers in Arizona who were also having their grazing rights revoked. "We went to federal court to get an injunction against the removal of livestock. We were successful in that. They ended up staying because of the difference in the grazing permits. Since then the BLM did some changing on the permits, so instead of kicking them off, they said they have to run in a different way. Those guys are still out there, grazing cattle."
A similar case took place in California, with eight or nine permit-holders in the desert around Barstow. "The BLM initially changed the terms and conditions of the permits, then issued a decision to kick them off," Budd-Falen said. "We ended up having a 13-day trial in Barstow. We won that case. The BLM came back and issued a revised decision and most of those ranchers settled. They had to change some of their grazing. They were not totally thrilled with how the permits were changed, but they looked at the cost of doing another trial or figuring out how to live with the terms and conditions, and decided to live with the terms and conditions."
"One of the hardest things about these cases is that these ranchers are not making millions of dollars, and all of a sudden they're having to put legal fees on top of what little profit they have– especially for desert operations like that, it's really, really hard," Budd-Falen said.
Inquiries to the BLM had not been answered as of press time.