Update by ERIC SHULTZ
In Norteños Suing for Survival, we reported on a controversy concerning former El Rito District Ranger Diana Trujillo, whose unilateral decision to reduce permitted grazing in her district sparked outrage among Hispano residents of the Vallecitos valley. Permittees viewed Trujillo’s decision as the culmination of a long line of actions—including arranging for a pro-elk-hunting organization to buy out the locals’ cattle grazing permits—geared toward ending their centuries-old forest based way of life. Voicing a call for their own cultural survival, the norteño villagers brought a lawsuit–against Trujillo personally and the Forest Service as an entity—seeking to overturn Trujillo’s decision and to award the stockmen compensatory and punitive damages for the ordeal they are enduring.
The plaintiffs had sensed hostility from early in Trujillo’s tenure and they had openly and repeatedly complained about her to then-Governor Richardson, their congressional delegation and her Forest Service superiors. Their lawsuit characterizes her behavior as retaliation for activities clearly protected by the First Amendment: free speech, free association, and petitioning government for redress of grievances. But the plaintiffs also reside within the Vallecitos Sustained Yield Unit, a portion of national forest set aside in 1944 under legal requirement to provide economic benefit to local inhabitants. And the Forest Service’s own Region 3 Policy (1972) recognizes forest-dependent Native and Hispano communities as “a resource” and legally requires that their interests be reflected in agency decisions. Finally, Trujillo’s decision to cut grazing was at odds with environmental protection regulations, since the agency’s in-house scientists and hired consultants had unanimously recommended keeping stocking levels unchanged. The fact that Trujillo’s 2010 decision violated so many layers of statutory and administrative law supports the contention that her motivation was not the execution of her lawful duties, but retaliation against an assertive and critical community.
In Government Moves to Dismiss Key Count in Grazing Lawsuit, we continued our coverage by reporting on the government’s attempt to gut the permittees’ lawsuit with a Motion to Dismiss (MTD) it’s Count 1, the count which charges Trujillo with violating the plaintiffs’ First Amendment rights to free speech, assembly and petition for redress. Last week, a federal court in Albuquerque denied key parts of the government’s motion.
Dozens of Vallecitos-area families whose livelihoods depend on grazing cattle are celebrating a partial victory. Their lawsuit brought by the Jarita Mesa and Alamosa Grazing Associations (and joined by the Río Arriba County Commissioners) against the U.S. Forest Service and former District Ranger Diana Trujillo has cleared a major hurdle by surviving the U.S. Attorney’s MTD or Motion to Dismiss. In a Memorandum of Opinion and Order filed January 24, 2013 (Opinion), Federal Judge James O. Browning denied key parts of the MTD thus allowing the norteño litigants to move forward to protect their ancestral way of life.
Through 115 pages of exacting legal analysis, Judge Browning summarized the complaint, the government’s motion to have key sections thrown out, and the plaintiffs’ response, based on the two sides’ filings and on oral arguments they presented at a hearing last November. This was only a partial victory for the Hispano communities of northern New Mexico since the judge did side with the defense in preventing the plaintiffs from recovering damages in money. But the plaintiffs’ limited victory was hardly trivial: Judge Browning accepted their contention that Trujillo’s decision to cut their permitted grazing in the national forest must be tried, not as a mere administrative mistake, but as a violation of the U. S. Constitution. What follows is my attempt to make sense of a complex and technical document.
Judge Browning begins the “Factual Background” section of his Opinion on an encouraging note:
The history of the Plaintiffs’ case predates the parties before the Court. The Plaintiffs set forth a backdrop of social, cultural, and economic factors, which are inextricably intertwined to the Plaintiffs’ cattle grazing within the Carson National Forest. The Plaintiffs also allege a history of tension between the USFS and the Plaintiffs’ ancestors, tension which bears on the legality of the Defendants’ actions managing national forestland in northern New Mexico over the last three years (p. 3).
By all appearances, Judge Browning gets it. In the passage just quoted, he seems to appreciate our norteño Hispano communities’ unique historical situation vis-a-vis both the forest and the Forest Service. But as a careful reader of the Opinion will discover, the judge is merely paraphrasing the Plaintiffs’ position and not speaking for himself. Even when the Opinion states that “[t]he Court takes as true all… factual statements in the Complaint,” the meaning of these words is not what it appears.
