Budd-Falen: Provocateur or protector?

The prospect of Karen Budd-Falen’s appointment to lead the Bureau of Land Management elicits strong reactions across the political spectrum.

Conservationists and environmentalists fear that Budd-Falen — a Wyoming attorney who has spoken with Secretary of the Interior Ryan Zinke about the position — would bring a long career of anti-regulatory antagonism to the agency headquarters. They see her as the next in a long line of Trump appointees, such as Scott Pruitt at the Environmental Protection Agency, Rick Perry at the Department of Energy, and Mick Mulvaney at the Consumer Protection Bureau, selected to undermine their charges. Many go so far as to accuse her of inciting violence against federal employees and of supporting armed insurrection — charges she rejects.

The ranching community, rural western politicians and multiple-use advocates meanwhile view Budd-Falen as a fearless legal champion who’s spent a career fighting for the common man, struggling under the heel of a distant and oppressive federal government.

A third view holds that Budd-Falen, who specializes in western land-use conflicts, zealously represents her clients but is tarred with too broad a brush. Popular perceptions of her professional work are, some believe, too readily interpreted as her personal views.

Which perspective is accurate? Budd-Falen did not respond to repeated requests for an interview. To learn more, WyoFile has examined her record, interviewed clients, legal opponents and compatriots. What emerges is a picture of a dedicated multiple-use advocate wrought from pioneer stock, steeped in a western ranching ethic and committed to giving a strong voice to neighbors of the federal government and others who make their livelihoods on property owned by all Americans. If nominated and confirmed, she would oversee 17.5 million acres of BLM land in Wyoming and more than 40 million acres of minerals estates here.

“Karen is certainly somebody who’s been an advocate for those people who are most vulnerable,” said Freddie Botur, who hired Budd-Falen in a 2002 conflict with the BLM over his family’s Cottonwood Ranch grazing permit in Sublette County. “She is a real advocate for a lot of ranchers who don’t have the resources,” he said. Without her expertise, those ranchers “might just succumb to [federal] harassment that might be unwarranted and unneeded.”

Among conservationists, Budd-Falen is an agitator, instigator, and prosecuting provocateur. “When you side with armed militia groups and support anti-public land zealots, you are not qualified [to lead the BLM] nor should you be confirmed to take on such an important responsibility,” said  Chris Saeger, executive director of Western Values Project. He called her “wildly irresponsible” to argue “that individual government employees could be personally liable for decisions they make when they follow the law.”

Is anybody listening to what Budd-Falen actually says, or do they interpret her words the way they want to hear them? Is she “the Bundy family lawyer” — as liberals paint her — just because those armed insurrectionists were some of dozens of ranchers she represented briefly in the 1990s, long before they took up arms? Does she speak in “dog whistle,” parsing her language but designing it to stimulate hostility?

A 1987 classmate of hers from the University of Wyoming College of Law sought to separate perception from reality in comments to WyoFile.

“Karen [Budd-Falen] is an attorney, a hired gun for her clients,” George Monsson wrote from Fort Morgan, Colorado. “If a client, no matter how crazy or distasteful, pays the retainer and the hourly rate the attorney represents the client’s position to the best of his or her ability. Judging an attorney’s qualifications for an administrative post based on the attorney’s past clients is like saying a criminal defense attorney or a prosecutor is unqualified to be a judge because they would favor the position of their former clients.”

Five generations from Big Piney

Budd-Falen grew up as part of a fifth-generation ranch family in Big Piney, population 516. Her roots are as deep as that of a sagebrush and her family has a history in state government and other positions of provincial power. She knows about water law and natural resource regulation and has had a long history with the BLM. That includes ranch water rights, family grazing leases, lawsuits against federal agencies and environmental groups, representation of federal law-breakers and three years work in the Reagan Administration’s Department of the Interior.

Her grandparents, Dan H. Budd and Ada Sharp Budd, had four sons. The eldest was Dan Sellon Budd, Karen’s father, born in Kemmerer in 1927. Sublette County property records show that Budd and Sons Land Company and Dan H. Budd and Sons own at least 7,390 acres of ranch land just west of Big Piney today.

