The Snake River and the surrounding area is fast becoming one of the state's most expensive outdoor playgrounds, with an exclusive trout stream and a golf course that charges $500 to play two rounds and spend the night in a course lodge.
It's beautiful country.
Now this land south of Valentine is the backdrop for one of the uglier ad wars being waged in the U.S. Senate race between Republican Deb Fischer and Democrat Bob Kerrey.
At center stage is a 1995 lawsuit filed by Fischer and her husband, Bruce, against an elderly couple who owned the Snake River Falls Ranch.
Kerrey has accused the Fischers of an attempted “land grab” in their failed lawsuit against Les and Betty Kime — and has wielded it like a weapon to attack Deb Fischer's character.
Fischer and her allies have countered that the lawsuit was nothing more than a common border dispute between ranching neighbors. And, they say, Kerrey's eagerness to focus on the 17-year-old civil case is evidence that he'd rather sling mud than talk about actual issues facing voters.
One thing is for sure: The 104 acres of land at the heart of this dispute is anything but common.
Today it would be worth between $500,000 and $1 million, based on recent land sales in the area.
“I think you could put any price on it and you'd eventually get it,” says Jon Davenport, an area landowner and Fischer friend. “It's absolutely gorgeous, and the trout fishing is a bonus. It's just beautiful, perfect land.”
What follows is a series of questions and answers that detail the run-up to, conclusion and aftermath of Bruce and Debra Fischer vs. Leslie and Elizabeth Kime.
Q: How did the Fischers come to own land next to the Kimes?
A: The Fischers first purchased land next to the Kimes' ranch in 1971.
They acquired more of the land from the federal government in a 1986 land exchange.
The Fischers owned 160 acres inside neighboring McKelvie National Forest, which they swapped for a similar amount of land on the edge of the forest near the Snake River.
Federal land exchanges are not unusual. Each year, the federal government enters into about 200 such swaps. The rules require that the two pieces of land being swapped be of “equal value,” said Cindy Hockelberg, a land forester for the U.S. Forest Service.
What is unique in this exchange is that — in retrospect at least — the Fischers got an amazing deal.
The land in the region began to climb in value in the years and decades that followed the federal land swap as recreation rose in importance in the area fueled, in large part, by neighboring Merritt Reservoir and the idea that hunters and fishermen would pay for access to the land.
Q: What led up to the Fischers suing the Kimes?
A: A 1930s-era fence that divided the Fischer and Kime land was not located on the property line because of the hilly, river terrain.
About 104 acres of the Kimes' land was on the Fischers' side of the fence. The Fischers grazed that land, and the Kimes never objected.
In 1986, Bruce Fischer and his late father, Bill Fischer, approached the Kimes about a land swap. They wanted to swap sections of land, so a fence could be more easily erected along the legal boundary line.
As part of the deal, the Fischers would acquire riverfront property, in exchange for what generally was non-riverfront property. The Kimes refused.
In the early 1990s, Deb and Bruce Fischer met with the Kimes again and requested a similar land trade, making similar arguments about the fence.
Once again, the Kimes rejected it.
In January 1995, the Fischers sent a letter to the Kimes — signed by Bruce Fischer — in which another similar land swap was suggested. The letter argued a swap would clear up fence issues and future problems for Fischers' and Kimes' heirs.
The Kimes rejected it again. “We do not wish to sell or trade any land through which the river flows.”
Bruce Fischer then called the Kimes and offered to buy the land for $100,000. Again, it was rejected.
In November, the Fischers sued.
Q: What did the Fischers plan to do with those 104 acres?
A: Accounts of that vary among the Fischers and their neighbors.
Davenport, the fishing guide and area landowner, said last week that in the mid-1990s he made a handshake agreement to buy hundreds of acres of valuable Snake River land — including the 104 acres of contested ground — from the Fischers.
The Fischers planned to sell those 104 acres to him as soon as they won a lawsuit or reached a settlement with the Kimes, he said.
Instead, when they lost the lawsuit, the Fischers sold him the rest of their nearby ground, he said.
“I would have loved to have those (other 104) acres. And I know (the Fischers) would have loved to have the money from it,” said Davenport in two interviews last week.
Fischer flatly denies that she or her husband had any such agreement with Davenport, and she said in an interview Friday that he may be confusing that parcel of land for other pieces of ground the Fischers were then selling near Merritt Reservoir.
She says that they never planned to sell the land until they began to consider it shortly before they filed the lawsuit.
They started to consider selling because they decided it might be too hard to ranch the land, especially if they lost the case. The Fischers had argued that they wanted a more manageable block of land, with cleaner borders.
“It was unmanageable,” she said, referencing a map that shows the Fischer land butting up to those 104 acres. That land zagged east toward the river and then jutted back west. “So we were looking at all the options out there.”
In depositions and in a 1995 letter sent to the Kimes, the Fischers never mentioned that they might be interested in selling the disputed 104 acres.
Instead, they repeatedly emphasized that they wanted the land for ranching purposes.
“I cannot tell you how my boys will operate the ranch 30 years from now, but I do know that good fences make good neighbors and, clearly, my goal here is to make sure that both your heirs and mine will be good neighbors,” said the letter signed by Bruce Fischer.
It's important to note this: The Fischers were under no legal obligation to tell the court, the Kime family or anyone else what they planned to do with the land if and when they successfully secured it, according to Eric Pearson, an associate dean and law professor at Creighton University School of Law.
