Law Firm Exists To Make Federal
Cases Out Of Governmental Abuse
By David Bowser
OKLAHOMA CITY — John Schuller, a sheep producer in northern Montana, was sitting on the couch watching wrestling when he heard a commotion outside.
"He grabbed his rifle and went out the door into the dark night," says William Perry Pendley, president and chief legal officer for the Mountain States Legal Foundation. "He saw three grizzly bears near his sheep pen."
He fired a shot over the bears and they took off.
"John Schuller thought the danger was over and turned to go back inside when suddenly he was confronted by the mother of all bears, or at least the mother of these three," Pendley says. "She roared and raised up on her hind legs."
Schuller figured if he didn't act fast he was dead.
"He opened fire with his rifle," Pendley says. "The bear fell mortality wounded."
Schuller waited up all night with his dog Boone for the cubs to return.
"The next morning at first light," Pendley says, "he called the Fish and Wildlife Service."
He told them he'd killed one of their bears.
"Presently they arrived and pronounced the bear dead," Pendley says. "Your government at work."
Schuller thought that finally his night of fear was over.
"Unfortunately for John," Pendley says, "it had only just begun."
The U.S. government, using the Endangered Species Act, filed charges against Schuller, claiming he'd killed an animal protected by federal law.
"John asserted that he'd acted in self defense," Pendley says. "After all, he was afraid that if he didn't shoot the bear, he'd be killed. That didn't matter to the federal government."
Pendley says when he found out that the Fish and Wildlife Service was going to bring charges against Schuller, he called the government's lawyer.
"I said, 'John reacted in self-defense out there,'" Pendley says. "'He was afraid the bear was going to kill him. I don't think you ought to bring this action against him.' The lawyer said, 'I'm afraid I have to. My client demands it.'"
The lawyer told Pendley that his client was the Fish and Wildlife Service.
When he was a government lawyer, Pendley says, he always thought he was representing the American people.
"I had that obscure idea that I was representing individual citizens and not some agency," Pendley says.
Schuller ended up in front of an administrative law judge, who made a factual ruling that Schuller was afraid of being killed.
"If he was in fear of death or serious bodily injury, that's the standard for self-defense," Pendley says. "If you're in fear of death or serious bodily injury, you may respond with deadly force. We thought we were in great shape."
But the judge also made a legal ruling that while Schuller was afraid that night, he had acted improperly because he had no legal right to go outside with his gun. According to the judge, that put him in the zone of imminent danger.
"We appealed that ruling," Pendley says. "We thought that ruling was goofy."
They ended up in front of a panel of administrative judges in Washington, D.C.
"We took the position that John Schuller had the right to get his gun and go outside and defend himself if attacked," Pendley says. "After all, it was his property."
The judges agreed, but they said Schuller shouldn't have taken his dog outside. They said that provoked the bear and escalated the conflict.
"We thought that decision was a goofy decision as well," Pendley says.
They ultimately appealed the decision to a federal district judge in Montana.
"The judge ruled that as a matter of fact, John Schuller was in fear of death and serious bodily injury," Pendley says.
The federal judge also ruled that as a matter of law he had the right to go outside, and that as a matter of law he had the right defend himself with deadly force.
"He dismissed all the charges against our client," Pendley says.
That was the good news. The bad news was it took eight years and a quarter of a million dollars.
If Schuller had pleaded guilty, he would have faced a $5000 fine.
Pendley says that by prosecuting the Endangered Species Act in that way, the federal government is trying to breed the self-defense provision out of the law.
That's the type of the case that Mountain States Legal Foundation has been involved in since it was established in 1977, Pendley says.
"We litigate against a radical group of bureaucrats," Pendley says, "and liberal judges. One of the things that makes America great is that we are a country of laws. We do have a Constitution. We do have Constitutional guarantees."
The idea, he says, is that every citizen has the ability to go to court for redress of grievances.
"That's what Mountain States Legal Foundation does," Pendley continues. "It was created by Westerners who were concerned about the fact that organizations like the ACLU were in federal court and organizations like the Sierra Club were in federal court, organizations wanting to eat away at private property rights and the ability to own and use land, the ability to engage in economic activity without onerous federal regulations or state regulations."
Being able to go into court and question the government is key to democracy, Pendley insists.
Among the issues that Pendley sees today as dangerous is the Voting Rights Act extension. He says many parts of it are unconstitutional.
One of his great frustrations is that federal officials and state officials swear an oath of allegiance to the Constitution, but then they pass laws that he says are obviously unconstitutional.
