Property Rights Foundation of America®
Founded 1994

If You Can Keep It

William Perry Pendley, Esq.
Chief Counsel, Mountain States Legal Foundation
Lakewood, Colorado

Twentieth Annual National Conference on
Private Property Rights
October 22, 2016
The Century House, Latham, N.Y.

In 1936, a man by the name of Melvin Brandt and his wife Lulu arrived in a little wide spot in the road — really a wide spot in the railroad — near Fox Park Wyoming. It's a hard place — you probably have never heard of it — a hard place to find but if you drive to Laramie, Wyoming, and turn west and head to the mountains, just before you turn south to go into Walden, Colorado, there's Fox Park. And when he arrived there it was the midst of the Depression. Jobs where hard to come by. Mr. Brandt was looking for work. He had a paid-for Chevrolet, a full tank of gas, and they had five dollars between them. But he found work along that railroad in that right-of-way because they were building. They were putting in more of the railroad and so he got a job among the hardy Scandinavians who were working in the woods cutting down trees and shaping them and turning them into railroad ties. I'll tell you how bad Melvin was off. He didn't even have a pair of boots. He didn't even have tools. But he borrowed tools and he borrowed boots from the people who were working there and he hiked up into the woods and he cut down a tree and he'd shape it and put it on his shoulder, take it down to the railroad and then go get another one. And for every one he got a nickel and in no time at all he was making a dollar a day. That sounds pretty crazy for the kind of work he was doing but back in 1936 so many people were out of work that dollar a day was desperately needed.

But, Melvin didn't want to spend the rest of his life cutting down trees and turning them into railroad ties. He had visions. He had the idea — the American Dream — he thought maybe he could do something. What he visualized was a mill right there in Fox Park, Wyoming. Exactly, that's what the Forest Service had planned. They had marked it out on the map that there'd be an industrial site called Fox Park. And so, he worked together with one of the men he was working with on the team and they built a mill. It put through about six million board feet of timber every year. He employed sixty people. He built a town. He built his home. He had a church. He had a school. He had a restaurant. It was a going concern. But one thing concerned him and it's the subject of what we're talking about today. Property rights. Because, everything he owned, all that he had created, was sitting on government land. The U.S. Forest Service owned it.

So, he went to the Forest Service and he said, "I've got about 83 acres here that everything I have created is sitting on and I'd like to buy it from you." Well, if you've ever dealt with the federal government you know it's not in the business of selling stuff and what it holds and so the Forest Service said, "Well, we're not inclined to sell it but we'd be willing to trade for it." And so, Brandt said, "Well, what is it that you covet? What is it that you want?" And they picked out about 200 acres that they had envisioned as being part of the Forest Service acreage and so Melvin went out and he bought all that land. He came to the federal government and he presented them with that title to those lands. And in exchange for those 220 acres they gave him a patent from the federal government — United States government. There's nothing better than having a patent from the federal government. If you own a piece of property and you have the federal patent to it. And that's what he got. He got the patent to it and he felt that he had accomplished a great deal in owning that property.

Well, you fast-forward a few years and Melvin and Lulu's son, Marvin, went off to college over at Laramie. Didn't like it. Missed the woods. Went back and started running the mill but sadly, in the 80's bad times came and worst of all the U.S. Forest Service decided not to harvest timber any more. Instead, what it was going to do was leave it up to the pine beetle. And if you've driven across the American West and you've seen these national forests rotting away from the pine beetle infestation, you know what I'm talking about. It's a national tragedy. And that's what happened up in Wyoming. And eventually, poor old Marvin, he lost that mill. He sold the equipment for pennies on the dollar. Had to close the mill. Most of the town moved away. But Marvin vowed one thing. He'd never give up on that land that his dad had fought so hard to get.

And eventually, in about 2000, the railroad came in and said, "We're shutting down. There's nothing to haul out of here any more or haul in. So, we're shutting her down." They abandoned the railroad and presently people came in. They took away the railroad ties. They took away the rails. And because of that patent that Marvin had, that his dad had left for him, all that railroad right-of-way that had passed through his property reverted to him. And now, although the railroad was gone and the mill was gone, Marvin had that land and he was glad to have that land. And then the Forest Service told him they were going to put a bicycle trail along that railroad right-of-way. He said, "Well, you're crazy. Nobody's going to come here. Folks, we're at 9,000-foot elevation. People die when they're exercising at 9,000 feet elevation. No one's going to come here. We get snow. Why it snows late September, early October. We're under snow up here probably up until late May or early June." And he said, "We're in a forest for goodness sakes. Look up and down that right-of-way. You've got trees coming back already. Spikes all up and down that right-of-way. Why nobody's going to drive on that — ride on that on a bicycle." The Forest Service said, "No, we've done a study and our study says 220,000 people will come and ride their bicycles there." Ha, ha, ha. Like every other governmental study. I don't think 220,000 people a year go to Laramie, let alone go up to Fox Park to ride a bike. And sure enough it turned out to be true over the years. Marvin had seen about fifty people out there and most of them on ATV's which is illegal.

