“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
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: