Update by ERIC SHULTZ
Since our report last April (Norteños Suing for Survival), government lawyers have been hard at work to gut a historic suit for social justice and cultural survival before it even goes to trial. While the lawsuit charges that Carson National Forest El Rito District Ranger Diana Trujillo violated various environmental and administrative laws (including regional Forest Service policy expressly requiring that management decisions support the survival of Native and Hispano traditions) when she cut back livestock grazing on the Jarita Mesa and Alamosa allotments, the heart of the matter concerns the Constitution.
According to Hispanos of the Vallecitos valley, when they complained to their legislators and Forest Service higher-ups about El Rito District Ranger Diana Trujillo’s management of grazing issues, she retaliated by reducing permitted grazing by 18 percent. To substantiate that this was retaliation and not merely an unpopular management decision, the plaintiffs note that districts always apply the stocking levels their in-house scientists recommend: in this case the experts had recommended keeping the number of head unchanged while modifying management with a positive prognosis for rangeland improvement. On the day the experts’ recommendation came out, Trujillo strayed from custom and issued her decision to impose a punishing cut. As Count 1 of the lawsuit alleges, the ranchers had been meeting and speaking out against Trujillo in an effort to petition their government for redress of grievances – quintessential First Amendment activities – so in retaliating, Trujillo not only hurt them economically but violated their basic constitutional rights.
This past November 9, U.S. District Judge James O. Browning heard the government’s motion for the Court to dismiss the suit’s Count 1 which charges Trujillo with unconstitutional behavior. This poses a strategic threat to the plaintiffs’ cause for three reasons that can be expressed with three words that happen to start with the letter d: discovery, damages and deterrence.
The first d-word – discovery – involves the plaintiffs’ power to subpoena documents and testimony. As co-counsel Richard Rosenstock pointed out in oral arguments, in this day and age discrimination will not be proven by a carefully compiled “official record.” It is unlikely Trujillo filed any memos saying “These grazing permittees are really ticking me off… I’ll show them!” But a discriminatory bias can be inferred from actions that depart from standard practices and customs. Was Trujillo’s decision to cut grazing just such an “arbitrary and capricious” departure? To establish factually what have been the actual standard procedures will require broad powers of discovery. In another instance, Trujillo helped a pro-hunting organization to contact plaintiffs with offers to buy their grazing permits in order for the elk herd to grow without competing interests. Plaintiffs saw this as a particularly offensive affront to their centuries-old way of life. Did the U.S. Forest Service El Rito District help the elk “industry” throughout its jurisdiction, or was this a targeted effort to neutralize specific troublemakers by buying out their grazing interests? If the Court dismisses Count 1, it forces the plaintiffs to seek relief under the Administrative Procedures Act (APA, the body of administrative law governing the review of agency decisions), and it is doubtful the APA would allow the ample discovery needed to prove discrimination.
The second d, damages, involves a 1971 Supreme Court decision known as the Bivens case. In Bivens, the Court ruled that a plaintiff has a “cause of action” to sue a federal employee for the violation of Constitutional rights, and that the Court can award damages – money – if no other legal remedy exists. In recent years, however, the mood of the Court has cooled toward Bivens actions and although the decision stands, in no recent case has the Court affirmed Bivens for one reason or another. Rosenstock stressed that because of Trujillo’s actions, his clients (in the lingo of today we might call them micro-ranchers) have suffered and continue to suffer real economic hardship. If Count 1 were dismissed, the most positive outcome likely under an APA proceeding would be a reversal of Trujillo’s decision. Such an alternative offers no remedy for the economic injury his clients have suffered. To dismiss Count 1 would effectively shut the door to the plaintiffs recovering damages.
This brings us to our third d, deterrence. On this point Rosenstock observed that in summarizing “the mood of the Court” to support its motion to dismiss, the Government had failed to mention the Supreme Court’s most recent Bivens-related decision. In Minecci v. Pollard the Court clarifies what the alternative remedies would need to provide in order to preclude a Bivens action: “Because in the circumstance of this case, state tort law authorizes adequate alternative damages actions—providing both significant deterrence and compensation—no Bivens remedy can be implied here” (565 US —- (Docket No. 10-1104)). Would an APA proceeding meet the Minecci test of “providing both significant deterrence and compensation” to make a Bivens action unnecessary? As noted in the previous paragraph, to seek remedy through APA proceedings takes compensation off the table. But more to the point, simply having her decision reversed would be just another day at the office for Diana Trujillo: it involves no “significant deterrence.” In contrast, a Bivens remedy allows the plaintiffs to sue Trujillo for damages not just in her capacity as a federal employee but also as a private individual. Now there is a significant deterrent.
To sum up, if the Court were to grant the Government’s motion and dismiss the suit’s first count charging violation of the plaintiffs’ First Amendment rights, the remaining counts charging violations of the National Environmental Protection Act, the National Forest Management Act, the Sustained Yield Forest Management Act and the Forest Service 1972 Region 3 Policy would all fall under the purview of the Administrative Procedures Act. Under the APA, the plaintiffs would have to fight tooth and nail for any discovery beyond the review of an “official record” prepared by the defendants; recovery of damages for economic losses would not be possible and at best Trujillo’s decision to reduce grazing could be reversed; and since Trujillo would not be held personally accountable for the consequences of her actions the proceedings would have no deterrent effect on her or any other official who devises to punish citizens for meeting and speaking out for redress of their grievances.
Arguing to dismiss Count 1 before the lawsuit even goes to trial, Assistant U.S. Attorney Ruth Keegan relied on two questionable scenarios. First, a lawsuit such as this one would make it “hard for the Forest Service to get any work done” with its bureaucrats effectively paralyzed with the fear of being sued for any decision they make. Judge Browning pointed out that law enforcement officers may be sued as private individuals yet they still manage to do their jobs. Ramping up her hypothetical, Keegan portrayed the suit as a virtual blueprint for thwarting the functions of the State. In this scenario, any parties sensing the likelihood of a decision against their interests could pre-emptively criticize the decision-making official: once the decision is made, the affected parties would have prefabricated evidence to claim the decision was retaliation for engaging in protected free speech. To this, attorney Rosenstock responded that our legal system is designed to weed out fraudulent claims which tend to fall apart by their lack of cohesive evidence when allowed to go to trial.
Among the plaintiffs present at the hearing were Ronnie Martínez, his father Horacio Martínez, Alfonso Chacón and his nephew Jeffrey Chacón. Also joining the suit are the commissioners of Río Arriba County, represented at the hearing by District III Commissioner Felipe D. Martínez along with his sister-in-law, niece and nephew. Also present was Carlos Salazar of the Northern New Mexico Stockman’s Association. In a brief meeting outside the courtroom with Rosenstock and co-counsel Simeon Herskovits of Taos, the plaintiffs and their supporters were unanimous in thanking Rosenstock for his thoughtful, informed and vigorous arguments on their behalf. Sounding a note of realism, Rosenstock considered it likely that Judge Browning would accept the Government’s motion to dismiss Count 1. If he were the judge, Rosenstock quipped, he would have no problem “letting the 10th Circuit in Denver tell me I was wrong” in letting the first count go to trial, but he fears Judge Browning will follow the recent judicial trend of insulating the Federal Government from its citizens especially with respect to collecting damages. If the first count is dismissed, he and Herskovits assured their clients that they would continue to pursue the suit with diligence and vigor through an APA proceeding. La Jicarita will follow this developing story.