Monthly Archives: January 2016
In the aftermath of the arrests of Ammon Bundy and others a sort of denouement has overcome me. It is cathartic to see the militants arrested and to see the fiasco in Oregon slowly dissipate. It is tragic that someone died. But in the aftermath of this event one can’t help but see that there were real victims of the stunt pulled by the Bundy brothers, and they are the people of Harney County.
This morning I was going through photos of my oldest son for his school yearbook and the warm memories they conjured mixed with thoughts of residents in Harney County. They are people just like me, with children of their own, trying to make it in life. I can’t seem to stop thinking about them and some of things I have read.
One article that struck me in particular was in The Nation. It took note of the fact that many in Harney County are poor and feel disenfranchised and while none to my knowledge publicly supported the occupation of the refuge, the people were divided and getting torn apart by it.
They didn’t buy the Bundys’ claimed reasons for being there, they didn’t agree with their interpretation of the constitution, but they did understand some of the anger and did worry about the impact the occupation would have on their town and businesses from tourists watching from the outside.
The article ended by saying that after the news worthy events end, no one will pay attention to the poor people left in its wake.
It is a sad state of affairs that the poor have no voice in this country and that it takes poisonous drinking water or the actions of distorted militants to get some attention. Unfortunately, the author of the article is probably right; now that this is winding down, people will move on to other “hot” events and forget about Harney County – and that is tragic.
Over the last couple of weeks I have wondered if there is a way beyond breaking the law to draw attention to problems and I haven’t come up with much. There are the normal routes such as talking to local politicians, but for poor people, there seems to be little else they can do and there seems to be even fewer who care or are willing to go the distance to help. This is perhaps what makes civil disobedience so powerful and alluring.
The beauty of civil disobedience, (not to be confused with the armed resistance manifested by the Bundys) the act of breaking the law and accepting the penalty, is that recognition of the rule of law enables people to see the humanity of the plight of the person/people breaking it.
Most mainstream people cannot relate to breaking the law and so cannot relate to people who do it, and probably will never relate if the person breaking the law does not acquiesce to the punishment; but they can relate to a person or people who articulate problems and why they resorted to breaking the law to bring those issues to light.
While I am not a huge fan of cattle on public lands I am even less a fan of gentrification or disenfranchisement of poor rural people. My fear about our public lands is that they will become pristine playgrounds for the wealthy (take Vale, CO for example) if we are not careful.
Who doesn’t want to live in a beautiful and pristine place with clean air, water, and abundant outdoor opportunities? What rural towns and ranchers have provided, I think, is a buffer between development and our public lands and may even provide environmental services that I am unaware of. Furthermore, as far as I know, no ranchers actively seek to keep people out of those public places.
Typically, when ranches go, development moves in. There are many cases of wealthy home owners moving in, jacking up the costs of living, and then restricting access.
There have got to be real solutions for rural people to thrive and continue. Their economies need to be diversified and they need to be able to continue in a sustainable way. A huge part of the future of rural communities is going to be tourism and recreation as more and more people want to enjoy public lands and as a result, they should be given financial help to develop that sector of their economy.
Not too long ago I had a discussion with Justin Fischer, the economic developer in Garfield County, Utah, where we were discussing these very issues. Garfield County is probably somewhat similar to Harney County in that a large portion of the county (94%) is federal land.
We went the rounds about the federal government, environmentalists, the economy, tourism and recreation, grazing, timber, and mining and at the end of it all what Fischer told me was that it is hard for a poor county to compete and to build a sustainable economy without help.
He said, “What can we, a very poor county, offer in terms of incentive that bigger counties cannot? We would love to diversify our economy, but that is a tremendous, costly challenge as we are competing against thousands of other communities nationwide, and we lack some of their assets.”
He went on to say, “A great deal of our means is spent in trying to prevent economic loss. The solution isn’t more tourism. We need a wide diversity of employment, and we need help to get there. Thinking we can bootstrap our way out of this is just as wrong as saying that a poor person should pull him/herself up by their bootstraps without a helping hand.”