But, Marvin said, "Well, you've got a bigger problem than all those factual issues, you've got a legal issue and the legal issue is I own that land. That's my land." And the Forest Service guy got up in Marvin's face and he said, "Listen to me, Marvin Brandt, you got it, we want it, we're going to get it, even if we have to take it all the way to the Supreme Court of the United States. That's what we're going to do." And I'd like to add something. Every time I talk about this case, and it did go all the way to the Supreme Court. Every time I talk about this case I blame the United States government. Sure enough they are the big bad boy. They were the ones that came after Marvin's land. But holding their cake was the State of Wyoming because they wanted that land, too. The Wyoming highway department, they coveted that property. They thought that was going to be pretty awesome to have their own bike trail. And so, the attorney general for the most conservative state in the Union — it happened to be a Republican, later governor, now governor of Wyoming, a friend of mine — fully supported that seizure of one of Wyoming's citizen's land.

Well, Marvin called Mountain States Legal Foundation. One of his friends contacted me. Said, "While you went to the University of Wyoming at Laramie, you must know where Fox Park is. And we've got a problem up here." And he told me the story I've just told you. And I asked to see Marvin. We met with Marvin and in 2006 when the United States government filed a takings action against him. And essentially what it was was what we call a quiet title action. When the federal government wants to seize your property, they'll file a quiet title action against you. And if you claim property that the federal government has, you'll file a quiet title action against the United States government. So, they filed a quiet title action against our client, Marvin Brandt, and we responded with a counter claim against United States government claiming, "You don't own it. We own it." And that case that began in 2006 eventually reached the Supreme Court of the United States in 2014.

It was a remarkable day. I didn't argue the case. We had another attorney arguing the case. And what was amazing about it was the whipping the federal government took during oral argument, almost from the get-go. You see, the problem was that back in 1942 a case just like this had gone to the United States Supreme Court. In fact, the federal government had brought the case. And, in fact, the federal government in that 1942 case was arguing exactly like we were arguing, saying that that railroad right-of-way was but an easement. And when the railroad went away that land reverted to the underlying property owner. The federal government won that case in 1942 and here in 2014 they're coming in and saying, "Notwithstanding that decision, rule in favor of us, today. Don't overturn that decision. We like that decision when it applies to us. We just don't like it when it applies to private citizens."

Frankly, I've got to tell you the Supreme Court was shocked. Justice Stephen Breyer, no friend of property rights, and a great friend of bike trails, he's tried to kill himself multiple times riding a bicycle out on these trails, if you've been keeping up with current events. And he says, "Why, an attorney worth his salt understands this land goes back to Mr. Brandt." Justice Kagan, no defender of property rights, says, "Why any person thinks this land doesn't go back to Mr. Brandt is a mystery to me." and Justice Alito, the first set of questions he had was when the federal government's lawyers stood up and started to argue and he interrupted him. He was mid-sentence. And Justice Alito said, "Wait, counsel. Wait counsel. Every argument made by Mountain States Legal Foundation you made in 1942. Why should we change our mind?" And, in fact, the Supreme Court didn't. In record time Chief Justice Roberts wrote the opinion for an 8-1 court and ruled in our favor and said, "We refuse to change our position. The government argued for this position back in 1942. We're going to adhere to it. Today, Mr. Brandt wins."

You're probably wondering who was the one who was the holdout. It wasn't Ginsberg, she's a bright lawyer. Justice Sotomayor dissented. Her dissent went something like this: The self-described wise Latina said, "Trails are good. People like trails and that is good. But if Mr. Brandt wins we'll have to pay millions for these trails and that is bad. I dissent." I summarize, but you have the gist of it. And so, we went back to Wyoming District Court and we got our land back, our client got our land back. And then we did something that you read about in the paper that the environmental groups do all the time. We went into court and said, "Judge, we spent an awful lot of money to win this stupid case." I say it was a "stupid" case because the government should never have brought it. It was dead on arrival. Because of that 1942 precedent not won by some obscure plaintiff from decades ago, but won by the United States government, itself. It understood what that case was all about. We went to the judge, and the judge just a few weeks ago, denied, denied, our equal access to justice application. You're probably shocked by this because you keep reading headlines about the tens of thousands, even millions of dollars that environmental groups get every time some federal bureaucrat makes some paper mistake. But not us. The judge said that the government was justified in what it did because, after all one, of the Justices dissented. We're on appeal and I'm expecting an op-ed piece on the case. But I want to point that case out to you as an example of the perfidy of the federal government when it comes to the property rights and the battle that we're in where we have to fight back to preserve what we all take for granted, that we have the right to own and use property. And, in fact, that's what the Founding Fathers intended.

