Driving the ranchers off the land, part 4 of 6

(NOTE: a condensed version of this report appears in the Autumn, 2014 issue of “Range” magazine, on newsstands now.)

Cliven showed me areas where he’d bulldozed dirt across an occasional wash, which then filled up and became a muddy watering pond not only for his cattle, but for the quail and other wildlife that subsequently thrived there in much larger numbers than had been seen before.

Left in its natural state, the salt cedar will move in and clog a spring till there’s no more surface water for wildlife or cattle, Cliven explained. Only the rancher has the incentive to dig the spring back to bedrock, install piping, and run the water to a tank where it can then be used by deer and wild sheep, as well as domestic stock.


Cliven explained to me how the process works now, if a farmer grazing the public lands tries to follow the rules when he brings in his own bulldozer for such a one-day job — or even to run a piece of galvanized pipe under a dirt road. He must call the Forest Service or Bureau of Land Management, asking for an officer to come out, do a survey, and sign off that in performing such a “range alteration” he will not be dangerously infringing on the habitat of any threatened or endangered species.

(Seventy-eight species were listed as “threatened or endangered” by the federal government in 1967 — 22 of them fish. That list had grown to 596 species by 1990 and to 1,205 by 1999 — many of them weeds and bugs, since they’d long since run out of eagles and condor and bison, at that point. Since government agencies exist to perpetuate problems, not to solve them and thus put themselves out of business, it’s hard to get that firm a number, now. The U.S. Fish & Wildlife Web site currently lists 344 threatened and 1,208 endangered species for a total of 1,552, though an outfit calling itself the International Union for Conservation of Nature reports a whopping 17,315 species currently “vulnerable or endangered,” world-wide.)

Having won an “endangered species sign-off” for his one-day culvert project, the naive rancher might then assume he could proceed to do the job (at his own expense. of course.)

Oh no.

“You can’t do a thing till they send out another guy, who has to do another survey to find out if you might be ‘damaging any potential archaeological sites.’ ” Cliven explained. “I used to ask them, ‘Gee, couldn’t that guy have come along with you at the same time?’ But no, you have to wait more weeks before you see that guy.”

What Cliven and Cliff Gardner to the north insist on is that — even if we agree the federals are to “administer” all these lands, punishing “trespassers” like Cliven Bundy and Cliff Gardner — we must still ask under what jurisdiction their courts and other officers are to operate as they do so: under Article III of the Constitution, which establishes the Supreme Court “and such inferior Courts as the Congress may from time to time ordain and establish” … in which case defendants like Gardner and Bundy have a right to a trial by a jury of their peers, a right to due process and equal protection -— all the rights guaranteed by the Bill of Rights?

Or is the federal jurisdiction over these lands in fact a “territorial” jurisdiction, as established under Article IV of the Constitution, which would appear to set no such due-process restrictions on the power of Congress to “dispose of and make all Needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

(Such “territories” being originally assumed to contain little but … not to put too fine a point on it … rogue French trappers and rascally redskins.)

Most Nevadans — most Americans — would doubtless respond that folks like Cliven Bundy and Cliff Gardner (Americans born and bred) are citizens of both the United States and the sovereign state of Nevada, and that in any action brought against them by the U.S. government of course they enjoy all the Constitutional rights to due process guaranteed by the Fourth, Fifth, Sixth, Eighth and Ninth Amendments.

Cliff Gardner kept trying to get federal Judge Howard D. McKibben to confirm that. But for some curious reason, whenever Gardner makes a court filing asking for just such a confirmation of his due process rights, Judge McKibben -— he just lay low and don’t say nothin’.

Motion denied without comment. Motion denied without comment. Motion denied without comment.

“Before we can argue about how many cows are on the land, we need to know whether we have constitutional rights under the Sixth Amendment; Is this an Article 3 or an Article 4 court?” Gardner says. “We need to know the rules and the jurisdiction.

“I ask: ‘Will Gardner’s constitutional rights be respected?’ They respond: ‘Mr. Gardner has what he has and I’m not going to get into that.’ . . . They don’t want to rule that Constitutional rights don’t apply; they just keep denying motions to answer that question. They certainly don’t want to say it’s an Article Three court, because then state law applies. And the state recognizes grazing rights; we wouldn’t then be under the Taylor Grazing Act, et cetera.

