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An American Original: Wayne Hage

http://www.libertymatters.org/libertymattersjournal/july_1998.htm

Throughout American history, men of great character have risen to the cause of liberty, sacrificing their personal safety to ensure liberty for generations to come. After fighting a twelve year battle for his land with the federal land management agencies and national environmental organizations, Wayne Hage filed one of the most important cases of our time. Few have had the courage of their convictions to place everything on the line for our precious constitutional principles. Wayne Hage is such a man. Liberty Matters recently met with Wayne for this personal interview.

LM: You have a long history fighting for property rights, what were some of the first issues you worked on?

WH: When I was ranching in the state of California in the 60’s and 70’s, I was quite heavily involved in the California State Chamber of Commerce. I chaired a committee in the state chamber dealing with land use and taxation. At that time we were just starting to see the environmental movement rise to the forefront. I had the opportunity of sitting across the table with people who later became active in the environmental movement.

One of the things that probably drove home where the environmental movement was coming from, was Assembly Bill 10. AB 10 attempted to socialize all of California agriculture. It was an effort to take away all private property rights, put everything under the control of bureaucracy, and do away with any type of mechanized agriculture putting people back to using horse and ox power. We realized that behind this legislation was a very serious movement that had international backing. Our own people in the California Chamber and some of the conservative groups in California said that there was no way we could stop this bill. We did defeat that bill, and the way we beat it was to run another bill through the Senate which accomplished everything that the assembly bill purported to accomplish, but we did it from a private property perspective.

Dealing with that group in California more than 20 years ago gave me a taste of what the nation was in for. The environmental movement has nothing to do with the so-called protection of the environment, that was the window dressing, that was the issue used to take private property without compensation.

LM: From the moment you purchased Pine Creek Ranch, the federal government harassment began. Why do you think you were the target of their campaign?

WH: The issue that focused the federal government’s attack on myself came within about two months of purchasing Pine Creek Ranch in June of 1978. I got a call from two guys with the National Park Service who were visiting Tonopah. I met them at a local restaurant where they informed me that they were going to buy Pine Creek Ranch. They offered me about half of what I had just purchased the ranch for, so obviously we didn’t do business. When they saw that I wasn’t going to sell the place on their terms, the harassment began. The agencies work together, and the environmentalists pretty well dictate what goes on with the land management agencies such as the Forest Service, Bureau of Land Management, National Park Service and Corps of Engineers. After I refused to sell, the Forest Service began just common old harassment to increase the cost of operation so much for Pine Creek Ranch, that I would eventually be frozen out and they would get the ranch by default.

LM: Why did they target the Pine Creek Ranch property?

WH: Pine Creek Ranch is a very picturesque area, it has high mountains on two sides on the northern end. The home ranch headquarters is supposed to be one of the most remote spots in the contiguous 48 states. Also Pine Creek is a large source of fresh water in Central Nevada. The water that we use for stockwater and irrigation can gravity flow to Las Vegas or Los Angeles. It has a very high dollar value if used for domestic or municipal purposes in one of the large metropolitan areas. It has caused a lot of people to look somewhat covetously at the property.

LM: In 1991, the Forest Service confiscated your cattle armed with semi-automatic rifles and wearing bullet proof vests. How were you able to keep a cool head when they were obviously trying to provoke you?

WH: Well, the basic reason is a solid Christian grounding as far as an outlook on life. That is, make sure you keep your own house clean, obey the law and do what is right to the best of your ability. I also spent a little time in my earlier years working for the Forest Service and the Bureau of Land Management. I knew that part of their unwritten procedure in dealing with people is to provoke confrontations because one of the easiest ways, and one of the only lawful ways for a federal agency to come after an individual citizen, is if that citizen has in any way physically threatened them. So, when they are trying to create a situation that is adverse to the private citizen, they create confrontations and push people past the point of control to where they’ll do something that could be construed to be of a violent nature. Knowing that this is part of their practice, the strategy is don’t take the bate.

LM: When you and your wife Jean filed the takings case Hage v. United States, you

did something different and filed your case in the US Court of Federal Claims. What convinced you to take this step?

WH: One of the biggest insights of how to properly sue the federal government on property issues came from the environmentalists themselves. Back in the early 1980’s, the US was attempting to install a race track MX missile system. It was a massive project and would have included two-thirds of the State of Nevada, and portions of Idaho, Utah and California. The people most directly impacted were the ranchers and we happened to be right in the middle of it. A suit was brought, I wasn’t party to that suit, but I was on the board of litigation. The environmentalists were involved in the suit on the same side.