I wanted to go half way across the country, part of the way across the country, to come here to New York and talk about a case we had right here in New York, in Upstate New York, representing seventy thousand of your brothers and sisters in an action against Governor Cuomo for his refusal to allow hydraulic fracturing on private property here in the Empire State. It has not passed your notice, of course, until recently, the incredible economic, environmental and energy miracle that is hydraulic fracturing in Pennsylvania. Now, I say all three because it's great for the economy. It's great for the environment because instead of burning coal we're burning natural gas and it's great for energy because we're not beholden to foreign sources. And, in fact, that's exactly what Reagan was talking about back in 1979-1980 when he ran for president. He saw us as having many problems in this country. We had a bad economy. We had poor energy production. And we had a terrible foreign relations situation because we're beholden to foreign powers. Reagan believed that we could solve all three of those if we developed our own energy. He recognized the fact that America owned a third of the country. Pretty shocking for a free nation that a third of the land is owned by the federal government. And the federal government, in addition, owned a billion in acres on the outer Continental Shelf. And so, Reagan said, in fact, Reagan said it in 1980 in his acceptance address, "Mr. Carter, why aren't you drilling on federal lands. What are you afraid of, making a discovery?" So, it appeared that he was. So, you're aware of what's going on in Pennsylvania at least until relatively recently and maybe prices are going north.

I'll tell you another man that knew about it, one of your neighbors, a man by the name of Jonathan Kark down in Broome County. And Mr. Kark's six generations on the land. You back and read the town records of Fenton, New York, and there's mention of a Mr. Kark in the tavern where they decided to name the town Fenton and drew up the papers for the little community. He has a bit of acreage that he likes to farm. He has cattle. He has a small trucking company. You know, when you're in rural America you've got to be engaged in a lot of activities and he certainly is that. Unfortunately, Mr. Kark, at the time we filed the case, was not living in Fenton, New York, with his four kids and grandkids, he was living in Oklahoma in a trailer working in the oil patch because he couldn't afford to pay his taxes and his mortgage in New York given the circumstances here.

The irony was that he lived just fifteen miles away from Susquehanna County, Pennsylvania. Susquehanna County, as you all know, is the sweet spot for the discovery of Marcellus shale. Thirteen of the top natural gas producing wells in all of Pennsylvania are in Susquehanna County. It is just fifteen miles away from where Mr. Kark lives and he wanted to drill there. He had a company come in and execute a lease to allow it to drill. Unfortunately, Governor Cuomo was listening to the siren song of Yoko Ono and other commie — er liberals — who didn't want this energy to be developed. They thought it would be bad. One of the great ironies — I know you've been keeping track of this — is that down in Manhattan's so many of the apartment buildings are converting from coal and oil for the generation of electricity to natural gas and the tragedy is the natural gas is not coming from New York it's coming from Pennsylvania, because you can't drill here, and we sue Governor Cuomo to demand that.

I always thought, growing up, that the worst thing that Yoko Ono ever did was kill the Beatles. I was not a big Beatles fan. I was sort of a Marty Robbins, Roy Orbison, Johnny Cash kind of guy. But I'd heard that she killed the Beatles and I believed it. But I think the worst thing she's ever done is condemn the people of Upstate New York to poverty and the loss of their land because she doesn't want them to drill here.

A few years before we take the case representing Jonathan Kark and seventy thousand of his closest friends and neighbors, I put in a call to a grass-roots lawyer here in New York. And I said, "Could you find me three attractive clients to sue over this." I thought the timing might be right to file a lawsuit on it. Within the hour, he called me back. He said, "Perry, I have three elderly women all of whom are in danger of losing their property. One is a divorcée, two are widows. Each one in danger of losing her property because of back taxes that they cannot pay. And they're right on the border with Pennsylvania and they have leases with oil companies. If only they had the ability to drill, they could probably save their farm." And, as you know, that's what happened all across Pennsylvania. All of a sudden, kids were able to come back. You know, Willy Nelson comes up here and he has big events, I guess. Didn't he have the "Save the Family Farm" in Albany last year? I lose track but he is always talking about saving the family farm. But if you want to save the family farm in Pennsylvania you find gas on your property and you tell the kids to come home because there's work and they can stay and raise the grandkids.

Unfortunately, the case went south simply because of procedural battles and then a gutless Cuomo, instead of having the manhood to say "no" himself left it up to his health advisor who said, "If I had a family and kids…" No, what he said was, "I wouldn't want my family and children living near a hydraulic fracturing site." It turns out he didn't have a wife or kids so I don't know what he's talking about. Of course, that's as much of a fantasy as his perceived dangers of hydraulic fracturing.