Some might describe the operation as one that has some 7,000 acres of private land, plus permits to graze seasonally on public U.S. Forest Service and BLM property. But the Property Rights Foundation of America describes the Budd family operation as one that “includes both BLM and Forest Service managed lands.”

In the first instance, the ranch exists separate from federal property. In the second description, the public lands are seen as part of the family holdings, a view increasingly exercised in sagebrush country as stockmen and -women claim grazing permits as a property right.

Although Karen Budd-Falen’s father heralded from an obscure corner of an arid state, 17-year-old ranch hand Dan Sellon Budd wouldn’t be landlocked. He joined the Navy at that age in 1944 and served in the South Pacific. In 1950, after brother Malcolm’s death in Korea, he re-enlisted and served there. In 1956, he married Barbara Chapman and they raised three daughters in Big Piney, Karen Budd-Falen, Janet Beiermann and Martha Braaten.

Budd-Falen’s father had more to share than war stories. He was steeped in work with local natural resource conservation services and keenly interested in irrigation, water storage, and water rights. Sublette voters elected him to the Wyoming House where he served from 1981 to 1992. He was an expert on the Colorado River Compact and the control of salty irrigation runoff, an obscure but critical aspect of Western water law. He wanted to dam the Green River at one of its most scenic and popular recreation spots near the Warren Bridge.

A cousin of Budd-Falen, Bob Budd, has also held significant statewide positions. He led the Wyoming Stockgrowers Association for a decade, and managed the Red Canyon Ranch for the Nature Conservancy, a job that upset Budd-Falen’s father, High Country News reported at the time. He now heads the Wyoming Wildlife Natural Resource Trust and Gov. Matt Mead’s Sage Grouse Implementation Team.

So Budd-Falen had the opportunity to see beyond her childhood landscape among big Wyoming sagebrush on the banks of Middle Piney Creek at the foot of the Wyoming Range, a couple of dozen miles from the headwaters of the Green-Colorado River complex. One can imagine that every acre-foot of water diverted to Budd and Sons property and every cubic-foot-second of flow measured in a ditch, etched a lesson. She attended the University of Wyoming and University of Wyoming College of Law, graduating with a law degree in 1987. She is married and has two children.

Early client in New Mexico puts feds on notice

It didn’t take long for Budd-Falen to find clients with similar backgrounds. In 1992, Budd-Falen was one of two consultants who helped write a comprehensive land plan for Catron County, New Mexico. The resulting document set a number of precedents. The exercise focused on a subparagraph deep in the Federal Land Policy Management Act in which Congress required agencies to have meaningful public involvement with local, state and tribal governments — especially those with established land-use plans. The Catron County Comprehensive Land Plan that emerged demonized federal authority, challenged the federal-state hierarchy and characterized local/federal disputes as liberty and human-rights issues. Catron’s plan became a template and Budd-Falen has promoted such plans as essential to rural western counties, enabling them to negotiate on an equal footing with their federal landlords.

Catron is the largest county in the third least populous state  — 2,585 residents in 1992. Many of those inhabitants were ranchers and others who were surrounded by and made their livings on federal property, and they were fearful of increasing regulation and control. They focused on the subparagraph in FLPMA that says any federal land actions or plans, “shall be consistent with State and local plans to the maximum extent … consistent with Federal law.”

Although the critical subparagraph is conditioned with an opening sentence that says coordination can only occur “to the extent consistent with the laws governing the administration of the public lands,” some sagebrush rebels interpret the text to mean local governments are on par with federal agencies, and that residents can impose their land-use values on property owned by all Americans.

Catron county commissioners sought “to describe and protect our custom, culture and economy,” according to the plan. The resulting land-use plan has become both famous and infamous. Among its 360 pages The Catron County Comprehensive Land Plan states:

“Federal and state agents threaten the life, liberty, and happiness of the people of Catron County. They present a clear and present danger to the land and livelihood of every man, woman, and child. A state of emergency prevails that calls for devotion and sacrifice. It asks that the citizens of Catron County unite themselves and, through their elected government, assert their fundamental rights to human dignity and self-government.”

The plan also would appear to upend federal-state hierarchy, saying at one point “the County requires that each Public Land Management agency must…” before listing demands on the federal government. It also calls for using the Civil Rights Act to protect residents, identifying and prosecuting violators “including but not limited to any employee of the federal, state or county government.”

