Written by Dallas Hyland. First published in The Southern Utah Independent.
It can be reasonably stated — and anyone would be hard-pressed to disagree — that on Sept. 12, 2001, there were no Republicans or Democrats in the United States. In the wake of the worst attack on American soil since Pearl Harbor, the only people you could find in this country were Americans, united in our grief and our resolve to defend not only our country but every single person in it.
While from a historical perspective that unity was somewhat short-lived, it was poignant and something to be remembered. Sometimes, as Americans, we need to set aside lesser differences and keep our eye on the ball together. Our enemies do.
Fifteen years later, America has a new common enemy. But uniting us on that front will be much more difficult than in the wake of an attack, because it is being meticulously carried out by measured and calculated individuals who wish to keep us divided on the matter for the purpose of their success.
There are some individuals who guise themselves as Constitutionalists. But they are in fact proverbial wolves in sheep’s clothing who, if successful in their plans to transfer federally managed lands to individual states’ control, will set into motion an irreversible devastation on our country.
First, it is important to clear something up. While the terminology in the public lands battle varies from “take back” the lands to “transfer control” of the lands, neither has any legal ground whatsoever. The Constitution does not state that the government is under any compunction to comply with these demands, and the legislators and lobbyists who propose so know it.
In fact, as a condition for entering the union, ten states have disclaimed all legal rights and titles to unappropriated public lands. And at least two of the ten, Nevada and Utah, have it in their state constitutions. The other states are Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, Washington, and Wyoming.
So why, for instance, is Utah mounting a taxpayer-funded $14 million lawsuit to transfer control of the land? Is it because it, like the embroiled and possibly justifiably angry ranchers, needs someone to fight the big government bad guys and “defend freedom?”
Sincere and heartfelt empathy for that iconic group of Americans who are in the twilight years of their relevance notwithstanding … ranchers, you are being used. Used to ratchet up the emotion and embolden a cause that, if successful, will leave you even worse off than you are now.
Want to know how that might be true? Just look at what western states have historically done with the “trust lands” awarded to them by the federal government in exchange for relinquishing claims to public property. The lands are by and large utilized for extraction industries, logging, mining, and real estate development.
To be clear, that is what the trust land is for. But there is no indication that the legislators who wish to push this land war are telling ranchers — or any of us, for that matter — that their mandate is to maximize profit. The only way to do that is to sell to the highest bidders, and ranchers simply won’t be at that auction. None of us will.
Ken Ivory, the former executive director of the Americans Lands Council and Republican member of the Utah House of Representatives, recently left his post at the ALC to take his public-lands message to an even larger national audience with the South Carolina-based group Federalism in Action. It’s a group, mind you, that is affiliated with extreme right-winged agendas and organizations funded by the Koch brothers.
The bills and litigation the likes of what Ivory pushes literally have not a chance of succeeding in federal court, but perhaps that is not their intent. Remember that “keep your eye on the ball” thing? Their intent is to rally support in Congress where a majority vote for a proposal — like the one from Sen. Mike Lee that would have, in essence, gutted the Antiquities Act — could aptly be a huge victory for their greedy plan.
Are you following here? The state of Utah is waging a frivolous $14 million lawsuit that it knows it has no chance of winning in the name of something it touts as in the best interest of the public when, in fact, the real agenda is to rally support from its misinformed constituency. It’s called a successful loss, and this is because $14 million is a small price to pay to keep a Republican majority in Utah, one that will be led blindly into the trap of taking over the land, only to see it sold off to extraction companies that will yield trillions for themselves and their bought-and-paid-for politicians.
Who most wants control of these lands? Commodities exploiters.
And if they succeed, the use of these lands that are guaranteed and protected for all Americans will be available to less of them and at a prohibitively higher cost to them than it has ever been under federal management.
The people waging this land war have their eye on the ball for sure. They’re hoping we don’t.
Think about it.
See you out there.