At a meeting in San Francisco I had an enlightening conversation with a legal researcher for the combined environmental movement. She told me, ‘you ranchers can stop the MX, you have property rights on that range and if you’d stand on that we environmentalists could paper the government to death and they would lose.’ I agreed with her and asked how she learned about this. She explained that the environmentalists thought all they needed to do to get rid of the ranchers was to get an Executive Order from some president who would be favorable to the environmental movement. When Carter was elected, they began drawing up an Executive Order and in researching the legalities involved found that the ranchers own those grazing allotments, that they are private property. I asked if she was afraid that we would use that information against them later on. She said she expected us to, but before we get that done, the environmentalists will have so many environmental regulations and rules laid on us that we’d all be broke.

The essence of that discussion confirmed for me that they knew what they were doing. I knew that any resolution of this issue had to be on the basis of property. When they come in at gun point and confiscate your livestock and tell you you can’t clean your irrigation ditches, that’s pretty plain that they’re telling you you can’t use your property. Obviously, we had a takings issue, a Fifth Amendment issue.

LM: Why are the principles in this case so important to you?

WH: It goes right to the basic premise of what constitutes a free society. There are no such things as civil liberties if you do not have private property and a force of law and justice to protect that private property. The founders of this nation knew that. The wise men over the ages who have helped structure free governments have known that. If we are going to give up on private property then that is another way of saying we are going to give up on civil liberties and surrender to the tyrants. We’re going to subject ourselves and our offspring to a future of slavery. In other words, a return to the same type of climate that existed throughout so much of the world and kept people in poverty and bondage and despair prior to the establishment of free government in the western world in recent centuries. If you’re going to stand back and let people violate with impunity, the basic premise of private property, then we may as well throw in the towel on the rest of our civil liberties because it’s not a matter of if, it’s only a matter of when are we going to lose the rest of them. If a person’s cattle on his own range allotment isn’t safe, if his own ditches and water rights aren’t safe, if his patented private property is not safe, and if they can take those things at gun point, well then certainly they can take anything else they want at gun point. They can take your stock and bond portfolio, they can take your bank account, whatever other type of property you might have.

LM: How have you been able to gather the support for the case?

WH: Right from the beginning there were people who jumped on board, people who well understood what the implications were, what was going to be lost if we didn’t successfully fight it and what was going to be won if we did. Many have stayed with us over the seven years that we’ve been in court. But we didn’t get the support of the Livestock and Agricultural organizations that you would normally think would stand behind us. All the government has to do is suggest to one of the officials in those organizations that if they support that Hage case then maybe they’ll find endangered species on their range next, or maybe they’ll find a wetlands on their farm, or maybe their crop subsidies will be jeopardized. If it hadn’t been for the people at Stewards of the Range, we would have been left high and dry with no support for the case.

LM: Since the filing of the case, the federal government has applied a tremendous amount of pressure on you to drop this action. What has kept you in this fight, when it would have been much easier to walk away?

WH: We are not fighting over whether I personally end up owning Pine Creek Ranch or I don’t. That’s not the issue. The broad issue is whether me, my children, my friends, my acquaintances, my fellow countrymen are going to be able to see a free society in the future. When you begin to look at it in the broad perspective and see what the implications are if you let government go uncontrolled, government will become a thief, government will become a destroyer of free society and the people themselves. All we have to do is go back to the debates on the Constitution where the founders of this country hammered on this theme continuously, that it was essential for whatever kind of a central government we had that we bind it with the chains of the Constitution. What has happened in recent generations is people have willingly loosened those chains. Now we have a monster on the loose. Some of us are working diligently to try and get the chains back on which has been the thrust with this litigation. But until we get government back in control, nobody’s property is safe, nobody’s freedom is safe.

LM: Why do you think our nation is facing this Constitutional crisis and what can people do about it?

WH: The reason we’re facing this constitutional crisis is because the people of the nation as a whole have forgotten the basic premises upon which the Constitution was based. This country was founded on basic Christian principles. It was founded on the concept that under God, people are sovereign in their own right. So, we structured the Constitutional form of government under the common law, the common law being an expression of the ten commandments. A person was free to do anything they wanted to do—they could succeed, they could fail, they could do whatever they wanted to do in life as long as they didn’t infringe the life, liberty, or pursuit of happiness of someone else.

John Adams pointed out that the Constitution was created for a moral people. That it would not be effective if we some day became an immoral nation. In the beginning, we had a country that acknowledged in all of its institutions the basic Christian background. We have gone from that point to where we have laws on the books that purge any resemblance of Christianity from our public institutions. We have replaced the Christian philosophy with the philosophy of Fredrick Nietzsche which is basically situational ethics — God is dead. As long as you can get away with it it’s not wrong, there are no absolutes, it’s simply just another shade of gray. When you really carry situational ethics to it’s ultimate, you have the classic criminal mentality. A society which embraces this philosophy is no longer capable of being the guardians the Constitution required to maintain that free society.

