|That August in 1992 the fire in Ruby Valley had swept across the rangeland and right up to their home before coming under control at the last minute.|
So two years later, when Cliff and Bertha Gardner saw the land around their Dawley Creek Ranch again growing dangerously heavy with range-fire fuel, they decided they had to do something different.
They believed that the '92 fire there in Elko County had been as large as it was for two reasons:
1) Exceptional rain and snow the previous winter had produced a bumper crop of range forage that spring.
2) U.S. Forest Service officials, believing that the range had needed a year of rest, had designated it exempt from grazing for that year.
The combination had been disastrous: acres of heavy forage, ungrazed, had sat there until tinder-dry, says Reno attorney Glade Hall, adding that when the summer lightning storms came, as they always do, the land burst immediately into flame. Hundreds of thousands of state and federal taxpayer dollars were spent fighting the fire, which burned over 2,000 acres.
But U.S. Forest Service officials apparently didn't acknowledge they had done anything wrong. So they simply reseeded the burned area and informed the Gardners that now the land would need two years with no grazing.
In 1993, the Gardners went along. But in April and early May of 1994, a series of rain and snow storms again created superb growing conditions for high desert vegetation and the fields above the Gardner's ranch house again saw an abundant burst of plant growth.
"The Gardners knew from experience," says a brief filed by Hall with the 9th Circuit Court of Appeals in San Francisco, "that if such forage were left unharvested it would create an even greater risk of serious fire.
"The Garners requested that someone from the Forest Service investigate these conditions and that they be allowed to graze the areas adjacent to their home and outbuildings," writes Hall.
But the federal forest service officials did not seem concerned.
What was most important to them, Hall told Electric Nevada, was the bureaucracy's official federal plan for the Humboldt National Forest. And in the plan there was a rule, he says, that "if there's a fire you should let the land rest for two years." So the Forest Service didn't bother to go out and look at the heavy forage fuel load. Gardner's request that someone investigate was simply denied.
It was the same with Gardner's request for temporary permission to let cattle on the forage-heavy range so it could be grazed down to safe levels.
Though federal regulations do allow Forest Service personnel to issue "temporary grazing permits ... to use forage created by unusually favorable weather conditions," the Forest Service denied that request by Gardner also.
"They just sat in their office and said 'no,'" Hall told Electric Nevada.
What Cliff Gardner then said was, 'It's my family and my home.'"
And with the fields above the ranch house again bursting with ungrazed forage -- vegetation sure to become a fire hazard as it dried over the coming hot summer months, says attorney Hall - Cliff Gardner and his wife Bertha sent a letter May 13, 1994, notifying the Forest Service they were going to put the cattle out on the range anyway, and graze it down to safe levels.
Events moved swiftly after that. On May 18, 1994, the Forest Service came out and officially "observed" Gardner's cattle on the forbidden area. A day or so later a hand-delivered agency letter notified Gardner he had until May 22 to removed the cattle. On June 9th the Forest Service cancelled his grazing permit and told him he could appeal that decision.
But Gardner had concluded, says Hall, that the only way that Nevada ranchers will ever get justice would be to get the U.S. Forest Service entirely out of Nevada.
Cliff and Bertha Gardner had decided they had to do something different, and what they had decided to do was force the government's hand.
Throughout the rest of the 1994 grazing season, they continued to ignore Forest Service directives and assessed fees, and when the federal government filed a complaint in May of 1995, seeking both damages and an injunction against further unpermitted grazing, they answered the federal motion for a summary judgement by admitting the basic charge of allowing the livestock to graze without a permit.
Then, when the federal district court in Reno granted the Justice Department's motion for summary judgement on October 6, 1995, just four days later on October 10, Gardner attorney Hall filed an appeal to the United States Court of Appeals for the Ninth Circuit.
And the appeal struck at the very heart of federal agencies's power in the state of Nevada - the federal government's claim to own the land next to the Gardner ranch. Necessarily, the appeal arguments brings into question the legitimacy of the federal claim to 87 percent of the land within the borders of Nevada, and indeed, the legitimacy of the Federal Government's position in all of the Western so-called "public domain" states.
The merits of the arguments are, of course, hotly disputed between the Gardner legal team and its supporters on one side, and the Justice Department attorneys and their supporters on the other. Later in this series, Electric Nevada will explore those arguments in detail. They go to the question of exactly what America's Founding Fathers intended the land-owning powers of the federal government to be, and whether federal shenanigans over the decades have violated the equal footing doctrine guaranteed to the states in the Constitution.
But already federal lawyers have telegraphed their concern about the weight of Hall's appeal. First there was four months of silence from the Justice Department and then, apparently after some active recruiting behind the scenes, attorney generals from five western states (including Nevada) - all of them Democrats -- weighed in on the side of the feds with friend-of-the-court briefs opposing Gardner's states-rights arguments.
Ed Presley, a member of the Gardner legal team, thinks the state lawyers doth protest too much.
Why would they so easily concede federal ownership, against the interest of their states, and why would they even bother to chime in and raise the profile of the case, if -- as Justice Department attorneys argued - it is only a mere case of trespass?
Whatever the answers, there is no question that Cliff and Bertha Gardner, when faced with an unresponsive, and in their view, hostile federal agency, really did end up doing something quite different.
Next: Nevada as the Permanent Colony
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