Here is some very good back story about what has been going on with BLM. Kind of long, but worth a read. My source is World Affairs Brief (a weekly news analysis service). Includes some facts and some opinions.
THE OREGON FEDERAL LANDS PROTEST
The occupation of the headquarters of the Malheur National Wildlife Refuge in Harney County, Oregon by a small group of armed protesters represents a new and confrontational tactic in the Sagebrush Rebellion—the decades old struggle of Western ranchers against federal control of state lands. While the majority of rancher disputes are against the Bureau of Land Management (BLM) the US Fish and Wildlife Service has been just as ruthless—in this case expanding the wildlife refuge at the expense of neighboring ranchers. This week I’ll detail the struggle of the Hammond family, and of Ammon Bundy the protest leader. When you read the litany of federal abuse of ranching families, you will better understand why some ranchers are staging an armed resistance. I also give some suggestions on how this can be resolved peacefully.
The root of the controversy is a constitutional dispute that has never been properly adjudicated. Under Article IV, Section 3:2 (The Property Clause), it says,
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….
However, once a territory becomes a state, the federal government can only possess land, within that state for limited purposes: a national capitol, federal military facilities, and certain docking and warehouse facilities related to the collection of tariffs. This is governed by Article I, Section 8:17 which states:
To exercise exclusive Legislation in all Cases whatsoever, over such District [Washington DC] (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings [such as post offices].
Notice, those lands have to be specifically ceded by the states through consent of the state legislatures; they cannot be taken arbitrarily by government. The federal government got around this by making federal ownership of large parts of Western territories a condition of statehood. This had never been done to any state until the territories west of the Dakotas, down through Texas became states. Nevada was literally robbed of 84.5% of its land. In most western states the federal government owns more than half of the land mass. This is outrageous. Here is a link to a map showing the sad facts.
From the beginning there were private lands interspersed among lands claimed by the federal government, and the forest service, in particular, has engaged in a long series of abuses making it difficult, if not impossible, for “inholders” to gain access to their land or use it.
The BLM has likewise engaged in a myriad of tactics to harass ranchers, including the denial of long-held grazing and water rights, access to their land and even starting controlled burns which threatened private land and forced ranchers into a costly battle to protect buildings and livestock—all of this without legal consequences for the government. Here’s video proof.
And yet when ranchers like the Hammonds do a controlled burn that crossed over to federal lands, they are prosecuted and fined even when authorities agree there was only benefit to the land from the fires. As the Wounded American Warriors have documented:
Tri-State Livestock News reports on that testimony, “In cross-examination of a prosecution witness, the court transcript also includes an admission from Mr. Ward, a range conservationist, that the 2001 fire improved the rangeland conditions on the BLM property.”
According to Erin Maupin, a former BLM range technician and watershed specialist and rancher in the area who had been the neighbor of the Hammonds for years, said it was because researchers had determined that managing the invasive junipers, which steal water from grass and other cover was something necessary to increase the conditions on the land. “Juniper encroachment had become an issue on the forefront and was starting to come to a head. We were trying to figure out how to deal with it on a large scale,” said Maupin.
The fines are meant to be so heavy that ranchers are forced to sell their land to the BLM, which turns out to be the hidden purpose of the draconian prosecution. Ultimately this is what will happen to the Hammond family of Harney County, Oregon. But it is not sufficient to review the doctored court records of their case alone, as the press is doing, you also have to know the background of harassment ranchers surrounding the Malheur Wildlife Refuge have been subjected to by government agencies and the collusion of judges and prosecutors to deny justice to them when these matters come to trial. All of these cases taken together paint a vivid picture of ranchers being hustled out of their land and livelihood.
The Cliven Bundy family, who were involved in their own standoff with armed BLM agents in Southern Nevada, have taken a stand with ranchers in Oregon and documented better than anyone the list of abuses in Harney County, OR. The details below are significantly different than all the mainstream media reports. They start with an important history of the improper creation of the wildlife refuge:
The Harney Basin (where the Hammond ranch is established) was settled in the 1870’s. The valley was settled by multiple ranchers and was known to have run over 300,000 head of cattle. These ranchers developed a state of the art irrigated system to water the meadows, and it soon became a favorite stopping place for migrating birds on their annual trek north.