Because his Opinion is responding to the government’s Motion to Dismiss, in crafting it Judge Browning was bound to follow Rule 12(b)(6). This rule is the law by which a court can dismiss a lawsuit for “failure to state a claim upon which relief can be granted.” According to the rule, in order to test a lawsuit to see if it meets formal requirements, “a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff’s favor” (p. 61). In other words, a court may grant a motion to dismiss only when a lawsuit is so ill-conceived or poorly pleaded that it fails “to state a claim upon which relief can be granted” even if all of its factual assertions are true. It is in this context that we can understand the Court’s claim to take as true all “factual statements in the Complaint.” Judge Browning has assumed these are true purely for the purpose of testing whether the lawsuit is formally correct and complete. It is of course the purpose of a trial to test whether a plaintiff’s allegations are actually true.
It is also in light of Rule 12(b)(6) that we can understand the defense’s position that the plaintiffs have failed “to state a claim:” rather than to argue that their factual assertions are false, the MTD maintains that the plaintiffs assert no facts whatsoever but merely “labels and conclusions.” Using language borrowed from case law, Judge Browning rejected this argument after seeing a sufficient factual basis:
The Plaintiffs’ facts have nudged a conclusion from possible to plausible that the 2010 Decision Notice was made in retaliation for the Plaintiffs’ exercise of their First Amendment right to petition the government for redress (p. 114).
In her 2010 Decision Notice, then District Ranger Trujillo cut permitted grazing by 18 percent on the Jarita Mesa and Alamosa allotments in the Carson National Forest. The plaintiffs contend that Trujillo ordered the cut in retaliation for their criticizing her to their elected officials and for requesting her transfer to a different district. “[T]he right of the people… to petition the Government for redress of grievances” is enshrined in the very wording of the First Amendment, and Judge Browning accepted that “the Plaintiffs’ Complaint sufficiently alleges… a claim for the violation of their constitutional rights” (p. 96).
If Trujillo retaliated against the stockmen by inflicting economic losses, an elementary concept of justice would allow them to sue for monetary damages. But the federal government shields itself from legal claims by citizens (and money claims especially) behind what is called sovereign immunity. Only in circumstances where the law suspends sovereign immunity can citizens sue the government. The 1971 Supreme Court case Bivens v. Six Unknown Named Agents created just such a “cause of action” for plaintiffs whose constitutional rights have been violated by federal agents (in his dissent, Chief Justice Burger complained of legislating from the bench). A Bivens remedy allows one to sue the federal government and federal agents as individuals to collect monetary damages for constitutional violations, when no alternative legal remedy exists. In the present instance, Bivens is the only available avenue the plaintiffs to recover their economic losses and to impose punitive damages as a deterrent to future violations. Unfortunately, in succeeding decades increasingly conservative Courts have made Bivens actions harder to win.
In siding with the defense and rejecting the plaintiffs’ call for a Bivens action, Judge Browning concluded that the Administrative Procedures Act or APA, even though it does not allow plaintiffs to collect monetary damages but only for Trujillo’s Decision to be overturned, does provides an alternative remedy and it represents the will of Congress as to what constitutes justice in cases such as the present one. In reaching this conclusion, Browning relies heavily on the Supreme Court’s 2007 case Wilke v. Robbins: “The APA is the proper avenue for reviewing an agency’s action or decision. If Appellant attempted to hold Defendants liable for alleged constitutional violations committed while reaching a final agency decision, a Bivens action would not be available” (Wilke quoted by Browning, p. 91).
A brief look at Wilke affords a telling glimpse into the current legal climate affecting the litigation of constitutional rights. It is the case of a man named Robbins who bought a property in Wyoming to operate a dude ranch. The previous owner had given the BLM an easement on the property, but the BLM had neglected to record the a agreement and had proceeded to lose the instrument. Representatives of the BLM told the new owner, Robbins, that they wanted an easement identical to the one they had forfeited, and on identical terms. When Robbins declined, instead of offering payment or taking the easement by eminent domain (for which compensation is compulsory), BLM agents undertook a series of actions intended to erode Robbins’s resolve and obtain rights to his property for free. These included actions within the agency’s legitimate authority, such as taking back grazing rights and a right of way, but also plainly criminal acts such a trespassing and false prosecution. A Court majority ruled that the BLM was pursuing a legitimate goal of obtaining an easement on favorable terms, and although the agents may have been overly zealous in pursuing that goal, the Court would not grant Robbins a new cause of action because although the agents may have done too much of a right thing they hadn’t clearly done a wrong thing. A Supreme Court decision is law, and I understand why the permittees’ co-counsel Richard Rosenstock approached the unhelpful Wilke by arguing how much it differs from his clients’ case, instead of denouncing it simply as an appallingly wrong decision. But I don’t have to dance so nicely.
