June, 2012

Fast and Furious

June 28th, 2012 5 Comments

The first acting job I had after college was with a fledgling dinner theater in Virginia, about thirty miles south of Washington, DC. Dinner theaters don’t pay well. Fledgling dinner theaters are painfully unclear as to the meaning of the words “payment” or “salary.” I barely earned enough to cover the gas expenses for my drive back and forth to the theater, and this was in the long ago halcyon days when gasoline cost twenty-nine cents a gallon. (Yes, Virginia, there was a time like that in America.) Because I had a strange fetish about eating from time to time, I had to work other jobs during the day. I drove a taxi. I worked as a gardener. My gardening skills were non-existent, so the only people dumb enough or kind enough to hire me were friends of my family. One of these was a retired associate deputy director of the CIA. He had retired because of a massive heart attack and at that time was still recuperating. On pleasant days he would sit in the garden and talk to me while I worked. He claimed he enjoyed talking to me, but I suspect he really wanted to ensure I didn’t mistake flowers for weeds and vice versa. I usually did.

 

It just so happened that the day the Watergate scandal hit the news I was working at his house. I was cutting the blossoms off his camellias and he was sitting outside in his usual chair with a newspaper in his lap. I was too poor to afford a newspaper and too self-absorbed to care much, but I had seen the headlines and at one point I said, “Can you believe Nixon was dumb enough to have guys break into the DNC (Democratic National Committee) headquarters?”

 

“No,” he said. “I can’t.”

 

I stopped uprooting his perennials and looked at him. If anyone had his finger on the pulse of Washington’s inner circles and echelons of power, it was this man. “What do you mean?”

 

“Think about it.” He tapped the paper with the back of his hand. “It’s too obvious.”

 

“What are you saying?”

 

He smiled patiently, a remedial teacher with an exceptionally dull student. “If you were the head of the DNC, responsible for getting your candidate into the White House, what would you do? If you had an opportunity to make yourself look like the victim, and the Republican incumbent look like a villain, what would you do? Why not stage an exceptionally clumsy and amateurish break-in, get caught, and make it all look like a Republican plot to grab power?”

 

As it turned out, he was wrong. He grotesquely overestimated the intelligence of both the Democrats and Richard Nixon, but it was an eye-opening moment for an exceptionally naïve young fool, a revelation into the deviousness and dirt and—oh, just add whatever adjectives you want—of politics.

 

I was thinking about all this as I watched the congressional vote today on Eric Holder and the coverage of the “Fast and Furious” scandal.

 

Have you been following the Fast and Furious debacle? If you haven’t—and if you live in a country other than America there’s no reason why you would—let me try to give you a brief explanation and timeline.

 

First the explanation: Fast and Furious was an operation conducted by the Bureau of Alcohol Tobacco and Firearms (ATF, a federal law enforcement agency within and under the aegis of the US Department of Justice) intended to allow illegally purchased firearms to be smuggled into Mexico, ostensibly to lead law enforcement to the arms-trafficking networks (or at least to high-level buyers) for the drug cartels who were ultimately responsible for purchasing the weapons. This was meant to be a sting operation known as “walking.” It was modeled on a similar, earlier and unsuccessful, operation conducted by the ATF during 2006 and 2007. The earlier operation was known as “Wide Receiver” and it involved several hundred guns (between four and five hundred). A desultory and unsuccessful attempt was made then to track the straw buyers by placing tracking devices on their vehicles. Since American law enforcement has no jurisdiction in Mexico, Mexican law enforcement was—or may have been; there is reason to doubt the ATF’s own assertions on this—informed of operation Wide Receiver and was supposed to be responsible for following the firearms from the border to the drug cartels. The whole operation failed, for a variety of reasons, and was shut down. It has been claimed that the Bush administration’s Department of Justice (DOJ) was in charge of Wide Receiver, just as the Obama administration’s DOJ was in charge of Fast and Furious, but an email from the senior counsel in charge of field operations in 2007 indicates that the DOJ had never approved the operation, and in fact was responsible for terminating it. Wide Receiver was, apparently, a rogue ATF operation.

 

In 2009, with an unsuccessful operation as their paradigm, the ATF decided to run another, larger sting operation called “Fast and Furious.” There were several key differences: 1) Fast and Furious involved thousands of firearms, not hundreds; 2) neither the Mexican government nor any branch of their law enforcement was ever informed of the operation; 3) no attempt (such as tracking devices on guns or cars) was made to follow the weapons; 4) when ATF field agents attempted to track the straw purchasers, to arrest them and the next level of cartel buyers up the food chain, they were ordered by their superiors to “stand down” (i.e. do nothing and let the guns walk); 5) field agents within the ATF who voiced objections to the obvious ineffectiveness and potential danger of the operation were rebuked by their superiors; 6) there was at least some DOJ involvement, the extent of which has yet to be determined.

 

Now the timeline:

 

October 2009: A conference call was held between the DOJ, ATF, Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA) and federal prosecutors, with the intent of discussing strategies for eliminating the arms trafficking network(s) that supply guns to the drug cartels.

 

November 2009: Surveillance of straw purchasers began under the operation named Fast and Furious. Licensed American gun dealers who were involved in gun sales to straw purchasers voiced concerns about the operation and the possibility of guns falling into the wrong hands.

 

March 2010: Complaints from field agents about letting guns walk reached such a crescendo that a supervisor in Phoenix rebuked field agents in an email, and implied they might be fired.

 

June 2010: With somewhere between 1500 and 2000 firearms “walked” into Mexico and beginning to turn up at crime scenes in Mexico, ATF agents stationed in Mexico also expressed their objections to the operation. American gun dealers began to demand reassurances from the ATF that guns wouldn’t fall into the wrong hands.

 

December 14, 2010: US Border Patrol agent Brian Terry was killed in a firefight with illegal immigrants in Arizona armed with semi-automatic rifles traced back to Fast and Furious. ATF field agents immediately contacted ATF headquarters in Washington and the Office of the Inspector General. Receiving no reply, they then contacted Senator Chuck Grassley of Iowa, and began leaking information to conservative bloggers, notably Mike Vanderboegh of the blog, “Sipsey Street Irregulars,” and David Cordrea of the blog, “The War on Guns,” and “Examiner.com.”