In 1908 President Theodor Roosevelt, in a political scheme, create an “Indian reservation” around the Malheur, Mud & Harney Lakes and declared it “as a preserve and breeding ground for native birds”. Later this “Indian reservation” (without Indians) became the Malheur National Wildlife Refuge.
In 1964 the Hammonds’ purchased their ranch in the Harney Basin. The purchase included approximately 6000 acres of private property, 4 grazing rights on public land, a small ranch house and 3 water rights. The ranch is around 53 miles South of Burns, Oregon.
By the 1970’s nearly all the ranches adjacent to the Blitzen Valley were purchased by the US Fish and Wildlife Service (FWS) and added to the Malheur National Wildlife Refuge. The refuge covers over 187,000 acres, stretches over 45 miles long and 37 miles wide. The expansion of the refuge grew and surrounds the Hammond’s ranch. Approached many times by the FWS, the Hammonds refused to sell. Other ranchers also [chose] not to sell.
During the 1970’s the Fish and Wildlife Service (FWS), in conjunction with the Bureau of Land Management (BLM), took a different approach to get the ranchers to sell. Ranchers were told: “grazing was detrimental to wildlife and must be reduced”; 32 out of 53 permits were revoked and many ranchers were forced to leave. Grazing fees were raised significantly for those who were allowed to remain. Refuge personnel took over the irrigation system claiming it as their own.
By 1980 a conflict was well on its way over water allocations on the adjacent privately owned Silvies Plain. The FWS wanted to acquire the ranch lands on the Silvies Plain to add to their already vast holdings. Refuge personnel intentionally diverted the water bypassing the vast meadow lands, directing the water into the rising Malheur Lakes. Within a few short years the surface area of the lakes doubled. Thirty-one ranches on the Silvies plains were flooded. Homes, corrals, barns and graze-land were washed away and destroyed. The ranchers who once fought to keep the FWS from taking their land, now broke and destroyed, begged the FWS to acquire their useless ranches. In 1989 the waters began to recede; now the once thriving privately owned Silvies plains are a proud part of the Malheur National Wildlife Refuge claimed by the FWS.
By the 1990’s the Hammonds were one of the very few ranchers who still owned private property adjacent to the refuge. Susie Hammond in an effort to make sense of what was going on began compiling facts about the refuge. In a hidden public record she found a study done by the FWS in 1975. The study showed the “no use” policies of the FWS on the refuge were causing the wildlife to leave the refuge and move to private property. The study showed the private property adjacent to the Malheur Wildlife Refuge produced four times more ducks and geese than the refuge. The study also showed the migrating birds were 13 times more likely to land on private property than on the refuge. When Susie brought this to the attention of the FWS and refuge personnel, her and her family became the subjects of a long train of abuses and corruptions.
Obviously the environmental activists that inhabit all these government agencies don’t like facts that document the fallacies of government policies and planning.
In the early 1990’s the Hammonds filed on a livestock water source and obtained a deed for the water right from the State of Oregon. When the Bureau of Land Management (BLM) and US Fish and Wildlife Service (FWS) found out the Hammonds obtained new water rights near the Malheur Wildlife Refuge, they were agitated and became belligerent and vindictive toward the Hammonds. The US Fish and Wildlife Service challenged the Hammonds right to the water in an Oregon State Circuit Court. The court found the Hammonds legally obtained rights to the water in accordance to State law and therefore the use of the water belongs to the Hammonds.
In August 1994 the BLM & FWS illegally began building a fence around the Hammonds water source. Owning the water rights, and knowing that their cattle relied on that water source daily, the Hammonds tried to stop the building of the fence. The BLM & FWS called the Harney County Sheriff department and had Dwight Hammond (Father) arrested and charged with “disturbing and interfering with” federal officials or federal contractors (two counts, each a felony). Dwight spent one night in the Deschutes County Jail in Bend, and a second night behind bars in Portland. He was then hauled before a federal magistrate and released without bail. A hearing on the charges was postponed and the federal judge never set another date
The FWS also began restricting access to upper pieces of the Hammond’s private property. In order to get to the upper part of the Hammond’s ranch they had to go on a road that went through the Malheur Wildlife Refuge. The FWS began barricading the road and threatening the Hammonds if they drove through it. The Hammonds removed the barricades and gates and continued to use their right of access. The road was proven later to be owned by the County of Harney. This further enraged the BLM & FWS.