The BLM, Ranchers, and Domestic Terrorism Part II: Prosecution, Terrorism, and Equality under the law
“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:
- Initiating and declining prosecution;
- Selecting charges;
- Entering into plea agreements;
- Opposing offers to plead nolo contendere;
- Entering into non-prosecution agreements in return for cooperation; and
- 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:
- Request or conduct further investigation;
- Commence or recommend prosecution;
- Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
- Decline prosecution and initiate or recommend pretrial diversion or other non-criminal disposition; or
- 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:
- Federal law enforcement priorities;
- The nature and seriousness of the offense;
- The deterrent effect of prosecution;
- The person’s culpability in connection with the offense;
- The person’s history with respect to criminal activity;
- The person’s willingness to cooperate in the investigation or prosecution of others; and
- 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:
(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
- cause a reaction of any type to his threat[s] by an official or volunteer agency organized to deal with emergencies;
- place any person in fear of imminent serious bodily injury;
- 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;
- cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
- place the public or a substantial group of the public in fear of serious bodily injury; or
- 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.
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.”
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.
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
Here in America, we love our outlaws. We idolize them, romanticize them, and keep them alive in songs, folklore, stories, and movies. What is it that is so alluring about them? Perhaps it is for how they are remembered in myth as being Robin Hood type figures. Or maybe it is their bravado to stick a finger in the eye of the government, their courage and daring against all odds, or even their arrogance to attempt such feats that captures our imagination, but history remembers them differently. Outlaws were often murderers, thieves, gamblers, and criminals who did very little for the common or local folk. While they might be charming in movies and we can admire them from afar, none of us likes a law breaker. We all inherently understand this when we are the victim of law breakers, even when the crime is as slight as someone cutting in front of us in line, or getting free grazing when everyone else has to pay. They go against the grain of civil society, they break the rules and while they may have stamina, may be fighters, and may even stand on principle, at the end of the day, they are still law breakers.
In a small corner of Nevada in the little town of Bunkerville, a modern day outlaw is waging his own war against the government. Cliven Bundy is a rancher born into a long line of Mormon ranchers who settled along the Virgin River. According to him, his family has been ranching in Bunkerville for 130 years. I have met his relatives Orvel and Clay Bundy and they are good, solid, hard-working people. I was particularly impressed with Orvel when I met and talked with him in 2012. When I asked him about Cliven he replied, “A man’s got to make a living.” He let that phrase hang in the air. I know that Orvel has had his own battles with the BLM. As land management and stakeholders go, it is par for the course, but he has found a way to work within the limits of the law. Cliven, on the other hand, has taken a different approach working outside of the law, and now the Pied Piper has come to collect. As Mattie Ross said in True Grit, “You must pay for everything in this world one way or another.”
Some mistakenly believe that this is an environmental issue, or a liberty issue, or a property rights issue, but the facts will reveal that it is a legal issue. Cliven Bundy has been illegally grazing his cattle on federal land and not paying his grazing fees for nearly 20 years. Around 1993 the BLM started revising grazing permits to provide for the protection of the desert tortoise. Mr. Bundy didn’t like the change and so he stopped paying his grazing fees. It was at the moment that he stopped paying his fees that he gave up any legal standing he had to graze on public lands or to seek compensation. In response, the BLM cancelled his permit and would no longer grant him anymore grazing permits on BLM land. Around that time, there was a land swap between Nevada and the Federal Government where Nevada offered to buy the grazing allotments to set up a preserve to protect the desert tortoise in exchange for desert tortoise habitat that they could destroy for development. At the time, all ranchers who had allotments in the area were offered the chance to sell their allotments and did to the tune of roughly $5 million dollars. Mr. Bundy was not given the option of a buy-out for his allotment because he had forfeited his rights to it when he stopped paying his fees. Therefore, the permit was sold to Nevada for $375,000.00. Mr. Bundy now claims they are taking away his right to make a living, but as will be shown, he forfeited it all on his own.
When the United States was promoting westward expansion and homesteading, the lands were quickly over-grazed due to a lack of understanding of the arid west’s fragile ecosystem. According to the Encyclopedia of the Great Plains, “After decades of rangeland deterioration, conflicts between cattle ranchers and migratory sheepherders, jurisdictional disputes, and states’ rights debates – and in response to the pleas of western ranchers, Congress passed the Taylor Grazing Act of 1934 which effectively ended free access to the range.”
What was happening in the West prior to the Taylor Grazing Act was an economic theory coined the Tragedy of the Commons. It states that individuals acting independently and rationally according to each one’s self-interest, behave contrary to the whole group’s long-term best interests by depleting the common or shared resource. In other words, when a common good is “free,” people will selfishly use it until it is gone because they cannot self regulate, and those who try, quickly give up when no one else does. Regulating grazing ensured that the vegetation would regenerate and continue to provide productive land, further ensuring that grazing would continue into the future.