Let me go back across the country to my area to New Mexico, to one of my favorite counties of Mora County. M-O-R-A. Mora County, New Mexico. I affectionately refer to it as Moron County simply because they in Mora County listen to the siren song of an outfit called Community Environmental Legal Defend Fund from down in Pennsylvania. It won't surprise you when I tell you that that left-wing outfit is supported by Teresa Heinz Kerry. They go all around the country and they persuade local units of government that the way to resist the dangers of hydraulic fracturing and oil and gas development in general, is to establish an ordinance claiming community rights. What that includes is saying that corporations do not have rights. Property owners do not have rights. Nature has rights. And Nature can be represented in federal court by private parties who are in there speaking on behalf of Nature. I'd like to tell you that only foolish people adopt this ordinance but so far about 250 communities across America have adopted it including, of all places, Pittsburgh, Pennsylvania. You would think they'd have some smart folks down there who would say this is foolish. We thought it was foolish.

We represented three landowners. A man by the name of Joseph Bottum talked about the ordinance in the Weekly Standard magazine. It's worth reading. It's a very interesting dissection of the ordinance. We sued on behalf of three landowners in the Independent Petroleum Association in New Mexico and had the ordinance thrown out. I'd like to tell you that that's been the end of it continues, this group continues, to try to get local communities to say — especially in Ohio — to embrace this ordinance.

These are the kind of battles that we face on property rights. It continues to go on. You have probably seen the news in Maine about President Obama's decree creating a national monument there out of land that was purchased for a large — I think the number 2.5-million-acre park that the lefties envisioned. But we are today in the midst of the most lawless administration in the history of the Republic. What makes that so tragic is not just the power of the federal government and the expansiveness of the federal government in the various agencies that go forward with this leftist anti-property rights agenda but that other government entities across the country, state and local level, say, "Well, if the president can do this, why can't we do this?" And so, you have a situation like Mora County. I think there's about six thousand people in Mora County. But they read the newspapers, they read the internet, they see what the president is saying and what does the president say? "If you don't like it, sue me." And so, you have local governments say, "Well, why don't we do that? What's the worst that can happen? Well, we just get sued."

If you don't believe me, and now it's kind of hard not to, Senator Ted Cruz of Texas, for example, listed seventy-six specific instances in which the president had violated his oath of office. Senator Cotton, of Arkansas, a decorated was veteran from the Iraqi and Afghan wars, said that President Obama's not so much unconstitutional in his behavior as anti-Constitutional in his approach. And a liberal law professor, Jonathan Turley said during his congressional testimony — and this is a man, by the way, a liberal law professor who twice voted for President Obama, who supports President Obama's agenda and policy, but says there are ways to do these things, and President Obama is not doing them in those ways. Professor Turley says we are at a "Constitutional tipping point" as a result of the president's unconstitutional behavior. There are so many laws the president refuses to defend. Laws that the president has made up out of whole cloth and instances in which he has refused to defend the laws that are on the books.

I want to talk about some of them and the threats they pose to our country. Carol spoke of the National Environmental Policy Act. A lot of people don't know about the National Environmental Policy Act or NEPA. It is what I describe as the workshop equivalent of "measure twice, cut once." It simply says that the federal government had proposed major federal action, I'm quoting, "major federal action that significantly affects the quality of the human environment then federal agencies have to study what's going on and what could happen and then press forward." It doesn't mandate that you not harm the environment or you not have an impact on the environment. It just simply says know what you're doing before you do it, which makes sense. But today, the National Environmental Policy Act is so out of control that it is essentially the mechanism by which environmental groups stop everything they don't like. That's why this pipeline from Canada we're trying to put in got shot down.

Where are we? Well, let me tell you what has happened or not happened ever since NEPA was passed in 1969. We have not built a major oil refinery in this country since that date. Number two: We did not improve the levees in New Orleans prior to Katrina hitting because the Army Corps of Engineers or as the president says, the "Corpse of Engineers," got sued by environmental groups to stop the construction of those levees before that hurricane hit. And the third thing is that every time we have a fire in the American West, when you see the fire season is about to start in the American West, we still have fires going in Colorado today because of the unseasonably warm weather, you will have a necessity after a fire to go in and harvest that timber because you only have a certain amount of time before that timber which has been burned — still valuable though — just rots on the stump. During that time frame you have you get in. You have to log it. You have to get it to the mill. If you wait too long it's worthless and it will just rot on the stump. Unfortunately, environmental groups file lawsuit after lawsuit and we simply cannot harvest timber after these fires.