 

January 25, 2011: the US Attorney for the District of Arizona and the ATF special agent in charge of the Phoenix field division held a joint news conference in which they announced indictments against twenty straw purchasers, called operation Fast and Furious a huge success, and denied that any gun had ever been allowed to walk into Mexico.

 

February 4, 2011: Assistant Attorney General Robert Weich, in a letter to Senator Chuck Grassley, denied that the ATF had ever allowed guns to walk into Mexico. Later that same month, Attorney General Eric Holder asked the DOJ Inspector General to conduct an investigation of operation Fast and Furious. That investigation has not yet been completed.

 

February 15, 2011: Homeland Security Special Agent Jaime Zapata, on assignment with US Immigration and Customs Enforcement was killed in Mexico by the Los Zetas cartel with a gun purchased in Texas by a known straw buyer supposedly under surveillance by the ATF.

 

March, 2011: President Barack Obama gave an interview in which he denied that either he or Attorney General Eric Holder had ever authorized or discussed operation Fast and Furious.

 

May, 2011: Attorney General Holder appeared before Congress and reiterated he did not know who authorized Fast and Furious, and also stated that he had only heard about the operation for the first time within “the last few weeks.”

 

June, 2011: One of the whistleblowers within the ATF was fired for leaking documents to bloggers about Fast and Furious, but the ATF denied the firing was retaliatory.

 

August, 2011: Three of the ATF supervisors of Fast and Furious were transferred from Phoenix to the Washington, DC office into management positions. The ATF Director was reassigned to the DOJ, and the US Attorney for the District of Arizona resigned.

 

October, 2011: Documents from the National Drug Intelligence Center (a branch of the DOJ) and from the Assistant Attorney General were discovered that proved Attorney General Holder had been briefed on Fast and Furious as early as July, 2010, contradicting his statement that he had only heard about it a few weeks before the May, 2011 hearing.

 

November, 2011: Attorney General Holder testified before Congress that gunwalking had in fact been allowed in Fast and Furious, and that his office had “inaccurately” described the program previously. He denied he had been briefed or shown memos about the operation.

 

December, 2011: An email was discovered, written by the Assistant Director of Field Operations at ATF, showing agents had discussed using Fast and Furious as evidence in support of stronger gun regulation.

 

January, 2012: The criminal division chief of the Phoenix office of the US Attorney’s Office was reassigned. He subsequently retired and invoked his Fifth Amendment privileges to avoid testifying to Congress.

 

June 7, 2012: Attorney General Holder appeared again before Congress and again denied his personal knowledge of gunwalking being allowed in Fast and Furious. He has consistently refused to turn over documents requested by Congress.

 

June 20, 2012: Congress voted to recommend Holder be held in contempt for refusing to turn over the documents in question, and President Obama invoked executive privilege over the same documents.

(Executive privilege is defined as the principle that members of the executive branch of government cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations, decision-making, or functions of the executive branch. [emphasis mine])

 

“The privilege disappears altogether when there is any reason to believe government misconduct occurred.” District of Columbia Court of Appeals, 2004

 

June 28th, 2012: Congress voted along partisan lines to hold Attorney General Holder in both criminal and civilian contempt, the first time such a thing has occurred in American history. Opposing Democrats made a show of walking out, hand in hand, in protest. Since the criminal charge must, by law, come under the jurisdiction of the DOJ, the outcome is a foregone conclusion. The civil charges are a different matter, but it is highly unlikely anything will come of it before the upcoming election.

 

So what does all this mean? Damned if I know. Some people have described this as another Watergate, but I find that comparison inaccurate at best and fallacious at worst. After all, no one, American or Mexican, died as a result of Watergate, and Fast and Furious resulted in two American deaths and—according to most estimates—several hundred Mexican deaths. Is it all a vast left-wing conspiracy at the highest levels of government to indirectly attack the Second Amendment of the Constitution? I have a hard time believing anyone could be stupid enough to concoct such a scheme, let alone think it might work, and I have a harder time believing anyone other than a sociopath could concoct a scheme so clearly destined to have fatal consequences. (The gun dealers asked to cooperate with the ATF immediately raised red flags about potential fatalities.) On the other hand, is it all, as Nancy Pelosi and others have claimed, a vast right-wing conspiracy, racially and politically motivated, and designed to somehow allow Republicans to engage in voter suppression? I have a hard time believing anyone could be stupid enough to concoct such a scheme, let alone think it might work. If Obama releases the documents he has claimed come under the executive privilege umbrella and there is nothing in them, every single member of congress who voted to find Holder in contempt will look like a breathless idiot. If the documents are turned over to congress by legal mandate and there is evidence incriminating Obama, Holder, or any other high-ranking official in the administration, then Nancy Pelosi and the other dissenting Democrats will all look like breathless idiots.

 

Of course, one could argue that everyone in congress, the senate, and the executive branch is very much a breathless idiot, but that would take us into Mark Twain territory. The thing that concerns me most is the issue of executive privilege. It only applies to the functions and operations of the executive branch.

 

Then again, perhaps I too am grotesquely overestimating the intelligence of the all parties concerned, on both sides of the aisle.

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Shameless Self-Promotion #3

June 20th, 2012 4 Comments

I just posted (under “short stories”) a profile I wrote of the late Wayne Hage, Sr., that originally appeared in The Cowboy Way, the magazine of the Paragon Foundation. Unfortunately, the Paragon Foundation has decided it’s too expensive to keep publishing a magazine (especially one so elegant, intelligent, well-researched, beautifully photographed, and generally classy), but they will put out a newsletter with their articles on constitutional law and related issues. If you are unfamiliar with the Paragon Foundation, I urge you to check them out on my links to the right.