I started brainstorming and asked him if it would help local communities to get a stimulus package when monuments get designated and if it would help to have a local hiring authority for federal jobs. He said that those things would help immensely; that is, those things would help in providing amenities for tourism and recreation and paychecks for people trying to raise their families and to stay in the county.
While it is easy to pick on the federal government, the states and Congress members are not blameless. Congress determines the budgets of land management agencies which puts limits on how many people they can hire, how many environmental impact statements can get done and how fast, and hinders people from being able to do their jobs such as road grading, prescribed burns, etc.
States often broker land swaps with the federal government and could broker deals that help rural communities. Furthermore, states and local counties have control over growth, growth incentives or requirements, and can establish regulations on builders and developers to buffer local people against rising living costs from wealthy new incomers.
Furthermore, what often happens at the local level is that farmers and ranchers are pressured by local officials to sell their property for development. This is happening in Washington County as grow, grow, grow seems to be the only value.
I believe that real solutions can be found and that people need to be willing to listen to concerns by people who have voices that are often ignored or overlooked. It shouldn’t take wealth, celebrity, or crime to be heard.
I am very interested in talking with people from Harney County. Please contact me if you are willing to talk about the local issues affecting you.
More on the political ecology (the associated connections between politics, economics, and the environment) of rural western towns to come.
Zoe Carpenter, The Nation. Inside the Bundy Brothers’ armed occupation: http://www.thenation.com/article/inside-the-malheur-wildlife-refuge-occupation/
Utah politicians in particular, western lawmakers generally, and Congress as a whole will be in breach of their fiduciary duty to the American people if they allow Utah and other western states to succeed in their illegal land grab for public lands.
It is often claimed that the federal government is “land grabbing” but the only way for that to be true is if the federal government is grabbing state or private lands. The real culprit in the land grab scheme here is the state of Utah and other western states joining their crusade to take public lands.
There are a lot of claims being made about what the Constitution says, how it should be interpreted (strict or loose), and what the intent of the founders was. The Constitution spells things out explicitly and implicitly, but interpreting it isn’t as simple as many claim.
According to Robert G. Natelson, University of Montana School of Law, “Scholars across the political spectrum agree that for purposes of constitutional interpretation, the legally relevant issue regarding a particular clause of the Constitution is not the original intent of the drafters, but the clause’s objective meaning to the ratifying public.”
Furthermore, he goes on to state that “although in its fundamentals eighteenth century English was the same language we use today, there were many subtle difference, and those differences can deceive. One trying to deduce original meaning, therefore, should possess a good eighteenth century dictionary, a working knowledge of Latin, and access to contemporaneous legal materials.”
In other words, it’s not as straightforward as it sounds and even constitutional scholars struggle with it. Justice Stephen Breyer once said that the “general purposes” behind the constitution – the values underlying it – should assist courts in construing the document.
According to the article, “Federal Land Retention and the Constitutions Property Clause (hereafter referred to as “the article”),” federalists and anti-federalists were surprisingly unanimous in the political values they were trying to promote, and wanted a charter that would realize those values. The Constitution was ultimately a political bargain (the grand bargain) between the American public and soon to be federal government.
The political values unanimously agreed upon and which underlie the Constitution include but are not limited to: 1. Republicanism or popular government under the rule of law, 2. Decentralization or limited federal jurisdiction to enumerated powers, and 3. the ideal of fiduciary government, i.e., that public officials were unanimously seen as “guardians, agents, servants, or trustees of the people.”
There are a lot of loud voices making claims about the government’s responsibility to the people and making claims of the government not working for the people. Right now those claims are largely coming from ranchers, militants, and partial politicians who believe the government (meaning actions by the government they don’t like) is not taking care of them, or not doing their bidding.
But this view of government responsibility is flawed, biased, and narrow in a historical and constitutional context which was heavily influenced by the legal concept of fiduciary responsibility. The ideal of fiduciary responsibility was founded in a strong public trust doctrine which at the time of the founding was meant in a legally binding way as a universal responsibility to act as “guardians, agents, servants, and trustees” for the American public as a whole, not for special groups.