The purpose of the act was to stop injury to the public lands; provide for their orderly use, improvement, and development; and stabilize the livestock industry dependent on the public range. The new law effectively closed the rangelands to homesteading. The act established grazing districts on the vacant, unappropriated and unreserved lands of the public domain and established grazing advisory boards, primarily composed of livestock owners. Board duties included the allocation of permits and the determination of boundaries, seasons of use, and the carrying capacity of the range (1).
The new permit system granted grazing privileges (not rights) by preference to ranchers who had actually used a grazing district’s land during a priority period before 1934. Owners of land or water rights who could support livestock on base ranches during seasons when herds were not on the grazing districts were favored; those without property were not. Technically, the grazing permit is a revocable license under the law, not creating any right, title, interest, or estate in or to the land. The act also created the Grazing Service, but inadequate funding prevented effective observation and evaluation of range use partly because grazing fees were never raised to adequately fund the Service. Permitted animal unit months were set at preexisting 1934 stock levels. Efforts to reduce stock levels inevitably failed. The Grazing Service and General Land Office were then consolidated in 1946 to form the Bureau of Land Management (1).
According to the BLM, “The unregulated grazing that took place before enactment of the Taylor Grazing Act caused unintended damage to soil, plants, streams, and springs. As a result, grazing management was initially designed to increase productivity and reduce soil erosion by controlling grazing through both fencing and water projects and by conducting forage surveys to balance forage demands with the land’s productivity (“carrying capacity”). These initial improvements in livestock management, which arrested the degradation of public rangelands while improving watersheds, were appropriate for the times. But by the 1960s and 1970s, public appreciation for public lands and expectations for their management rose to a new level, as made clear by congressional passage of such laws as the National Environmental Policy Act of 1969, the Endangered Species Act of 1973, and the Federal Land Policy and Management Act of 1976. Consequently, the BLM moved from managing grazing in general to better management or protection of specific rangeland resources, such as riparian areas, threatened and endangered species, sensitive plant species, and cultural or historical objects. Consistent with this enhanced role, the Bureau developed or modified the terms and conditions of grazing permits and leases and implemented new range improvement projects to address these specific resource issues, promoting continued improvement of public rangeland conditions (2).”
As stated above, grazing permits do not equate to grazing or property rights and must be weighed in light of new laws, competing interests for present and future generations, and can be altered and/or revoked in lieu of changing circumstances. Those changing circumstances came in the early 1990s when the desert tortoise was listed as endangered. In response, the BLM modified Cliven Bundy’s Bunkerville allotment to protect the tortoise. As you will remember, along with the Taylor Grazing Act, the BLM is also beholden to the Endangered Species Act. By law, they are required to protect species, as well as manage grazing allotments. They were doing their job. Mr. Bundy, however, didn’t like the grazing permit change and rejected the new grazing permit on grounds that he did not recognize the law or the legal authority of the BLM to change the permit. He stopped paying his grazing fees and continued to allow his cattle to not only graze on the Bunkerville allotment, but allowed them to graze on federal land as far as the Lake Mead Recreation Area.
According to the BLM Northeast Clark County Cattle Trespass timeline, in 1997, in accordance with the Desert Tortoise Recovery Plan and the Biological Opinion released by the U.S. Fish and Wildlife Service, active grazing permits in tortoise habitat were purchased by Clark County under the Clark County Multi-Species Habitat Conservation Program. Mr. Bundy rejected a tentative proposal to compensate him for any stockwater rights or range improvements he might have in his former allotment. It should be noted that all other ranchers who grazed in the Bunkerville allotment did accept the compensation and have been complying with federal law and the agencies enforcing it and are actually supporting the BLM. He is the only one defiantly disobeying the law. Not only it is not fair to the public, it is not fair to ranchers who are paying their fees and abiding by the law. In 1998, the United States filed a civil complaint against Mr. Bundy for his continued trespass grazing in the Bunkerville Allotment. The U.S. District Court for the District of Nevada issued an order permanently enjoining Mr. Bundy from grazing cattle on the Bunkerville allotment, ordered him to remove all trespass cattle and set a penalty of $200 per day per animal remaining on the federal range (4).
