Property Rights Foundation of America®
from PRFA's Eleventh Annual National Conference on Private Property Rights

Keynote Address
The New Wars for the West
William Perry Pendley

It was a dark and stormy night in northern Montana when John Shuller heard a sound outside. He knew the sound was the grizzly bears that had come to eat sheep. He jumped up—he was watching wrestling on TV—ran outside, grabbed his rifle by the door, and headed out into the night. Suddenly, he saw three bears headed toward his sheep pen. He ran toward them, fired shots in the air, and they took off. After he had settled his sheep and he thought the danger was over, he turned to go back inside and was confronted by the mother of all bears—maybe just the mother of these three—and she rose up on her hind legs and spread her mighty paws and roared a vicious roar. John Shuller knew one thing for sure, if he didn't act fast, he was dead. He opened fire. The bear fell mortally wounded. The next day he called the Fish and Wildlife Service people and he said, "I killed one of your bears. You better come yonder." Presently, they arrived and he showed them where the bear lay, and they pronounced it dead—your government at work. John Shuller thought everything was behind him. Unfortunately it was not.

The federal government filed an action against him claiming he had illegally killed an animal protected by the Endangered Species Act. There is a self-defense provision, but the federal government contended it didn't apply to him and off we were.

I want to tell you about several arguments the government made on our way through the courts. I know we are here in the East and maybe you have brown bears or black bears. You, thank goodness, don't have the grizzly bears, but the Fish and Wildlife Service tells you that if you go out, and a grizzly bear ever does this, get up on its hind legs and roars that roar and spreads its paws, it is not a sign of an imminent attack. It is not a good time to shoot. You got a heck of a target but it is not an attack. When the bear gets down on all fours and comes charging at you at about forty miles an hour, that is not a sign of attack, either. It may be a false charge. That's what the Fish and Wildlife Service says, and it says, "Wouldn't you feel bad if you shot it going by (your heart beating out of your chest)?"

Well, we defended John Shuller and the government took a lot of positions on our way. First of all, it said that he didn't act in self defense. Then it said that he was at fault because he went outside into what the judge called "the zone of imminent danger." Then they said that, no, that wasn't what he did wrong. What he did wrong was he took his dog with him and his dog went on point and that provoked the bear. And we won that. Then ultimately the government said that we need a higher standard for grizzly bears than human beings. Had John Shuller killed another human being, that would have been okay, but killing the bear was wrong because bears aren't capable of safety in thought. We won that, too. Well, we won all those things, but it took us eight years and cost us a quarter of a million dollars.

If you counted it up, the really bad part for John Shuller was that his fine was only $5,000. So it cost him a quarter of a million dollars to avoid a $5,000 fine. And so that says to anybody who is charged with such a crime, pay the fine. And so that provision of law has disappeared.

The other bad part was what it did to everybody in grizzly bear country. I found out about this guy named Dan Gleek. He was in Evanston, Wyoming, and he went hunting out near Dubois. I was born and raised in Cheyenne, Wyoming, so I say "Doo-Boyz". John Kerry says "Doo-Bwah". I was driving cross country to take some stuff to my sons one time and I drove through Dubois, Pennsylvania, so I called those folks to find out, and they say "Doo-Boyz," too. I was relieved. He was hunting up near Dubois and he saw a grizzly bear charging at him and realized he had gotten betwixt a mom and the baby, and so he did an amazing thing. He laid his rifle on the ground and pulled a can of pepper spray off his hip and hosed the bear down when it got there. The bear apparently liked the spray a lot because it wanted more and so it grabbed him by the belt buckles and started flopping him around. You wonder why we wear these big buckles. I read after he had survived. After he got back home and recovered, I called him and I said, "Did you really say what you said in the paper?" Because what he said in the paper was, "I didn't want to lose my hunting license. I wanted to do the right thing." He said, "Yeah, I did say that and I said that because I had heard all about your client, John Shuller, and I didn't want that to happen to me."

What a fearsome situation, with people fearing their government more than they fear the most dangerous killing machine in North America!