LM: What impact is the case having on the environmental agenda?

WH: As people begin to understand this case, they also begin to understand the corruptness and the depth of criminality that exists in the environmental movement. It demonstrates that the environmental movement has nothing to do with the protection of the environment but has everything to do with the destruction of private property rights. This case bears that out so vividly that the more people are exposed to it, the more that fringe area around the environmental movement comes back and in some cases becomes very strong supporters.

LM: Do you consider your cause to be anti-government?

WH: I’m not anti-government. In fact I’m one of the strongest advocates of government there is. That’s why I work to expose this environmental agenda, which is anti- government. The end result of their agenda is anarchy and chaos and the destruction of any form of effective government. The environmental agenda flies in the face of the common law that was given to this people when this nation was founded. The environmental movement has worked over time to destroy and undermine the very precepts of government in which this nation had its origins and thrived so effectively for so many years. I’m fighting those anti government people in the environmental movement.

LM: What advice would you give to a landowner facing the same challenges to their property rights that you have faced?

WH: The basic advice that I would give anybody facing a challenge from government taking, regulatory or physical, is number one, exhaust your administrative remedies the most effective way that you can and if that sounds complicated, let me make it simple. Do not enter into the argument over rules and regulations. Concede up front that if the government wants to make rules and regulations that’s their business. Your argument needs to be what that government action is doing to your property and the value of your property. Keep your arguments simple and keep it dealing strictly with property and value. Refuse to get dragged into the trap about wetlands, endangered species, or any of the other issues that they try to sidetrack you with and eventually get you into Federal District Court. If a person will follow that track, they can exhaust their administrative remedies most effectively, they can do it in the most cost effective manner and it puts them in a very strong position when they go into the U.S. Court of Claims.

Wayne Hage lives on Pine Creek Ranch outside of Tonopah, Nevada.

REASON * March 1994

Letters

Unnatural Acts

http://reason.com/9403/letters.shtml

Rick Henderson's article on the increasing size and scope of the government's environmental-crimes enforcement program ("Crimes Against Nature," Dec.) shed much-needed light on an important subject. He neglected, however, to point out how this enforcement explosion is subverting constitutionally protected property rights.

Criminal statutes for environmental offenses were meant to stop midnight dumpers and others who threaten the public health. Overzealous prosecutors are instead prosecuting people for acts protect-ed by the Fifth Amendment. In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court ruled that an owner has the right to use his property so long as the public is not harmed. Not only do many recent wetlands prosecutions fail to prove any harm to the public or the environment, they utterly ignore the constitutional rights of an owner to use his property.

Courts have long recognized the Bill of Rights as an affirmative limit on criminal law. Where purportedly criminal activity is protected by the Bill of Rights, a prosecution for engaging in that constitutionally protected activity must fail. Under the First Amendment, one cannot be prosecuted for engaging in constitutionally protected free speech without a permit, even where the law purports to require one. The same should be true under the Fifth Amendment for permit requirements regarding the constitutionally protected use of private property.

In the case of wetlands violations, people are being prosecuted and sent to jail for using their property without a permit. But the government could not have constitutionally forbidden the wetlands disturbance without paying just compensation. Bill Ellen never sought a permit to fill any wetlands, because he never intended to disturb any wetlands, and the purported wetlands that he did disturb were so minimal and marginal that no impact of any kind could be shown by the government. In the case of Ocie and Carey Mills, a father and son building a family home in Florida who were jailed for 21 months for wetlands violations on their privately owned lots, a subsequent court ruled that the "wetland" they disturbed probably was not a wetland at all.

In short, the government is now in the business of sending people to jail for harming nothing. The theory under which these cases are prosecuted--a vague notion about the rights of marshes and trees--leads to the violation of the constitutional rights of humans.

Nancie G. Marzulla
President and Chief Legal Counsel
Defenders of Property Rights
Washington, DC

Your most interesting and persuasive article on the absurdity of certain EPA actions raises a question: Is it likely that someone will go to prison for five years for clearing brush from irrigation ditches? I cannot imagine that the EPA fanatics are that fanatical.

An article in the November issue of The Washington Monthly suggests that the story behind the Bill Ellen case is different from the one described by Rick Henderson. If the facts are as set forth in Mr. Henderson's article, the EPA is acting outrageously. But if the facts are as set forth in The Washington Monthly, the EPA and the jury may not be out of line.

