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Hage v. United States
Takings and Liability Trial
May 12, 2004
Reported by Margaret Byfield, Executive Director
What a day for the Plaintiffs. Cross-examination of David Grider proved to be one of the real
highlights of the trial. Ladd Bedford’s quick firing of questions, and deliberate jumping from
topic to topic, made it difficult for Grider to keep track of his answers. The questions were not complicated, but were asked in a manner that ensured only someone clear about the facts would be able to give consistent answers.
In this court, you are not considered a credible witness if you impeach your testimony three
times. Dave Grider impeached himself four times. On four different occasions throughout the
cross, he was asked a series of questions. Then he was asked to read portions of his deposition into the record, where he answered the same questions differently. During one of these readings, Buracrious objected. However, Judge Smith allowed the question noting it went towards impeachment.
However, these were not the only contradictions Grider made. Bedford examined several issues that Grider contradicted from the day before. What was surprising from this court watchers viewpoint, was that Grider did not seem bothered. The government’s lead attorney also didn’t seem bothered. Buracrious was more concerned with plaintiffs introducing documents they had referred to the day before, rather than the difficult waters her witness was treading.
What was also made clear was that significant details had changed since Grider had been
deposed years earlier that could not be explained by a memory lapse. Importantly, throughout the cross, Bedford showed Grider several letters from Wayne to the Forest Service that were responses to Grider’s show cause letters, trespass notices, cancellation and suspension notices.
Ladd would ask him if he had read the letter as each was presented. Grider would say he had.
The day before Grider had testified on many of the instances that he had not received any
response from Wayne.
In the first hour of cross, Bedford asked a series of questions on many of the different issues discussed the day prior. He began by getting on the record Grider’s understanding of why the National Forests were withdrawn, asking if he was aware they were withdrawn for timber harvest and economic purposes such as cattle grazing. Grider side stepped the question saying that was what the Organic Act did. Buracrious objected saying it was outside direct. But Judge Smith allowed the line saying it goes towards whether the assumptions of Mr. Grider were based on an incorrect path.
Bedford asked Grider about each of the specific meadows they fenced off on the Table Mountain and Meadow Canyon allotments. He asked if there were springs on these. Most of them Grider answered yes. He asked if cattle could get to these waters. Grider believed most of them flowed out of the fences so yes they could. In regards to the electric fences on Table Mountain he asked, if there was water on the meadows when they erected the fences. Grider said it was in May so there would have been water on these meadows. Bedford asked, “and were the fences constructed in a manner so that Elk could jump these but cattle could not.” Grider responded, “that is correct.”
He questioned Grider on how he decided to require Hage’s cattle off early in the 1990 grazing season on Meadow Canyon. Grider explained that the utilization studies made it clear utilization had been met so he sent the July 27th notice. But Bedford pointed out that the resource experts had not toured the allotment until August 1-3. Grider stated that he had reviewed the allotment himself earlier and made the determination. He described the Ocular Reconesense method they used. They would drop a tennis and golf ball in a hoop and if they saw the golf ball it was heavy utilization.
Bedford pressed him on what scientific standards they used with this method. Grider explained that it was an ocular estimation not a scientific methodology. Bedford asked how far away they were when they viewed the balls. Grider said you could be 100 yards away or next to it. There was no standard of where you would be standing. He further explained, utilizations are surveys, not scientific studies.
July 27th, Grider sent the letter to Hage to remove his cattle. Bedford noted that he also indicated he called the Hage’s but did not leave a message, then asked. “You were aware at the time that Hage’s didn’t have a phone where they were located on the ranch?” Grider said, “I believe so.” Bedford asked, “and that is how far from Tonopah.” Grider answered, “an excess of 60 miles.”
Bedford continued, “You are aware that the Hage’s don’t have mail service to the ranch?”
Grider stated, “I’m not aware.” Bedford questioned, “but you addressed the letter to a Post
Office box in Tonopah.” Griders only response was, “we can only correspond with the address given by permittees.