Budd-Falen has encouraged counties and other local governments to adopt land-use plans as a way of asserting their influence on adjacent federal property. She suggests residents can outweigh outsiders, if they prepare the right tools. The Feds, she writes, must use the best data and information available. “The best available information about the local effects of a federal decision on the local custom, culture, economy and environment should come from the local government itself,” she wrote.

The conservative American Legislative Exchange Council also touts the exercise of local power, offering a sample ordinance for governments. “Any local government — from a city or county to a school or water district, and any NGO — may invoke Coordination,” ALEC says on its website, “thus forcing the federal government to meet with them on an equal basis to reach consistency in their plans.”

Budd-Falen’s home, Sublette County, adopted a resolution in 2009 to support its land-use plan, a resolution that declares its policy “will permit and allow Sublette County to enter into land use planning with federal and state agencies on a co-equal basis.”

Some westerners want to hear Budd-Falen’s message

Today,  many rural westerners still want to use Budd-Falen’s expertise and hear her message. She is in demand as an expert in local-authority matters around the West, is acclaimed in some rural communities and has seen her views adopted, championed and even expanded upon.

County commissioners in Crook County, Oregon adopted a contentious land-use plan in October after Budd-Falen advised them. But some residents worried public lands would be abused or taken over by multiple-use advocates at the expense of environmental values. So a spokesman for the Ochoco National Forest, which makes up much of the county, sought to put the land-use plan in perspective, according to The Oregonian.

Ochoco National Forest spokesman Patrick Lair said his agency would examine how the county used its new policy, but that residents would not be the only ones to provide input on how public lands would be managed. “As a federal agency, we have obligations to take input from all citizens and stakeholders, not just those who live closest,” the newspaper quoted him saying.

In Montana, Ravalli County recently asked Budd-Falen to address commissioners about a potential land-use plan. The request stirred so much controversy they rescinded the invitation. Subsequently, a state representative invited her to a public forum in Hamilton, Montana, at which more than 100 protesters “and as many supporters,” showed up, the Missoulian reported.

There, Budd-Falen addressed her potential new job as if she had already been nominated for it. “If I am confirmed, I am going to advocate for local government involvement like I’ve been talking about here,” Budd-Falen said. She would not tell local governments to violate federal law, she said.

At the same forum, she questioned whether national monuments in Utah were created legally, referring to language in the Antiquities Act that calls for designating the minimum area necessary to protect a resource. The act was first used in her home state to create Devil’s Tower National Monument, aka Bear’s Den.

President Franklin Delano Roosevelt used the Antiquities Act in Wyoming in 1943 to successfully preserve the scenery of Grand Teton National Park by creating the adjacent Grand Teton National Monument. Undermining populist sagebrush rebel ideology, courts have upheld the concept, including at Grand Canyon National Park, that scenery is a resource that could be protected by the act.

But in 1950, when Congress incorporated Grand Teton National Monument into the existing national park, Roosevelt’s executive action still irritated Wyoming and cost the conservation community. A clause in the park expansion legislation prohibited future presidents from using the Antiquities Act in Wyoming again.

In a recent interview with the Associated Press, Budd-Falen said she has no opinion on the transfer of federal lands to states or private parties, a belief she’s been accused of holding. “People just assumed that [I am pro-transfer],” she said.

She was plain to the Associated Press about her understanding of local government’s opinions in federal land decisions. “It’s not veto power,” the press agency reported her saying. “The local government can’t mandate that you cut a tree here or you graze cows there. You can’t do that.”

In another insight to her views, Budd-Falen complained to a congressional panel in 2015 of federal agency “mission creep,” and executive action made without adequate public participation. She made her testimony — “Regulatory burdens placed on the livestock industry” that spanned 54 pages including supporting documents — to the Committee on Oversight and Government Reform at a field hearing in Evanston (see document below.)

Perhaps most public criticism is linked to her ties to Cliven Bundy’s family, now on trial for an armed standoff that prevented the BLM from rounding up cattle grazing illegally on public land near Bunkerville, Nevada. In the 1990s she represented the family and others just after the desert tortoise was protected as an endangered species. In a cascading series of trade-offs, developers in Las Vegas were permitted to occupy more tortoise habitat in exchange for grazing reductions and conservation elsewhere. Budd-Falen aided the aggrieved ranchers, but the relief was temporary. After her work, the now-infamous ranching family stopped paying grazing fees but kept their stock grazing on public land.

