There has been considerable discussion about the kinds of people President Trump wants to see on the federal courts, and how they might perform. Recently there was a disturbing indication of what may be in store. On Nov. 3, Chief Judge Susan Braden of the U.S. Court of Federal Claims, appointed to this post by Trump in March, handed down a remarkable and troubling decision involving the nation’s public lands.
This relatively low-profile court hears money claims against the United States. Braden ruled that cattle ranchers using public lands with the permission of the U.S. Forest Service are entitled to financial compensation from U.S. taxpayers because the government's efforts to protect endangered species on those lands allegedly took their water rights in violation of the U.S. Constitution.
Although the case involves ranchers in New Mexico, the judge's opinion opens with this sentence, “On January 2, 2016, several dozen ranchers, who unsuccessfully attempted to find common ground with environmental groups and officials from Oregon’s Malheur National Wildlife Refuge for over a decade, decided to take up arms to protest federal policy and regulations to prioritize migrating bird water habitat, by limiting the number of cattle that historically grazed and used water in that area — decades before it was subject to federal control."
Almost every assertion of fact in that sentence is stunningly wrong — as the president is fond of saying, "fake news."
The truth is, a number of Oregon ranchers grazing cattle in and around the Malheur Refuge have been engaged for several years in a successful collaboration with conservationists and government officials to find workable compromises on how the Malheur Refuge should be managed. The armed individuals who took over the Refuge at gunpoint were not part of this community.
The true facts were clearly spelled out in the only source Braden cited for her assertions to the contrary, a PBS news story noting the common ground established before the militant protest.
Indeed, the armed takeover by these outsiders was resented by most local residents around the Oregon Refuge, and it had, by all accounts, the effect of strengthening the resolve of the Oregon group to continue their collaborative approach.
Even more disturbing, the next sentence of her opinion observes that, “in contrast,” the ranchers before her instead went to court to demand financial compensation. Braden seems to be making the astonishing suggestion that people who refrain from armed violence against federal officials, like the ranchers seeking money damages in her court, have a special entitlement to judicial relief, and implying that the U.S. government would be advised to offer them money or face the prospect of even more violence in the future.
After this opening salvo, it is hardly surprising that Braden goes on to find that the ranchers are entitled to money from the taxpayers when the U.S. takes steps on public lands to protect endangered species habitat from destruction by their cows, without any finding that those measures deprived the ranchers’ cows of water. Her ruling also ignores longstanding Supreme Court precedent making clear that the government has broad power to regulate the use of the public's lands, and that livestock grazing on those lands may be limited or even denied when the public welfare requires it. Indeed, both the courts and Congress have long made clear that ranchers have no constitutionally protected property right to turn their cows loose on public land.
Braden’s extraordinary opinion is almost certain to be reversed, assuming the Department of Justice files an appeal. In the meantime, it represents a klaxon alarm about what may be in store for the public lands, the courts and the rule of law under the current president.
John D. Leshy is a distinguished professor of law emeritus at the University of California, Hastings College of the Law. Leshy was also solicitor of the Department of the Interior from 1993-2001.
John D. Echeverria is a professor of law at Vermont Law School, and has participated in numerous cases before the Court of Claims and other federal courts on public lands matters involving livestock grazing.