“So how can I prepare a defense?”

It sounded to me like a question the judge should be able to answer — after all, how can any government agency commence exercising its powers without first agreeing to cite chapter and verse of its constitutional authority and jurisdiction; without first clarifying the extent — and limits — of its authority?

I called Judge McKibben. (Could this be the same Judge McKibben who sentenced an old Shoshone Indian named Clifford Dann, back in 1993, for parking his truck in the road in order to stop the BLM from stealing his sisters’ cattle from Indian land, got up in the bed of his pickup, doused himself with gasoline, and threatened to set himself on fire? BLM thugs lured him down from the truck, beat him bloody, and hauled him in front of that Judge McKibben, who sentenced him to nine years in prison for “assaulting an officer with gasoline.” As he pronounced sentence, that federal judge McKibben declared the severity of the sentence was intended “to send a message to journalists, activists, and the Western Shoshone.”)

Judge Howard McKibben explained he had taken my call as a courtesy, but that he couldn’t answer any questions about a pending case. “You could present to me a summary of his concerns, and I could take them under consideration, but I wouldn’t be able to comment,” the judge explained.

“And that would include the jurisdiction?” I asked. “Mr. Gardner says he can’t get an answer as to whether his case in your court falls under Article III jurisdiction or Article IV jurisdiction. So when you say you can’t comment, would that include telling me whether this case falls under the jurisdiction of Article III of the Constitution or Article IV of the Constitution?”

“What it includes is that I can’t comment on the case,” Judge McKibben replied. “You have expressed to me what his concerns are. I can tell you this, that if you file something in court, I always prepare an order and you can read that order. But I don’t want to be quoted on that.”

“So you can’t even say whether — just speaking in general now — all defendants have their due process rights under Article 3 and the Bill of Rights when they appear in your court?”

“The canon of ethics prevents me from speaking about a pending case, and we have an ethical obligation not to do that,” was all the answer Judge McKibben would give me.

In other words, he wouldn’t answer the question.


Tim Findley, former chief investigative reporter for the San Francisco Chronicle and assistant editor for Rolling Stone, who died three years ago at the age of 67, had been covering the Gardner case for Range magazine for more than a year when I spoke to him about it in 2001.

He told me the struggle between ranchers like Cliff Gardner and Clark County’s Cliven Bundy on one side — federal regulators and “land managers” on the other — amounts to a war of religions.

Both Bundy and Gardner are Mormons, Findley points out. They believe that taming the wilderness is a noble cause, and raising their children close to the land has been good for their families and their society.

“On the other side we have the arrogant practitioners of an environmental religion,” Findley said, “endeavoring to use federal force — in blatant violation of the First Amendment — to ‘establish’ and impose across the West the religion of environmentalism, which holds that cattle — and lumbering and mining, for that matter — are unnatural desecrations of nature’s temple, a wilderness from which all human activity must be banished so that the lands can be held in permanent trust in their wild splendor.”

I mentioned to Findley the fervor with which Cliff Gardner will present his slide show at the drop of a hat — it’s the first thing he did when I arrived at the Slash-J ranch for a visit over New Year’s weekend back in 2001, the ranch’s muddy turn-in looking like market day in the county seat as a free-lancer for Range magazine also showed up to take some photos of Cliff for the February issue and got offered a chair — showing the photographic evidence he’s gathered over the decades, before-and-after photos demonstrating that the lands are in better shape where they’ve been grazed by cattle then where they’ve been fenced off for years as sterile “wilderness.”

“Cliff has more than anecdotal evidence for his claims,” Findley responded. “He’s been out there taking pictures for more than 20 years and he had built a very convincing case. Cliff contends these forage plants evolved to need large ungulates to graze them, whether that be cattle or some other animal, and the cattle are a vital part of the ecosystem. They can demonstrate that. Where the cattle graze you see an enormous beneficial growth of the game species, the deer herds and so forth. Where they fence the cattle off the land you see the land go to waste; you see a build-up in fuel so you get more and harsher range fires.

“It becomes a kind of matter of faith to these (government) people. They really don’t understand what they’re doing to destroy the lives of people with equally good hearts. The Nature Conservancy had grabbed off two-thirds of that land (near the Gardner Ranch in the Ruby Valley) and they desperately want Cliff’s chunk. It’s really extortion.

