Rancher to appeal conviction for illegally grazing cattle on forest land

Martin Griffith

Monday, Nov. 20, 2000 | 2:13 a.m.

RENO, Nev. - Claiming his constitutional rights were violated, a Nevada rancher has decided to appeal his conviction for illegally grazing cattle on government land.

Cliff Gardner of Ruby Valley said Sunday that he intends to challenge U.S. District Judge Howard McKibben's ruling all the way to the U.S. Supreme Court if necessary.

The Reno judge on Friday found Gardner guilty of two misdemeanor counts of failure to remove unauthorized livestock from U.S. Forest Service land.

"The significance of this case is not that the Gardners were convicted of trespass, but that citizens involved with the public lands are deprived of their constitutional rights," Gardner said in a prepared statement.

" Now hopefully, the question as to whether or not the federal government can exercise a brand of jurisdiction ... (that strips) citizens of their constitutional rights may get to the Supreme Court."

Gardner has battled the government for six years, defying orders to remove his livestock from a national forest even after losing an appeal to the 9th Circuit Court of Appeals.

The Justice Department filed charges against him after his cattle were allegedly caught on the Humboldt-Toiyabe National Forest near Elko again in April and July.

Prosecutors said they would seek jail time for Gardner, who faces up to six months in jail and a $5,000 fine on each count.

Gardner, who awaits sentencing Feb. 21, said he hopes McKibben delays any penalties while the case is on appeal.

"However, I have no idea whether that will prevail, due to the prosecution's desire to see that I serve prison time," he said. "The government has long awaited the chance to make an example of Cliff Gardner."

The Forest Service revoked Gardner's grazing permit in 1994 for violation of the terms outlining allowed uses of the national forest lands adjacent to his Ruby Valley ranch.

But Gardner refused to recognize the Forest Service's control of the land and challenged federal ownership in an appeal to the circuit court in San Francisco. The 9th Circuit reaffirmed the government ownership of the land in 1996.

Gardner claims the Forest Service exceeded its authority by operating under the so-called "Property Clause" of the U.S. Constitution. He wants the courts to restrict the agency's powers.

"Such power was never intended to be used against citizens within admitted states of the Union," he said.

"If this question goes unanswered or is answered in the government's favor, we are on the slippery slope to full-blown tyranny."