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The Transformation of An American

June 20th, 2012 9 Comments

Tonopah—it’s a Shoshone word meaning either “water brush” (a small desert shrub) or, more likely, “little spring”—in central Nevada, owes its existence to a sometime hay farmer, sometime prospector, and sometime district attorney (for thirty-five dollars a month) named Big Jim Butler who camped there in May of 1900. The story goes that his burros wandered away from him in the night, and when Big Jim found them they were sheltering from the wind near an outcropping that looked likely. It turned out to be somewhat more than likely, assaying out at a staggering six hundred and forty ounces of silver to the ton. Less than a year later, Tonopah was a town of sorts, with eager hopefuls living in tents, or in shacks made out of barrels or oil cans or glass bottles set in adobe, living even in the shafts themselves.

In 1903, some Mormons decided to jump a claim on the edge of Tonopah and when the mining company representative confronted them, they pulled their guns on him. Among the townspeople who came to see what the commotion was about was a fifty-five year-old saloon-keeper who looked down the vertical shaft.

“You gentlemen get on out of there. This ain’t your mine.”

“Oh, yeah? And who the hell are you, old man?”

“My name’s Wyatt Earp.”

It was many years since his days as a lawman, many years since Tombstone and the OK corral, many years too since he had made and gambled away a fortune in Alaska, but such was the strength of his reputation that the claim jumpers climbed quickly and quietly out.

His reputation was not strong enough, however, to keep him from being run out of town shortly afterward for fixing a boxing match.

The Pine Creek Ranch lies about sixty miles north of Tonopah and has the reputation of being the single most isolated ranch in the United States. The hardtop ends at the picturesque old semi-ghost mining town of Belmont (summer population between twenty-five and thirty, winter population six), once the county seat, with an elegant brick courthouse, and it is eighteen miles of dirt road from there to the ranch headquarters. The ranch owes its name and its existence to the creek that comes down out of the mountains there; the water made it a natural place for a stage stop on the Belmont to Austin stage line back in the eighteen-sixties, long before Tonopah.

I know this land. This is where, as a transplanted Easterner, I began to fall in love with the West. I have hunted and camped multiple times in the Arc Dome Wilderness in the Toiyabe Range, and on Table Mountain in the Monitor Range. Trout streams empty into ponds the color of strong tea. Elk and deer move through the pastures and woodlands. In the Arc Dome, after I shot a five-by-six buck, two mountain lions trailed us almost all the way back to the camp; we found their tracks over ours the next morning. On Table Mountain, near 11,000 feet is an aspen grove known as Porno Grove where lonely—and seriously horny—Basque sheepherders once carved their fantasies into the trunks of the trees: naked women standing, on their backs, on all fours; breasts with life-support systems attached; men with heroic phalluses, coupling in every imaginable and some unimaginable positions; hundreds of images carved into the trees. Most are done just about as crudely as you might expect. Some are elevated by aesthetics or humor, a few by both.

It was on Table Mountain that a white mule—who has since gone, unlamented, to his just reward—led our entire pack string, in hobbles, away from camp and back down fourteen miles of exceptionally difficult trail to the valley floor.

There are few things in this life quite as deflating as bouncing out of your tent in the pre-dawn hours to go feed the horses and finding them conspicuous by their absence. You stand there with a bucket of feed in each hand and your jaw listing southward, reflecting that not only is it fourteen miles to the trailhead, but another honest fifteen or twenty miles from there to the nearest and only ranch—Pine Creek—where there might—emphasis on might—be signs of life. Suddenly you begin to think fond thoughts of mass transportation and the interstate highway system and beltways and traffic jams.

Fortunately, our outfitter’s wife had a cell phone with her. Fortunately the weather was clear enough that she was able to get a signal. Fortunately the cell phone at the Pine Creek Ranch—they had no hard-wiring for phones or electricity—was working (it also functioned solely at the whim of the weather). And, most fortunately of all, there was someone there.

The next afternoon a young buckaroo rode into camp, leading our string—and the damn mule. The young hand wore a flat-brimmed, round crowned black Stetson, neckerchief, chinks, Carhartt jacket, Garcia spurs, and a Garcia bit on his horse, and he looked as if he just ridden right out of a Will James or Charlie Dye painting. His name was Wayne Hage, Jr., and that night he and I sat up late on opposite sides of the fire drinking Coors and Jack Daniels as he told me the story of his family’s legal battles and harassment and persecution at the hands of the United States government. It was easy to dismiss his tale as the delusional ravings of a disenfranchised cowboy, which is pretty much what I did, until one May night several years later when Tom Brokaw said something that made my ears perk up.

NBC Nightly News is hardly a hot bed of radical right-wing thought. Like all the major networks it tries to both reflect and influence the thinking of the mainstream majority of Americans, so when Tom Brokaw announced, “And the Fleecing of America. The government seizing private property just to increase the tax base. Is that fair?” I sat up. I had heard words very similar to those on top of Table Mountain. I decided I wanted to know more.

 

There is a lot of arid nothing to drive through in Nevada, and zipping through with the cruise control set at seventy does nothing to change that impression. But the thirty-sixth state gets its name from the Spanish word, nevar, meaning ‘to snow,’ and Nevada, meaning ‘snow clad,’ or ‘snow covered,’ is an apt name. The Sierras in California block most of the westerly storms—the western slope of the Sierra Mountains may get as much as eighty inches of precipitation in a year, while the eastern slope averages around ten inches—yet despite that, the mountains of Nevada get enough snow each winter that at the higher elevations the nation’s most arid state has some surprisingly good trout fishing—native brook trout—and equally good grass range. In a state where eighty-six percent of the land is publicly owned, that good grass range has become a bitter bone of contention.

In 1862, in an effort to encourage Western settlement and relieve urban labor pressures, Congress passed the Homestead Act, which essentially gave one hundred and sixty acres, free, to anyone willing to occupy and cultivate the land for five years. One hundred and sixty acres, a quarter section, one half mile square—free! To Easterners, accustomed to rich, arable land, and thinking in terms of pasturing many cows per acre, one hundred and sixty acres—free!—must have seemed like manna from Heaven.

Unfortunately, unlike the manna, rain did not fall from Heaven.

The ninety-eighth meridian runs a little ways west of the North Dakota-Minnesota border. It runs down through Mitchell, South Dakota, home of the aptly-named Corn Palace, a little east of Grand Island, Nebraska, near the staging grounds of Sandhill cranes on the Platte River, and in Kansas it runs just west of Wichita, where Wyatt Earp served briefly as a lawman. In Oklahoma it pretty much follows highway 81, west of Oklahoma City, and in Texas it passes near former President Bush’s home in Crawford and on down through Austin. It is an arbitrary line, but it is significant because it is an isohyet.

