William Perry Pendley is an imposing figure. A big, rangy six-foot-five-or-so, decked out in Western garb, he looks just as hard-bitten as a lawyer as he must have during his many years in the Marine Corps.

Pendley has to be tough these days. He spends most of his time fighting the federal government.

“People back East just don’t understand the kind of struggles we have to undergo out here just to get access to our own resources,” he says, relaxing among the many artifacts of Western art in his spacious Denver office. “More than 70 percent of the land in some states is still owned by the federal government. The idea was that government ownership was supposed to guarantee multiple use and public access, but more and more it’s a matter of Washington bureaucrats shutting off access so that people back East can imagine that everything out here is still wild and free.”

For nearly two decades now, Pendley has been president and chief legal officer of the Mountain States Legal Foundation, which has been in the forefront of the Sagebrush Rebellion since the 1980s. Having just published his memoir—Warriors for the West, a selection of the Conservative Book Club—Pendley is more than willing to reminisce, particularly since most of the battles are still being fought.

“The Carter and Clinton administrations were the most aggressive about locking up federal land but there’s a bureaucratic inertia,” says Pendley. “The President can change a few people at the top but mostly these agencies are staffed with bright, baby-faced lawyers just out of law school who are eager to carry on the radical environmental crusade.”

Pendley has had some success in countering this federal aggression, and some disappointments. He won the landmark case of Adarand Constructors, Inc. vs. Pena before the U.S. Supreme Court in 1995 in which the Court soundly rejected affirmative action programs in federal highway contracting. Justice Sandra Day Conner ruled that only individuals and not amorphous groups could claim to be the victims of discrimination.

Yet by the time that Adarand had been remanded back to the increasingly-liberal 10th District and bounced around the federal courts for a few more years, the Supreme Court ending up rejecting the opportunity to end racial preferences forever. “You have to realize that the U.S. Supreme Court hears only a tiny fraction of the petitions that come before it and enforcement of those decisions is largely in the hands of the lower courts. The overwhelming majority of decisions in this country are made by three-judge panels at the federal appellate level. Those judges will put their own interpretation on Supreme Court decisions and may even choose to ignore them.”

The general strategy for federal bureaucrats seeking to frustrate attempts by westerners to use federal land in the West can be learned from Rudyard Kipling’s The Man Who Would Be King, where two roguish British adventurers wandering into Afghanistan (of all places!) encounter a pair of warring tribes hurling spears and arrows at each other. “Let’s side with them,” says the less astute soldier as one side begins to get the upper hand. “No, we’ll support the weaker side,” says the smart one. “Then they’ll be dependent on us.”

The federal bureaucracy’s tactic has been to side with American Indians in the hope of using them as a tool to achieve their environmental agenda. Thus, the National Park Service has restricted rock climbing on Devil’s Tower on the grounds that it is sacred to the religious practices of American Indians in the region. The Rainbow Bridge National Monument was closed off entirely to tourists and visitors on the grounds that it was god incarnate to tribes in the vicinity. Yet at the same time the Ninth Circuit has forbidden the erection of a Latin cross at a World War I memorial on federal property in the California desert because it would constitute the “establishment of a religion.”

So too, the U.S. Justice Department has continually initiated suits demanding that local and county governments abandon at-large elections and divide themselves into election districts assuring that Indians or Hispanics will be elected to office. When informed that Indians and Hispanics vote in proportionate numbers, participate in both political parties, are often selected as candidates, and even win elections, the bureaucrats were unmoved. In Blaine County, Montana, where one American Indian had won election as both justice of the peace and county sheriff, DOJ said it still didn’t count. “He didn’t run as an Indian.”

As ludicrous as these divide-and-conquer strategies may seem, they are having a tremendous economic impact. Indian casinos have become fabulously profitable enterprises that regularly flout the law by refusing to collect taxes on unrelated enterprises like gas stations and cigarette shops. In a perfect completion of the loophole, Indian enterprises have been exempted from the McCain-Feingold campaign spending restrictions and are thus able to throw their weight around in elections. When candidate Arnold Schwarzenegger suggested that casinos should pay 20 percent of their profits to the state, the California election almost boiled down to a contest between Schwarzenegger and the Indian casino owners.

So it goes on, issue after issue. “The biggest land grab in recent years was President Clinton’s designation of millions of acres under the Antiquities Act of 1906,” says Pendley. “The law was intended to protect sites of historic or archaeological significance,” says Pendley. “Clinton simply used it to extend the Wilderness Act, which people out here have been fighting for decades. The biggest tract was the 1.7-million-acre Grand Staircase-Escalante National Monument in Utah but Clinton didn’t even dare enter the state because everyone was so opposed to it. He held the ceremony at Grand Canyon instead.” Most of the “antiquities” were specifically tailored to block coal, oil, and gas development. And people wonder why energy is so expensive?

The stories go on:

And on and on it goes. Pendley has seen and done it all in his 35 years of legal combat. But he’s not ready to budge an inch. “We’re fighting for individual liberty, free enterprise, the right to own property, and limited and ethical government out here,” he says proudly. “We hope the folks back East will join us.”


William Tucker is a weekly columnist for The American Enterprise Online.