As stated in the article, this meant that “officials were to act with care and loyalty, in good faith, within their instructions, for the general good, and impartially.” The article goes on to say, “If, for example, a legislative body passed a law that benefited some citizens at the disproportionate expense of others, that legislative body violated its duty of impartiality.”
In other words, doing that would be a government breach of trust. And serious breaches were considered ultra vires – or in the language of the constitution, they were not proper and were therefore void. Attempting to wrestle public lands for ranching would be such a breach.
The western attempt to grab public land that doesn’t belong to them is a breach of that trust to the American public. Today we are witness to a block of western lawmakers pushing for an agenda that benefits a small minority at the expense of the majority. Those lawmakers, while they do have a duty to the people of their state, also have a larger duty to the nation and the American public as a whole which they are violating.
The claim being made from the lowest to the highest levels that the federal government is not allowed to own large swaths of public land as stipulated under the enclave clause is false. If we take the Constitution at face value, what we find under the Property Clause is that the government explicitly has the duty to manage and dispose of land. Implicitly, this reveals that the government can own land as long as it is managed according to the enumerated powers of Congress.
While the Constitution does not state that the government “must” dispose of the land, the case could be made. During the drafting of the Constitution there was widespread belief that the government would accrue land either by purchase or through treaties and that it would be disposed of for westward expansion via homesteading and for economic development.
Based on that, one could argue that all public lands should be disposed of to the highest bidders, either individuals or industry, and in the 1700s that might have been appropriate. Over time, however, disposal of land for the benefit of the American people expanded to include many purposes.
That being said, no one could make the claim that the land was supposed to be disposed of to the states. It isn’t stated, implied, or hinted at in the Constitution anywhere.
The founding generation of the Constitution sought to build the nation by land privatization, not through state land holdings. According to the article, “The ratification record suggests that gratuitous transfer of lands to state governments would have been seen as a partial act, and therefore a breach of public trust.”
It goes on to say that, “Value was to be derived from land for the benefit of all Americans, not merely those who lived in the vicinity. During the ratification debates no one suggested deeding western land to new state governments.”
In fact, “Participants in the ratification debates took firm stands against any land disposition that would benefit one part of the nation at the expense of other parts.”
Therefore, nowhere in the Constitution does it say that the federal government is required to dispose of land to the states. To suggest otherwise is a gross misinterpretation of the Constitution.
The Property Clause of the Constitution dealt with territories from which all public lands came to be. The Enclave Clause on the other hand deals with property within established states. There is a huge difference between those two classes of land. In terms of public lands in Utah, those lands never belonged to the state. They were in fact territorial lands owned by the federal government before Utah became a state; therefore, the Enclave Clause has no bearing on them.
Furthermore, the territorial lands within Utah’s borders upon entrance into the Union were forever relinquished to the federal government upon statehood under the Enabling Act of the Utah state Constitution.
The ensuing assault by Utah Congressional and Senate members is a gross abdication of their fiduciary duty to the American public, and their proposed bills: The Transfer of Public Lands Act and this year’s Utah Public Lands Initiative Act are both improper under their duty and therefore ultra vires breaches of the public trust.
These Congress members and politicians are not only attempting to steal land from the American public via their power in Congress, they are usurping the federal government’s role to manage those lands as a trustee and in so doing are violating their own duty as standing Congressmen to do their jobs for the American public and the nation at large.
They cannot point their fingers at the federal government as some distinct entity that they don’t belong to. They cannot cite that the government is abusing its power or not listening to the people without pointing their fingers at themselves. Furthermore, it could be argued that the abuse of power within the government is coming from these very people.
Public land was not meant to be held for unenumerated purposes. “The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers.” However, Congress has considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion are respected and supported by the public.
Under Congress’s enumerated powers, they have determined over the years that national objectives include environmental concerns, recreational opportunities, wildlife, scientific purposes, economic benefits, and natural resources and have given power to manage the public’s land to land management agencies. That is consistent with their Constitutional powers.
It is outside of Congress’s enumerated powers, however, to act on behalf of special interests or one group (ranchers for example) over others. Their actions regarding public land must consider all Americans.
