Delegate's ranch lease discharged
Wagner allegedly owed over $10,000

By Kathy Helms
Diné Bureau

WINDOW ROCK — Navajo Nation Resources Committee Vice Chairperson LaVern Wagner has been discharged from a tribal ranch lease for which she allegedly owed more than $10,000, in exchange for a new ranch and a credit toward her next lease fee of $1,200.

The tribal ranch lease was signed March 24 by Navajo Nation President Joe Shirley Jr., Wagner and Annie S. Yazzie of Crownpoint, co-leasee. Sources say it did not go through the SAS review process, as is procedure in accordance with Shirley's own Executive Order.

Four days after Shirley signed off on the lease, on March 28, Wagner, Yazzie, Department of Agriculture's John Blueyes, Resources Executive Director Arvin Trujillo, and Resources Chairperson George Arthur signed an "Accord and Satisfaction Agreement" through which Wagner agreed to release all claims of liability against the Navajo Nation, including allegations of discrimination.

Wagner's lease for Chaco Canyon Ranch Unit No. 7 was approved Jan. 7, 2003, and executed that March, arranging an annual rental fee of $3,360 for 10 years for the 7,726-acre Chaco Canyon unit.

Last week's accord states that records from Navajo Department of Agriculture and Accounts Receivable show Wagner paid $2,048 for 2003 grazing fees as of Feb. 13, 2003.

The Department of Agriculture also produced three invoices requesting payment for grazing fees and interest penalty through Jan. 5, 2006, amounting to $10,483.20.

The reduced fee indicates a 40 percent discount was given to Wagner due to drought conditions. "However, Ms. Wagner quit the lease on May 4, 2003. Thus Ms. Wagner claims that the Navajo Nation owes her $1,344 as a refund of advance rent paid," the accord states.

On March 29, 2004, the Division of Natural resources "agreed to toll the running of further damages and charges on that date." The agreement was reached with attorney Forrest Buffington of Rosenfelt and Buffington.

"All charges after this date are waived by the Navajo Nation. Thus, there is no question of back-rent; rather, the Nation owes Ms. Wagner $1,344 in rental fees," the agreement states. Wagner requested the overpayment of rent be credited to her account for the 5,635-acre Elkins 6 Ranch replacement lease.

No water, no forage
The decision of waiver was based on testimony, the lease agreement, and photographs produced by Buffington which showed a brand new windmill and renovated tank, but no water, and poor range conditions.

When Wagner submitted her ranch lease application and Range Unit Management Plan, she stated that she owned three cows, two calves and one horse and that it was her long-term goal to raise a herd of quality cattle.

Her grazing fee invoice stated that she was authorized to graze 42 head under drought conditions, with a normal capacity of 70 head. She is permitted to have 50 cattle and two horses on Elkins Ranch.

Wagner said she removed the cattle from the Chaco Canyon unit after receiving a letter from the Department of Agriculture and was informed by a third party that Fritz Roanhorse, tribal ranch manager, "was bothering her cattle without notice," the accord states. Wagner said she became intimidated by this.

A May 2, 2003, letter from Roanhorse to Wagner asked for an explanation of cows not owned by her but grazing her pasture. Wagner said she was purchasing livestock from Robert Johnson. She claimed that she removed the cows by May 4 and quit the lease.

She said the letter from Roanhorse made her feel that her lease was being terminated, which forced her to take the actions she did. Wagner also said the treatment she received from NNDA was discrimination against her because she was a woman rancher.

Wagner alleged that NNDA wanted her to fail, since she wasn't given the favorable treatment male ranchers receive from the department. Upon review of the letter from Roanhorse, the agreement states he did not say the lease would be terminated; rather, he said it may be a serious violation, which could end in termination.

In Wagner's May 23, 2003, letter to the NNDA, she lodged several complaints, including insufficient water and forage to maintain a herd of cattle. She also responded to allegations of pasturing Johnson's cattle, which if true, would have been a breach of her lease.