How radical are environmental groups on this issue? Well, there's one radical environmentalist named Andy Kerr in Oregon who says that allowing timber harvesting after a forest fire would be like raping a burn victim. That's insane!

Let me mention another statute that's notorious and notoriously bad for anybody that owns private property. And heaven help you if you find one of these critters on your land. And that's the Endangered Species Act. Another great sounding idea back in 1973. What did we know in '73? Well, we knew there were probably about one hundred species that would likely be on the list. We knew that most of them were on federal lands and that if we ever needed to affect private property which was probably highly unlikely, well, we'd just simply compensate the landowner for any imposition caused. Well, fast-forward to where we are today. We have thousands not hundreds. We have gone from protecting the warm and fuzzies. You know, you care about the polar bear. You care about the manatee. You care about the golden eagle. But what about the Delhi Sands flower-loving fly. Do you care about that? I don't. But that's where we are, we're protecting those critters. We've gone from protecting the warm and fuzzies to protecting the cold and slimies. It's crazy. We have a situation in the mountain West where we have the sage grouse. If you'd like to you can come out to Colorado or Wyoming or Montana and you can get a license — we'll charge you a lot because you're not a resident — but to shoot and kill sage grouse. But on the other hand, while you're out shooting sage grouse, the environmental groups are in federal court saying the sage grouse is so endangered that we can't allow any oil and gas activity or you can't graze cattle. And how significant is that claim? Well, it's pretty significant because the range of the sage grouse is about 110 million acres covering eleven states. If you want to shut down oil and gas, mining, ranching, in the American West? List the sage grouse.

What about the prairie chicken or the Sand Dunes Lizard down in New Mexico right in the middle. If you've been reading the papers you've probably been reading with regard to the oil and gas industry. The one hot spot on the oil and gas industry because of the wealth of the reserve is the Permian Basin around Midland Texas. Guess what lives there? The Sand Dunes Lizard and the prairie chicken which is why the environmental groups that want to list it because they want to shut down that activity.

You heard, I hope, about the Clean Water Act. The Clean Water Act, Carol mentioned it, of course. Congress wrote it. It was very circumspect. Senator Muskie introduced it. It passed in 1972. It was eighty-eight pages long. Not very long. Eighty-eight pages long. But there were five words in the Clean Water Act that had legal meaning and they were adopted with all due care. Several years ago in one of my books — I forget if it was Warriors for the West or War on the West — I mentioned that the word "wetland" was not in the Clean Water Act and my editor scratched that out. I called him up and I said, "Hey, idi… Hey, excuse me, what…?" He said, "Well that doesn't make any sense." I said, "Well, it's not there." And it's not because the phrase is "waters of the United States."

Everybody in America today, if you own land, you know that phrase "waters of the United States." Well, why did Congress use such an obscure term? Why not say "wetlands?" We all know what that means. Bureaucrats know what it means and heaven help you if a bureaucrat shows up on your property and says that you've got a wetland on it because I know it when I see it. Justice Potter, years ago, in a hardcore pornography case said, "I can't define it but I know it when I see it." [There's] no report of what happened in chambers later but… So, these bureaucrats come on to your property and say you've got a wetland based on this, that, and the other, and then you're in a battle over whether or not you can dispute that. But the phrase that was used by Congress was "waters of the United States" because they wanted to restrict the power of the Corps of Engineers and the EPA to waters that were in interstate commerce, because that's all the power Congress had. Remember, we're back in 1972, into the dark ages, when we actually thought there were limits on the power of the federal government. And so, it was "waters of the United States." And over the years, property owners represented by Mountain States Legal Foundation, by Pacific Legal Foundation, and others, have litigated against the EPA and the Corps of Engineers who has tried to push the envelope. And every time ít's tried to push the envelope the Supreme Court has pushed back the other way. They say, "No, you have to have the waters in interstate commerce. Moreover, you have to have a connection between those waters and the waters of the person being regulated." And that all ended with the Obama Administration. The regulations that it issued defining "waters of the United States" is essentially anything in the country. We're in Federal Court litigating over that issue right now.

I want to mention a little bit about fighting the federal government. We all know the expression "I'm going to take it all the way to the Supreme Court." Of course, that's the objective of a Mountain States Legal Foundation. We intend to get a case to the Supreme Court if we have a client. And I want to add to what Carol said about the heroes. The real heroes as I said in my book It Takes a Hero are the people who will come to a Mountain States Legal Foundation or a Pacific Legal Foundation and sign on for the long painful battle of fighting the federal government. Because it is long and it is painful. And there will come a day when the federal lawyers will come in and say, "We have an agreement for you. We have a settlement for you if you make this go away." It takes raw courage on the part of a client to simply say, "No, you've been jerking me around all these years and now you're coming to me with a part of a deal. No, I'd rather lose everything than take this part of a deal that you're offering me." So, that takes real courage.