An isohyet is any line connecting points on a map that have equal amounts of rainfall, and along the ninety-eighth meridian the amount is thirty inches, the bare minimum needed for agriculture. Speaking in generalities, one can say that east of the ninety-eighth meridian enough rain falls to make one hundred and sixty acres a decent farm. West of that line there is not enough rainfall to make one hundred and sixty acres productive agriculturally, and a quarter section is not enough land to ranch. The farther west you go, the less rain there is. For thousands of eager settlers the Homestead Act was just a cruel joke. Homesteaders sold, mortgaged, and borrowed everything they could lay their hands on to make the journey west to their free piece of paradise, and by 1890, only one out of three had managed to stay on their dream long enough to gain the title.

In the desperately arid Great Basin of Nevada, as in most of the West, you can’t think in terms of multiple head of cattle per acre. You think instead of how many acres it takes to run a cow-calf unit, and in some places it may take an entire section, six hundred and forty acres, or more, to run a single unit. Where grass is converted to dollars through the medium of cattle, good grass is almost as valuable as gold.

So in a state where the Federal Government claims public ownership of eighty-six percent of the land, grazing rights become an extremely valuable commodity, and if you’re a rancher, those grazing rights directly affect the ultimate value of your ranch, as well as your ability to earn a living.

Even more valuable than grass is water, both kinds of water. Ground water is reasonably straight forward: it means any water that is under the ground. Surface water is a little more complex. It can refer to the obvious, such as streams and lakes, or it can refer to wells or stock ponds or other collecting systems that are influenced by surface water. Either way, without water the land is useless, so water rights become critical, and the history of water rights in the West is a story of bloodshed, chicanery, legal maneuvering, politicking, fraud, lobbying, graft, greed, malfeasance, and shady dealings so complex and so convoluted as to be almost unbelievable. If John Grisham and Tom Clancy collaborated with Jackie Collins, they might be able to do justice to the story.

But if you own the land, all this is moot, right? Well, no. Land ownership in the West is nowhere near that simple. For one thing, in addition to the water rights and grazing rights, there are also mining rights, timber rights, oil and gas rights, wildlife rights, easement rights, development rights, trespass rights, and possibly other rights that I’m not aware of. It is a concept known as the ‘split estate,’ and to take it to its illogical extreme, it is theoretically possible for you to own a piece of land in the West with which you can’t do a single damn thing except pay taxes and boast.

Conversely, if you own grazing rights, say, on land controlled by the Federal government, when you die, the IRS will tax those rights as your ownership interest in the land, your private property.

For ranchers throughout the West these rights, grazing, water, and so on, have become inextricably entangled with the question of property rights as defined under the Fifth Amendment. If the government decides to take your property for the greater good of society, should you not be compensated fairly, as spelled out in the Fifth Amendment?

 

When I was there, The Pine Creek Ranch was 757,000 acres, give or take a plot or two. 757,000 acres is—if I’ve done my math correctly—roughly 1,183 square miles. To give you an idea of the scale of the place, Rhode Island, at 1,214 square miles, is only slightly larger, while the country of Luxembourg (nine hundred and ninety-nine square miles) is substantially smaller. The country of Liechtenstein (sixty-one square miles) would barely qualify as one of Pine Creek’s pastures. The ranch was eighty-two miles long, running north-south, and varied in width from eight miles at the narrowest to almost thirty-five miles wide. It encompassed two separate mountain ranges with peaks ranging from 11,000 to 12,000 feet. The ranch headquarters on the valley floor sit just at 7000 feet.

7000 acres of meadows and hay fields on the valley floor were owned by Wayne Hage, Sr. in fee patented land (sometimes called full fee simple, or fee simple absolute) which means he owned both the land itself and all the inheritable rights that come with the land. 750,000 acres were fee lands, which means the public owns the land, while he owned some of the inheritable rights, in this case water rights and grazing rights.

This is a little like saying, “I own the chair, but you own the right to sit in it,” but that’s the way things have evolved in the West, thanks to a raft of frequently contradictory and indigestible slabs of legislation such as the Homestead Act, the Organic Act (the one of 1897, of course, not the Organic Acts of 1849, 1884, 1890, 1900, 1916, 2003, or any of the others by the same name), the Taylor Grazing Act, the Forest Reserve Act, the Mining Act, the Stock Raising Homestead Act, the Illinois Central Act, and the Act of July 26, 1866 which has surely the most spine-tingling, breath-taking, pulse-racing sub-title of any act ever passed by Congress: “An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands and for other Purposes.”

Clearly, any cattle baron with 757,000 acres and the intestinal fortitude to duke it out toe-to-toe in the middle of the legal ring with the United States government for twenty-five years must be larger than life, a titan of a man in a twenty gallon Stetson, a sprawling, brawling, hairy-chested, two-fisted cross between John Wayne and Daniel Webster, shaking the devil by the scruff of his neck, while dispensing home-spun wisdom and rough justice from a ponderosa-pine castle.

Not exactly. I once had a sweetly vague professor who would occasionally try to absentmindedly write on the blackboard with the stem of his pipe. That’s who Wayne Hage, Sr. reminded me of. Small, rumpled, portly, hair and shirttails both sticking out at variegated angles, his Stetson little more than a glorified fedora, a beard that managed to somehow be both short and untidy, he was an unlikely warrior, who dispensed his hard-won legal knowledge from a modest cinderblock ranch heavily festooned with dozens of mud cliff-swallow nests.

There were three common rooms in the ranch house: Wayne’s office, which looked like a cross between an unsuccessful law office and a disorganized history professor’s inner sanctum; a family room with an enormous fireplace and a television set; and the great room, a combination kitchen, entry, and dining room, with a wonderful antique wood-burning cook-stove and some prints by Western artist Jack Swanson on the walls. Wayne and I sat at the long table in this room on the folding metal chairs that served as dining chairs, looking out at an ancient unpainted wooden barn (possibly a hangover from the old stagecoach days) and the great expanse of the Monitor Valley.