The Federal Government has a long history of disposing of public lands which includes attempting to give the lands to the states and to ranchers under President Truman, which both entities declined. Things changed in the 1970s however. Under the Federal Land Policy Management Act (FLPMA), disposal guidelines were explicitly spelled out (see link below), which is legally binding today. Like the Constitution, nowhere under FLPMA does it say land must be disposed of to the states.
Congress passed this law under their enumerated powers listed in the Constitution, which means these lands are being managed Constitutionally and within the scope of our form of governance.
Under Constitutional authority, Congress has continued the tradition of making laws that govern the management of public lands in a way that is consistent with ensuring those lands are used and managed as a trust for the benefit of the American public, the nation, and for future generations.
What Utah politicians are doing, if not in outright cahoots with the Bundys’ militant standoff for public lands, is just a smarter version of it and is just as wrong, if not more so because their positions as standing members of Congress requires a high standard of fiduciary duty to the nation.
Federal Land Policy and Mangement Act , Disposal: http://www.blm.gov/pgdata/etc/medialib/blm/wy/programs/planning/rmps/rawlins/rod/appendix.Par.42703.File.dat/Appendix06_Disposal_Criteria.pdf
Robert G. Natelson, Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005), Available at: http://scholarship.law.umt.edu/faculty_lawreviews/73
Originally published in The Southern Utah Independent
Dan Mabbutt of the Independent reported that the United States Congressional Subcommittee on Federal Lands held an official meeting in the Dixie Center on Friday, Jan. 22.
It was interesting to note that the front rows held reserved seats for supporters of the Northern Corridor and that the venue was inadequately placed in one of the smaller conference rooms of the Dixie Center. It is fair to say that the standing-room-only overflow could have easily been accommodated by a room twice the size.
Not surprisingly, at least to some people, the audience was a pretty equal mix of supporters of the Northern Corridor and those perhaps in opposition. The Southern Utah Wilderness Alliance made its presence heavily known with members bearing “Protect Wild Utah” badges and signs.
Oftentimes, what is more glaring in a somewhat contentious environment like this is not so much who is in attendance but who is not. There was an elephant in the room of sorts that was likely in the back of the minds of everyone present. The militia folks who have taken over the Malheur National Wildlife Refuge in Oregon might as well have been there.
The meeting was, in my opinion, pretty typical for the one-party state of Utah. Demonizing the federal government, in particular the Bureau of Land Management, is as much a part of this state’s ethos as the notion of Zionist dominion assumed by the predominant culture here.
But for all the tension that was present at that meeting, one thing stood out so much that even subcommittee chairman Tom McClintock made note of it when he praised the audience for their civility.
Environmentalists and ranchers in the same room getting along and debating opposing ideas and views like Americans. Go figure.
While I have been outspoken about the land issue in the West and can fairly be noted for some disdain for the lawbreakers in Bunkerville, Blanding, and now Oregon, I am not obtuse to the concerns or plights of those who feel somewhat like they have no alternative but to fight. That they feel backed in to a proverbial corner is, at the least, understandable.
But when civility is foregone in the name of any cause, both those who oppose said cause and those who ardently support it suffer.
The men and women currently held up at that refuge in Oregon likely believe they are changing the direction of how federal government operates, but they do not realize why they are actually correct about this. Because of them, it is more likely that more stringent laws will be passed in the long run, and those laws will favor them even less. For instance, the subsidizing of their grazing fees may find itself under scrutiny.
A recent article in the Washington Post reported on the matter:
“In a pair of decisions issued on Friday, the 9th Circuit Court of Appeals ruled the late Wayne Hage of Tonopah and his family were guilty of trespassing cattle on federal land illegally without a grazing permit and should be subject to fines. The appellate court based in San Francisco also determined that U.S. District Judge Robert Clive Jones had no legal basis to find employees of the Bureau of Land Management and Forest Service in contempt of court for doing their jobs.”
The Hage case, was a precursor to the Bundy standoff in 2014. Hage having ties to the Sagebrush rebellion. It was a case, mind you, that set the precedent that will make Utah’s current attempt to revamp that rebellion nearly impossible. That among other things, such as the Property Clause, the Enclave Clause, and even Utah’s own Office of Research and Legislative Council advising that a lawsuit intended to take public land from the federal government is ill advised, lead some to wonder if Utah legislators are simply grandstanding to appease and maintain a majority of their constituency by way of successful failure.