But when we're able to do that, of course, the federal government has different ideas. And federal lawyers have different ideals. I call it — because of my Marine Corps training — I call it the order of battle. What is the order of battle for federal lawyers? The first order of battle for a federal lawyer is to get your case thrown out. They do not want the judge to issue a ruling, any ruling, whatsoever, because the odds are the ruling will be adverse to the federal government. So, they want it thrown out. So, they will say, "You've sued the wrong person. You didn't get hurt. This agency isn't the one that hurt you. You're not hurt, yet. Maybe you'll be hurt down the road. The case is untimely. You're in front of the wrong court." These are the kinds of mechanisms that federal lawyers use to try to get a case thrown out. I could give you chapter and verse on that. The second thing is the federal government lawyers, they fight to win. It's not the Department of Justice, in my view. It's the Department of Litigation. It's the agency that fights for federal agencies regardless of whether or not they're right. They just want to win. They want to make you go away. And then finally, the federal government lawyers, even when they lose, they refuse to adhere to the law. This sounds extreme. Mr. Pendley, you're an attorney. You're admitted to the Supreme Court of the United States. You're admitted to four or five different bars. How in the world can you make an assertion like that? And I'll tell you I do it because it's the truth!

Let me give you an example. We represented, several years ago, one of my heroes, a woman by the name of Kathy Stupak-Thrall. She owned property in the UP, Upper Peninsula of Michigan. She owned property on Crooked Lake, a meandering lake. It happened that she had a terrible neighbor. She had just one of the worst neighbors you could ever have. It's the U.S. Forest Service. And the U.S. Forest Service owned 95% of the land around the lake and then, sadly, that land around the lake the U.S. Forest Service owned was converted into a wilderness. Let me emphasize something. The land around the lake was turned into a wilderness. The lake was not. The lake retained all of the features and rights and privileges that Michiganders have developed. What do they call themselves up there "water wonderland?" They love their water. They love to recreate on their water. It got so bad what happened was because Kathy Stupak-Thrall wanted to use that lake just like the Michigan law of one hundred and fifty, sixty, seventy, years allowed her to use, the Forest Service said, "No, you can't." Because the federal government does two things. It wears two hats. When it's wearing the hat of landowner it's your neighbor. But then you get crosswise with your neighbor, the federal government takes off its landowner hat and it puts on its sovereign hat. And the sovereign hat is their God hat. We're the gods and we make up the rules that govern landowners like us, and you. And that's exactly what the federal government did to Kathy Stupak-Thrall. We were successful and we won. We won her right to use the lake as Michigan law allows. If you think I'm being extreme in this, we were at the Sixth Circuit Court of Appeals. We're before an oddball, rare, oddball meeting of the court and what that means is everybody was there. All the judges on the Sixth Circuit were there. The Chief Judge, an old friend of mine by the name of Danny Boggs, a man I worked with in Washington, D.C., leaned over to the microphone and he said to the counsel of the federal government, the Justice Department, "What is it you contend that Katch Stupak-Thrall can do with her lake?" And the government lawyer said, "Your Honor, the only one thing that she can do with Crooked Lake is possibly take water from it to drink." One hundred and fifty, seventy-five years of law in Michigan on how you can use a lake if you're a lakefront property owner thrown in the trash by this federal lawyer. And, fortunately, the courts rejected that.

Now fast-forward. That's in the 1990's. Fast-forward to a couple of years ago. A family that's been recreating there on Crooker Lake since the 90's finally bought a cabin there in 2010 and then one day in 2013 they got a letter from the federal government. You know President Reagan says, "What are the nine worst words in the English language? I'm from the government. I'm here to help you." They got one of those. The letter said, "You can't use the lake anymore. You can't go out there in your motorboat anymore." And so, needless to say, they called Mountain States Legal Foundation and said, "Tell us about Kathy Stupak-Thrall." We represent then today. And today the federal government is back in federal court arguing that it is both sovereign and king and notwithstanding this victory we won for Kathy Stupak-Thrall, that only applied to Kathy Stupak-Thrall. They didn't deny the Forest Service its authority. So, when I say to you that the federal government lawyers do not obey the law and ignore their defeats, I do so on authority.