Before the advent of instant celebrity and super-lotteries and reality television, Americans used to admire Horatio Alger men, men who overcame adversity through hard work and pluck and self-reliance.

“I started working as soon as I was old enough be able to. My father was in mining, a consulting geologist, but a lot of the other members of the family were involved with ranching, so I pretty well grew up with ranching, up around Elko.

“The winter of ’51, ’52 was devastatingly hard, so I persuaded my parents to let me drop out of school. I spent my high school years working around on different ranches in that country. At that time you had the big cattle outfits and they’d put out a roundup wagon and just stay out on the range for maybe ten months of the year. For a teenaged boy, that kind of life made school seem pretty dull and uninteresting, so I just stayed with it.

“I was breaking horses in the Owyhee Mountains when the Korean War was going on. I figured I’d beat getting drafted and enlist in the Marines, but at the recruiting office I ran into a friend of the family. He said, ‘You’re a dumb S.O.B. Just look at you. You haven’t even been to high school. You enlist in the Marines and put in three years, and when you get out you’ll still be a dumb S.O.B.’ Then he started telling me about all the educational opportunities that were available in the Air Force, and before I knew it I had signed on the line and enlisted for four years. I got good schooling, came out at the top of all my classes, learned a lot about electronics, made up my high school with a G.E.D. test.”

At the end of the long table where we sat was a stack of magazines, Western Livestock Journal, Range, The Economist, Archaeology, and a carefully folded American flag. As we spoke, his ran his fingers over the flag, much as a man might run his hand absently over the head of a dog.

“When I came out of the Air Force I went right back to work on the ranches. Once that gets in your blood, making your living on horseback in that environment, it’s hard to get it out of your system. But I had the G.I. Bill, so I went ahead and got my degree. I was working on my Master’s at Colorado State when I got married, so I came back to a little ranch just over the Nevada line in northern California, finished up my Master’s at the University of Nevada. About fifteen years later I had the opportunity to buy this place, the kind of ranching I like, big open range kind of ranching.

“I knew the people were selling the place ‘cause they were having a lot of trouble with the U.S. Forest Service and the Bureau of Land Management, but I had worked for both of them, and I had taken a lot of courses relating to range science. I thought to myself, I understand good range management better than they do, and if that’s what they want, we’ll get along just fine.”

Wayne bought Pine Creek Ranch in 1978, and two months later the National Park Service met with him at a coffee shop in Tonopah and informed him that they were going to buy his ranch.

“They offered me a price that was about half of what I had just paid for the place, so I said, ‘OK, that’s fine, that’s for the land. What are you going to pay me for the water and the grazing?’ They said they weren’t going to pay me anything, that I didn’t own those. I told them I disagreed, that I had just paid a whole lot of money for those rights and I expected to be paid for them in turn. I said, ‘You go on back and do your homework. If those grazing allotments are public lands and the government owns them, then we’ll talk your price. If they’re not public lands and the government doesn’t own them, then we’re going to talk my price.’ Well, they went back and did their homework and I never heard from them again.”

All this is perfectly standard. America is a nation of laws, and when you and I disagree on something, we turn to the law to resolve our differences. And as proof of the efficacy of the system, you need look no further than Pine Creek Ranch, for Wayne Hage Sr. won every ruling in every court at every stage of his twenty-five year battle with the federal government.

What is not standard, and what Wayne Hage was not prepared for, was what happened outside the courtrooms, a dreary litany of unrelenting harassment: gates left open, fences cut, vandalism, destruction of property, his cattle mysteriously turning up over and over again on the wrong side of allotment fences, all of it coupled with an overwhelming avalanche of paperwork. In a single grazing season, one hundred and five days, Pine Creek Ranch had seventy ‘visits,’ and forty citations from the United States Forest Service. (One of these was an accusation of failure to maintain the fences on Table Mountain. After two days of riding the fence line, a hand found the Forest Service flag marking a single missing staple.) Forty-five separate trespass citations (for cattle) were served, all of which were subsequently dropped when an eyewitness saw Forest Service employees moving Hage’s cattle onto restricted land. A major spring was fenced off and the water illegally diverted to a local Ranger Station. The Forest Service filed claims over water rights, and each claim had to be defended before the state water engineer. Permits were cancelled, suspended, and burdened with impossible conditions.

Finally, Forest Service employees armed with semi-automatic rifles and wearing bullet-proof vests came in and confiscated one hundred and four head of cattle. They must have been a little disconcerted when Wayne Hage reached into his truck for his own weapon, a thirty-five millimeter camera, and asked them to, “Smile pretty, boys.”

But by that time four administrative appeals against the Forest Service (at $50,000 to $200,000 each) and fifteen years of legal battling had left him bankrupt.

“I thought to myself, ‘They’ve driven me into the ground. I’m broke. I’ve spent all my money fighting the Forest Service. They’ve made it so expensive for me to operate that it costs me twice as much to run a cow as I can hope to gain out of her. I can’t even maintain the essential functions of the ranch. If the United States wants this ranch that bad, they can have it. I’m not going to argue anymore. I’m folding my tent and getting out. But the Fifth Amendment says they have to pay me for it.’”

Which of course begs the question of just why the United States wanted the Pine Creek Ranch that much.

In the play The Zoo Story, Edward Albee has one of the characters say: “Sometimes a person has to go a very long distance out of his way in order to come back a short distance correctly.”

Asking Wayne Hage, Sr. about the motivations of the government, or the relationship of the various administrations to the Forest Service and the Bureau of Land Management over the last twenty-five years, or the legal issues at the heart of his lawsuit, would invariably prompt a response that would have made Edward Albee proud. One hand absently stroking the flag, he would look at the swallows flashing past the window and say, “Well, now, let me walk you through that…” and off we would go on a long hike across the dry and rocky terrain of the jurisdiction authority of the Federal District Court versus the United States Claims Court, prior appropriation doctrine, riparian law, alienable rights versus unalienable rights, the inappropriate influence of the Sierra Club on the Department of Agriculture, the externalizing of the national debt under the Johnson administration, the implications and interpretation of the fourteenth Amendment….