And if that is the case, if a legislator such as Utah State Rep. Mike Noel is not obliging his fiduciary duty to represent the interests of all people, not just the ranchers in his state, he is in fact betraying the trust of the American people. And he is also likely emboldening some of the people who are taking the illegal actions we now see in Oregon and perhaps even falsely assuring them of their imperviousness to the law. Which makes him culpable. Think about that. A standing Utah State Legislator inciting insurrection through violence. It is unconscionable.
The Property Clause and the Enclave Clause are largely the center of debate here and it is possible that both sides of this have it somewhat wrong. While it is true that the government may not necessarily own land, as Ryan Bundy asserts, it is charged with the fiduciary responsibility to manage land in a manner that represents the interests of all people, not just ranchers. Nothing in this mans demeanor or his speak suggests that he is interested in anything other than the interests of his particular group. It is not constitutional constructionism at all but rather constitutional Bundyism.
These laws were enacted and ratified by scholars of law, that is the founders. Men who understood first hand how perilous it was for a monarchist government like the one in England, to have unlimited control over all lands thus all people. These men were seeking to apply some of the jurisprudence of which they experienced to be severely lacking across the Atlantic and create a more fair and equitable system of government.
What was not intended was any sort of free for all and surely not for any state to have power that supersedes the nations laws. The founders were firmly against land dispositions that in any way benefitted one part of our country at the expense of others.
The misnomer on the part of Bundy and those who have taken similar stances is the assertion that the federal government illegally owns the land. The people of this country own the land and the government holds it in trust and manages it for all. When Bundy says “we the people,” it appears what he really means is “we the ranchers.”
The ruling by the 9th Circuit is a tell-tale omen of what is to come. Standoffs in the battle for rights to public land will keep going this way and gain momentum. Unfortunately for those iconic western staples who have history here dating back a century or more, the interest in those lands has broadened significantly since the 1800’s. These people are likely outnumbered hundreds of thousands to one in so far as the weight of their voice in the issue in so much as the land they have had unfettered access to for the better part of one hundred years simply does not belong to them. It never did. What has been the norm, whereby a minority group in this country has had a majority control over the western lands, is changing. That is just the simple fact of the matter.
Taking up arms against the government only serves to exacerbate their plight, however.
Ranchers’ proud legacy in the annals of American history is in grave peril. They could well be remembered and associated more with domestic terrorism than as the rugged individualists who took part in shaping the West.
But it does not have to be this way, and for my own part, I would encourage those on the side opposite the ranchers to not only educate themselves in this debate but to also refrain from obtuseness towards these people. They are not all extremists like the few who make most of the headlines; rather, they are honest, hard-working Americans, and their concerns are valid. Their rights to life, liberty, and pursuit of happiness are as important as anyones.
When Mike Noel spouted off about there being bloodshed on the horizon, while I find the man curiously childish for a fellow of his position and stature, I fear he is right.
Am I alone in saying that this is the last thing any of us want?
And what is even more disconcerting about Noel is that he appears to be spearheading the fight taking in to account only the interests of a sect of his constituency and not the interests of all Americans. If there is bloodshed, much of it may be on his hands.
Something perhaps the Bundy’s and Noel’s of this issue should consider is that while quite literally no where in the Constitution does it state the federal government is required to give land to states, it does explicitly state that in the enumerated powers of congress, they have the power to deal with insurrections. Noel in particular, is treading a fine line between his duty as a congressmen and seditionist.
Cooler heads must prevail here, and honest, rigorous dialogue must begin. The grandstanding of bureaucrats needs to be seen for what it is, and “We the People” need to recognize this and take the debate to a more agrarian level representative of all of us.
See you out there.
Photo Credit: Colorado Guy
The cowboy west is full of ironies, half-truths and exaggerated myth. It’s filled with stories of good guys and bad guys, small, hard scrabble farmers and cattle barons; it’s the fertile ground where law battles the lawless, where wealth is made and dreams are dashed. It’s part of the allure of the west. It’s thrilling to be a part of, and audience to, a grand theater filled with dramatic action, and we lap it up.
