Fight federal abuse of property rights by making the government obey its own rules

By Ron Arnold April 15, 2014

This appeared here. Ron has allowed me to publish his work in the past, so I hope publishing this article is acceptable to him.  Either way - I thank him for the work he does.  RK

 

Cliven Bundy marched into my life one Friday morning in January 1992 in a protest bound for a federal courthouse in Las Vegas. He held up one side of a street-width banner that asked, “Has the West been won or has the fight just begun?”

To my great relief, just as Bundy promised, nearly 200 ranchers from all over the state marched behind him, yelling “Property rights!” Nearly a mile later, the marchers fell silent and filed into the courtroom where Wayne Hage of Pine Creek Ranch faced arraignment for the felony of cleaning brush out of his ditches without a U.S. Forest Service permit.

The Forest Service had already confiscated Hage's cattle and left him bankrupt, just as the Bureau of Land Management would try with Bundy 22 years later.

Hage had already filed a lawsuit against the Forest Service in the U.S. Court of Claims, just as Bundy now has cause to do against the BLM – last week, during their failed attempt to confiscate Bundy’s cattle, agents wantonly bulldozed his water supply into oblivion without court authority.

Wayne Hage did not stand in that courtroom alone because I was honor bound to prevent it – I had published his 1989 book, Storm Over Rangelands: Private Rights in Federal Lands, which unleashed the federal fury.

The message terrified abusive bureaucrats: There are private rights in federal lands – vested rights, not privileges.

His book, the product of three intensive, grueling years consulting with dozens of experts and sifting through many archives, found the dirty little secret that could destroy the abusive power of all federal Western land agencies – by making them obey their own laws.

It was so stunning that a sitting Supreme Court justice secretly sent Wayne a message marveling at his shining intellect - burnished with a masters degree in animal science and honed by academic colloquies as a trustee of the University of Nevada Foundation - and warning of the titanic battle to come.

How true: Hage was convicted of brush cutting but acquitted on appeal. His own lawsuit against the United States took almost 20 years, but proved there are private rights in federal land. He died of cancer in 2006 before he could see how great a victory he had won – and how the battle is still just beginning, as Bundy foresaw.

Wayne’s son, Wayne N. Hage, now manages Pine Creek, and his daughter Ramona Hage Morrison is his intellectual heir. She helped research his book, lived the courthouse agonies with her father and assisted with his seminars on protecting ranchers’ rights. Morrison said:

Private rights in federal lands were recognized in an 1866 water law. It says, "… whenever, by priority of possession, rights to the use of water have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same."

That Act was passed a long time ago, but every federal land law since then contains a clause with language similar to, "Nothing in this Act shall be construed to impair any vested right in existence on the effective date of this Act."

Most ranchers don’t know that and federal agencies exploit their ignorance with harassment that runs them off the land. Actually, understanding vested rights is not too hard – they’re absolute rights not subject to cancellation – but proving up those rights by assembling your chain of title and other technicalities and then making the government protect them is very hard.

The agencies know they don’t own the water rights, so their lawyers fight viciously with misdirection to save their empire from the owners. Ranchers lose in court because they don’t know how to prove up their vested rights and they don’t get lawyers who know the precision required to plead a vested rights case. Very few lawyers know.

Ranchers, get smart. Don’t assume anything. You probably believe a lot of things that aren’t true. Get busy and prove up your vested rights as we did. Get a court to adjudicate them as we did. Yes, your whole life will be one battle after another, like ours. Seek help to develop an army of supporters, as we did. You can shout freedom slogans all you want, but only the courts can destroy the root power of federal abuse.

The BLM has now withdrawn. Bundy has his moment of triumph. The cries of victory are thrilling.

But we know it’s not over yet. The BLM did not leave because angry citizens outnumbered their assault force by 100 to 1. Nothing has touched the BLM’s ability to return.

Get real: the BLM invaders left when it got ugly because it’s an election year and they’re all Democrats. They’ll be back.

Property rights defenders can stop them. We can go on the attack in the courts with organized funding to adjudicate protection for every last vested right in the American West. We have the laws to do it. We now need organization, money, brains, and the will to make it happen. Every vested right that we protect will destroy that much federal power to abuse.

Let no ranching family go unprotected.

That's the hard way, but it's the only way that works. Stay on target: the federal power to abuse must be destroyed.

Ron Arnold, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.