Mr. Bundy has insanely, arrogantly, or in a willful attempt at wishful thinking charged in federal court that the land was not federal land, wherein the court disagreed stating, “the public lands in Nevada are the property of the United States because the United States has held title to those public lands since 1848, when Mexico ceded the land to the United States (5). In 1999, the Ninth Circuit Court of Appeals upheld the District Court’s permanent injunction. When Mr. Bundy failed to remove his livestock as directed by the District Court, the United States filed a motion to enforce the permanent injunction and the District Court ordered Mr. Bundy to pay $1,377 as willful repeated trespass damages and adjusted fines to be consistent with regulatory rates of $45.90 per day for each day Mr. Bundy’s cattle remained on the allotment (4).
In 1999, the Las Vegas Field Office Resource Management Plan designated the Bunkerville allotment as “Closed to Grazing” to protect desert tortoise habitat.
In 2008, the BLM issued a decision to cancel Mr. Bundy’s range improvement authorizations (one range improvement permit and ten cooperative agreements). Mr. Bundy submitted a letter objecting to the action which BLM forwarded to the Interior Board of Land Appeals (IBLA) as an appeal. The IBLA issued a decision affirming the BLM’s cancellation decision on December 22, 2008. In 2011, BLM issued Mr. Bundy a Trespass Notice and Order to Cease and Desist, a Trespass Decision and Order to Remove, and a Notice of Intent to Impound. None of these communications resulted in Mr. Bundy’s voluntary removal of the trespass cattle from the public lands (4).
In May 2012, the United States filed a Complaint seeking declaratory and injunctive relief for Cliven Bundy’s trespass grazing within the Gold Butte area outside the Bunkerville Allotment, including within Lake Mead National Recreation Area. In April 2013, the United States filed a Motion to Enforce the 1998 Permanent Injunction against Cliven Bundy for the Bunkerville Allotment. On July 9, 2013, U.S. District Court of Nevada Judge Lloyd George permanently enjoined Cliven Bundy’s trespass grazing and ordered Cliven Bundy to remove his trespass cattle from public land outside the former Bunkerville Allotment within 45 days, stating that the United States is authorized to seize and impound any cattle that remain in trespass after 45 days. On October 9, 2013, U.S. District Court of Nevada Judge Larry Hicks reiterated that Cliven Bundy is permanently enjoined from grazing the Bunkerville Allotment and has no legal right to graze the federal lands, directed him to remove his trespass cattle from the former Bunkerville Allotment within 45 days, authorized the United States to impound his cattle if he fails to remove them within 45 days or continues to trespass at a future date and directed Mr. Bundy not to physically interfere with an impoundment action (4).
As can be seen, Mr. Bundy has been willfully and arrogantly breaking the law for 20 years. The BLM, the State of Nevada, and the courts have been more than civil and patient, exhausting all legal options trying to do their jobs, to enforce the law, and to resolve the problem peacefully. How Mr. Bundy has been able to ignore and bully not only state but federal agencies is beyond me. It was obviously baffling enough to the Center for Biological Diversity that in April 2012 they filed a 60 day notice of intent to sue the BLM for not doing their job under the Endangered Species Act (6). Now Cliven Bundy is playing the victim, stating that because his family has been ranching and grazing cattle there for 100 or more years, on land that is not his, he is somehow entitled to continue. His stance is not only groundless legally, it is selfish. This one man wrongly believes that his rights supersede the rights of the public and are above the law. But it’s worse than just grazing for free, Mr. Bundy has been grazing his cattle at the public’s expense.
We pay tax dollars to have our public lands managed, to have equal access under the law, and to have the law enforced. Mr. Bundy has made his right to graze his cattle more important than all other interests. According to Mary Jo Rugwell, who used to be the BLM Southern Nevada District Manager, “There are hundreds of ranchers that follow the rules. They have grazing permits, pay their fees and manage their cattle as they are supposed to. A lot of other users of public lands also pay for permits and follow their stipulations. It’s just not fair to all of those people that Mr. Bundy does what he wants and doesn’t follow the rules (7).” He, and others like him or supporting him, may not like the Endangered Species Act and may not like federal law or control, but not liking something does not excuse one from breaking the law. Furthermore, not believing in laws does not make them any less real, valid, or enforced. One does not change the law by breaking the law.