But the bottom line, like everything else in the West, was water. Or money; in the West the two words are pretty much synonymous. The Pine Creek Ranch sits on the largest source of fresh water in central Nevada, some 80,000 acre feet worth of ground water, readily and regularly renewed by the run-off from the Monitor Range on one side and the Toquima Range on the other. At 7000 feet that water is an easy gravity feed to either Las Vegas, the fastest growing city in America, or even to Los Angeles, which is expected to add six million more people to its freeway system in the next twenty years. So instead of raising beef and supporting the elk and deer and antelope—and brook trout—of central Nevada, the Pine Creek water will go to fuel the fountains in front of those tastefully understated casinos in Sin City, or to water those oh-so-vital and ubiquitous lawns and golf courses in what Richard Henry Dana, Jr. once described as, “…a fine plane country, filled with herds of cattle, in the center of which was the Pueblo de Los Angelos…”

The final phase of this ordeal was the determining, by the United States Court of Claims, exactly how much the grazing rights and water rights on 750,000 acres were worth. According to various sources, the ultimate settlement, delivered after Wayne Hage’s too early death, was $4,000,000. Was it fair? Would ten times that amount have been fair? When looked at in the context of having your way of life taken from you, or in context of the harassment he and his family had to endure, would one hundred times that amount have been fair?

 

The kid who once found high school too dull and uninteresting ended up knowing more about constitutional law and American history, and legislative history in particular, than most superior court justices, but that knowledge came at a terrible price. Sitting at that long table, I asked Wayne Hage, Sr. if, after everything that had happened, after all his legal battles and victories, he had more or less faith in America.

“Well, the situation has changed.”

“But you’ve won.”

“It’s not that simplistic or that clear.”

“Wayne, you took on the United States government in the courts, using the United States laws and the United States Constitution, and you won.”

“Constitutional rights don’t exist under Federal Courts. All they’re interested in is what the rules are and did you violate the rules. I was smart enough to go through the Claims Court. If I hadn’t done that, I would have lost.”

“Yes, but…” I couldn’t let it go. The man who sat absently stroking the flag and gazing out over the land that would soon no longer be his wasn’t bitter or defeated or victorious, but somehow infinitely sad, and I wanted him to at least acknowledge what he had achieved with Hage v. United States, both for himself and for all property owners. At last he looked at me.

“You bet I believe in the rule of law, but most people are trapped in a fiction of law, rules and regulations, and don’t understand the law at all.”

I had to be satisfied with that, but perhaps that’s Wayne Hage, Sr.’s greatest lesson and legacy.

 

As I left, as my dog and the ranch border collie both walked around stiff-legged, taking turns peeing on all four of my tires, I turned to Wayne Hage.

“A hypothetical question for you, Wayne. If you get all that money and you could still keep the ranch, what would do?”

“I’d be like the rancher in the old joke. Rancher wins $250,000,000 dollars in the Super Lotto. Goes down to pick up the check and the press are all there and one of them asks him, ‘Now that you got all that money, what are going to do?’ Rancher takes off his Stetson, scratches his head a bit, puts the Stetson back on, says, ‘Well, I reckon I’ll keep on ranching until all that money is gone.’” He laughed for the first and only time during my visit.

We shook hands.

“Well, Wayne, I hope you get a fortune out of the government. You deserve it, and you’ll be a rich man.”

He didn’t hesitate. “I’ve always been a rich man. I’ve always had a roof over my head, clothes on my back, three meals a day. I’ve always been rich.”

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Decorators Anonymous

June 14th, 2012 5 Comments

Imagine you are going for an after-dinner walk with your family in your hometown. All of sudden, the brand new Cadillac Escalade of the known local drug dealer comes cruising around the corner ahead of you, menacing, black, gleaming, twenty-two inch custom rims, tires no thicker than a rubber band, baseline pulsing and throbbing like something out of Jaws or Alien and registering on seismographs in distant cities. You can sense the stolen Glock resting casually on the seat by the dealer’s muscular thigh. You can almost smell the violence and danger emanating out of the vehicle. And as he cruises slowly by he looks at your teenaged son and gives that insulting, contemptuous, miniscule upward thrust of the jaw that is in fact a greeting.

 

“Hey Joe,” he says.

 

You turn to look at your son and see, immediately and unmistakably, the guilty, shamefaced look that tells you, you have a problem.

 

Something very similar happened to me recently. My wife and I were doing chores, getting some things we needed at Home Depot. I like Home Depot. I like the smell of the lumber. I like the shiny new tools I haven’t a clue how to use or even what their intended purpose is. I still harbor the secret fantasy that if I owned some of that stuff, I might miraculously be transformed into a skilled Harry Homeowner. Or more realistically, a modestly competent Harry Homeowner. Or at least quasi-competent. Oh, hell; I’ll settle for not being a total klutz.

 

But as we passed the Home Decoration/Paint section, the girl behind the counter called Darleen by name. I turned to look at my wife and to my dismay the brazen hussy didn’t even have a guilty, shamefaced look—in fact, she looked as happy as cheerful as if nothing out of the ordinary were occurring—but I knew. When your wife is known by name at every home decorating, interior design, and paint store within a ninety mile radius, you have a problem.

 

So with that in mind, I have decided to make my fortune by opening a rehab center for hopeless decorating addicts: Decorators Anonymous.

 

It will be a twelve step program based on AA, but there ain’t gonna be nothing non-profit about it. Darleen likes to decorate, so I desperately need all the profit I can get my hands on. I’m going to model it on those fancy-schmanzy celebrity rehab centers in Malibu and places like that. Thousands of dollars a night for private rooms, gourmet meals, steam rooms and saunas, yoga classes, Pilates, meditation, hot stone massage, guided walks along the beach, the whole nine yards. If I can get away with it, I’ll include some aversion therapy, electric shocks every time anyone succumbs and picks up a copy of Architectural Digest. That sort of thing.