Wagner said her Range Unit Management Plan disclosed to NNDA that she was building a cattle herd during the first five years of the lease and that NNDA knew she was buying Johnson's cows and that it approved of this operation by acceptance of the plan and by passage of time during which no objections were made.

Discrimination alleged
She alleged four defenses and a counterclaim to allegations of breach of contract, including "frustration of purpose," which means it was economically unfeasible to continue performance of the agreement because she would incur financial loss or receive no benefit by continuing under the terms of the contract.

She also alleged a breach of warranties claim, alleging there was not enough water and feed as promised by the Nation. The agreement states that it is "highly unlikely she would prevail under this claim since she knew of the condition of the range before signing the agreement."

Wagner said she was prevented from succeeding at ranching because Roanhorse did not allow her to complete the purchase of cattle from Johnson. She alleged Roanhorse did this "because he and the Department of Agriculture wanted her to fail because she was a woman."

The accord states that "without more than the bare allegation, it would be impossible to prevail upon this claim. However, given sufficient evidence, this claim would be highly detrimental to the best interests of the Navajo Nation and the Division of Natural Resources."

Wagner contends Roanhorse should have known she was purchasing livestock to build a herd during the first five years because it said so in her Range Unit Management Plan. Instead, Roanhorse advised her she might be in breach of the lease and demanded an explanation for the presence of Johnson's cattle.

Roanhorse warned her that subleasing grazing pasture could subject her to termination of the lease. Wagner said this made performance impossible because without cattle she could not pay rent, nor raise a cattle herd.

The accord says that Roanhorse did not tell her the lease would terminate and states that it is unlikely she would prevail in that complaint against the Nation.

Breach of contract
Wagner "appears to claim" that Roanhorse and the Department of Agriculture should be stopped from claiming breach of contract based on statements made in her range management plan and the passage of time during which the Nation did not raise an objection to her acquiring Johnson's cattle by installment purchase agreement after notice was given.

The accord states Wagner could claim that once the cattle were moved that she had to breach the cattle purchase agreement with Johnson without a means to pay it. "She could further aver that this forced her to sell her livestock, and with it, the basis of her future herd."

Wagner's attorney argued that Roanhorse's action made it impossible to perform the contract, that the actions of Roanhorse and Blueyes caused insecurity in the agreement because there were no longer assurance she would have a pasture in which to raise cattle.

After she wrote the letters in May and June, she received no assurances from the Nation and as such, "she no longer had to perform her obligations under the agreement," the accord states. On the other hand, it also states that Wagner knew of the conditions of the range and water supply and accepted the premises six months prior to receiving the 10-year lease.

"Ms. Wagner knew of her rental obligations and the prohibition against pasturing Mr. Johnson's cattle. But, it does not appear that there is a question regarding the purchase of the livestock, and that she owned them, subject to a lien," the summary of pleading states.

Though she received no assurances from the Nation, "she knew or should have known that this was going to happen with little forage and water. Hence, she should be held to the bad bargain she made," the summary states.

It also says that based on evidence in the matter, it appears to be a case of "mutual mistake." NNDA installed a new windmill and rehabilitated an adjoining water tank, which would seem unreasonable actions if it knew its well was dry. NNDA thought the grazing capacity would sustain the herd Wagner wanted to build and Wagner thought there was sufficient food and water for the herd.

"It turned out that Ms. Wagner's ranch could not sustain 30 head of cattle, yet she paid for 42 head. Thus, NNDA and Ms. Wagner were mistaken about the essential nature of the agreement, so there was no meeting of the minds in this matter. As such, the contract is void," the accord states, with each party released from performance and liability for failing to perform.

However, as a matter of policy, "it is possible for the Executive Offices of the Division and the Resources Committee to grant a lease of the Elkins Ranch premises, or any part thereof, to Ms. Wagner as a matter (of) equity and justice."

The agreement said the Department of Agriculture agreed to grant Wagner a lease for a different pasture. "It appears this action was motivated by allegations of discrimination against women who want to be Ranchers."