"'Maybe it is,' they say," Pendley says. "'Maybe it's not. We'll let the courts tell us.'
"They have an obligation to say, 'Hey, wait a second, this is unconstitutional. We can't to that.' That's why organizations like Mountain States Legal Foundation have to go to court."
"One of the things that makes the Voting Rights Act unconstitutional is the ability of organizations like the ACLU, liberal lawyers and the Clinton Justice Department to go into western communities and western counties and say to westerners, notwithstanding what state law says, notwithstanding the 10th Amendment of the Constitution, notwithstanding any illegal activity in the county, they do not have the right to elect a county official," Pendley says.
Several years ago, the U.S. Justice Department sued Blaine County, Montana.
"Blaine County is a very rural county in northern Montana, right up against the Canadian border," Pendley explains. "It has about 9000 people in it."
The lawsuit filed by the Justice Department asserted that the county had to carve out a commissioners' district to guarantee the election of an American Indian commissioner.
Pendley says there had never been an allegation or any evidence that the American Indians of Blaine County had been denied the right to register, to vote or to run for office.
"In fact, we pointed out that Charlie Hay, who was an American Indian in Blaine County, had run successfully for justice of the peace," Pendley says. "He had run successfully for county sheriff. "We said 'Look there. There's no racism among the voters. The voters are willing to elect candidates on the basis of their ability.'"
The Justice Department responded that Charlie Hay had not run as an Indian.
"I thought that was the point," Pendley says.
"When I saw the President sign the Voting Rights Act extension a year early after Congress quickly passed it, I was disappointed because there are numerous problems with it," Pendley continues.
He indicated that he expects to go to court over some of those issues.
Pendley says one of the other laws that concerns him and that he expects to be major issue over the next year or two is the National Environmental Policy Act.
"One of the reasons we can't get energy out of the ground is because of this National Environmental Policy Act," Pendley says. "Congress is now passing legislation to drill for oil in the outer continental shelf near Florida because Cuba is drilling there."
The National Environmental Policy Act was passed in 1970. It mandated that the federal government think about decisions before taking action.
"Back in the workshop, we have an expression that says 'measure twice, cut once,'" Pendley says. "That was essentially what NEPA was all about, but unfortunately, the federal law has been misinterpreted such that it is the definition of paralysis by analysis."
Pendley says a lot of people claim they're going to take their case to the U.S. Supreme Court and that they're going to make a federal case out of it.
"Of course, that's what Mountain States Legal Foundation does," Pendley says. "We make federal cases of it."
But few cases go all the way to the Supreme Court.
"One of the problems when you take these cases into federal court is the order of battle," Pendley says. "The order of battle for these federal judges and these federal lawyers is to try to get the case thrown out of court. They don't want a judge ruling up or down on your case. They want you thrown out."
They say the plaintiff sued in the wrong court or too late or the wrong person, he says.
"The second thing is the incredible delays that these cases take," Pendley continues.
The Schuller case took eight years.
"It does take time," Pendley says. "We had a case where it took a federal agency to get them to make a final decision. It took them seven years to get a final decision from the agency before we could go to federal court."
He says that after the seven years, he had to go back and find out how many of the original clients had died.
There is also the arrogance of federal judges, he says.
"One of the things that happens is these courts realize that the likelihood of the Supreme Court issuing an opinion is about one percent," Pendley says. "Out of all the cases that ask to be heard, only one percent of those cases get heard by the Supreme Court.
"A judge says there's a Supreme Court that binds him, but does he have to hold with that opinion? What if he doesn't? What are the odds that the Supreme Court will hear the case and reverse it?
"Not very good," Pendley says.
There are also federal agencies that try to expand their powers.
"Originally, the Endangered Species Act was only supposed to apply to 100 species," Pendley says. "It was only supposed to apply to federal land. It was not supposed to apply to private property. No wonder everybody voted for it."
Today about 15,000 species are covered by the act, including a mouse between Denver, Colo., and Cheyenne, Wyo.
"There's a big controversy over the Preble's meadow jumping mouse," Pendley says. "There's only one way to tell if it's an endangered mouse. You kill it, and then you do a post mortem on it."
Despite his worries and complaints, Pendley says he wouldn't live anywhere else.
"I talk about my frustrations," Pendley says, "but I want to tell you, it's the greatest country in the world. There's nowhere else where people could do what we do."
Mountain States Legal Foundation, he says, is a nonprofit foundation. It is funded by donations.
"We're able to go into court and litigate these cases for free," Pendley says. "We don't charge our clients anything."
Sometimes the money runs low, he says, but the workload never does.