Ammon Bundy, Cliven’s son, and supporters also were key agitators in the armed occupation of the Malheur National Wildlife Refuge in Oregon, a standoff that lasted 41 days in 2016. It ended with the shooting death of Robert “LaVoy” Finicum, a spokesman for the occupiers, by the FBI. The agency said he appeared to be reaching into his jacket, statements supported by video. At the occupiers’ trial, a jury acquitted leaders of conspiracy charges, an outcome that maps the chasm dividing western opinions and beliefs.

Boosting insurgent threats in the West?

Do Karen Budd-Falen’s cases and advocacy boost insurgent threats against the federal government in the West? Detractors believe she uses aggressive litigation tactics, often designed to intimidate and to raise the stakes.

“Budd-Falen sympathizes with the Bundy family and other anti-public lands extremists; she also wrote their playbook,” wrote Greg Zimmerman in a blog for Westwise, a forum for the watchdog group Center for the West. “Budd-Falen made her career undermining BLM employees, even authoring policy and filing lawsuits to jail public lands employees,” he wrote in a piece titled “Three reasons Karen Budd-Falen is unfit to lead the Bureau of Land Management.”

Western Values Project director Saeger called her “too extreme to be trusted with our national heritage.” The Montana environmental columnist Todd Wilkinson in 2010 charged her with misrepresenting monetary awards when she challenged the practice of paying attorneys’ fees to successful environmental litigants. Budd-Falen has criticized the practice and been hailed by ranchers for her position.

“The only problem — and it’s a huge one,” Wilkinson wrote, “is that her version of the truth doesn’t hold up.” An attorney who has faced her in court agreed. “I think she’s overstated any abuse of that system,” said Tim Preso, managing attorney for the Northern Rockies Office of Earthjustice in Bozeman, Montana.

Her criticism of environmental litigants obtaining funds through the Equal Access to Justice Act hasn’t stopped Budd-Falen from seeking court judgments for her own fees. In an ongoing fight over protections for the Mexican wolf in New Mexico and Arizona, Budd-Falen asks the court to award her clients “their reasonable fees, costs, and expenses (including attorney’s fees) incurred as a result of this litigation.”

Perhaps the best recent example of Budd-Falen’s offensive-minded litigation approach is found in the 2014 Wyoming trespass case, Frank Ranches et al vs. Ratner et al. Budd-Falen filed a civil suit on behalf of the ranchers that alleged Jonathan Ratner, an employee of Western Watersheds Project, trespassed while collecting water quality data on federal land. Western Watersheds has stated it seeks to end stock grazing on public land, and it sought to enforce clean water rules by presenting evidence of pollution to state regulators. Ratner contended he traveled on well-used public roads, but in a settlement admitted to trespassing where no publicly filed easement existed.

Budd-Falen escalated the matter by requesting potentially crippling punitive damages. District Judge Norman Young said he could not assess punitive damages against Western Watersheds, which the group saw as a victory. Western Watersheds also asked Young to throw out the bulk of the allegations against it on the grounds that the ranchers’ filing amounted to an abuse of power. The environmental group contended much of Budd-Falen’s court action constituted what’s known as a SLAPP lawsuit, a Strategic Lawsuit Against Public Participation. That claim was beyond his purview, the judge said, a matter that would have been decided by a jury had a trial ensued.

Budd-Falen raised a personal conflict-of-interest issue at a meeting of the Wyoming Water Development Commission in the fall of 2014. She is a member of that commission, but also represented a group of ranchers in a lawsuit against an irrigation district that was in front of the commission seeking financial support. “First I would like to note for the commission I am going to recuse myself from voting on this project,” she said, declaring her conflict, as required by Wyoming law.

She then went on to question whether the state should be granting money to a district embroiled in a lawsuit.

The essence of that case might invigorate transparency advocates, however. Budd-Falen used a good-government law — the Wyoming Public Records Act — to argue that her clients were entitled to meeting minutes from their Midvale Irrigation District. The parties settled the issue without a trial.