“With Cliven and Cliff you have the Mormon influence, and they’re going up against an equally strong belief on the part of the government types in an environmental faith that all the cattle should be off the land and everything should be preserved. So what’s underlying this is a really cynical kind of land grab and Cliff doesn’t mention that much; I don’t think he gives enough emphasis to the way the Nature Conservancy is behind all this, using everyone’s good intention for a really cynical land grab. . . . All you get from the federal side is arrogance.”

Findley, the transplanted Californian who had covered the Indian takeover of Alcatraz Island, had been in Nevada for 10 years. He told me: “Ranchers like Cliff remind me a lot more of the Black Panthers. Those were also people who tried to stand up for their rights but they were pushed around because they were minorities. I try to explain to my friends (back in California) that these ranchers are now being pushed around and terrorized and threatened with jail and the loss of their livelihoods for standing up for their rights in exactly the same way the Black Panthers were; I don’t see any conflict between what we used to write about back then and what I’m doing now.

“What drew the Black Panthers to public attention is one day they went to Sacramento to the state capitol and walked around carrying shotguns, which it was perfectly legal for them to do. We didn’t know then and we will never know whether they were loaded. But because they were all black and all dressed the same the police then started to terrorize them — they were all arrested, and the state terrorism against them began.

“The Black Panthers were never charged with robbing banks or anything like that. They said ‘We have these rights,’ and the state said, ‘Not to exercise them when you’re all black and you all dress the same, not to exercise them in this militaristic fashion.’ So the police terrorized them. If you start with people like Cliff Gardner becoming political prisoners then that’s when you’re going to see more resistance and more real tragedy. They’re saying we have constitutional rights and the government is saying well, you have to give up your livelihoods if you try to exercise those rights. . . .”


(END PART FOUR OF SIX: “Driving the Ranchers Off the Land”)


NOTE: Newsstand distribution of “Range” can be quirky, through no fault of the publishers. But anyone can call 1-800-RANGE-4-U and ask for a sample copy (or pay $5 to have the current issue mailed.)

2 Comments to “Driving the ranchers off the land, part 4 of 6”

  1. Howard R Music Says:

    Here in Texas Al Adask (his writings can be found at Adask’s Law on the web) has come up with an interesting strategy concerning whether we are under territorial or state law. He basically sends a notice of inquiry to the court asking questions about venue and jurisdiction and such. Usually the case disappears because, as in Nevada, no judge wants to answer questions.

  2. Leslie Fish Says:

    Hey, if the BLM is secretly practicing an “environmental religion”, I can tell you how to beat them at their own game. I’m a Pagan (specifically Wiccan-Bardic, to be precise), a religion which has — after decades of hard work — managed to get itself recognized by the federal govt. Now, one of the major tenets of Paganism (Wiccan branch) is, literally, Nature-worship. This involves improving the environment and encouraging the growth and diversity of life. A lot of us (including me) are organic farmers and gardeners, and we’ve studied Biology and Ecology a helluva lot better than the fed.-govt. bureaucrats have. So, like your friend Cliff, we can argue “environmental improvement” far better than the bureaucrats can. So the feds don’t like cattle on western land? Hah! We can raise buffalo, and argue “restoring the original ecosystem” and “preserving an endangered species” with the best of them. Problems getting water? Don’t hire machinery, but dam a dry-wash with hand-shovels, or horse-drawn plows, and how are the bureaucrats even going to know (especially if you quickly plant some buffalo-grass or Bermuda grass,just before the rainy season, all over that ground)? Salt-cedars choking the waterways? Bring in some beavers. Can’t you just see the publicity (not to mention legal) fallout if the bureaucrats try to kill buffalo and beavers? Best of all, if the courts try to stonewall us on specifying what law we’re subject to, we can holler that they’re practicing religious discrimination against a minority religion. Wheee! I’m sure there are plenty of local Indian tribes who’d love to join in a class-action suit on that one!

    Hmmm, you might also study why the fed. bureaucrats play these games in Nevada, but tread a lot more softly in Arizona.

    I’m dismayed to learn about the corruption of the Nature Conservancy, which was originally an honest bunch who tried to preserve natural wilderness land as nature-parks by the simple solution of buying the land outright, rather than whining at the govt. to do it.