At the other end of the Rocky Mountains we represented a man by the name of Larry Squires. He is a veterinarian, an entrepreneur, a cattleman, he does all these things, and he uses his land. He discovered that the oil patch was going to bring over oil, a lot of productive oil and gas operations and he wanted to put the oil field brine in these dry sink holes on his property. He wondered if that would be okay.

He had a hydrologist investigate and the hydrologist came to the conclusion that it was proper. It was a proper thing to do. Number one, they had about 300 feet of impermeable clay in every one of these pits. Number two, he is about forty miles away from the nearest navigable stream. Number three—and I mean a true navigable stream, not this thing the EPA talks about and—number three, there was no ground water there, and the hydrologist said it is the best thing you could ever use your property for and so he started to do that. Larry Squires got a contract and engaged in that activity. He spent a million dollars to use his property in that way. The EPA came and knocked at his door and told him his dry sink holes were "waters of the United States."

Now you may wonder how that is. And we wondered, too, so we asked and they said, "Well, here is our theory. We know it only rains about thirteen inches a year here in Hobbs, New Mexico, and the evaporation rate is about 120 inches a year, so we have a negative wet here, but our theory is that every hundred or two hundred years it rains hard enough in this area that water collects in those ponds or pits and birds flying over see it, and want to land in there. And since the birds are engaged in interstate commerce, that makes it waters of the United States."

Will Rogers once said, "I don't tell jokes. I just report what's in the newspaper and how true it is." Well, we eventually got Larry Squires out from under that. Essentially, what happened was the government took his property, and we got him an award of $2 million for the government seizing it. Eventually, as you may know, in a case out of Illinois, the Supreme Court eventually declared that migratory bird rule to be unconstitutional. But I'll tell you, Larry would have liked to have his property back.

No doubt you know the famous story—Rush Limbaugh talked a lot about it—about our friend Bobby Unser. Bobby Unser went on a snowmobile ride in southern Colorado. In Marine Corps aviation we had a term we called CAVU to the moon. CAVU means "clear and visibility unlimited." It was one of those gorgeous December days when Bobby went out on a snowmobile ride and suddenly was hit by a terrible ground blizzard. He was blinded by the storm. He and his friend crawled off into a snow cave they fashioned, and they spent a sleepless night trying to keep warm, eating the only thing they had—a bag of jelly beans that Bobby had brought. The next day they tried to hike to safety, and Bobby's friend wanted to lay down and die, but Bobby wouldn't let him. They found the only barn in Colorado with a phone in it. I believe that to be true. I don't think it is there anymore. I think it is like a Twilight Zone episode. You go back and it is gone.

Bobby called his family and they got him and rescued him and after he got out of the hospital, he went to see the Forest Service, and they hit him with a criminal citation for operating a snowmobile in a wilderness area. Bobby said, "Well, I didn't want to be there, didn't intend to be there. I wanted in the worst way to be anywhere else in the world than where I was," and they said that didn't matter. There was no mens rea requirement for polluting the wilderness.

Now, there are mens rea, there are some laws that we call strict liability crimes as my good friend Roger knows. Carrying a live hand grenade on the streets of Albany, New York, would be such a crime. You can't say, "Whoa, is that what that is!" You go straight to jail. But a snowmobile in a wilderness area? Hardly, hardly, inherently dangerous.

These are all cases of ours that grew out of well-intended laws like the Endangered Species Act or the Clean Water Act or other regulations that we think make good sense. Instead, they've been twisted beyond all recognition by bureaucrats who have got nothing else to do with their time and take great personal delight in bringing glory upon themselves and their agencies by engaging in these things.

I noticed my second book on the subject, The War on the West, for sale on your counter as you go into the talk. I wrote my first book on this back in 1995 about what Carter and Clinton were doing. I slip back and forth on those guys, what Clinton was doing and Hillary, and then this is my response that I wrote and released just last year about what we have tried to do over the last ten years.

You know in this country we always say, "We are going to make a federal case out of it." That's what my mom always said to me, "Don't make a federal case out of this." Little did she know. That's a great idea, Mom. What a career. But it's not as easy as it sounds, and I want to tell you three more reasons.