Later Ladd questioned Grider on the letter from Forest Supervisor, Jim Nelson, denying the stay Hage had requested on this action. Nelson’s letter was dated August 9th, a day before the cattle were to be removed. He asked how it was delivered. Grider said certified mail. Bedford asked if he knew when it had been received. He said he did not.
After moving on to several other topics, Bedford picked up this line of questioning again. He
said he understood that he made the decision to removed Hage’s livestock before the study was completed. Grider explained that the report is dated August 1, the summary was dated August 16th and that he didn’t need to wait for the summation of the report. Ladd said he didn’t understand, the letter was sent on July 27th and the studies spanned from August 1st through the 3rd. Grider said yes. Bedford continued, “So you had already made the decision in your mind to removed the Hage’s livetock from grazing before the studies were complete?” Grider answered, “That is correct.” Reading from the July 27th letter Bedford said, “because of the serious flagrant refusal to remove your cattle.” Grider agreed. It was now clear Grider made the decision not because utilization had been met, but for punitive reasons.
Then Bedford asked if he saw that Mrs. Hage signed the return receipt sent back to the Forest Service on August 20th. Grider said, “That is correct.” Grider had previously testified he did not know when the letter was received. He had maintained the day prior that Hage was non compliant and refusing to move his cattle. He said he hadn’t witnessed any efforts to move the cattle until around August 20th , even though they were to be removed by August 10th. Now it became clear he did have notice that the Hage’s were not informed until August 20th.
Then moving a month earlier to events that took place on Table Mountain, Bedford asks Grider how the notice that the Hage’s Table Mountain numbers were going to be reduced 20% was delivered. Grider said it was hand delivered, June 27th, three days before they were to move cattle to the mountain. Bedford also asked if the letter informed them they would be subjecting their allotment to cancellation if they didn’t stock the allotment. Grider said it did. Bedford asked, “Cancellation means gone forever.” Grider argued that cancellation doesn’t really mean that. Bedford said, “well, what does suspended mean?” Grider explained it is a temporary action. “And canceled is,” Bedford pressed. Grider admitted, “Cancelled is a permanent action.”
The day prior Grider had explained that they were never noticed that Hage was taking non-use for that season. Wayne testified that he had written them a letter stating this, and they told him later he did not fill out the proper form. In today’s line of cross, Bedford asked Grider if he was aware of the RO Ranch, a neighbor of the Hages. Grider said he was. “Do you recall informing the RO they could graze Hage’s Table Mountain allotment,” asked Bedford. “I didn’t inform them of it until Mr. Hage had taken non use,” Grider explained. Bedford asked, “Do you remember when Mr. Hage took non use?” Grider answered, “I don’t remember the date … in the spring of 1990 he took non use.”
The court took a short break before cross-examination of Grider continued. In this next hour,
Bedford successfully impeached the witness on four occasions. The first impeachment was over the number of cattle Grider testified were on the Meadow Canyon allotment after they were to be removed by August 10th of 1990. He testified that significant numbers remained. Bedford asked, “Isn’t it true that you observed less than 10 head of cattle on the allotment as of August 24th?” Grider said he didn’t believe that was a true statement. They had observed more than that being driven off and that 267 head were counted in the private meadows, which they had assumed came off the allotment. Bedford had him read from his deposition. “Question. And how many cattle were allowed. Answer. 340. Question. Do you remember how many head you observed on Aug 20th. Answer. I don’t recall it was less than 10.”
Turning back to the Table Mountain allotment, Bedford restated what he understood to be
Grider’s decisions on the cancellation and suspension of the allotment. “You were proposing to suspend 20% because the Hage’s didn’t put cattle the mountain.” Grider agreed. “And you were further proposing a 25% cancellation for two years because there were cattle on the mountain without being counted.” Grider said, “That is correct.” Bedford asked if these actions were not because of overgrazing on Table Mountain, but were punitive measures for not complying with conditions of the permit. Grider said yes, for not complying with terms and conditions of permit.
So Bedford asked, “Is it also correct that these are punitive measures.” Grider denied that they were punitive. So Bedford once again had him read from his deposition where Grider answered the same question saying they were punitive measures for not complying with the terms of the permit.
