Monthly Archives: November 2015

The BLM, Ranchers, and Domestic Terrorism Part II: Prosecution, Terrorism, and Equality under the law

Beaver Dam 3

“We all hold the keys to our own jail cells.”
― Paul Levine, Soloman vs. Lord

***For comparable arson cases see HCN arson link below***

Before diving into the Anti-terrorism and death penalty Act or terrorism generally, a brief discussion of how and why a U.S. Attorney will prosecute someone is necessary. U.S. prosecutors have broad discretion when it comes to prosecuting someone of a federal crime. They also have broad discretion in deciding which laws to prosecute under. That being said, there is a litmus test to determine if they should prosecute in the first place.

According to the United States Department of Justice, Offices of U.S. Attorneys, there are Principles of Federal Prosecution, the purpose of which is to assist in structuring the decision-making process of attorneys for the government. The principles serve the purpose of “ensuring the fair and effective exercise of prosecutorial responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.”

A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of the criminal laws to a particular set of circumstances—recognizing both that serious violations of Federal law must be prosecuted, and that prosecution entails profound consequences for the accused and the family of the accused whether or not a conviction ultimately results.

A prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute someone for apparent violations of Federal criminal law. Attorneys exercise prosecutorial discretion for the government with respect to:

  1. Initiating and declining prosecution;
  2. Selecting charges;
  3. Entering into plea agreements;
  4. Opposing offers to plead nolo contendere;
  5. Entering into non-prosecution agreements in return for cooperation; and
  6. Participating in sentencing.

When an attorney is deciding whether or not to prosecute there are some things to consider. If the attorney for the government has probable cause to believe that a person has committed a Federal offense within his/her jurisdiction, he/she should consider whether to:

  1. Request or conduct further investigation;
  2. Commence or recommend prosecution;
  3. Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
  4. Decline prosecution and initiate or recommend pretrial diversion or other non-criminal disposition; or
  5. Decline prosecution without taking other action.

The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction. But even further than that, they must determine if a substantial Federal interest would be served by prosecution. In order to determine if prosecution should be pursued or declined, the attorney for the government should weigh all relevant considerations, including:

  1. Federal law enforcement priorities;
  2. The nature and seriousness of the offense;
  3. The deterrent effect of prosecution;
  4. The person’s culpability in connection with the offense;
  5. The person’s history with respect to criminal activity;
  6. The person’s willingness to cooperate in the investigation or prosecution of others; and
  7. The probable sentence or other consequences if the person is convicted.

In the case of Dwight and Steven Hammond, their actions clearly fell into federal jurisdiction. One can assume that U.S. Attorney Amanda Marshall, who chose to prosecute the Hammonds, did so because she believed it was in the interest of the United States to do so. Furthermore, it is reasonable to assert that she believed the seriousness of the offense warranted the prosecution, that she believed the prosecution would deter others from committing similar acts, and that the Hammond’s’ culpability and prior “criminal” activity required prosecutorial action. While this is just speculation, Marshall may have chosen to prosecute under the anti-terrorism law to get the minimum mandatory sentence and make an example out of them.

Marshall had this to say after their conviction, “Fires intentionally set on public lands endanger firefighters and the public. The verdict sends an important message to those who think that they are above the law.”

It’s the “thinking they are above the law” part that leads one to conclude that was why she chose to prosecute them. Furthermore, anyone who accidentally ignites a fire on public lands will be given a bill from the managing land agency, so it stands to reason that citations and damages would in the very least be sought in intentional cases of arson.

But back to the prosecution, in light of and in comparison to the Cliven Bundy (Bunkerville) situation, which happened simultaneously, Marshall’s reasoning is not outrageous or irrational. When prosecutors quickly go after city law breakers, but do not go after rural law breakers, it gives the impression that some get preferential treatment under the law. The impression that what is good for one group is not necessarily good for another group is problematic in that it shows either favoritism or discrimination under the law.

This discrepancy in the enforcement of the law reveals inequality in the application and enforcement of it. If someone can have their license revoked for reckless driving or speeding, certainly a person can have their grazing rights revoked for repeated trespass cattle, igniting wild fires, and/or open disregard for laws and regulations.

As for which law(s) a person/people can be tried under, again, that is up to the discretion of the prosecutor. In this case, U.S. Attorney Amanda Marshall charged the Hammonds under the Anti-terrorism and Effective Death Penalty Act. While at first blush this law seems an extreme one to prosecute ranchers under, if their actions could be found consistent with those outlined under terrorism in the U.S. criminal code, then it was an option. No case is a slam dunk. Marshall clearly believed that the case, evidence, and testimonies would be compelling enough that the jury would find them guilty of arson under the anti-terrorism law. Based on the partial verdict, she must have made a strong case with the arson charges.

The Anti-terrorism and Effective Death Penalty Act of 1996 came after the attack on the World Trade Center and the bombing of the Oklahoma City Federal Building. Analyzing this law is beyond the scope of this article, but arson is listed in Sec. 708. Enhanced penalties for use of explosives or arson crimes. To read the act click here.

