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Holding the line: Property rights and public lands

Holding the line

“The best thing we have learned from nearly five hundred years of contact with the American wilderness is restraint, the willingness to stay our hand; to visit such places for our souls’ good…”     ~ Wallace Stenger

Teddy Roosevelt and America’s first Forester, Gifford Pinchot, believed that conservation was a cause vital to the United States’ remaining a land of equals. Acting on that belief, they did the unthinkable – they set aside large swaths of the American landscape as public land, designating National Parks, wilderness areas, and wildlife refuges, thus protecting both land and resources from the rich and powerful, the industrialists and capitalists who would “not leave the land as it is, who would only mar it.”

It was anathema to their class and status, both coming from wealthy and privileged Eastern families. The issue wasn’t necessarily class warfare; however; and it wasn’t just a battle for land or money, though those certainly played a part. It was a battle between two different mentalities sprouting from the same root that came to a head over deeply held yet conflicting American principles: the right to property and the right to liberty.

In order to have true liberty, or free-will, one must be on equal footing with everyone else. Inequality diminishes liberty. If one’s right to vote is contingent on owning property and there are laws that say certain groups cannot own property, then those groups are not on equal footing with their fellow countrymen and hence their free-will, or liberty, is hindered. This is an example of unequal treatment under the law in that some are granted privileges while others are excluded from them.

Equality is inherently an issue of access: access to an education, to vote, to own property, to employment, to knowledge and information, to the internet, to medical care, etc. The list goes on and on. Not having access to any of these leaves people in the dark ages.

Unfortunately the principle of property rights has been used as a tool to deny access to others for centuries and its use for those ends is still pursued today. The thing to understand about owning property; however, and this must be emphasized, is that property rights imply the freedom to act. Having title to property amounts to legal proof of ownership; property rights, on the other hand, amount to the owner’s possession of rights to perform certain physical actions on that property (1). In other words, property rights allow or restrict actions depending on whether you are the owner or guest of the property.

When public lands were created and given to the American people, what we got possession of was not the physical land, but the rights to perform certain actions on those lands. We were given access and equal footing with everyone else who was given those rights. It was a radical idea that rivals colonial America’s win against Britain for most unbelievable success story in American history.

But success can be short lived. The same forces working against Roosevelt and Pinchot are alive and well today. The same mentality is trying to take our property rights away, be it to the states, industry, or private citizens. The people pushing this agenda are not only trying to take public lands, they are trying to wrestle away our possession of property rights, and thus access and freedom to perform physical actions on those lands. If they succeed we will lose more than the ability to hunt and fish, to hike and bike, to backpack and kayak; we will cease to be a nation of equals and this is why:

Not everyone will have access to the pristine, natural beauty found on public lands. Places outside the noise and clatter of cities with clean air and water; places of spiritual significance, solitude and space will belong only to those who have access to them. Our ability to escape to cool and quiet alpine air to heal from an angry and violent world or to walk in the footsteps of past generations in places unchanged for hundreds of years will be gone or off limits, open only to those with the money and property rights to be there.

It’s not a partisan issue, though it is the GOP pushing this agenda. If you don’t like the presidential candidates, remember what Teddy Roosevelt was able to do and imagine the opposite. Remember also that 80 percent of Congress is up for re-election. They control the purse strings that can fund or starve management of our lands, as well as the pen to pass laws that undermine or enhance our access to them.

Holding lands in trust for future generations was a great moral issue 100 years ago and it’s still a great moral issue today. Right now, even if we do not own a house, we have property rights to land that grants us access to engage in a host of physical activities where we can feel as at home in them as anyone else.

Most of our public lands exist in the West, and the West has always been synonymous with freedom – freedom to enter what the Irish officer in the British Army, William F. Butler described in 1872:

“The great ocean itself does not present more infinite variety than does this prairie-ocean of which we speak. In winter, a dazzling surface of purest snow; in early summer, a vast expanse of grass and pale pink roses, in autumn too often a wild sea of raging fire.

No ocean or water in the world can vie with its gorgeous sunsets, no solitude can equal the loneliness of a night-shadowed prairie; one feels the stillness, and hears the silence, the wail of the prowling wolf makes the voice of solitude audible, the stars look down through infinite silence upon a silence almost as intense. One saw here the world as it had taken shape and form from the hands of the creator.”