 

And best of all, there will be a corresponding support group, Long Suffering Husbands of Decorating Addicts (LSHDA), where men can sit on Lazy Boys that are never moved, smoke cigars, flick the ashes on the floor, drink beer, blow dust balls at each other, and watch football games to their hearts’ content. I’ll have to consult with Darleen and have her help me choose a really nice color for that man cave.

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The Universal Language

June 11th, 2012 2 Comments

For some reason I didn’t realize just how ubiquitous and worldwide the internet is. I’m not sure if this lack of understanding is a reflection of my being essentially old-fashioned (my wife acidly observes from time to time that my heyday was during the Edwardian era, especially when I can’t figure out how to turn on the television) or if it’s a reflection of some kind of innate American technological arrogance. (You mean they actually have electricity over there in Europe?)

 

Whatever the reason, I have been very surprised by the nationalities of some of the people who read this blog. And one of the most surprising—and touching—things is when people from countries I have trouble finding in the atlas apologize to me for their relatively minor stumbles on the treacherous and uneven ground of the English language.

 

Dear and Gentle Readers, give me a break! Have you ever listened to the average American politician? A recent study—I’m not making this stuff up, by the way; I couldn’t make this stuff up—showed that the average American politician speaks at a tenth grade high school level. High school, not college. Tenth grade is the sophomore year. Without tracing the whole etymological history for you, “sophomore” goes back to a combination of the Greek words for wise, “sophos” and foolish, “moros,” which is also the root for moron. From “sophomore” we get “sophomoric,” which is a synonym for “pretentious,” “bombastic,” “immature,” “crude,” and “superficial.” I have now told you all you need to know about American politicians.

 

But beyond that, why should you apologize to me when English is your second language? I used to speak excellent German and French, but after fifty years of not using either I’d be hard-pressed to ask where the bathroom is. My Spanish is limited to asking for beer, and my Italian makes me look fluent in Spanish. After fifteen years of karate I can count to ten in Japanese, but that’s it. My Indonesian and Hindi are nonexistent, and while I think Arabic is absolutely beautiful to look at on a page, I might just as well be looking at cuneiform script or abstract art for all I understand of it. Yet I have gotten polite apologies from readers whose mother tongue is one of these languages. Knock it off. You’re embarrassing me.

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The Diamond Jubilee

June 6th, 2012 4 Comments

I suspect the change-of-address notification we sent to Buckingham Palace got misplaced because Darleen and I never received our invitation to the Queen’s Diamond Jubilee. I understand this was just an unfortunate accident or oversight, but still… It hurts.

 

Nevertheless, it was wonderful to watch the little bit of the celebration we got to see on the news. Nobody does pageantry like the British, from the beauty of the uniforms, the splendor of the horses (Cleveland Bays, Irish Draught, Windsor Greys, which is not a breed name, just a reference to color), and the immaculate synchronization of every movement, to the blithe imperviousness of the royal family to appalling weather. Another great Englishman, Sir Ranulph Fiennes (The Guinness Book of World Record’s designated greatest living explorer, prolific author, and cousin of the two actors of the same surname) once said, “There is no such thing as bad weather, only inappropriate clothing,” but the royal family didn’t even make any particular concessions in that department. I would have been bundled up in layers of wool and waxed cotton and clinging desperately to a thermos of hot coffee or a flask of single malt or both.

 

And if you can believe what you see on the news (always doubtful; see the thread of comments following the post, On the Border, back in March) there were two particularly humanizing moments that both occurred in the final ceremony when the royal family came out on the balcony. The first was when the incomparably beautiful Catherine, Duchess of Cambridge (Kate, as we close personal friends like to call her) walked out and saw the crowd and very clearly said, “Wow!” How nice to see someone respond so naturally to the extraordinary outpouring of respect and affection of so many people. Wow indeed. Coming only a few weeks after Prince Charles’ interrupting himself and saying, with great good humor, “Who the hell wrote this?” while reading a weather report that mentioned Balmoral, it made the Royal Family seem more like the rest of us. Much more dignified, much more disciplined, much richer, better dressed, and probably better educated, but very human.

 

The other moment was more poignant. The news station had hired a lip-reader to interpret whatever the royals might say to each other as they stood on the balcony. It’s an unspeakably tacky thing to do, and it goes a long way to explaining why the royal family is so careful and reticent all the time, but it did result in a single sentence that made my heart turn over. According to the lip-reader (and it certainly seemed accurate to me) the Queen at one point said, “I do wish Philip were here.”

 

After sixty years of marriage, sixty years of all the joys and woes, pain and balm, triumphs and stumbles common to all marriages, he could not be there for the final moment of her great celebration, and for that one moment, I was reminded of Charlie Chaplin’s famous song, first sung by Nat King Cole in 1954:

 

“Smile, though your heart is aching,

Smile, even though it’s breaking…”

 

At that moment, I could even forgive her forgetting to send me an invitation.

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Sssssssssssnakes

June 1st, 2012 5 Comments

Warm weather means the beginning of rattlesnake season in my neck of the woods. It actually means the beginning of snake season generally—all snakes, any snake—but it’s the rattlesnakes that command the most attention.

 

I don’t really mind rattlesnakes. I regard them as one of the most gracious of nature’s creatures, tactfully and politely warning passersby of their presence, asking nothing more than not to be stepped on. The non-venomous and highly useful gopher snake has done my blood pressure far more harm than any rattlesnake. You never see a gopher snake until you’re just about to step on it, and because it looks much like a rattler at a casual glance, when you do finally see it (and think it’s a rattler) you start taking evasive measures that would make an Olympic athlete envious. I was walking down the stairs in front of my house and a gopher snake about the size of Arizona was sunning itself at the base of one of the risers. I didn’t see it until I was in the process of stepping over it, so I only had one foot on the ground, yet I was able to achieve the kind of vertical lift that makes LeBron James famous, coupled with horizontal distance only a few inches shy of a new world record.

 

A rattlesnake would have courteously notified me of his presence and requested that I leave him alone. And out in the valley, or riding up in the mountains, I do leave them alone. Live and let live. That’s my motto.

 

Unfortunately, what with dogs and horses—not to mention a wife who really is scared of rattlesnakes—live and let live is not a practical approach on my little ranch. A rattler can kill a horse quicker than God got the news, and you can rack up veterinary bills for your dogs that make the national debt seem like a bagatelle, mere chump change.