Buracrious objected saying it was argumentative. Judge Smith overruled the objection saying it was not argumentative as such. Counsel asked if they were punitive measures and the witness said no. So counsel showed in his deposition where he said yes. The Judge pointed out it was important impeachment evidence.
Bedford also showed the court that Grider was not as familiar with the allotments as he led the court to believe. He asked several questions about the video he narrated the day before on the boundary between the Meadow Canyon allotment and BLM Monitor Valley allotment. Grider’s narration focused on the barriers between the two, but mentioned only a few of the roads and trails unblocked through which cattle could drift. Bedford questioned him on each of these roads and trials. Some of these, Grider had to admit he was not aware of. He specifically asked about a mountain bike trial, which Grider first said he was not aware of.
Bedford asked, “So you have never seen the sign in Belmont that identifies a mountain bike trail?” Grider attempted to recover by saying yes he had but he believed it was blocked by a fence. Bedford pointed out over 14 roads and trails that you could drive vehicles or cattle through between the allotments.
Bedford impeached the witness two more times, and brought out many more statements that showed many of Grider’s characterizations the day prior were not accurate. In his last question before the court adjourned for lunch, Bedford asked about the more than suspect connection the Forest Service had with the National Wildlife Federation while making decisions that ran Hage out of Business. He handed him a letter and asked him to identify it. Grider said it was a letter from him to Roy Elicker of the National Wildlife Federation dated Feb 22 1991. “And it begins ‘Dear Roy’?” Grider said yes. “Was the purpose to inform him of the 38% cancellation and 5 year suspension of Hage’s Meadow Canyon permit?” Grider said yes and that he enclosed the decision. “Did you in fact enclose that decision?” Grider answered, “It says that I did.”
After Lunch Bedford questioned Grider on the actions he took prior to the impoundment July 27, 1991. Grider testified earlier that cattle were seen on the allotment that spring, and that outside of one instance, he did not see Hage attempt to keep the cattle off the allotment.
Bedford showed him two letters from Wayne sent that spring where Wayne reiterated the difficulty in keeping the cattle from crossing an imaginary boundary, informed him they were gathering the allotment on a daily basis to comply, and that they were selling the cattle since his decisions eliminated the use of their summer grazing allotments. Grider acknowledged that he had read these letters when received.
Bedford questioned him on the intent and preparation of an “Informational Memorandum for
Initial Media Briefing,” which was signed by Grider. He asked, “Did you prepare it?” Grider
said he did not. “But it is signed by you.” Grider explained that it was prepared by someone else and he provided them with information. Bedford read portions of the media release where Grider was quoted as saying this action was being taken because of the continued presence of cattle and that he was not aware of any efforts to remove the cattle. He asked, “Isn’t it correct that you were aware of the efforts of the Hage’s to gather cattle off the allotment in July of 1991.” Grider answered, “I am aware of some gathers, yes.”
Bedford turned to how the Hage’s were noticed after the impoundment. He handed Grider the notice that they posted in the Court House, Post Office and local paper. It was a “Notice of Sale of Impounded Livestock” dated August 1, 1991. The letter from Grider to the Hage’s informing them they had impounded their cattle, giving them five days to pay the impoundment costs and expense of the cattle, was dated August 3, 1991. In several quick firing questions the discussion went like this:
Bedford: “How was it hand delivered?”
Grider: “Delivered in person.”
Bedford: “By whom to whom?”
Grider: “Dave Young and I to Mr. Hage.”
Grider: “At his Pine Creek Ranch.”
Bedford: “So the two of you went to Pine Creek Ranch from Tonopah?
Bedford: “Dave Young was a law enforcement officer for the Forest Service?”
Grider: “Yes, he was in full uniform.”
Bedford: “Did you charge Mr. Young’s time to Mr. Hage?”
Grider: “I don’t recall.”
Bedford: “Do you know what you did?”
Grider: “I don’t recall.”
Bedford: “Did you inform Mr. Hage the amount of the impoundment cost in this letter?”
Grider: “I don’t see that here.”