Lloyd McAulay
New York, NY

Rick Henderson does your readers a great disservice by falsely equating environmental offenses with vice offenses. The essence of a true vice offense is that such harm as flows from its commission inures only to the detriment of the involved actors (as, for example, the risk of sexually transmitted disease from prostitution inures only to the detriment of those involved in the prostitution). In such cases, harm to third parties results from the prohibition of the vice, not from its indulgence (as, for example, the violent crime that results from the illegality of various drugs).

Henderson says that "[l]ike laws against drug use or prostitution, environmental prosecutions are meant not to protect persons or property but to send a message about values." Environmental laws are not like laws against drug use or prostitution. Environmental laws are designed to protect persons not involved in the prohibited conduct from the harm resulting from that conduct. Thus, for example, laws regulating the disposal of hazardous wastes serve to protect those not involved in such disposal from being poisoned by their own water supplies.

I have no quarrel with Henderson's arguments that the punishments meted out to environmental offenders are often excessive, that a criminal conviction not based on the defendant's criminal intent is a violation of basic civil liberties, and that many environmental statutes are vague to the point of incomprehensibility. But I question his claim that environmental offenses are best dealt with under the "body of law dealing with...crimes that are planned but not consummated."

The law dealing with "inchoate" crimes requires a very specific kind of intent. While a murder charge can be founded upon an intent to inflict bodily harm or an intent to commit a felony, for example, the charge of attempted murder can be founded only upon a specific intent to kill. Under such a legal regime, a deliberate polluter could escape liability by claiming that he dumped toxins into a water supply not in an attempt to poison that supply but merely with reckless disregard as to whether poisoning would result.

Traditional civil and criminal codes can, as Henderson says, deal with environmental threats, but not in the manner he suggests. He is correct in observing that "[t]he traditional criminal code treats actions that cause different amounts of harm in different ways," but he neglects to mention that traditional criminal codes penalize behavior that poses risks of danger to others even when no one is actually harmed. Pollution, whether a particular instance of it causes observable harm or not, is properly punishable for the same good reasons that it is illegal to discharge a firearm in an urban area, even if one ends up causing no injury or damage: The risk of harm is great and the consequences are often irremediable.

Andrew Dulaney
San Francisco, CA

Mr. Henderson replies: Mr. McAulay questions the likelihood that Nevada rancher Wayne Hage would spend five years in prison for clearing irrigation ditches on his land. At the time I wrote the story, Hage was under indictment for violations of the Clean Water Act. Feder-al prosecutors took the case very seriously indeed. Mr. Hage has been a thorn in the side of land-management bureaucrats. He is suing the federal government for seizing some 2,000 head of cattle that wandered near the edge of the unfenced boun-dary of his ranch. As long as vague, punitive laws are on the books, persons like Wayne Hage can be selectively targeted for prosecution. The National Law Jour-nal's survey of corporate general counsels underscores my arguments. Only 30 percent of the attorneys questioned believed full compliance with environmental laws is even possible. When everyone is guilty, no one is safe.

The Washington Monthly story Mr. McAulay cites takes The Wall Street Journal to task for defending Bill Ellen. I believe the Journal has unwisely portrayed Ellen as a poster child for the victims of overzealous environmentalists. Tudor Farms is a place to shoot ducks, not a wildlife preserve. And Ellen did violate the law when he let construction workers proceed in defiance of a "cease-and-desist" order. Ellen's actions, however, took place on private property and did not justify a prison term.

Here are the only factual differences between my story and The Washington Monthly's account: Author Bill Gifford says Ellen illegally authorized work three times; I cited only one violation. And Gifford says, "Ellen had filled or altered close to 1,000 acres." Gifford doesn't mention that Ellen had a permit to alter that property. Gifford apparently believes that modifying private property--even with a permit--can merit a prison term. This says something about his values.

Mr. Dulaney doesn't get the point of the analogy between environmental crimes and vices. I consider vices to be those actions that cause no harm to others but still carry criminal penalties. I do not argue that environmental laws should not exist. In most cases, however, fines or other administrative sanctions should be used to punish offenders.

"Midnight dumpers," and other persons who intentionally cause harm to others, may deserve prison terms. I did not deal with those cases, and said so early in the story. Instead, I reported about persons who faced the loss of their liberty because they violated what former Attorney General Thornburgh called "the sanctity of...the earth's environment." Sending people to jail for such offenses indeed conveys a message about values. It does nothing to protect people or their property, the traditional sphere of the criminal law.

As for Mr. Dulaney's contention that environmental crimes should be treated differently from other criminal violations because the "risk of harm is great and the consequences are often irremediable," I agree with Peter Huber--this approach borders on witchcraft.

I thank Nancie Marzulla for her comments.