Les and Betty Kime clearly suspected the Fischers wanted the land to sell it.
During her deposition, Betty Kime was asked why she thought the Fischers were interested in gaining ownership of river land. She said she had “her own feelings.”
She then related a story about how a couple who rented land from the Kimes had spotted the Fischers and a group of people taking measurements on the land about a year or two before the lawsuit.
The group also included Davenport and the Fischers' then-attorney, Warren Arganbright, who has not commented on the recent controversy. However, Betty Kime acknowledged in her deposition that she had no idea what the group was doing on the disputed land.
Q: Was this a boundary dispute, as Deb Fischer has called it?
A: Obviously, it was a property dispute, but it was not a boundary dispute in the regular sense of the term.
There was no disagreement that the Kimes held the deed to the disputed lands. There also was no disagreement about the location of the property line that divided the two families' land.
The question was whether the Kimes had essentially given up the right to their land by not objecting to the Fischers' use.
To understand the case, one has to understand the legal argument the Fischers used in their civil suit — adverse possession.
It is a doctrine under which someone can acquire another person's land by intentionally using that person's land in plain sight, without the owner's permission.
The doctrine is well-named because you must attempt to acquire the person's property via an adversarial stance. In other words, the landowner has not given you permission, but he has not kicked you off of his land either. If you are allowed to stay on the land for 10 years, and use it continuously during that decade, you can argue that you now own the land.
Adverse possession also must be done with intent. A person who seeks to acquire another person's property via adverse possession must knowingly hold the ground, with the intent of seeking title after 10 years. If he seeks permission from the owner at any time during those 10 years, he has forfeited any claim to adverse possession, according to the court ruling from former Nebraska District Judge William Cassel.
The fact that the Fischers attempted several times over a 10-year period to acquire the land from the Kimes by either trade or cash was one of several reasons Cassel rejected the Fischers' lawsuit.
Cassel said those attempts clearly indicated that Bruce Fischer recognized the Kimes' ownership of the land and, in doing so, abandoned his adverse possession claim.
The judge also noted that the motive behind an adverse possession attempt was irrelevant in the lawsuit.
Q: What did the court decide?
A: The court ruled decisively in favor of the Kimes.
Cassel ruled that the Fischers proved that they had actual possession of the property, because they had grazed cattle on the Kimes' land for the past 10 years. (Two weeks out of every year.)
But, on five other counts, the court rejected the Fischers' claim. The court ruled that the Fischers did not have continuous use of the property. The judge noted that the Kimes also used it for hunting and fishing. In fact, the Kimes had started leasing the land to the Snake Falls Sportsmen's Club in about 1990.
The court also noted that the Kimes, not the Fischers, paid property tax on the disputed property.
Q: When did the Fischers begin to sell nearby land?
A: The Fischers started selling parcels of land along the Snake River Ranch about a year after they lost the lawsuit. They sold 320 acres of land — nearly all the land bordering the Kimes ground — to Jon Davenport, for a total price of $380,000, according to records. They sold smaller lots near the Merritt Reservoir in the late 1990s and early 2000s for a combined $195,000.
The Fischers still have land in the area for sale.
Q: Did Deb Fischer try to stop the Kime family from selling its land to Nebraska Game and Parks?
A: While that's one of Bob Kerrey's allegations, the facts are unclear.
After Les and Betty Kime died, their descendants considered selling all of the family ground — including the land the Fischers had unsuccessfully sued for — to a tentative partnership that included the Nebraska Game and Parks Commission and the Snake Falls Sportsmen's Club.
Deb Fischer, by then a Nebraska state senator, fought for a bill that would have defunded half of the Nebraska Environmental Trust, the group that was then planning to pay the state's part of the cost if the Game and Parks deal went through.
The trust couldn't have paid for the land if its funding had been cut in half, Mark Brohman, the trust's director, has told The World-Herald. Members of the trust's board have denied this, saying the trust still could have funded the purchase.
Fischer said her support for the bill had nothing to do with the possible purchase. And a Kerrey attack ad ignores the fact that Deb Fischer also supported a compromise bill — one that actually became law — that took a much smaller amount of money away from the Nebraska Environmental Trust. Under that bill, the trust would have been able to fund the purchase of the Kime ranch, Brohman has said.
In any event, the joint plan to purchase the Kimes' land fell apart after intense opposition from some neighboring landowners.
Fischer never publicly opposed the Game and Parks deal. Accounts differ on her behind-the-scenes posture.
State Sen. Jeremy Nordquist, a Democrat in the officially nonpartisan Legislature, says Fischer talked to her colleagues about her opposition “off the mike, colleague to colleague.” Sen. Lavon Heidemann of Elk Creek, a Republican, had no such recollection. “I can't remember her ever opposing it,” he said.
Q: What ultimately became of the Kimes' land?
A: The Kime heirs ended up selling all of Snake Falls Ranch, including the once-contested 104 acres, to the Snake Falls Sportsmen's Club for an undisclosed amount in May. At the time, the 3,100-acre ranch was valued at about $9 million because of the quality of the trout fishing on much of the ground, the ranch's proximity to Merritt Reservoir and the nearby Prairie Club Golf Course and lodge.
Today, the private club allows its 100-odd members to hunt and fish the property on a limited basis.