Terrorism is a buzz word used a lot today and is one that is taken very seriously. In order to really understand how someone can be prosecuted as a terrorist, one must understand the legal definition of it. According to the FBI’s website, 18 U.S.C. § 2331 defines “international terrorism” and “domestic terrorism” for purposes of Chapter 113B of the Code, entitled “Terrorism.” For the purposes of this article only domestic terrorism will be shown.

“Domestic terrorism” means activities with the following three characteristics:

  • Involve acts dangerous to human life that violate federal or state law;
  • Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and
  • Occur primarily within the territorial jurisdiction of the U.S.

18 U.S.C. § 2332b defines the term “federal crime of terrorism” as an offense that:

  • Is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
  • Is a violation of one of several listed statutes, including § 930(c) (relating to killing or attempted killing during an attack on a federal facility with a dangerous weapon); and § 1114 (relating to killing or attempted killing of officers and employees of the U.S.).

When one looks at what the Hammonds’ were charged with, while it may seem a stretch, one can see how the case could be made. Marshall produced evidence that the Hammonds’ willfully destroyed government property, that their fires did put people at risk, and while it is unknown if she asserted this, that their actions reveal that because they were tired of waiting on the BLM to do prescribed burns or pest control for weeds on their allotment, their decision to burn the land could be perceived as trying to influence or affect the policies or conduct of the government via intimidation, coercion, or retaliation – especially in light of their criminal history with federal employees.

What is to be seen, however, is whether this law will be applied in Nevada toward the Bundys. While I am certain that the cumulative actions of the Hammonds’ led to their prosecution and subsequent conviction, it seems to me that what the Bundys’ did in Bunkerville was much closer to domestic terrorism than what the Hammond’s did, which begs the question: What is U.S. Attorney Daniel G. Bogden (Nevada) doing and why has he seemingly done nothing?

It’s not just the history of Cliven Bundy not paying his grazing fees, allowing trespass cattle to graze where they are not allowed, or the fact that he has been handily beaten in court that is of concern; it’s the open rebellion and subtle or outright threats against not just the government or government agencies, but threats against individuals, that puts him, his family, and his supporters in a different category. This category being much closer to eco-terroristism than American heroism. In fact, on the Bundy’s blog, they have issued subtle threats in response to the Hammond case as recently as November 3, 2015.

When federal employees are getting death threats, when they get run or chased down on public land and are threatened or harassed, or are targets of rural mobs threatening gun violence, whether they are ranchers, gangs, or militias, such acts are crimes that “terrorize” people. This applies to verbal or written threats as well. While Dwight Hammond was never charged for making death threats, nor were his supporters, and the Bundys’ have not been charged with making threats either, one could make the case that both engaged in threating behavior.

According to the legal definition, a terroristic threat is a crime generally involving a threat to commit violence communicated with the intent to terrorize another, to cause evacuation of a building, or to cause serious public inconvenience, in reckless disregard of the risk of causing such terror or inconvenience. It may mean an offense against property or involving danger to another person that may include but is not limited to recklessly endangering another person, harassment, stalking, ethnic intimidation, and criminal mischief.

In the Bundy case, they clearly threatened to commit violence, to cause serious public inconvenience, and did so with disregard for the risks. Their actions did involve property and danger to people.

The following is an example of a Texas statute dealing with terroristic threats:

TERRORISTIC THREAT

(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

  1. cause a reaction of any type to his threat[s] by an official or volunteer agency organized to deal with emergencies;
  2. place any person in fear of imminent serious bodily injury;
  3. prevent or interrupt the occupation or use of a building; room; place of assembly; place to which the public has access; place of employment or occupation; aircraft, automobile, or other form of conveyance; or other public place;
  4. cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
  5. place the public or a substantial group of the public in fear of serious bodily injury; or
  6. influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

The legal definition of “terrorist threats” in Las Vegas, Nevada, makes it unlawful to issue any threat concerning an act of terrorism with the intent to:

  • injure, intimidate or alarm any person, or
  • cause panic or civil unrest, or
  • extort or profit, or
  • interfere with the operations of or cause economic or other damage to any person or any officer, agency, board, bureau, commission, department, division or other unit of federal, state or local government

It doesn’t matter whether the terrorist threat actually resulted in any harm.  Merely communicating a threat with the intent to cause injury, panic, profit or destruction qualifies as criminal activity.

The Bundys and their mob not only threatened, they acted on the threats. Cliven Bundy’s 20 years of law breaking was compounded further when he engaged in what could be considered terroristic threats and domestic terrorism in the face of having to suffer the consequences for those 20 years of breaking the law.

Furthermore, everyone else who showed up to support him by doing the same is also guilty. Surely raising an armed rebellion causes terror, not just for those present, but for federal employees trying to do their jobs and the public at large who may pass through such areas where open rebellion exists; and clearly Bundy profits from being able to graze (make a living) without paying the required permit fees.