Rosenstock’s main point is that retaliation for constitutionally protected speech is settled law “long recognized by the courts” whereas Wilke involved a “creative new property rights-based Bivens action” (p. 31). So far so good. It was important for Rosenstock to stress that Trujillo had violated clearly settled law to preclude a “qualified immunity” defense available to officials who commit offenses in areas where the relevant law would not be clear to an average person. But to further distinguish his clients’ case from the facts in Wilke, Rosenstock quotes the majority opinion that Wilke involved “a legitimate process in which each side has a legitimate purpose in taking action contrary to [each] other’s interest” (p. 44). To this observer, the quoted statement shows precisely where the Roberts Court got Wilke wrong and obscures how the two cases—Wilke and Jarita Mesa—are actually similar.
Rosenstock’s case depends on countering the defense’s contention that Trujillo was merely carrying out her “legitimate” function of protecting forest range land when she slashed the plaintiff’s grazing permits. So far, he is succeeding. On page 98 of the Opinion, Judge Browning states that “nearly every official federal action is likely to have a legitimate, non-discriminatory explanation, and therefore, the mere possibility of legitimate motive does not preclude a claim for retaliation when the facts make a retaliatory motive more plausible.” Here I see a fundamental parallel insofar as the “legitimate” purposes proffered by the BLM agents and accepted by the Court in Wilke are a mere pretext for a pattern of grossly illegal harassment, just as Trujillo’s legitimate purposes form a pretext for her unconstitutional retaliation against the stockmen. In pleading for a Bivens remedy it is clear why Rosenstock would emphasize how Wilke—in which the Supreme Court denied a Bivens action—differed from his clients’ case, and this question is now settled. Judge Browning has denied the plaintiffs’ Bivens request. So as a matter of history, I think it is important to see how the Roberts Court got Wilke wrong and how the Browning Court so far is getting the pretext question right.
The preeminent legal scholar and constitutional lawyer Laurence Tribe has written a trenchant critique of Wilke v. Robbins (“Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins”), and not as a disinterested observer. It was Tribe who argued for Robbins at the Supreme Court, and I absolutely recommend his scintillating if pessimistic analysis to the interested reader. For a lawyer of Tribe’s caliber to fail to win a Bivens cause from the Roberts Court says much, I think, about the current civil rights climate. And returning to our thread, Rosenstock’s job was never to retry Wilke but to represent Jarita Mesa Livestock Grazing Association, et al. In his performance there, I find no fault. And his lack of success in securing a Bivens action can hardly remove him from very respectable company.
Remedies under the APA preclude monetary damages, as already mentioned, but they involve other inadequacies as well. Foremost among these are severe limitations on discovery, that is, the power of plaintiffs to subpoena evidence. An APA process would limit evidence to an official record prepared and provided by the defense. This in itself could defeat the plaintiffs’ efforts to prove retaliation on Trujillo’s part since it would “take a pretty stupid government official to put in the record” evidence of retaliatory animus (p. 52). Because Trujillo’s 2010 decision will continue to affect the permittees through the 2015 grazing season, it constitutes an ongoing controversy and not just an action in the past. That being the case, the plaintiffs can request declaratory relief, asking the judge to intervene in their ongoing dispute. And unlike the review of a past decision under APA procedures, the declaratory relief process allows for “robust” discovery. Judge Browning has allowed the request for declaratory judgment, and this is perhaps the greatest of the plaintiffs’ victories since it will allow them to search documents and take depositions beyond the confines of an official record.
While Judge Browning’s denial of a Bivens action has taken monetary damages off the table, that fact allows the plaintiffs to pursue their constitutional case outside of a restrictive APA process due to a statutory waiver of sovereign immunity called Section 702 that allows actions “in a court of the United States seeking relief other than money damages” (pp. 111-12).
In defense of the Forest Service and former District Ranger Diana Trujillo, U.S. attorneys have prevailed in getting a federal court to dismiss the parts of a lawsuit aimed at recovering monetary damages for some northern New Mexico cattlemen, but this outcome is hardly surprising in the current judicial climate. On the other hand, Federal Judge James O. Browning has allowed the plaintiffs to proceed with claims that Trujillo violated their constitutional rights when she reduced their grazing permits in retaliation for First Amendment-protected activities. Much remains to be seen, both in terms of how this suit plays out, and the significance it will have in a larger judicial landscape. Reached by email, attorney Rosenstock summed up the situation like this: “I think the decision is significant because it protects citizens from retaliatory harassment by federal officials working for agencies such as the Forest Service and BLM. It tells these officials that their agencies will be held accountable for such conduct. Of course, we must now be able to prove our allegations but we can and will. In fact, many of the allegations are proven by Forest Service documents themselves.” La Jicarita will continue to follow the developments.