Shortly after the road & water disputes, the BLM & FWS arbitrarily revoked the Hammond’s upper grazing permit without any given cause, court proceeding or court ruling. As a traditional “fence out state” Oregon requires no obligation on the part of an owner to keep his or her livestock within a fence or to maintain control over the movement of the livestock. The Hammonds still intended to use their private property for grazing. However, a federal judge ruled in federal court, the federal government did not have to observe the Oregon fence out law..
The Hammonds were forced to either build and maintain miles of fences or be restricted from the use of their private property. Cutting their ranch in almost half, they could not afford to fence the land, so the cattle were removed.
The Hammonds experienced many years of financial hardship due to the ranch being diminished. The Hammonds had to sell their ranch and home in order to purchase another property that had enough grass to feed their cattle. This property included two grazing rights on public land. Those were also arbitrarily revoked later. The owner of the Hammond’s original ranch passed away from a heart attack and the Hammonds made a trade for the ranch back.
In the early fall of 2001, Steven Hammond (Son) called the fire department, informing them that he was going to be performing a routine prescribed burn on their ranch. Later that day he started a prescribed fire on their private property. The fire went onto public land and burned 127 acres of grass. The Hammonds put the fire out themselves. There was no communication about the burn from the federal government to the Hammonds at that time. Prescribed fires are a common method that Native Americans and ranchers have used in the area to increase the health & productivity of the land for many centuries.
I have to add here that there were other improper burns in earlier years that got the Hammonds in trouble with the BLM. Oregon Live reports on the fires:
The Hammonds’ run-ins with the government began in 1999, when Steven Hammond started a fire that escaped onto U.S. Bureau of Land Management territory. The intent of the fire was to burn off juniper and sagebrush that hindered the growth of grass for their cattle. BLM employees reminded Steven Hammond that although his family leased public land for grazing, he couldn’t burn it without a permit.
Which is why Steven called the fire dept before starting the routine burn in 2001. But that didn’t stop prosecution.
In 2006 a massive lightning storm started multiple fires that joined together inflaming the countryside. To prevent the fire from destroying their winter range and possibly their home, Steven Hammond (Son) started a backfire on their private property. The backfire was successful in putting out the lightning fires that had covered thousands of acres within a short period of time. The backfire saved much of the range and vegetation needed to feed the cattle through the winter. Steven’s mother, Susan Hammond said: “The backfire worked perfectly, it put out the fire, saved the range and possibly our home”.
The next day federal agents went to the Harney County Sheriff’s office and filled a police report making accusation against Dwight and Steven Hammond for starting the backfire. A few days after the backfire a Range-Con from the Burns District BLM office asked Steven if he would meet him in town (Frenchglen) for coffee. Steven accepted. When leaving he was arrested by the Harney County Sheriff Dave Glerup and BLM Ranger Orr. Sheriff Glerup then ordered him to go to the ranch and bring back his father. Both Dwight and Steven were booked and on multiple Oregon State charges. The Harney County District Attorney reviewed the accusation, evidence and charges, and determined the accusations against Dwight & Steven Hammond did not warrant prosecution and dropped all the charges.
In 2011, 5 years after the police report was taken, the U.S. Attorney Office accused Dwight and Steven Hammond of completely different charges; they accused them of being “Terrorists” under the Federal Anti terrorism Effective Death Penalty Act of 1996. This act carries a minimum sentence of five years in prison and a maximum sentence of death. Dwight & Steven’s mug shots were all over the news the next week posing them as “Arsonists”. Susan Hammond (Wife & Mother) said: “I would walk down the street or go in a store, people I had known for years would take extreme measures to avoid me”.
Barry Bushue of the Oregon Farm Bureau decried this tactic: “I find it incredible that the government would want to try these ranchers as terrorists... Right now is when the public should absolutely be incensed. And the public, I think, should be fearful.”
Indeed they should, but there’s more to the story than using the terrorism statute improperly and egregiously. In order to make the charges stick, they had to label the fires arson—intentionally and maliciously set. None of the prior fires were with malicious intent, so the prosecutors invented one for the 2006 fire in order to call it arson. Prosecutors claimed that this fire was set in an attempt to destroy evidence that the Hammonds had been illegally hunting deer on federal lands. They somehow got a mentally disturbed Hammond grandson to testify to that effect.