 

Also unfortunately, the man who originally built this house did many things right, but he also did many things wrong (i.e. things I don’t like, though he may have been delighted with his choices). And one of the things I’m not crazy about is that he placed the house at the edge of a hill below some boulders. Rattlesnakes like to den among boulders. Our warm weather is just beginning and already I’ve had to kill two baby rattlers right in the dog yard.

 

And, most unfortunate of all, in our neck of the woods we have Mojave rattlesnakes, sometimes called Mojave Green rattlesnakes.

 

For those of you lucky enough to live in parts of the world without Mojave Green rattlers, I will explain that they are considered the most dangerous snake in the West, and some experts claim all of North America.

 

The other North American candidate is the Eastern Diamondback, which can reach eight feet in length and weigh up to thirty pounds, with fangs approaching an inch in length, and enough venom to kill sixteen people. The venom of the Eastern Diamondback is an extremely potent hemotoxin that attacks red blood cells, but it is unclear to me if it is the potency of the venom or the large amount the snake can inject that makes him so dangerous. Fortunately, we don’t have Easterns out here, but many years ago I was invited to go turkey hunting in southern Mississippi and was advised to bring some snake proof boots. I bought a pair of knee-high Cordura boots and sailed forth feeling very macho. I was tempted to carry a swagger stick. In Mississippi my host welcomed me and gave me a tour of the place. We had just walked into the living room when a phone rang in another room and he excused himself.

 

“Make yourself at home. The bar’s right there; grab a beer.” He walked out and I went behind the bar. Technically, what was coiled in the corner was an Eastern Diamondback snake, but to my feverish senses it looked like something left over from the Jurassic. It was dead, of course, mounted by a first rate taxidermist, with its mouth open to strike, and I am not exaggerating an iota when I tell you I could put my entire fist in that mouth without touching the fangs on top or bottom. A large specimen is supposed to be able to swallow a rabbit whole; this one looked capable of swallowing a young deer. Or a young turkey hunter. They told me later it had measured over eight feet, but all I could think as I looked at it was that if a snake that large chose to make my acquaintance it would stand up and look me in the eye, and that it could strike with enough force to break a man’s leg. My little snake proof boots suddenly seemed pretty ridiculous.

 

But the Eastern Diamondback is relatively shy and retiring. Not so the Mojave Green. What makes the smaller Mojave Green (four feet would be a large specimen) so deadly is a combination of aggression and an exceptionally potent venom that is primarily a neurotoxin, but certain subspecies may also contain hemotoxins as well. They are so toxic that the legend (untrue, of course) is that they were developed by the military to be dropped into enemy tunnels during the Viet Nam war. I have read that the Mojave rattler’s venom is ten times more toxic than the Eastern Diamondback’s. Some sources say thirty times. I don’t know how they determine such things, and I don’t wish to find out. But I have had first hand experience of the aggression.

 

I was driving along a dirt road in an agricultural area, going to train one of my bird dogs, when I saw a snake crossing the road. I was going very slowly and I drove well around it (live and let live!) but as I passed I saw the distinctive olive green color. (I have since learned they can range from olive green to dusty grey-green to brownish-green or even yellowish.) It was the first Mojave Green I had ever seen, so I stopped my truck and looked out the window. By the time I got the window down that damn snake had already coiled and was vigorously attacking my truck, striking repeatedly at the left rear wheel. Thank Heaven for tough all-terrain tires.

 

My other encounter was even more impressive. Darleen and I were going to a party, all dressed up in our glad rags, and at the foot of our driveway we saw a Mojave rattler strolling up the drive with his hands in his pockets just as cool as you please, looking for all the world as if he owned the place and strolling, unfortunately, right toward the yard where the dogs were watching us leave. I stopped the car and told Darleen I would keep the snake from disappearing in the pasture while she went to the barn and got a shovel. I needn’t have worried. That Mojave rattler was as psychopathically combative as all his kind and he had no intention of going anywhere. In fact, he tried his hardest to make me disappear. In the sixty to ninety seconds it took Darleen to get the shovel, I had already retreated an honest thirty or forty feet as that damned snake chased me.

 

I have had other rattlers get on the muscle with me while I was out riding, but never to that extent. If I back up, or veer my horse away, the snake is usually willing to call a truce and retreat. Not the Mojave. “Today the desert. Tomorrow the world!” That’s the Mojave’s motto.

 

An appropriate poem, Eve, by Ralph Hodgson:

 

Eve, with her basket, was

Deep in the bells and grass,

Wading in bells and grass

Up to her knees.

Picking a dish of sweet

Berries and plums to eat,

Down in the bells and grass

Under the trees.

 

Mute as a mouse in a

Corner the cobra lay,

Curled round the bough of the

Cinnamon tall…

Now to get even and

Humble proud Heaven and

Now was the moment or

Never at all.

 

“Eva!” Each syllable

Light as a flower fell,

“Eva!” he whispered the

Wondering maid,

Soft as a bubble sung

Out of a linnet’s lung,

Soft and most silverly

“Eva!” he said.

 

Picture that orchard sprite;

Eve with her body white,

Supple and smooth to her

Slim fingertips;

Wondering, listening,

Listening, wondering,

Eve with a berry

Half-way to her lips.

 

Oh, had our simple Eve

Seen through the make-believe!

Had she but known the

Pretender he was!

Out of the boughs he came,

Whispering still her name,

Tumbling in twenty rings

Into the grass.

 

Here was the strangest pair

In the world anywhere,

Eve in the bells and grass

Kneeling, and he

Telling his story low…

Singing birds saw them go

Down in the path to

The Blasphemous Tree.

 

Oh, what a clatter when

Titmouse and Jenny Wren

Saw him successful and

Taking his leave!

How the birds rated him,

How they all hated him!

How they all pitied

Poor motherless Eve!

 

Picture her crying

Outside in the lane,

Eve, with no dish of sweet

Berries and plums to eat,

Haunting the gate of the

Orchard in vain…

Picture the lewd delight

Under the hill tonight—

“Eva!” the toast goes round,

“Eva!” again.

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