Mr. Bundy claims he will do whatever it takes to protect his life, liberty, and property, but none of those things would be in danger if he had actually done the one thing that would have guaranteed them: obeying the law. Clearly he was not willing to do anything. What Mr. Bundy wants is to have his cake and eat it too.
Outlaws are not victims. They are people who have chosen to go outside of the law, to claim that the law does not apply to them, and then seek support and favor from their local community when they are finally challenged and claim that they are fighting for everyone. Many famous outlaws have made such claims and gone down in myth and lore as being for the little guy or for their local communities, but history notes it differently. These were men and women who chose to break the law, not for others, but for their own selfish ends. Though we may be enamored with characters that seem to capture the essence of the wild west, we must remember that this is no longer the wild west and that they were or are outlaws, not victims. Before anyone mistakenly thinks I am comparing Mr. Bundy to those famous outlaws, I will state that the comparison ends at breaking the law. That being said, in an interview with the Moapa Valley Progress, Bundy said that he was “willing to defend his rights at all costs.” When asked whether the matter might come to violence he said, “Why not? I’ve got to protect my property. I have a right to life, liberty and property (7).” I will let you decide how similar he is to outlaws of the past.
While this is an emotional issue for many who know and like Mr. Bundy, at the end of the day, he brought this on himself. If he is a victim of anything, he is a victim of his own arrogance. He willfully broke the law and chose not to work within the confines and limits of it. He has gotten away with it for 20 years. It is time for the BLM to call his bluff and end his free grazing and law breaking now. If he wants to sue Clark County, the state of Nevada, the BLM, the cowboys who will be rounding up his cattle, or anyone else, let him do it. He does not have a case, as has been shown. His argument is weak at best, and absurd at the worst. As the court order states,
“Bundy has produced no valid law or specific facts raising a genuine issue of fact regarding federal ownership or management of public lands in Nevada, or that his cattle have not trespassed on the New Trespass Lands. The United States has established irreparable harm not only through the continuing nature of Bundy’s trespass, but because Bundy’s cattle have caused and continue to cause damage to natural and cultural resources and pose a threat to public safety. The public interest is best served by removal of trespassing cattle that cause harm to natural and cultural resources or pose a threat to the health and safety of members of the public who use the federal lands for recreation. The court finds that the public interest is negatively affected by Bundy’s continuing trespass. Finally, the public interest is served by the enforcement of Congress’ mandate for management of the public rangelands, and by having federal laws and regulations applied to all citizens equally (5).”
The BLM is not the bogeyman. It is not a nameless, faceless organization out to get one man. It is an agency filled with average, everyday people trying to do their job, and managing land for competing interests is a hard one at that. Mr. Bundy has had more than ample time to resolve this issue amicably and reasonably, it is time that he suffer the consequences that anyone else would who blatantly breaks the law. That he is seeking public support on emotional grounds here in southern Utah speaks to his lack of a case. He does not deserve our sympathy; he deserves a reality check that has been a long time coming.
(1) Encyclopedia of The Great Plains: http://plainshumanities.unl.edu/encyclopedia/doc/egp.ag.071
(2) BLM Grazing: http://www.blm.gov/wo/st/en/prog/grazing.html
(3) BLM Mission: http://www.blm.gov/wo/st/en/prog/grazing.html
(4) BLM History of Trespass Cattle: http://www.blm.gov/nv/st/en/fo/lvfo/blm_programs/more/trespass_cattle/history_of_trepass.html
(5) Court Orders July 9th & October 9th, 2013: http://www.blm.gov/nv/st/en/fo/lvfo/blm_programs/more/trespass_cattle/court_orders.html
(6) Center for Biological Diversity, Intent to Sue: http://www.biologicaldiversity.org/species/reptiles/desert_tortoise/pdfs/60_day_notice_to_BLM_FWS__HCP_BP_IA.pdf
(7) Moapa Valley Progress, Bunkerville Rancher Holds out against Federal Officials: http://mvprogress.com/2012/04/18/bunkerville-rancher-holds-out-against-federal-officials/
(8) The Spectrum Daily News, Bundy Saddles Up: http://www.thespectrum.com/viewart/20140313/DVTONLINE01/303130030/Mesquite
(9) Las Vegas Review Journal, Emotions Run High as BLM closes 600,000 acres for cattle roundup: http://www.reviewjournal.com/news/emotions-run-high-blm-closes-600000-acres-cattle-roundup