One is what we call the "order of battle." We called it the order of battle in the Marine Corps, but when you get to sue a federal agency, they have an order of battle, as well. The first order of battle is, you think, "Well, now we are going to argue about the issue." No, you are not going to argue about the issue. The agency is going to say, "Oh, you sued the wrong agency. You should have sued these guys over here," or, "You haven't been hurt yet," or, "Well, even if you got hurt and we fix this, it is not really going to fix it, so get out of here." And judges love inside work, no heavy lifting. They like nothing better than to make a case go away. Then they don't have to write anything. They don't like to write anything anyway, so if they can they make it go away.

The second thing is interminable delay. There is a reason why the poor souls in Lake Tahoe who sued the government, why the cases on land use planning that get to the Supreme Court are always called the Widow Nollan and the Widow Dolan because the poor little old ladies, their husbands have already died because they spent all this time trying to get to court and eventually, they do. We had one case we had to call the family and find out how many family members had passed on in the seven years that it took for us to finally get through the courts so it could go to court.

And the third thing is: you know the statistics on getting to the Supreme Court. Only one percent of all the cases that seek cert, seek to be heard by the Supreme Court, are actually heard by the court, and you are not the only ones who know that. Appellate judges know it, too, and they are incredibly arrogant in their view that the odds are against me being heard and reversed and remanded, so I will just do what I want to do. I'll do what this environmental group suggests.

I want to quickly go over some of the things we are doing and it is sort of a shotgun scattered thing. We have about forty or fifty cases that we work on at any one time. I think a lot of them are relevant. Most of them are relevant to you and I want to kind of hit some of the high points.

The Endangered Species Act continues to be a very serious problem. I worked on the northern spotted owl issue years ago in California, and an environmental group decided they needed something to shut down growth on the western edge of the Great Plains like they had shut down timber harvesting and all the mills in Washington, Oregon, and California. What a great tragedy that was. I have been in many of those communities and met many of those people and it is a terrible, terrible tragedy that happened and befell them. So the environmentalists came into Colorado and said how can we stop this terrible growth that is going on in Colorado and Wyoming. Well, they found this thing called the Preble's meadow jumping mouse, a weird little thing. You really can't tell what it is until you kill it, and then you open up its little head and you say, that was one. The environmentalists sued over that and apparently its range. That is one of the stories that is in the book of The National Center for Public Policy Research out there—look at their book, Shattered Dreams, on one hundred stories of government abuse. If you pick that book up, it is very interesting and one of the stories is about a couple that suffered as a result of that. The environmental whackos say that the range is from Douglas, Wyoming, out near Casper all the way down to Colorado Springs.

We also have a lawsuit going about grizzly bears. I talked about grizzly bears a minute ago. One of the interesting things, one of the lies in which the Fish and Wildlife Service engages is when somebody says, "I want to do this project here and I know there are grizzly bears nearby but it is not going to affect all the grizzly bears in the country." The Fish and Wildlife Service is supposed to say, "Will this have an effect on all the grizzly bears in the country? Will it have an effect on the population at large?" The Fish and Wildlife Service doesn't do that. It illegally says, "Well, what about these three grizzly bears here? Will they suffer?" That is clearly illegal, and we have a suit on that.

We talk a lot about property in the West because there is so much federal land. One of the big issues is access to your property, especially if you have got an in-holding, if you were homesteaded in the middle of a national forest and the only way in is on a national forest road. What a lot of our folks have found is the Forest Service is saying, "No, you can't use that road any more." And we are in lawsuit after lawsuit in Montana and throughout the West demanding access, demanding this right, and we have to fight to get that access.

Another thing that we are denied access to is water. Here I know you just got rain on Friday, and thank goodness it came on Friday and not today, so we had a beautiful drive up, but out west we really need that water that we trap during the spring. And one of these water dams and reservoirs and ditches is way up high in the mountains and we need to bring the water down, but the Forest Service has denied us access to those properties.

One of these things is a case now at the U.S. Supreme Court. I urge you to keep a lookout for a case called Hale v. Kempthorne, where a family in Alaska has tried to get access to its in-holding property, and the Park Service says, "No, we only have to give you reasonable access."