If one looks at the above definition of terroristic threats, it is not hard to see how the Bundys have engaged in many of those listed.

As for the U.S. Attorney in Nevada, Daniel G. Bogden, and the U.S. Justice system, not only does it serve the federal interest to prosecute the Bundys, but their prosecution, like the Hammonds’, should be pursued as a deterrent for other would-be law breakers who may be encouraged and emboldened by the lack of consequences in the Bundy case (such as the Cane Beds, AZ man who after spending time with the Bundys and attending the Bunkerville standoff decided to stop paying his grazing fees and let his cattle graze where they shouldn’t).

There cannot be separate consequences, or no consequences, for those in rural areas when there are for those in urban areas. Terrorizing in a rural setting is no different than terrorizing in an urban settings and should be treated the same way.

For far too long rural western violence has gone unpunished (see The Shovel Rebellion). Ranchers and cowboys no longer live far away from civilized institutions or the law.

Obviously not all ranchers are like the Hammonds or the Bundys, and in fact, most pay their grazing fees and work out their differences with land management agencies civilly. But while no one wants to blame all ranchers for the few wreaking havoc (its always the few bad apples that make the whole group look bad), it is hard not to wonder about the general attitudes of the whole when so many come to the aid of people like the Hammonds and the Bundys, or take it a step further by threatening authorities. We cannot say out of one side of our mouths that law breakers should be punished, such as rioters in inner cities, and then defend law breakers in rural towns.

In this case it appears that Oregon was determined to deal with the problem, unlike Nevada. But on a federal level, it looks bad for ranchers in one state to get charged when ranchers in another do not. If the anti-terrorism law is going to be applied in Oregon, it stands to reason that the same law should, or at least the same level of law enforcement, should be applied across all states.

If ranchers are angry about laws, rules, and regulations, they need to do what everyone else has to do: either work to change legislation and/or create new legislation, or engage in civil disobedience by breaking the law, but acquiesce to suffer the penalties under the law.

Everyone gets frustrated with the government, or laws. Everyone wants a fair shake. In regard to ranchers, most people are fair in their attitudes toward ranching and either support it or grudging support it on public land because it is allowed.

What people don’t understand and won’t support is wanton breaking of the law at the expense of everyone and everything else. Breaking the law and then suggesting you shouldn’t be punished is exactly what U.S. Attorney Amanda Marshall described as thinking you are above the law. No one is above the law.

MOVING FORWARD

It terms of land management, it may be time to put pressure on Congress to increase budgets for land management agencies so that they can hire adequate staffing to manage the land appropriately and efficiently. When Congress plays politics with public lands and cuts budgets, it slows the agencies down and inhibits them from doing such things as prescribed burns or environmental impact statements in a timely manner.

It may also be time to rethink the price of grazing on public lands. It’s probably time to either let the market decide the price or charge what ever the state charges within its boundaries.

When the west was being settled, the U.S. government tried to get ranchers to homestead by giving them land, but the ranchers didn’t want to own the land because leasing it/grazing permits were cheaper (Donahue 1999).

And again during the Hoover administration, the states and ranchers were given the opportunity to take the land, but the states did not want it because “the lands were perceived as having little value, and many of the stockgrowers feared the economic consequences of obtaining title to public domain grazing lands. They wanted use of the lands but not the expense or liability of ownership (Donahue, 1999).”

Our public lands are worth something – much more than the pittance they are charging for grazing today – and many are willing to pay for use and care of the land. Obviously the states place value on their lands by charging up to 10 or 20 times what the federal government does.

Beyond that, it’s time to educate ourselves on how the government works, what rights are and are not, and how the law works. Many today need to understand that in between the drafting of the constitution and now are all of the laws and legal precedent set by court cases that determine what is legal for both the government and the people. Laws can be disputed and weighed against the constitution, and can be challenged in court, but just because a law, regulation, or agency is not spelled out in the constitution does not mean it is unconstitutional.

In the case of the Bundys and the Hammonds, they and others have made rather ignorant claims about the authority of the United States Government, about local authority, about land management agencies’ authority, about grazing rights, and about individual rights in regard to public land.

Congress has been given the authority to control property owned by the federal government under the property clause of the constitution. They enact laws that give special authority as well as mandates to land management agencies for managing the land; laws and priorities for public land has changed over time and will probably continue to change. Nothing is static or set in stone.

Civil life is very dynamic and in a constant state of flux. Public land is not just managed for grazing. It is managed for wildlife, ecological health, recreation, science, preservation, and for future generations as required by the people of the United States via a representative form of government. Land management agencies are required by Congress, via the public, to consider all of the users, including wildlife, resources, and the land itself, in their decisions. One group does not get preferential treatment above all the rest.