The truth, on the other hand, is more like dust that settles after the scuffle has ended. It is no less entertaining but it doesn’t capture the imagination like myth and legend does and so those looking for a cause, looking for something to get mad about or to become a hero over, dismiss the truth in favor of fiction. It is more fun after all. Who doesn’t like to sit around a campfire and spin yarns about shadowy government agents out to get the little guy? Talking about over-due grazing fees and court proceedings is just life.
Nowhere is this happening more prolifically than at the Malheur Wildlife Refuge.
The greatest irony of the rag-tag, rebel rousing cowboy revolt coming out of Bunkerville, Nevada, is that they are displaying the very reason the government has had to step in and regulate time and again. Like being able to hit rewind and go back in history, we are seeing in real time how the laws and places that are so contentious today were created by people just like the Bundys and their cohorts.
The Malheur Wildlife Refuge was set aside by Teddy Roosevelt in 1908 to protect bird species that were being over-hunted and reaching extinction levels. Teddy Roosevelt was an avid hunter, and a romantic about ranching. But he was also ethical and a firm believer in the law. He is the president that brought about the National Parks, National Wildlife Refuges, and laws such as the Antiquities Act. The reason he did this was two-fold: 1. He knew that without government regulation people would not self-regulate, and 2. He believed we have a moral obligation to ensure resources exist for future generations.
He knew that if you kill everything, there will be nothing left to hunt and that if you destroy something, it will be gone forever. Thus, conservation and preservation were born.
The creation of the BLM came about for those reasons as well. Ranchers of sheep and cattle could not self-regulate or get along, much like the Bundys today, and asked the government to intercede. Over-grazing was decimating the range and they knew this in the 1800s. Thus, the BLM was created to regulate grazing and to ensure that it happened equally and fairly.
The Antiquities Act was created for much the same reason. Many people had no respect for ancient cultures or artifacts and were stealing, selling, and destroying these artifacts of antiquity at an alarming rate. Teddy Roosevelt was an educated man and believed in preserving these antiquities for science and education. He saw them as cultural and national treasures.
The irony is that the Malheur Wildlife Refuge has both antiquities (to say nothing of the fact that it is considered a sacred site by the Paiute Indians) and wildlife in abundance. Ryan Bundy showed he had no respect for ancient artifacts or other cultures when he led his illegal ATV ride through Recapture Canyon in Blanding, Utah, but he has sealed his sectarian and arrogant stance in Oregon by stating:
“Cattle ranchers and loggers should have priority when it comes to land use. Before white man came, so to speak, there was nothing to keep cattle from tromping on those things. We also recognize that the Native Americans had the claim to the land, but they lost that claim. There are things to learn from cultures of the past, but the current culture is the most important.”
Funny enough, white man brought the cattle and ranchers, like the Native Americans Bundy referred to, no longer have sole claim to the land – but beside the fact, this is the crux of the Bundy Bonanza:
The Bundys believe they are a special class that deserves special treatment. They believe their rights take precedent over everyone else. They want the land for themselves, continued to be paid for by the American people, so that they can continue their way of life unhindered by rules, regulations, fair play, fees, ethics, or personal responsibility. In other words, they are like spoiled children who will throw a temper tantrum if they don’t get their way.
If you look back through history and wipe away the dust and cobwebs, what you find is that more often than not, laws, rules, regulations, and policies were implemented for good reasons. Some stand the test of time and some don’t. Land management agencies in particular were created to enforce laws governing public land and are bureaucracies beholden to those rules, regulations, policies, and laws set forth by Congress.
Federal employees work for the government and are meant to objectively do their jobs to fulfill mandates set forth by the government. It is not their job to be friends with individuals or to do their bidding at the expense of policies they are required to enforce. Federal employees are not public servants like politicians are; they are civil servants.
Many people working for land management agencies come from ranching and farming backgrounds and are sympathetic to rural concerns. Most are just average citizens trying to do their jobs. It is sickening to hear supporters of the Hammonds and the Bundys decry the injustices done to these “good, rural ranching families” while ignoring the vigilante threats, intimidation, and violence perpetrated by the very same “good, rural ranching families” against federal employees who also happen to be good American people with families.