I want to talk about one recent, I guess two recent cases that we're involved in that I think it is important for you to know about. Back in 1982 when Ronald Reagan was president, I was at the Department of the Interior, which is responsible for energy development. Don't let anybody ever tell you that the Department of Energy has anything to do with energy production. It's all over at the Department of Interior, which as you probably know in most nations is the police department secret police. We're not the secret police, although some people think the Park Service is. We issued a lease to a man from Baton Rouge, Louisiana. He applied for what's called an application for permit to drill. So, he gets the lease in 1982. He applies for an APD in 1983. And then he spends ten years doing paperwork under the National Environmental Policy Act, the National Historic Preservation act. There are seventy-six appeals. There's an IBLA (Interior Board of Land Appeals) ruling, there's litigation. On three separate occasions during that ten years he's granted his APD. And then it's pulled back. Granted and pulled back, and granted and pulled back, and finally after every "i" is dotted and every "t" is crossed and every lawyer in Washington has been consulted he's issued the APD in January of 1993. Well, you also know what else happened in 1993. Bill and Hillary went to the White House. In June of 1993, Bill's Secretary of the Interior, Bruce Babbitt from Arizona, suspended the lease. He didn't cancel the lease. He suspended the lease. It's been suspended ever since. In 2013, we filed a lawsuit against Sally Jewell, the Secretary of the Interior, and we said, "Make up your mind, lady. Can we drill? We've been in suspended animation since 1993." We got in front of a federal judge, Judge Leon, and to say he went nuts is an understatement. He went ballistic. He went so far as to say to the justice Department lawyer, "Lady, the next time you come in here bring your clients with you because some of them may be going to jail." That's how bad it was. He called it Kafkaesque. The stuff of nightmares. How can this man have been put through this hell for all of these years for the federal government simply because it was trying to make up its mind? And the government lawyer said, "Well, Your Honor, we need more time." That was in October of 2015 and March the 15th of this year (2016) we're back in front of the judge and the judge said, "Well, counsel," to the Justice Department lawyer, "What's our status?" She said, "We need more time." He said, "You've got twenty-four hours." I wanted a decision in twenty-four hours and, so, twenty-four hours later the federal government cancelled the lease. It has no authority to do that. Zero authority. I'm telling you that if the federal government can tear up this contract, there is no contract safe. That's why when filed our brief in the case, the United States Chamber of Commerce filed an amicus with us simply saying because the 300,000, now thousands and thousands of contracts in which the federal government enters every year are put at risk because of this cancellation on no legal authority, whatsoever.

Let me mention another case I could go on for quite some time about the first but I think it's important to understand that. The second thing — and I know most of you drove in but I didn't — I flew in last night and spent five wonderful hours in O'Hare. I don't know what was worst, the city's constant announcements telling me how I should sneeze or TSA's announcements telling me how I had to keep all my liquids to three ounces. Bear in mind that I'm already on the concourse. I've already gone through security. Sorry, I don't need that information and I don't need it every five minutes. But just before I got on the flight it said, "Delayed due to severe weather." And I thought about that because the case I'm about to tell you about because I used to fly in the Marine Corps. I was the navigator. I was the guy who communicated with air traffic control. I was the guy who relied on somebody sitting in a tower somewhere to take me from 30,000 feet in the soup, through the garbage and the muck and the lightening and the mire down to where I broke out at about 1,000 feet above the surface of the Earth and to keep me all that time clear of another aircraft. Why do I bring that up? I bring that up because our air traffic controllers are in charge in 87,000 aircraft every day through the skies of America.

And beginning in 1991 after Regan fired all the air traffic controllers, the way that we hired air traffic controllers was we needed a program. And the program that was put in place — and there's schools here in New York to do it. We set up thirty-six schools in twenty-three states and Puerto Rico that would give a four-year program on aviation, train these people. They come out of the program fully trained. They have a Bachelor of Science degrees. They have the recommendation from their academic advisors and then if they can pass an eight hour computer-based test that the FAA administers with 85% or — better this isn't the 51% or 70%, you've got to get 85% — then you're qualified to be an air traffic controller. And in 2013 the FAA came to the incredible conclusion that there is simply not enough minorities in that pipeline notwithstanding the factual evidence that 11.5% of everybody in that pipeline was African-American. They came to that crazy conclusion and they said, "You know what? We're no longer going to demand these college degrees. We're going to hire any high school graduate who's a citizen who can speak English."

And those people today are being trained in Oklahoma City to guide your aircraft to safety. We filed a lawsuit on behalf of that class between 2,000 and 3,500 young men and women. I've got to tell you some of the stories that I've heard… and these are men and women of all backgrounds and races and ethnicities. They're an amazing, energetic and hard-working people who took out loans and went to the schools and achieved and worked hard and got accepted and they were put in that pipeline and told you're going to be hired and then told, "No, your name has been purged. You're not of the right race." And so, we filed a lawsuit on their behalf and I want to tell you we just the other day got the answer from the federal government. We filed what's called an equal protection guarantee and Carol mentioned my trip to the Supreme Court. I won a case in 1995 on this proposition, "Can the United States government decide between and among us on the basis of our race?" because before 1995 that was an unknown. And in 1995, the Supreme Court of the United States said, "No." Not even the federal government, not even the Congress can decide between and among us based on our race. And so, that's the lawsuit we filed. Obama's people just filed their response. What did they say? They said because the king can do no wrong, the king can do no wrong, you can't sue President Obama's people on the denial of your class equal protection. That's how lawless we are.