Bedford: “Did you inform him of how much his cattle would cost?”
Grider: “No I did not.”
Bedford: “Why did you hand deliver this notice to Pine Creek Ranch?”
Grider: “So he could be notified as soon as possible.”
Bedford: “You know he didn’t have phone service?”
Grider: “I believe that is correct.”
Bedford: “Did you know he doesn’t get mail there?”
Grider: “We sent it certified mail, but also hand delivered the notice.”
At this point Bedford asked that the document be admitted into evidence. Buracrious noted for the court that it was the same document that they referred to the day before, however, their document had some handwriting on it. Bedford said that he was going to skip over that part but since counsel brought it up, he asked Grider a few more questions about the writing.
Bedford: “Who’s handwriting is on this?”
Grider: “Not mine, I believe it is Dave Young.”
Bedford: “Does it say notice left at the Desert Queen address?” (this is the home the Hage’s had in Tonopah.)
Bedford: “Was this notice actually handed to the Hage’s?”
Grider: “This would indicate it was not.”
Bedford: “It also says phone messages left by Dave Grider at their home in Tonopah correct?”
Grider: “I believe so, there was no phone at the ranch.”
Bedford continued questions on how the impoundment was conducted. He asked, “Isn’t it correct that you had no indication there would be a conflict?” Grider answered, “I had no indication there would be a conflict.” Bedford continued, “Isn’t it true Mr. Hage had not threatened you at any time?” Grider agreed saying, “That’s true.” Bedford asked, “Isn’t it true that during the impoundment no one working with the Forest Service was threatened by anyone employed by Hage, at any time?” Grider said. “That’s true.” Later Bedford asked if anyone with the Hage’s had threatened the Forest Service after the first impoundment. Grider said they had never been threatened.
Bedford then spent time questioning Grider on the impoundment financial records. He walked him through a series of questions, which made it clear the charges appeared excessive, and that Grider couldn’t explain what all of these were for. Earlier he had asked whom the auctioneer was when the cattle were sold. Grider said he was. Looking at the financial reports, he pointed to a cost of $1098, which was the auctioneer expense. He asked what this was for. Grider said he didn’t know.
Bedford’s last line of questioning was a follow up to Grider’s testimony that the Forest Service had not interfered with Hage’s ability to maintain his ditches. Grider’s claim shocked many in the courtroom wondering how he would explain the felony charges the Forest Service filed against Wayne for cutting trees on his ditch rights of way. Bedford handed him a letter dated July 8, 1991 from the Forest Service to Hage. It was signed by Wiaive Steger for David Grider.
Bedford asked, “This is a letter concerning the cutting of his pinion and juniper trees?” Grider said it was. Beford asked, “Is it correct you authorized this letter?” Grider explained that he was on annual leave that week, and didn’t see the letter until he returned. So Bedford asked, “Did you approve of the contents of this letter once you returned and read it?” Grider said, “Yes.”
With this Bedford finished his cross-examination and the governments star witness didn’t shine quite as bright as he did when the day began. In what might have been the government attorney’s smartest move to date, they decided not to ask any questions on re-direct.
However, the Judge had some questions for the witness. He asked what would happen in
Meadow Canyon if grazing continued. Grider said it would continue to deteriorate. The Judge
asked what are the bad consequences to this. Grider gave a long explanation of how livestock compacts the soil causing less water penetration creating a man made drought. The area then becomes invaded by sagebrush and other species. The Judge asked if these are edible species.
Grider explained that some of these would be noxious weeds and you might also get edible
species that cattle will graze. Again the Judge asked what makes this bad and Grider explained that the native species are more adaptive and hold the soil better together to withstand erosion.
Bedford asked one more follow up question. He said that Grider testified that they were trying to improve the economic conditions of these pastures and asked what economic conditions would there be other than livestock grazing. Grider said the only economic condition on this allotment was livestock grazing.
The government then moved on to the next witness, Kurt Johnson who conducted resource
studies on the Meadow Canyon allotment beginning in the fall of 1990. His testimony will be
added to Day 9’s report.
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