The Hammonds (and Bundys for that matter) have decades of criminal behavior and law breaking behind them. To only look at the charges brought against them and for which they were convicted is to look through a very narrow scope. It is called cherry picking and selective fact finding and typically is used when engaging in confirmation bias. Looking through that narrow view ignores the whole picture that adds up to 45,000 acres of arson and lawbreaking over a 30 year period.
If we only looked at Al Capone’s tax evasion charge we could easily make the case that the government unjustly went after him too, but we all know he committed many crimes and broke the law for years before being charged and convicted of anything.
In looking at similar arson cases across the west it is clear that a five year sentence is not only consistent with other cases, but is at the low end of sentencing. Other cases reveal charges ranging from two years to the death penalty. People who think the Hammonds have been unjustly charged do not know their history, don’t know fire, and don’t know about other arson cases or who has also been charged.
This may be shocking to those who believe land management agencies are biased against ranchers, but many arsonists charged and convicted were federal employees working for land management agencies. They did not get a pass because they worked for the government. For a case in point, a wildland firefighter who did a prescribed burn without authorization got charged and sentenced to two years in prison.
On the other end of the spectrum, an arsonist in California got the death penalty because a wildland fire crew died trying to put out the blaze. Whether it’s for a firefighting paycheck or for green grass to improve grazing, arson is a real and violent crime. You cannot control the climate, weather, or landscape that fuels fire behavior and makes it dangerous and hard to control.
Laws dealing with arson have evolved with the culture. While burning used to be considered acceptable in the past when the land was less populated, it is now considered a threatening and expensive crime. In other words, it’s not victimless. It costs considerable amounts of money (money that comes from the taxpayers) to put the fire down and to protect homes and residences, to say nothing of the threat to and/or loss of resources, life, and safety.
The fact of the matter is, the old west is lashing out at the new west and they are doing it in the same way that they have been doing it for a century. Bullying, intimidation, and law breaking are as much a part of the culture as cows and cowboy hats. This stunt in Oregon is not being done for the ideals these people purport, for constitutional principles or American values. It’s simply motivated by delusional dreams of heroism, greed, and self-interest.
The people who are really concerned with their way of life and their traditions are doing it through cooperation, the right channels, and by the law. These people understand the complexities of this land, that it is a melting pot of people, cultures, and ideas and know that there must be an equal and fair balance among them. There are bad eggs in every group including government. When bureaucracies screw up there is legal recourse available, government oversight, and many layers of checks and balances to keep them in check. Land management agencies have lost many cases in court.
Smart people accept things as they are and work within reality. They do not over-simplify complicated issues into value-laden, emotional appeals driven by self-interest or ideology. The drama unfolding in the west right now is the age-old struggle between fact and fiction, desire and reality, the past and future. Facts might not be as exciting as fiction but they are relevant and there for all to see.
What the Bundys and their merry band of patriotic posers need to realize is that striking at the heel of the government without the moral high ground is a fools errand. If your revolution does not inspire the nation and its just you and your buddies huddled over a fire patting each other on the backs while pleading for snacks, chances are your cause is yours alone. The garbled, half-cocked constitutionese used to appeal to “We the people” has a major blind spot and it’s the other side of that coin.
Teddy Roosevelt said, “The government is us; we are the government, you and I. No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.”
We are the people and we are the government and public land belongs to us all, managed for various reasons by laws enacted by Congress and the President who were elected by us, backed up by the courts to be enforced by land management agencies that again, were created by Congress. It is not a conspiracy, it is law and history, enacted, shaped, and forged by the citizens of this country. And it is knowable.
The west may be filled with legend and lore, but at the core is the truth. Wyatt Earp, arguably one of the greatest legends of the west, was a real person who brought law and justice to lawless cowboys in a lawless west. What is happening today is, in many ways, not much different.
While we have advanced beyond shootouts at the O.K. Corral (hopefully), the theme today is much the same. It boils down to a struggle between law and lawlessness in the epic battle for the west and its mad march onward.