Because someone’s family has been ranching on public land for 100 years does not necessarily mean they will get to ranch there until the end of time. Nor does having access without a permit mean you will never have to get one. Having a long history of grazing rights does not mean those rights are set in stone. Grazing rights are not property rights – they are more like a license that is given and can be revoked and the courts have consistently upheld this.

In the 1973 decision of United States v. Fuller, the United States Supreme Court continued existing precedent in the area of property rights. It held that a federal range permittee is not entitled to compensation for the taking of his permitted lands for another public use, nor is the permittee allowed additional compensation for the increased value of his fee lands as a result of the attachment of Taylor Act privileges.

The Court based its ruling on the facts that the permits are revocable by their terms and do not create a property right. In closing public lands to grazing except by permit and upholding trespass actions on public lands, the United States Supreme Court has held that, “The United States can prohibit absolutely or fix the terms on which its property may be used.”

I’m sure that all people of all industries would like to have their livelihoods guaranteed in perpetuity by the United States government, but it doesn’t work that way. Industries come and go. National priorities change. That is called capitalism and democracy. People lose their jobs and have to adapt all the time. Ranchers are no exception. If we don’t pay our property taxes, we lose our property. If ranchers don’t pay their grazing fees, they lose their right to graze. Family traditions and heritage are important, but you don’t sustain them by breaking the law.

While ranchers may have legitimate grievances and complaints with the government and land management agencies, breaking the law is not the way to go about changing things. Land management agencies have been given mandates for how to manage the lands and discretion with rules for ensuring those mandates are met.

In the case of the Hammonds, and using the wildlife refuge, they were given continued access by the Fish & Wildlife Service, who have the discretion to allow grazing or not, until they stopped abiding by the rules the FWS required for such access. It has been claimed that the Hammonds had water rights and that the FWS was restricting those water rights. However, the water was part of the refuge.

The “National Wildlife Refuge System” means all lands, water and interests therein administered by the FWS as wildlife refuges, wildlife management areas, waterfowl production areas, and other areas for the protection and conservation of fish and wildlife. Grazing is allowable only at the discretion of the FWS as mandated by the stated purpose of wildlife refuges: All national wildlife refuges are maintained for the primary purpose of developing a national program of wildlife and ecological conservation and rehabilitation. Therefore, grazing and other kinds of private economic uses may be, and commonly are, allowed on wildlife refuges. However, no public or private economic use is permissible if it is not compatible with the primary purpose of the refuge.

When the Hammonds’ stopped abiding by the rules required for the access through the refuge, it was within the rights and obligations of the FWS to fence the Hammonds’ cattle out and to limit their access. One can reasonably assume that had the Hammonds played by the rules they would still have access today.

In terms of igniting fires to improve their grazing allotment, that was also not within the rights of the Hammonds. Because they have burned on their own property does not mean they are trained wildland firefighters, authorized to burn on public land, and furthermore, because they have grazing rights does not mean they are the only users of that land.

Igniting a fire may, and did, improve the land for grazing, but the land is not just managed for grazing. Some are trying to make the case that because wildland firefighters ignite prescribed burns that often get out of control, the Hammond’s should not be charged with a crime for doing the same. This is fallacious thinking because it is not about the act itself, but about who is authorized to perform the action.

That being said, there is a striking difference between the Hammonds’ and the Bundys’ in that the Hammonds’ have accepted responsibility for their actions, acquiesced to the rule of law, and did not follow up the legal repercussions with open rebellion. It is to be seen, however, whether the Bundys will get involved in Oregon and change that.

In terms of the Bundys, their claims are varied and many, none of which have much merit. Most have been discussed here. But one issue has not and must be addressed and that is the issue of fencing.

Cliven Bundy tried to make the case that the local government was required to fence out his cattle. Others have claimed that the federal government was required to fence out his cattle. In terms of the federal government being required to fence out cattle, the Supreme Court has repeatedly ruled against that idea.

In Shannon v. United States the Supreme Court stated that “the United States has the unlimited right to control the occupation of the public lands and is under no obligation to fence those lands, or to join with others in fencing them for the purpose of protecting its rights, nor can that be imposed on it by a State.”

Fence laws are state statutes meant to protect private property owners and which provide that damage done by domestic animals cannot be recovered unless the land (private) had been enclosed with a fence of the size and material necessary to restrain the animals. States may be required to fence out domestic animals on state lands, but they have no authority to fence out domestic animals on federal lands. Furthermore, in some cases individuals are required to fence in their own animals. These laws exist for civil defense against cattle or domestic animal owners who damage private property.

In Light v. United States,  the Court, in dictum, stated: “Fence Laws do not authorize wanton and willful trespass, nor do they afford immunity to those who, in disregard of property rights, turn loose their cattle under circumstances showing they were intended to graze upon the lands of another.’” Judge Russell E. Smith ruled inter alia that the United States could not be compelled to fence its lands and went on to say that, “The requirement that persons fence their cattle out of federal lands though onerous, is legal.”