Cases Out Of Governmental Abuse
By David Bowser
OKLAHOMA CITY — John Schuller, a sheep producer in northern Montana, was sitting on the couch watching wrestling when he heard a commotion outside.
"He grabbed his rifle and went out the door into the dark night," says William Perry Pendley, president and chief legal officer for the Mountain States Legal Foundation. "He saw three grizzly bears near his sheep pen."
He fired a shot over the bears and they took off.
"John Schuller thought the danger was over and turned to go back inside when suddenly he was confronted by the mother of all bears, or at least the mother of these three," Pendley says. "She roared and raised up on her hind legs."
Schuller figured if he didn't act fast he was dead.
"He opened fire with his rifle," Pendley says. "The bear fell mortality wounded."
Schuller waited up all night with his dog Boone for the cubs to return.
"The next morning at first light," Pendley says, "he called the Fish and Wildlife Service."
He told them he'd killed one of their bears.
"Presently they arrived and pronounced the bear dead," Pendley says. "Your government at work."
Schuller thought that finally his night of fear was over.
"Unfortunately for John," Pendley says, "it had only just begun."
The U.S. government, using the Endangered Species Act, filed charges against Schuller, claiming he'd killed an animal protected by federal law.
"John asserted that he'd acted in self defense," Pendley says. "After all, he was afraid that if he didn't shoot the bear, he'd be killed. That didn't matter to the federal government."
Pendley says when he found out that the Fish and Wildlife Service was going to bring charges against Schuller, he called the government's lawyer.
"I said, 'John reacted in self-defense out there,'" Pendley says. "'He was afraid the bear was going to kill him. I don't think you ought to bring this action against him.' The lawyer said, 'I'm afraid I have to. My client demands it.'"
The lawyer told Pendley that his client was the Fish and Wildlife Service.
When he was a government lawyer, Pendley says, he always thought he was representing the American people.
"I had that obscure idea that I was representing individual citizens and not some agency," Pendley says.
Schuller ended up in front of an administrative law judge, who made a factual ruling that Schuller was afraid of being killed.
"If he was in fear of death or serious bodily injury, that's the standard for self-defense," Pendley says. "If you're in fear of death or serious bodily injury, you may respond with deadly force. We thought we were in great shape."
But the judge also made a legal ruling that while Schuller was afraid that night, he had acted improperly because he had no legal right to go outside with his gun. According to the judge, that put him in the zone of imminent danger.
"We appealed that ruling," Pendley says. "We thought that ruling was goofy."
They ended up in front of a panel of administrative judges in Washington, D.C.
"We took the position that John Schuller had the right to get his gun and go outside and defend himself if attacked," Pendley says. "After all, it was his property."
The judges agreed, but they said Schuller shouldn't have taken his dog outside. They said that provoked the bear and escalated the conflict.
"We thought that decision was a goofy decision as well," Pendley says.
They ultimately appealed the decision to a federal district judge in Montana.
"The judge ruled that as a matter of fact, John Schuller was in fear of death and serious bodily injury," Pendley says.
The federal judge also ruled that as a matter of law he had the right to go outside, and that as a matter of law he had the right defend himself with deadly force.
"He dismissed all the charges against our client," Pendley says.
That was the good news. The bad news was it took eight years and a quarter of a million dollars.
If Schuller had pleaded guilty, he would have faced a $5000 fine.
Pendley says that by prosecuting the Endangered Species Act in that way, the federal government is trying to breed the self-defense provision out of the law.
That's the type of the case that Mountain States Legal Foundation has been involved in since it was established in 1977, Pendley says.
"We litigate against a radical group of bureaucrats," Pendley says, "and liberal judges. One of the things that makes America great is that we are a country of laws. We do have a Constitution. We do have Constitutional guarantees."
The idea, he says, is that every citizen has the ability to go to court for redress of grievances.
"That's what Mountain States Legal Foundation does," Pendley continues. "It was created by Westerners who were concerned about the fact that organizations like the ACLU were in federal court and organizations like the Sierra Club were in federal court, organizations wanting to eat away at private property rights and the ability to own and use land, the ability to engage in economic activity without onerous federal regulations or state regulations."
Being able to go into court and question the government is key to democracy, Pendley insists.
Among the issues that Pendley sees today as dangerous is the Voting Rights Act extension. He says many parts of it are unconstitutional.
One of his great frustrations is that federal officials and state officials swear an oath of allegiance to the Constitution, but then they pass laws that he says are obviously unconstitutional.
