Bullies on the Block

bully

“There are people who use the term bullying ‘to get what they want. They use it as professional victims to gain power and control,’ says Ben Leichtling, founder of BulliesBeGone.” This morning, the House Natural Resource Committee heard from a panel of such folk, all complaining of “Threats, Intimidation and Bullying by Federal Land Managing Agencies.”

The star witness, Wayne Hage, Jr., and his parents before him, helped ignite the 1970s Sagebrush Rebellion in response to new environmental laws that threatened the century-long hegemony ranchers hold over the arid West’s public lands. Federal employees, charged with ensuring the new legal rubber met the road, became the objects of scorn and derision by those who believe federal land (ab)use is their right.

Today, social conservatives are trying to undercut the pro-gay rights anti-bullying campaign by playing the “we’re bullying victims, too” card. It’s no surprise that Congress’ Sagebrush Rebels have joined the bigots chorus.

6 Comments

  1. If human responses to any given situation or level of authority could be reflected in a bell curve, then you would have to understand that truncated bell curves are the result of those who think only to their end of the curve, or polarity of their position. It is entirely possible for Federal Land Management personnel to be bullies. And for people who deal with them to also be bullies. Some wonder if the whole of graduate education is about being bullied by PhDs who can’t stand competition from the younger and more elastic minds.
    My reading of the Health Care and Insurance Act is that it has failed in its cyber launch because political bullies had their way and ran over the techies, and now the political bullies are hiding or still running for cover. That is one of the failures of public policy institutions and administrative rule enforcement. Zealots on either side of the result are in conflict all the time. We now have an entirely adversarial system of public resource management. Does that work for you?

    • Agreed, John. It seems that bullying continues to be a part of our society, more than anyone would care to admit to. Appeals Court Judges bully those in the lower courts, because they are “better” and have more knowledge and power. Root those people on both sides out of their “hidey holes”!

  2. The first question that needs to be asked here I suppose is: What are the options? The English Common Law system is based on the adversarial approach. The Latin system uses the inquisitorial approach. Recently, a third option has begun to gain traction, the collaborative approach. All have their strengths and weaknesses. The adversarial approach essentially evolved in response to distrust of the “inquisitor” in England who was viewed as a pawn of the crown. Thus, the “impartial” jury of one’s peers, who is tasked with weighing the evidence presented from two opposing factions. The inquisitorial approach in the U.S. is reflected in our administrative law system. Here, an “expert” digs into the facts on both sides and comes to a conclusion about where the truth lies. We see this is in, lets say, a USDA ALJ making a decision on whether a challenger has followed the administrative procedures correctly. No jury, and the rules of evidence are often highly discretionary. Both systems are generally based on the assumption that there are only two parties to the conflict, and thus, one side wins and the other loses. The claim of strength by the adversarial system is that when both sides of the conflict are responsible for defending their claims the debate will be sharpened, and thus, truth more readily ascertained. The inquisitorial approach would argue that relying solely on opposing sides presentation of evidence bogs down & obscures the process because of the numerous procedural rules necessary to ensure that the fight is fair.
    Now, the elephant in the room regarding public resource management is that there are rarely only two sides to the conflict. This is obvious in the NFS doctrine of “multiple use.” In this context, “truth” can never be ascertained because the discussion is not centered around who is right and who is wrong, but whose “values” are more important. By nature this is a political conflict, not legal. No single “value” position can ever get everything that it wants because the other values invariably gang up and use political pressure to reassert their interests — and around and around we go. Thus, the emergence and recent traction among the “alternative dispute resolution” or “collaboration” camp. Collaboration is based in the idea that because their are multiple parties seeking differing goals, no one party can get what they want without reliance upon other parties at the table. Essentially, this is how & why our representative democracy & separation of powers doctrines in this country has worked as well as they have for as long as they have. Leaders in the past understood the necessity compromise in political conflicts. The system has a tendency to run aground when it is held hostage by ideologues who maintain that their way is the only way and are unwilling to base their positions in verifiable facts; but instead rely on propaganda to achieve their ends. Witness McCarthy, Cruz, and the aforementioned Wayne Hage Jr. The reason we call it “bullying” is because we view those who are unwilling to compromise — and thus are reliant upon force/propaganda to achieve their ends — are acting irrationally and unfairly. They “cheat” our democratic system of governance by forcing the majority to bow to their singular aims.
    As for the appeals courts “bullying” the lower courts; this is just nonsense. The appeals system gives MASSIVE amounts of discretion to the district courts. They have the first shot at “speaking” to their view of the law, and often, will produce opinions that suit their personal objectives. I’m currently writing an article that calls into question Judge Malloy’s interpretation of the “cumulative effects of past actions” jurisprudence. He way went way out on limb and tried to drag the jurisprudence back to the questionable Lands Council v. Powell “detailed catalogue” standard. My contention is that the Forest Service should have appealed because it flies in the face of current 9th Circuit precedent concerning aggregation. Had they done so, the 9th Circuit most probably would have disagreed. Not because they feel they are “better,” but because the Circuit court are more tightly bound to their own precedent. Look for it. I’ll post under the “For faculty and students” tab when I’m done.

    • Looking forward to your paper. Could you give a preview of which 9th Circuit precedent you think contradicts Molloy? (assuming you mean his Colt Summit ruling here?) And why the Lands Council standard is questionable? It really isn’t “detailed catalogue”, it’s “ sufficiently detailed catalogue” (elsewhere in that decision referred to as “adequate cataloguing”, which seems to me like a significant distinction. thanks! -Guy

  3. Regarding “personal objectives”, that is exactly why I think that the 9th Circuit Court “pushes back”. I hear that the 9th Circuit Court is the most overturned Appeals Court in the land. They often render decisions that say “more analysis is needed” and “arbitrary and capricious”, while not “deferring” to Agency science. What I am not saying is that the lower courts don’t use their own personal bias. The 9th Circuit Court often seem to play the “counterbalance” card, knowing full well that their power trumps the lower courts. With salvage projects, which ALWAYS ends up in Appeals Courts, I feel that the Forest Service should not waste their time with creating plans which might make it through the Appeals Courts. It seems a better strategy to get through the lower court (and the injunctions), then to shoot for felling all the project’s trees (while taking a long time to present the full weight of Agency science to the lower court), making an appeal “moot”. A perfectly legal way to get as much work done, as possible, without bringing in the bias of the 9th Circuit Court. As long as one side uses the Court’s bias, both sides should be able to use a similar strategy.

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