CONCLUSION

In the end, it is unfortunate for the Hammonds that they were convicted under this law, but it cannot be stated enough how significant this case is for the future of ranchers, land management agencies, and the public, to say nothing of the impact on public lands themselves. U.S. Attorney Marshall used her discretion to prosecute under the anti-terrorism law and won. Oregon is not playing around and any considering actions similar to the Hammonds’ will probably now think twice. This cannot be said for Nevada.

While there are unjust laws and people do get convicted unjustly under what seem to be “gotchya” laws, it cannot be over stated how this case could impact future actions on public lands. Using this law does seem a bit extreme, but in the context of the standoff in Bunkerville, it doesn’t seem as extreme as it does at first blush.

When people become emboldened to break the law because they have never had to face the consequences of breaking it, it is dangerous for everyone and sets a scary precedent that anyone can do anything if it serves their own interests. Not only does this case set a precedent for others who commit similar acts, it reveals how valuable our public lands are, that just because they are not a building does not mean they are not still United States property, and that one group of users does not get preferential treatment or access to it over all others.

Because more and more people are becoming aware of the ecological impacts of grazing, as well as the recreational, environmental, and scientific opportunities on our public lands, ranchers who do not abide by the law will continue to find themselves in the public eye.

Furthermore, those in the justice and legal systems who do nothing to rural violators, but go after urban violators, will also come under increased scrutiny. The law must be applied consistently and equally across the board or there will continue to be civil unrest and legitimate grievances by those who face the penalties of the law when others do not. Furthermore, unequal prosecution, like water that freezes and breaks apart rocks, will erode the faith people have in our legal and justice systems, which is already pretty battered, and it will undermine the legitimacy of the rule of law that is the foundation of our society.

Disclaimer: I am wary of all encompassing “gotchya” laws passed by perhaps a well-intentioned, if not overly zealous Congress that could turn every man, woman, and child into a criminal and I believe we must be vigilant in keeping an eye on what Congress does and work to kill or undo such laws. Giving up our rights or liberties for security is not wise. Furthermore, I take issue with prosecutors who zealously and unjustly go after individuals to make a name or career for themselves. When first reading about this case I thought it was one where people should be righteously upset with the government in defense of a rancher and hoped to use it as a counter example to the Bundys. Upon researching the case deeper, however, I found that the Hammonds were not unlike the Bundys and found their conviction to be reasonable, even if the word “terrorist” is a bit shocking. A person can be a rancher and a terrorist just like a scientist, environmentalist, school teacher, or student can also be a terrorist. It is the actions they commit that put them into that category and that earns them that label. That being said, I don’t think the Hammond case is being framed in entirely the right light. They were charged with arson under an anti-terrorism law. Technically, that makes them arsonists. Using the word terrorist, however, certainly gains more attention, traction, and sympathy. 

Update 1/11/2016 Note: Arson is no joke. I decided to look into other arson cases to see how they compared to the Hammond case and under what laws the arsonists were charged. I found a High Country News article which states that the Hammonds burned 45,000 acres over a 28 year period. Arson is a crime. It is an expensive and dangerous crime and it causes real damage. We the people foot the bill for it. It appears that the Hammonds could have been charged under different laws, and in this case from a PR perspective it might have been wiser to do so, and could have received equal prison sentences to what they received under the anti-terrorism law.

Sources:

Donahue, Deborah L. The Western Range Revisited, 1999. University of Oklahoma Press.

9th Circuit Court Decision: United State of America v. Steven Dwight Hammond and Dwight Lincoln Hammond: http://media.oregonlive.com/pacific-northwest-news/other/hammondopinion.pdf

Reporters transcripts of court proceedings, U.S. v. Dwight and Steven Hammond, http://landrights.org/or/Hammond/Transcript%20of%20Judges%20ruling.pdf

Recent Developments in the Law of livestock grazing on public lands, University of Montana, Public Land and Resource Law Review, http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1011&context=plrlr

Offices of the United States Attorneys, Principles of Federal Prosecution, http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution

The Anti-terrorism and Effective Death Penalty Act of 1996, http://www.gpo.gov/fdsys/pkg/PLAW-104publ132/pdf/PLAW-104publ132.pdf

Federal Bureau of Investigation, Definition of terrorism in the U.S. Code, https://www.fbi.gov/about-us/investigate/terrorism/terrorism-definition

Terroristic threat law and legal definition, http://definitions.uslegal.com/t/terroristic-threat/

Ecology Law Quarterly, Clinton’s National Monuments: A Democrat’s Undemocratic Acts, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1697&context=elq

High Country News, Ranchers arrested at wildlife refuge, http://www.hcn.org/issues/20/582

High Country News, Some notable arson wildfire cases in the west: http://www.hcn.org/issues/42.13/some-notable-arson-wildfires-in-the-west

The Oregonian, Oregon Live:

Eastern Oregon cattle ranchers plead not guilty to illegally setting rangeland fires, http://www.oregonlive.com/portland/index.ssf/2012/05/eastern_oregon_cattle_ranchers.html

Eastern Oregon father-son ranchers convicted of lighting fires on federal land, http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/06/eastern_oregon_father-son_ranc.html

Harney County rancher and son sentenced too lightly for arson convictions, federal appeals panel says, http://www.oregonlive.com/pacific-northwest-news/index.ssf/2014/02/harney_county_rancher_and_son.html

Controversial Oregon ranchers in court Wednesday, likely headed back to prison in arson case, http://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/10/controversial_oregon_ranchers.html

Western Livestock Journal, Hammonds’ range fire prosecution: a deeper look, https://wlj.net/article-permalink-11862.html

Oregon Public Broadcasting, Hammond witness describes setting fire in 2001, http://www.opb.org/news/article/hammond_witness_describes_setting_fire_in_2001/

Capitol Press, Judge sends Oregon ranchers back to prison, http://www.capitalpress.com/Oregon/20151007/judge-sends-oregon-ranchers-back-to-prison

Breitbart, The Saga of the Bundy Ranch – Federal power, rule of law and averting potential bloodshed, http://www.breitbart.com/big-government/2014/04/12/the-saga-of-bundy-ranch/

St. George News, Arizona rancher follows in Bundy’s footsteps, https://www.stgeorgeutah.com/news/archive/2015/11/01/mgk-finicum-blm-dispute-bundy/#.Vk_BBfmrTIV

Bundy Ranch Blog:

Facts and Events in the Hammond Case, http://bundyranch.blogspot.com/2015/11/facts-events-in-hammond-case.html

Hammond family declared as terrorist and sentenced to five years in federal prison, http://bundyranch.blogspot.com/2015/11/hammond-family-declared-as-terrorist.html

 

The BLM, Ranchers, and Domestic Terrorism Part I: United States v. Dwight and Steven Hammond

Beaver Dam 3

Demands for public land use are constantly escalating, and priorities for use of these lands have  shifted significantly in recent years. The changes are most pronounced with respect to lands managed by the Bureau of Land Management.” ~Deborah L. Donahue, The Western Range Revisted

***New Information at the end of the article***

Two Oregon ranchers, a father and son, Dwight and Steven Hammond, were tried and convicted for arson under the Anti-terrorism and Effective Death Penalty Act of 1996 in 2012 after igniting fires without required permits and/or during burn bans that spread to public BLM land in 2001 and 2006.

The mandatory minimum sentence under the anti-terrorism law is five years. On October 30, 2012, U.S. District Judge Michael R. Hogan gave the Hammond’s lesser sentences than the required mandatory minimum under the law because he believed their actions were not consistent with the intent of the law by citing the Eighth Amendment (cruel and unusual punishment) and that to sentence them according to the letter of the law was “grossly disproportionate to the severity of the offenses here (Capitol Press)” and would go against his conscience (see court transcripts). He sentenced Dwight Hammond to three months in prison, Steven Hammond to one year and one day, and fined them $400,000 for damages.

Unfortunately for the Hammonds, changing the sentence was outside of the Judge’s purview and the government lawyers appealed. In February 2014, a three judge panel of the 9th U.S. Circuit Court of Appeals (see Hammond Opinion) ruled in favor of the government saying, “A minimum sentence mandated by the statute is not a suggestion that courts have discretion to disregard,” and stated that the Hammonds must be returned to court for resentencing. That sentencing took place in October 2015.

According to an article on Oregon Live, Judge Stephen J. Murphy III said in his opinion, “Even a fire in a remote area has the potential to spread to more populated areas, threaten local property and residents or endanger the firefighters called to battle the blaze.” He noted that a teenage relative of the Hammonds was nearly burned by the fire and pointed out the damage to grazing land as well.

“Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense,” the opinion states, in sending their cases back to the district court.

The article went on to quote Kelly Zusman, the appellate chief for the U.S. Attorney’s Office, who applauded the decision saying, “The Hammonds’ actions in setting all of those fires and endangering their teen relative and BLM firefighters fell squarely within the type of conduct Congress wanted to see punished with a five-year sentence,” she said. “It’s important that the public know that setting fires to public lands — regardless of whether it’s a building in a city or sagebrush in Eastern Oregon — will result in federal jail time.”

At first blush this case seems ridiculous, but does it signify the increasing value of public lands and that to devalue or destroy them is an act of domestic terrorism?

If this is the direction the government is heading, and hotly contested controversy over a commodity is any indicator, one can reasonably come to the conclusion that land management issues are going to continue to surface and legal action is going to increase. The Bermuda Triangle that is land management, formed by the government, traditional users, and new progressive users, may have just produced a precedent setting case that rather than being ridiculous is indicative.