I'll tell you what that means in one of our cases. We had a property owner in Glacier National Park right on the North Fork River, I mean right on the North Fork of the Flathead River, and the Park Service employees and the lawyers actually said it was reasonable access for our clients to drive up on private property across the river from the park, park on private property, and either wade across the water or ski across the ice in the winter. That would be reasonable access to our property. That just shows you how crazy all of that is.

I want to mention a victory we had at the Tenth Circuit Court of Appeals. When you sue the government and you try to have access to your private property, there is only one way you do it. In the olden days there were lots of ways you did it and most of them got thrown out, as Roger would know, but one of the ways that you can now do it is you file what is called a "quiet title" action. You say, "Government, you are holding a piece of property that belongs to me. I want it. I want the judge to tell you that piece of property is mine or I have access rights across it or I have an easement or whatever it is." There are only two parties in that case—you and the federal government. Enviro-whackos are now saying we want to be in the case. We don't own any property, but we care. We care really deeply about what you do with that. And a couple of whacko judges at the Tenth Circuit Court of Appeals said, "Yeah, that makes sense to us. They care." Like the Oprah Show, you know. And so, fortunately, the Tenth Circuit Court of Appeals recently reversed that and said environmental groups do not have standing to jump into those cases.

We are doing a couple of rails-to-trails cases fighting for the ability of property owners to get that thing that is in their property that you always think about and that is your reversionary interest. When the railroad got it they said, "When we go away, you get your land back," that is a huge challenge for us. We have won a couple of those, not so much on getting reversion rights back but getting money paid. Although the government doesn't want to pay you, it says, "Wait a second, this is what we call 'rail banking.'" You probably don't recognize that term because the government made it up. I said in court one day, "It is sort of like the dirigibles. We want a dirigible land-use type. When people get over the Hindenburg, we're going to have a lot of dirigibles coming back." The judge didn't buy it either. We succeeded in getting a lot of money for our clients and at the same time we got money for our legal fees.

I want to tell you one sad story. It hasn't happened yet but it may, because the IRS takes the position that if we represented you and the federal government had to pay us our attorney's fees because of our victory, the IRS takes the position that that is income to you. So, if we collect $250,000 for our legal fees, the IRS takes the position, "We can go after your client because that's income to them. And the reason you can't offset it is because of the alternative minimum tax." That's the position. But we have told the IRS, "If you do that to one of our clients, I'm going to sue you."

You know, we talk about the government a lot. We talk about Superfund and all these federal laws that the government likes to enforce against private property owners; you've got to clean up your property, you've got waste here, you've got garbage here. We represent a family, a man by the name of Jesse Fox Cannon, who in World War II was a very patriotic guy. The government came to him and said, "We want to use your property for a little surveying and researching." He said, "Sure, that's cool. Is it part of the war effort?" "You bet, part of the war effort, Mr. Cannon." And so they went out and bombed the hell out of his property, and they said, "When we are done doing this, we'll clean it up." Yeah, right. Well, they didn't. They just left. Sixty-two years later we are in court with the government, saying, "Go back and clean up Jesse Fox Cannon's." Well, really it is his grandkids' property now. But this is the ironic position that the government takes. They want you to clean up or go to jail and we can't find anybody who claims responsibility. In fact, everybody at the Department of Defense says, "Hey, nobody has jurisdiction over us and we can take our time."

I know the Indian issue is not a big issue here, although it can be, but it's a huge issue out west, especially this issue of tribal sovereignty—the ability of tribes not to be sued. I think Justice Stevens is wrong on everything I have ever read about him, but the one thing he is right about was when the called tribal sovereignty an anachronism. It truly is an anachronism and doesn't belong anymore. We have a case where a property owner owns private property inside a reservation, private property within a reservation. I had to repeat that, but he can't hunt there because the State of Montana says it owes some special duty to the Indians. Wait, it's his private property, so we are in court on that very issue.

A big issue out west that I want to mention has become a serious problem. At the end of August the Ninth Circuit Court of Appeals ruled that it was okay for the Forest Service to close public land to public people, us, in this case it was climbers, because the Washoe people near Lake Tahoe believe the land is holy. It's an interesting god they have because the god apparently did not mind when we blasted two monstrous holes through the mountain to put Route 50 through there, but when climbers climb around up on top with their climbing gear, oh, that really makes the god mad. And so we can't go there any more.