Budd-Falen has also participated in a racketeering case filed against public officials. The case involved Thermopolis-area rancher Harvey Frank Robbins who fought the BLM and, through Budd-Falen, accused federal employees of harassment. An appeals court sided with Robbins’ and Budd-Falen’s arguments, but the Supreme Court of the United States disagreed, according to reporting by the Los Angeles Times.

The ruling that the Supreme Court overturned “had government officials fearing that if the high court permitted the case to proceed, it would spawn a bevy of litigation against federal employees merely trying to do their jobs,” the newspaper wrote in 2007.

BLM problems? Who you gonna call?

Many of those who have worked close to or with Budd-Falen agree she’s competent, professional, above board and good at what she does.

“It was a logical choice to work with Karen,” said Botur, the Sublette rancher who said he ran into problems with the BLM first in 2002. According to his version of the conflict, he was literally a poster child for the agency when he began a new grazing program that allowed “more flexible management.” But then he publicly criticized a manager and the agency “came after my paperwork.”

“All of a sudden, I had 10 BLM trucks up the road watching every move I made, counting cattle with planes,” he said. “They came after me with trespass fines. That’s when I knew I had to call Karen.”

Ultimately, Botur admitted his permits were inadequate. “I wasn’t adhering to the terms of my permit,” but acting on “verbal” assurances, he said. “My permit did not describe those terms.”

“I ended up paying over $40,000 in fines and probably close to that in lawyers’ fees,” he said. “Karen is very professional, very straightforward. She’s obviously got a history with the BLM and understands the nature of the agency on a ground level.”

A BLM spokeswoman said today the agency has mended fences with the Cottonwood Ranch and that it does not support or condone harassment of permittees or others. “The BLM strives to be a good neighbor and supports traditional uses on public lands such as grazing,” a statement issued by Kristen Lenhardt said. “More often than not, the BLM and the ranching community have the same goal, which is to ensure rangelands are healthy for livestock use not only now, but for years to come. Our agency and permittees’ ability to work together is vital to meeting this goal and we are pleased with the productive relationship we have built with Mr. Botur in recent years.”

A courtroom opponent of Budd-Falen also said she’s been professional in the ongoing Mexican wolf case being heard in Tucson, Arizona. “She’s certainly a zealous advocate for her clients, an aggressive champion for the folks down there who are unhappy with protection being applied to the Mexican wolf population,” said Preso of Earthjustice. The nonprofit says it is the largest environmental legal foundation in the country.

In the courtroom, the two found common ground on how the case should be managed. “She and I actually agreed on most everything,” Preso said. “She is not at all a person difficult to work with.

“Just because she’s been an attorney zealously advocating for her clients, does that reflect on what her policies might be?” he asked. Her professionalism doesn’t make Budd-Falen a benign or neutral figure, he said.

“On the substance of most issues, I think we disagree,” Preso said. “We’re probably 180-degree opposites. We wouldn’t have Thanksgiving together — there would be a lot of subjects to avoid. It’s my hope and goal to overcome her position,” in court.

“In general,” Preso said, “I would not like to see her politics become the policy of any government agency that manages wildlife and public lands.” Budd-Falen would be “advancing the interests of private commercial interests to use the public lands and often has opposed efforts to provide protection for wildlife and water quality.”

From our perspective,” he said. “that’s a pretty short-sighted view.”

For Wyoming ranchers, having Budd-Falen at the head of the BLM would be a boon, said Jim Magagna, executive vice president of the Wyoming Stockgrowers Association. “We would be very supportive of her appointment,” he said. “I’ve worked with Karen in her legal capacity and as a member of this, that and the-other. She’s very astute as a lawyer.

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“She understands the profession and practices it in a very respectable, firm, committed manner,” he said. Outside the office, “she dedicated a lot of her time to youth-type activities, things that are somewhat related to our western ranching culture.”

Budd-Falen is “very multiple-use oriented, not favorable … to set aside parcels of land with protected designations,” he said. Like others, Magagna separates Budd-Falen’s clients’ cases from her personal views; “How you behave as a lawyer or in an appointed position are very different.”

Magagna understands rough-and tumble politics, too. “If she is nominated, it’s going to be a contentious nomination, there’s no question about that.”

Budd-Falen’s 2015 testimony on regulatory burdens