Land management has always been controversial, but the tide may be shifting on a much more significant level. Whereas the interests controlling land has largely been that of the extractive industries, such as mining, timber harvest, and cattle grazing, the economic driver today is overwhelmingly environmental and recreational tourism. This economic shift is putting power into the hands of new, progressive industries and people, many of whom have an environmental bent or ethic, who are shaping the debate over the use and management of public lands, marked by a growing interest in conservation and ecosystem management, and it reveals itself through changing priorities within land management agencies.

As Deborah L. Donahue states her book, The Western Range Revisited, “Today millions of people use the public lands for recreation; federal grazing permit holders number about 20,000. Recreational users of BLM lands generate hundreds of millions of dollars in taxes and revenues for local businesses and equipment manufacturers and retailers. Livestock are permitted to use more than two-thirds of all public lands, yet those lands contribute but a tiny fraction of national livestock production. Revenues to the federal treasury from fees paid by stockmen fail even to cover the BLM’s costs to administer grazing activities.”

When we look at policies through the American paradigm of providing the greatest good for the greatest number of people, we are now seeing, more than ever before, that a healthy environment, abundant recreational opportunities, and human health and well-being are significant goods, and those goods are driving a huge economic sector. As a result, industry leaders and the public within this growing sector have more clout and support in shaping policy decisions.

Using this case as the litmus, this essay will look at the actions of the Hammonds, the anti-terrorism act as a legal tool for public land managers, and the consistent application of the law across states, specifically in the Cliven Bundy case.

While all land management agencies have to deal with competing interests and conflict, none have to more so, seemingly, than the BLM. One of the reasons for this may be the changing management requirements and priorities of the BLM to include protection.

BLM land is largely rangeland, which refers to lands that are, or have historically been, used by domestic livestock, and that until recent history was undesirable interior land managed for grazing and mineral extraction. Because it wasn’t National Park quality land or forests, the users were small in number and had the land to themselves. The BLM had no real reason to strictly regulate or restrict users because there weren’t a lot of them and there weren’t diverse groups competing for use.

That all changed in the 1970s with the Federal Land Policy and Management Act (FLPMA) and the Public Rangelands Improvement Act, but it really came to a head in 1996 when President Clinton designated Grand Staircase Escalante National Monument, creating the first National Monument managed by the BLM. That designation instituted protection as one of the BLMs managing mandates. He went on to designate 14 more national monuments on BLM land.

All of the above, set forth by Congress or by presidential proclamation, required the BLM to consider the health of the range and manage the land in a manner that would improve the quality of rangelands. But special designations bring not only new users to include environmentalists, recreationists, and scientists, but also increased awareness and scrutiny.

Suddenly those who heretofore had unfettered access to the land had to share with a diverse group of users; furthermore, they were slowly limited in their uses of the land as well. This, not surprisingly, has made many of those traditional users angry, leading them to level charges of government land grabbing and over-reach. But according to the article, Clinton’s National Monuments: A Democrat’s Undemocratic Acts, by Albert C. Lin:

“There was [is] little substance to the “land grab” charges, as the land in question already belonged to the federal government and was therefore subject to disposition under the Property Clause. What such characterizations emphasized, however, was that certain state and local parties were accustomed to using the public lands as their own-and viewed them as such-and that the new land designation had suddenly disrupted their expectations concerning permitted uses of those lands.”

While one can only speculate as to how the Hammond’s viewed the public land their cattle grazed on, their actions are quite revealing and leave little room for doubt. It appears that their troubles came to a head in 1994 when they were arrested for blocking the Fish & Wildlife Service for building a fence that would keep the Hammond’s cattle out of the Malheur Wildlife Refuge. The Hammond’s claimed that they had water rights to the watering hole being fenced out and that they had a right to use the road through the refuge because it was a historic right-of-way. Because they had never been required to have a permit to use it before, they believed they had historic rights to use it.

It appears, however, that prior to this blowup the Refuge managers had had many run-ins with the Hammonds. According to a High Country News article published in 1996, “Hammond allegedly made death threats against previous managers in 1986 and 1988 and against Cameron, the current manager, in 1991 and again this year.” The problems managers at the refuge had with Hammond was that they did not follow the rules and regulations for grazing or moving cattle through the refuge and that because they had repeatedly ignored the FWS’s requests to abide by the rules, the FWS had no choice but to build the fence.

The High Country news article goes on to say, “According to the Fish and Wildlife Service, Dwight Hammond had repeatedly violated a special permit that allowed him to move his cows across the refuge only at specific times. In June, refuge manager Forrest Cameron notified Hammond that his right to graze cattle and grow hay on the lush waterfowl haven south of Burns was revoked. The feds also said they planned to build a fence along the refuge boundary to keep Hammond’s cows out of an irrigation canal.”

When the feds showed up to build the fence the Hammond’s placed their Caterpillar scraper on the boundary line in their way and disabled it. Only after a tow-truck arrived to remove the Caterpillar did Hammond jump in and move it, almost hitting an agent with it, all while yelling obscenities at the federal agents.