Now if you think this is only about federal property, I've got bad news for you. The Ninth Circuit Court of Appeals ruled that it could also be done with regard to private property. It happened to one of our clients in Arizona. The Hopi and Navajos said this property was sacred to them. Our client wanted to try to work around it. He called up their leaders and he said, "Why don't you come over here and maybe we can work it out." They said, "Yeah, give us directions."

It's not just the federal government. States are, as you know here in New York, terrible about this as well. One of the big problems that we have is this urban idea that, gee, there's all this land that the rural people have that we really want to go out and play on. That happened in Montana where they passed a law called the "Montana Stream Access Law" that says that basically all land in and around streams belongs to the people of Montana and they can go there anytime they want. And you know the phrase "tragedy in the commons" comes to mind because when everybody owns it, nobody owns it, although these landowners have to pay taxes on it and nobody goes there anymore. It has been trashed, and, unfortunately, we have not been able to seek cert. Drawing reference to one of the things Roger said this morning about substantive due process right, the Ninth Court of Appeals ruled that your only right of protection is your right to just compensation. You can't challenge these laws as a seizure, an illegal, illegitimate seizure of your property.

States also are greedy with regard to tax revenues. We have a lawsuit in Oklahoma where the State of Oklahoma is taxing nonresidents in a different way from residents. We lost that case at the Court of Appeals in Oklahoma. The state of Oklahoma said it's a lot easier to keep this money in the state if we never let it leave. And one of the frustrations, as Roger pointed out, again, is the test for invalidating these laws, the "rational basis" test. What does that mean to you? If the lawyer on the way to the courthouse thinks of a good argument, that's okay. That is a good enough argument even if the state legislature never thought about it. So you got a bunch of yahoos at your city council that dream up a smoking ban. They say, "You know, we like that Clinton study that says passive smoking kills 3,000 kids a year. Oh, that made a lot of sense. Let's do that." And we try to sue to say that was a stupid study and it really didn't hold water and even the World Health Organization—and I am a nonsmoker—but even the World Health Organization threw that out. No, the lawyer thought of a good argument on the way to the courthouse and that will survive "rational basis."

I want to mention a couple of things that are relevant today and not really property issues. I know my good friend Teresa Platt is going to talk a little bit about the nonsense going on college campuses, and I really don't have to tell you about it. You've read about the horror show down at Columbia University. The irony is that we can have this terrorist that tried to wipe Israel off the map, you can have him come and speak to a group of people but, my goodness, don't let someone have an ROTC program down here, because we sure don't want that and we sure don't want those military recruiters coming in. Of course, Congress has passed a law saying, "If you don't let the military recruiters come in, you are going to lose money." How much money? Yale would lose $350 million a year. I think it is about time somebody started pulling their chain. That is why we sued the government on that.

Carol asked me to talk a little bit about illegal immigration. I am going to run out of time at the end here but I did want to tell you I brought a bunch of copies of my book, and I would be glad to autograph them for you. Maybe somebody you know needs to have this. Maybe you have got a brother-in-law that's an idiot on our issues and you want to give him a gift. "Well, here, this is really good. I know you will like this book." I will be glad to autograph. Christmas season is coming up. I know I hate to push the season. We don't even have Halloween yet but be thinking.

But Carol asked me to talk about illegal immigration, and it is a hot-button issue for a lot of us who are very concerned about it. Mountain States Legal Foundation is working with Lou Barletta, the mayor of Hazelton, Pennsylvania, in an attempt to survive the challenge the ACLU has filed. How outrageous is the ACLU? Well they have thirty-seven lawyers working on the case. They have won at the district court. We expected they would. We've got a bleeding heart judge and they came into the judge and said, "Well, now we want $2.5 million for our victory." That is how much they said it cost them to win. We are resisting that. We are also challenging a case you may have read about. It is the Medellin v. Texas case, the terrible case at the U.S. Supreme Court where George W. Bush told the State of Texas that it had to obey the Vienna Convention and the state of Texas said this, "No, we are going to fry this guy." I don't know what they do down there, fry them, hang them, shoot them, but they are going to execute him. He murdered two little girls several years ago, and that case is at the U.S. Supreme Court in an amazing situation in which we are being told that illegal aliens have more rights under the Vienna Convention than we have in this country under our U.S. Constitution. I think that is a batch of hooey, to use a legal expression.