I want to say a few words in closing about my books. I know the last time I was here I had Ronald Reagan, Sage Brush Rebel, the definitive work on Reagan. It's called Reagan's Battle with Environmental Extremists and Why it Matters Today. It really does matter. I wrote the book simply for one reason. It was really important to Reagan and nobody had written about it. It's simply unknown. You cannot read what is in here anywhere else.

The second thing that I have for you is — well, it's not a gift, you have to buy it but — is this and if you have a long drive… There's an expression out in Texas — I love driving through Texas — and it says, "The sun has riz and the sun has set but you ain't out of Texas yet." Save your drugs for Texas and maybe Upstate New York. This is the book. It doesn't have the 1,234 footnotes that this does with pretty pictures but it's all there if you can stand my voice and say, "Can I stand that guy's voice," it's all on there. There's nine discs that I can explain. There are the ones you put into your car. There's a tenth one: MP3 something. You can put it on a computer and your kids and grandkids can listen to it. Highly, highly, highly, recommended. The new book that Carol mentioned was Summary Judgment and over the last twenty-five years every month I write an article about something that upsets me. It may be about one of our cases. It may be about something going on and I write it. So, I took a collection of my favorites, it's a paperback. Each essay is 650 words long, so it's a quick read but I think you'll find it fascinating and it's both exciting but it's depressing. The depressing thing is you say, "How current could something twenty-five years old be? How current can something twenty years old be?" You're going to read this and say, "Was this yesterday? Because I thought I read about this yesterday." Nope. It's twenty years ago. It keeps repeating itself.

People ask me my favorite story. I do want to give you… Do I have a couple of minutes, Carol?

Carol Lagrasse: That's all, though.

Mr. Pendley: Okay. Well, I won't give you the quick story. What I will tell you is my favorite story out of this. And my favorite story out of this is that I took my boy, Luke, to the Movie White Fang. And at the end of White Fang they're running the credits and they say, "White Fang by Jack London is a work of fiction, blah, blah, blah. But there's never been a documented evidence of a healthy wolf or pack of wolves attacking a human being in North America." And I turned to my boy, Luke, — I don't know how old he was at the time but he's pretty savvy — and I said, "Luke, do you think that's right?" "No, that's crazy." And it was crazy. It was crazy talk. I researched it and found out that was untrue. There are multiple stories. But you will see, even today, if there's a wolf attack somewhere, somewhere in the story there's going to be that this has never happened before in the history of man! We're amazed. But back when I saw that movie I was really upset and so I did what lawyers do, I wrote a letter. And I wrote a letter to my good friend Michael Eisner who happened to be at Disney. "Dear Mr. Eisner: You had a stupid disclaimer at the end. It's totally false. Please don't do it anymore and, moreover, take it off the video tape." And he bucked it over to Defenders of Wildlife which made up this tale and Defenders of Wildlife made up the tale simply because they said every wolf that attacks somebody is rabid unless it's been tested and proved not. And every wolf that does that that isn't rabid, well, it was formerly domesticated unless it's proved that it's not. And, furthermore, a bite is not an attack. So you can say what they consider with a straight face.

Fast-forward to Frozen. I don't know if you've been forced to sit through that with kids or grandkids. It's really terrible. But I have. I have grandkids and they sing it for me. But I discovered that the federal government, your federal government, contacted the Disney people responsible for Frozen and said, "Why don't you make your characters speak out on global warming for us." And to Disney's credit, Disney said, "No. We're into happy things and we're not going to do that." And folks, I would like to think I did that. Because of that letter I sent to Michael Eisner all these years ago. Maybe it was. Maybe it wasn't. But I'm glad I took the effort. It was Carol who talked about all the things you've accomplished. Do you think it all paid off? I don't know. But a lot of it did. And we'll never know unless we try.

Not so far from here in Philadelphia when they wrote the Contract with America, the first Contract with America, Dr. Ben Franklin, was walking the cobblestone streets of Philadelphia and an elderly woman approached him and she said, "Dr. Franklin, what kind of government have you given us?" And he said, "A republic, if you can keep it." And that's our challenge. That's our mandate. And you're doing it here today. God bless you for it. God bless our troops. God bless America. Thank you.

Back to:
PRFA Property Rights Conferences PRFA Home Page

© 2016 Property Rights Foundation of America ®
All rights reserved. This material may not be broadcast, published, rewritten or redistributed without written permission.