Say the ranchers:
"Federal Agencies Deploying Lawyers, Regs
To Get Rancher Resources Without Paying"

by Steve Miller 
copyright 1997, Electric Nevada

"Basically, I call it 'shaking the tree,' said George Benesch.
The one-time resource economist for the U.S. Forest Service's Toiyabe national forest was describing his old agency's aggressive actions in recent years toward ranchers in Nevada and across the West.
Benesch -- now an attorney specializing in water and grazing issues -- currently represents the R.O. ranch in the Monitor Valley water adjudication proceedings.
He's one of a number of Nevadans who charged, in recent interviews with Electric Nevada, that the Forest Service nowadays regularly deploys legal and administrative initiatives for the purpose of getting privately owned resources away from U.S. citizens without paying them fair market prices.
In the Monitor Valley water fight, say these Nevadans, the federal government is pursuing this strategy on a 'macro' scale, by seeking to create broad new legal precedents in both state and federal law.
Simarly, on the 'micro' level, goes the allegation, Forest Service officials routinely and knowingly today subject individual ranchers and farmers to regulatory harassment designed to drive them off the range.
"They're breaking



people right and left," one Nye County rancher told Electric Nevada last August. "I can name 20 ranchers that have gone broke."
"They just shake the tree," is the way Benesch puts it. "If you do it long enough, pretty soon everything falls off."
In an era of tight federal budgets, the approach allows agency bureaucrats to pursue agency's goals of "unifying" the land and water property estates of the national forests without directly buying out ranchers and farmers who own grazing and water rights in the national forests.
It's the tremendous mismatch in financial and legal resources between small ranchers and those of the federal government that the agency is exploiting, he says.
Few ranchers and farmers in Nevada have the financial resources to be able to defend themselves from even unlawful actions by the Forest Service or the Bureau of Land Management, says Benesch. Most are busy simply scrambling to even make a living.
"And that's what makes it real tough, because...it's all you can do to keep your fences repaired, and maybe to get a couple of new fields re-seeded,


 
and cut your alfalfa, and irrigate the stuff."
Ranching is a regimen he knows from personal experience, says Benesch, adding he has a masters degree in agriculture and agricultural economics.
"I mean, I've done it all before. It's long days and .. you don't have a whole lot of energy left over."
As a consequence, he said, most ranchers who find they're facing unscrupulous federal land agency officials also find they face a no-win situation.
"When you get in these situations where you basically have a full-time beef with the Forest Service or with the BLM, or with the Bureau of Reclamation if it's Fallon, over your water rights -- and let's say you have a secondary beef over your grazing permits ---after a while, there's nothing left of you to farm. Or, if you farm -- you've been steamrolled."
The Monitor Valley matter, says Benesch, is something of an exception, in that the two main ranches involved, the R.O., and the neighboring Pine Creek Ranch of Wayne Hage, did have the financial ability to hire legal help and fight.
"What happened here, is you happened to have some ranchers that had enough resources to be able to fight the Forest Service. Most of the time, you're




out there trying to make a living."
In the adjudication, the U.S. Forest Service is legally challenging Nevada ranchers' long-established ("vested") water rights in the area, claiming those rights instead should be awarded by the state to the federal government.
The agency's argument is "creative," says Benesch, while "ludicrous" is the term used by a colleague. Deputy Attorney General Harry Swainston says the Forest Service is "just overreaching, which isn't all that unusual for the government to do on occasion. The Forest Service is kind of notorious for that."
In a preliminary decision in early 1996, the state engineer rejected virtually all the federal claims. After hearings which concluded in March, the matter now moves to Nevada's Fifth District Court in Tonopah and possibly, later, to the state supreme court.
The irony of the Monitor Valley fight, says Benesch, is that it most likely would have been far less expensive for the Forest Service to simply pay for the water rights it wanted, rather than to seek to contest rights vested long ago, before the Forest Service was ever established.
"All the water rights that are the subject of the Monitor Valley adjudication probably could have been condemned and purchased at


 
considerably less than they spent at various parts of the litigation on this thing," said Benesch. "Particularly the stock water rights.
"We're talking, in the water area, small potatoes. It's almost academic, it's such a small amount of water. Because cows just don't drink a whole lot."
The basic problem, he said, remains that the Forest Service wants to take water and grazing rights without paying.
"Nobody has any qualms




about eminent domain," he said. "If the government needs [the resource], they can come in and they can file an eminent domain suit. If there's a public purpose, they can get [the property or resource] right away; they don't have to wait for any kind of a trial or anything...The only issue is, they have to pay fair market value. Well, they don't want to pay fair market value. That's what rubs them the wrong way."


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