You know, I've been doing this legal stuff for a long time. I have been a lawyer for thirty years. I didn't start Mountain States Legal Foundation. I went out there in 1989. Joe Coors started it back in 1977, and I was delighted to be able to pick up the reins, and, of course, my big issue is property rights. My big issue is environmental issues, but the irony was I ended up at the U.S. Supreme Court three times on an issue that I really hadn't picked out. I think the Lord decided, "Okay, this one we will have Perry do. It is not what he's that interested in but we'll have him do this." But it was an issue that really is a property right. We don't think of it as a property right. Roger mentioned it this morning, the right of contract. The right of contract and the right to enter into a contract regardless of race or ethnicity. Ever since 1977 the U.S. Congress and then, following its lead, state and local governments, have been deciding to engage in racial preferences or racial quotas, what the left calls "affirmative action." It is not affirmative action to benefit people that really don't need to benefit, to discriminate between and among Americans on the basis of race. In 1995 we won on that issue before the Supreme Court. Justice Scalia, one of my heroes, said there is only one race in the government's mind. In the government's view there is only one race here. It is American. And amen to that, and it was a great, great decision. Time Magazine called it a legal lightening bolt.

Unfortunately, because of some dilly-dallying by the government, and unfortunately because George W. Bush lost courage and sent Ted Olson into the line of the court to try to get this case to go away, we didn't put a stake through the heart of the monster, and it is still alive today. In 2003, the Supreme Court took another big step back when Justice Sandra Day O'Connor said that it's okay for the University of Michigan to admit kids to law school on the basis of their race because we want to have diversity. "It's a bad thing, it's an odorous thing, it is contrary to the Declaration of Independence and the Constitution, but we are only going to do it for another quarter of a century."

And last year, 2006, the voters of Michigan were asked to decide up or down if that is a good idea. Ward Connerly, one of the great heroes of our day, an enemy of racial preference, went into Michigan and asked the voters of Michigan to decide if Sandra Day O'Connor was right. Is it proper for Michigan to continue to discriminate between and among people of Michigan on the basis of race or ethnicity in public contracting, in education, in government awards? Is that right? The corporations were against him. The unions were against him. The media was against him. The Republicans were against him. The Democrats were against him. Only the voters supported him—54 to 46. It passed. The voters of Michigan passed it and said, "No, we don't want that racial preference stuff anymore."

People ask me why I am optimistic, why I continue to do the things I do. Why do you continue to do the things you do, why Carol does the things she does, and Teresa the things she does. Because we have this confidence in the American people. Teresa said to me at the luncheon table, she said, "You know, these people on the Left, these terrorists and so forth, they say the people are with us. The people don't even know. And when the people find out, they are mad. They are upset, and they are against it. They are on the right side." And our job, our obligation is to communicate to the people. I trust the people, trust their ability—up or down, and that is why we have it on the ballot, this Ward Connerly. To get rid of the racial preference issue, it is on the ballot in five states in November 2008. And what is the left doing? They are trying to prevent people from going to the polls. They are trying to keep it off the ballot. They are trying to keep people from signing the ballot initiative to get it on the ballot. Why? Because they are afraid of what the people will do. And that's our obligation to get these issues in front of the people.

Well, I am delighted to be here. I am greatly encouraged by all that Carol has done and all of you have done. You are the emissaries, you are the people that have got to go back to your communities and spread the word and get people excited about this. People look to you to do this and I hope you will do that. I'd like to ask you to take some ammo with you. I brought two boxes of these books. You never know, you never realize that books are made from trees till you put them in the overhead compartment, a box of them.

So, Carol, thank you. Folks, thank you very much and good luck with your deliberations.

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