Not unlike the situation in Bunkerville, when the Hammonds were arrested, local ranchers rallied to their cause. The High Country News article states that around 500 “incensed” ranchers showed up at a rally in Burns, OR, to protest. Furthermore, the speaker of the American Land Rights Association, formerly the National Inholders Association, Chuck Cushman, “…issued a fax alert urging Hammond’s supporters to flood refuge employees with protest calls. Some employees reported getting threatening calls at home.”

Cushman also planned to print a poster with the names and photos of federal agents and refuge managers involved in the arrest and distribute it nationally. According to the article he said, “We have no way to fight back other than to make them pariahs in their community,” he said. Due to the pressure of these ranchers and groups, nothing much came of the situation.

This leads us to 2001 when Dwight and Steven Hammond lit a fire on their property allegedly to kill invasive species in order to improve the grazing conditions for their cattle. They burned down 139 acres of public BLM land on Steens Mountain next to their property that happened to be a part of their allotment. According to the testimony of grandson and nephew, Dusty Hammond, who was 13 years old at the time and present for the burn, however, Steven handed him matches so as to “light up the whole country on fire.”

According to Dusty’s testimony he walked the fence line dropping matches. When the flames got to be eight to ten feet tall he almost got burned over by the fire and had to seek shelter in a creek. Over lunch Dusty’s grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”

Later, Dusty said that his grandfather flew his Super Cub over the scene to gauge the effect the fire had on juniper there. The burned land was taken out of production for two growing seasons as a result of the fire. A Utah man, Dennis Nelson, testified that he and his son Dusty Nelson met a hunting party, presumably the Hammond party, on the BLM tract that morning. Both men described a clear day marred by smoke that grew heavier as the morning wore on (OPB).

While Dwight and Steven claimed the fire got out of their control and that they intended for the fire to only burn on their property, the account by Dusty not only contradicts them, they clearly had something to gain by burning the adjacent BLM land.  According to range cons working for the BLM, the fire did improve grazing conditions on the land – land mind you that the Hammond’s had grazing permits on.

It must be noted here that there are questions as to the credibility of Dusty’s testimony. According to the Bundy Ranch blog, Dusty had been “suffering with mental problems for years.” They further state that “the Judge noted that Dusty’s memories as a 13 year-old boy were not clear or credible” and claim that the “Hammond family believes he was manipulated and expressed nothing but love for their grandson.”

Dusty lived on the Hammond ranch until he was 15 and then distanced himself from the family.

In 2006, after lightning strikes ignited wild fires on adjacent public land near the Hammond ranch, the Hammond’s back-burned on their property to protect winter feed. They did this during a burn ban and did not give the BLM notice of their intent to burn. They ended up burning an acre of public land on Krumbo Butte. The indictment alleged that the fire threatened to trap four BLM firefighters, one of whom confronted Dwight Hammond at the fire scene.

According to The Oregonian, the U.S. sued the Hammonds and their ranch in July 2011, saying the government spent $600,000 battling the blazes they set, which “endangered individuals, wildlife, structures, equipment and threatened the public health, interest and safety.”

A superseding indictment accused the men of setting fires to interfere with BLM employees and firefighters trying to stop the spread of wildfires. They also were accused of using fire to destroy U.S. property, witness tampering, conspiracy and other charges.

Government court papers suggest the Hammonds’ were displeased that the “BLM ‘takes too long’ to complete the required environmental studies before doing controlled rangeland burning.”

In 2012, after deliberating for several hours, the jury returned a partial verdict. They found the two men guilty of intentionally and maliciously damaging real property of the United States by fire, in violation of  of 18 U.S.C. § 844(f)(1), based on their respective roles in the 2001 Hardie-Hammond Fire near Steens Mountain, where BLM leased grazing rights to them. Steven Hammond was also convicted of arson in the 2006 Krumbo Butte Fire on the Malheur National Wildlife Refuge and Steens Mountain.

The jury also acquitted the Hammonds of some charges and failed to reach a verdict on others, including conspiracy charges brought against Steven and Dwight. The government also dropped other allegations of setting other fires in 2006.

Update 1/11/2016: I decided to look into wildland fire arson cases to compare against the Hammond case. Arson is a real crime with real damages and dangers. According to this article published in 2010, the Hammonds have burned 45,000 acres over 28 years. High Country News, Some notable arson wildfire cases in the west: http://www.hcn.org/issues/42.13/some-notable-arson-wildfires-in-the-west

Update 1/4/2016:

The U.S. Attorney in Oregon wrote a letter to the people of Harney County, OR in regard to the Hammond case. It appears that the Hammond’s illegally slaughtered seven deer before setting fire to the BLM land. Two Utah hunters witnessed it and testified to it. Here is the letter:

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U.S. Attorney Billy Williams explains the circumstances of the prosecution and sentencing of Dwight Hammond Jr. and his son Steven Hammond for arson.
Contributed by: Les Zaitz, The Oregonian

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