So long as the public keeps vigilant watch over the land, deep pockets of the powerful will not prevail. But keeping watch entails more than using the land for recreation, it presupposes a duty to act as sentries and guardians ready to sound the alarm when under attack. It would be a mistake to assume that our public lands and our access to them will always be there. Nothing in politics is written in stone. In this arena, those who care the most, win.

(1) Foundation for Economic Education, Gary Pecquet. Private Property and Government under the Constitution.

 

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American principles under attack: What the standoff in Oregon reveals

Lady Justice, Frankfurt Germany

Lady Justice, Frankfurt, Germany

It is not surprising that members of the Bundy family and gun-toting militia have shown up in Oregon, what is surprising is that the Federal Government wasn’t anticipating their arrival. It is astounding to the intelligent mind that these mobs have been able to get this far without repercussion. But what it reveals is that there is a protected class in America.

This is a story not just of race but of privilege because it reveals gross inequality under the law. When a 12 year old black kid with a toy gun can get shot within seconds of police arrival and the officer who shot him gets exonerated, when black citizens are shot everyday across this country for lesser crimes than what these ranchers/militias are committing, and when all other groups and classes face the letter of the law while white ranchers and militia members who break the law get away with their lawless antics, there is no reason to have any faith in our legal or justice systems.

What we are witnessing is an aggressive and prolonged attack by a strain of ranchers who are not used to being treated like every other citizen in this country. Their actions and the lack of legal consequences show that ranchers like the Bundys have been and still are a rather protected and privileged class.

The reality is that land management agencies are no longer in the pockets of ranchers, they are no longer “federal” in name only, and they are finally able to enforce the laws they were mandated to enforce decades ago because ranchers are no longer the only users of the land and no longer have an overwhelming amount of representation in Congress and ranchers like the Bundys don’t like it.

Let me be clear, ranchers are not being picked on; they are just finally being treated like everyone else. No man or woman is free from the requirements or limits of the law. It is time for them to be treated the way everyone else who breaks the law is: by facing the consequences.

In this country we operate from the premise of fairness, that all are bound by the laws of the land and that there are no special exceptions. The Bundys have certainly been a special exception. If the federal government does not cut off the head of this snake, the very principles upon which this country is founded will take another hit.

Furthermore, if the citizens of this country don’t start seeing justice and equality under the law, they will have no reason to believe that either exists except on paper, and any faith in our government to enforce its laws justly and fairly will be gone.

Rousseau believed that humanity only experienced true independence, equality, and freedom in nature, i.e., when people had to fend for themselves for food, shelter, and safety. He believed this because nature was the same to everyone: the sun shines on all, the rain falls on all. Nature, in other words, is impartial. But since we cannot go back to the natural state he believed the only remedy was the impersonal authority of the law. The only hope for equality, freedom, and independence in other words, resides in the impartial application of the law.

But when the law is not applied impartially what do we have? Unlike nature, we are witnessing the law coming down unequally. What we see in this case is accommodation by law enforcement and the government when contending with ranchers and militias and that the law seemingly has little if any authority. Our government walks on eggshells when it comes to these classes of people, yet seems to act almost on impulse and with impunity when it comes to exacting justice on other classes or races of people. It is so obvious that it’s not even shocking, it’s sickening.

The Bundys and their entourage of militia are simply thugs and should be treated as such. Allowing such blatant aberration of the law to continue is an insult to conscience and should have the citizens of this country outraged. The fact that any Bundys were able to show up in Oregon and perpetrate another standoff is most definitely a travesty of justice and makes a mockery of our government and our laws.

Armed militia members take over federal building

Oregon ranchers occupy national wildlife reserve

Cliven Bundy militants occupy wildlife refuge headquarters

 

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

Beaver Dam 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TERRORISTIC THREAT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MOVING FORWARD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

Sources:

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

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

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

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

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

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

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

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

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

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

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

The Oregonian, Oregon Live:

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

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

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

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

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

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

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

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

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

Bundy Ranch Blog:

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

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

 

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