"'Maybe it is,' they say," Pendley says. "'Maybe it's not. We'll let the courts tell us.'
"They have an obligation to say, 'Hey, wait a second, this is unconstitutional. We can't to that.' That's why organizations like Mountain States Legal Foundation have to go to court."
"One of the things that makes the Voting Rights Act unconstitutional is the ability of organizations like the ACLU, liberal lawyers and the Clinton Justice Department to go into western communities and western counties and say to westerners, notwithstanding what state law says, notwithstanding the 10th Amendment of the Constitution, notwithstanding any illegal activity in the county, they do not have the right to elect a county official," Pendley says.
Several years ago, the U.S. Justice Department sued Blaine County, Montana.
"Blaine County is a very rural county in northern Montana, right up against the Canadian border," Pendley explains. "It has about 9000 people in it."
The lawsuit filed by the Justice Department asserted that the county had to carve out a commissioners' district to guarantee the election of an American Indian commissioner.
Pendley says there had never been an allegation or any evidence that the American Indians of Blaine County had been denied the right to register, to vote or to run for office.
"In fact, we pointed out that Charlie Hay, who was an American Indian in Blaine County, had run successfully for justice of the peace," Pendley says. "He had run successfully for county sheriff. "We said 'Look there. There's no racism among the voters. The voters are willing to elect candidates on the basis of their ability.'"
The Justice Department responded that Charlie Hay had not run as an Indian.
"I thought that was the point," Pendley says.
"When I saw the President sign the Voting Rights Act extension a year early after Congress quickly passed it, I was disappointed because there are numerous problems with it," Pendley continues.
He indicated that he expects to go to court over some of those issues.
Pendley says one of the other laws that concerns him and that he expects to be major issue over the next year or two is the National Environmental Policy Act.
"One of the reasons we can't get energy out of the ground is because of this National Environmental Policy Act," Pendley says. "Congress is now passing legislation to drill for oil in the outer continental shelf near Florida because Cuba is drilling there."
The National Environmental Policy Act was passed in 1970. It mandated that the federal government think about decisions before taking action.
"Back in the workshop, we have an expression that says 'measure twice, cut once,'" Pendley says. "That was essentially what NEPA was all about, but unfortunately, the federal law has been misinterpreted such that it is the definition of paralysis by analysis."
Pendley says a lot of people claim they're going to take their case to the U.S. Supreme Court and that they're going to make a federal case out of it.
"Of course, that's what Mountain States Legal Foundation does," Pendley says. "We make federal cases of it."
But few cases go all the way to the Supreme Court.
"One of the problems when you take these cases into federal court is the order of battle," Pendley says. "The order of battle for these federal judges and these federal lawyers is to try to get the case thrown out of court. They don't want a judge ruling up or down on your case. They want you thrown out."
They say the plaintiff sued in the wrong court or too late or the wrong person, he says.
"The second thing is the incredible delays that these cases take," Pendley continues.
The Schuller case took eight years.
"It does take time," Pendley says. "We had a case where it took a federal agency to get them to make a final decision. It took them seven years to get a final decision from the agency before we could go to federal court."
He says that after the seven years, he had to go back and find out how many of the original clients had died.
There is also the arrogance of federal judges, he says.
"One of the things that happens is these courts realize that the likelihood of the Supreme Court issuing an opinion is about one percent," Pendley says. "Out of all the cases that ask to be heard, only one percent of those cases get heard by the Supreme Court.
"A judge says there's a Supreme Court that binds him, but does he have to hold with that opinion? What if he doesn't? What are the odds that the Supreme Court will hear the case and reverse it?
"Not very good," Pendley says.
There are also federal agencies that try to expand their powers.
"Originally, the Endangered Species Act was only supposed to apply to 100 species," Pendley says. "It was only supposed to apply to federal land. It was not supposed to apply to private property. No wonder everybody voted for it."
Today about 15,000 species are covered by the act, including a mouse between Denver, Colo., and Cheyenne, Wyo.
"There's a big controversy over the Preble's meadow jumping mouse," Pendley says. "There's only one way to tell if it's an endangered mouse. You kill it, and then you do a post mortem on it."
Despite his worries and complaints, Pendley says he wouldn't live anywhere else.
"I talk about my frustrations," Pendley says, "but I want to tell you, it's the greatest country in the world. There's nowhere else where people could do what we do."
Mountain States Legal Foundation, he says, is a nonprofit foundation. It is funded by donations.
"We're able to go into court and litigate these cases for free," Pendley says. "We don't charge our clients anything."
Sometimes the money runs low, he says, but the workload never does.