But none of this makes sense. How does a fire cover up for an illegal deer hunt? Poachers have been shooting deer illegally for centuries. They simply haul the carcass away and there is little trace. Even if they gutted the deer on the spot, as is common practice to lighten the weight of the carcass, it is ludicrous to think someone would be stupid enough to think a simple grass fire would consume the remains. Burying the remains would have been simpler and harder to trace. This entire scenario is bogus.
In September 2006, Dwight & Susan Hammond’s home was raided. The agents informed the Hammonds they were looking for evidence that would connect them to the fires. The Hammonds later found out a boot print and a tire tracks were found near one of the many fires. No matching boots or tires were found in the Hammonds home or on their property. Susan Hammond (Wife) later said; “I have never felt so violated in my life. We are ranchers not criminals”.
During the trial proceedings, Federal Court Judge Michael Hogan did not allow time for certain testimonies and evidence into the [trial] which would exonerate the Hammonds. Federal prosecuting attorney, Frank Papagni, was given full access for six days. He had ample time to use any evidence or testimony that strengthened the demonization of the Hammonds. The Hammonds attorney was only allowed 1 day. Many of the facts about the fires, land and why the Hammonds acted the way they did was not allowed into the proceedings and was not heard by the jury.
Example: Judge Hogan did not allow time for the jury to hear or review certified scientific findings the fires improved the health and productivity of the land. Or, that the Hammonds had been subject to vindictive behavior by multiple federal agencies for years.
Federal attorneys, Frank Papagni, hunted down a witness who was not mentally capable to be credible. Dusty Hammond (grandson and nephew) testified that Steven told him to start a fire. He was 13-years-old at the time, and 24-years-old when he testified (11 years later). At 24 Dusty had been suffering with mental problems for many years. He had estranged his family including his mother. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible. However, Judge Hogan allowed the prosecution to continually use Dusty’s testimony. When speaking to the Hammonds about this testimony, they understood Dusty was manipulated and expressed nothing but love for their troubled grandson.
Judge Michael Hogan & Frank Papagni tampered with the jury many times throughout the proceedings, including during the selection process. Hogan & Papagni only allowed people on the jury who did not understand the customs and culture of the ranchers or how land is used and cared for in the Diamond Valley. All of the jurors had to drive back and forth to Pendleton every day. Some drove more than two hours each way. By day 8 they were exhausted and expressed desires to be home.
On the final day, Judge Hogan kept pushing them to make a verdict. [Several times during deliberation, Judge Hogan pushed them to make a decision.] Judge Hogan also would not allow the jury to hear what punishment could be imposed upon an individual convicted as a terrorist under the 1996 act. The jury, not understanding the customs and cultures of the area and influenced by the prosecutors for six straight days, very exhausted, pushed for a verdict by the judge, unaware of the ramification of convicting someone as a terrorist, gave a verdict and went home.
June 22, 2012, Dwight and Steven were found guilty of starting both the 2001 and the 2006 fires by the jury. However, the federal courts convicted them both as “Terrorists” under the 1996 Anti terrorism Act. Judge Hogan sentenced Dwight (Father) to 3 months in prison and Steven (son) to 12 months in federal prison. Both were also stipulated to pay $400,000 to the BLM. Judge Hogan overruling the minimum terrorist sentence, commented if the full five years were required it would be a violation of the 8th amendment (cruel and unusual punishment). The day of the sentencing Judge Hogan retired as a federal judge.
Judge Hogan said he did not believe the Hammonds had malicious intent sufficient to be labeled as terrorists, nevertheless, he did as the government requested and sentenced them to jail for a lesser time, hoping to assuage his conscience. The Hammonds succumbed to a plea deal stating that they would not appeal the 2012 sentence in order to bring the case to a close. But the feds would not honor their implicit agreement to let the matter go.
On January 4, 2013, Dwight and Steven reported to prison. They fulfilled their sentences, (Dwight 3 months, Steven 12 months). Dwight was released in March 2013 and Steven, January 2014.
Sometime in June 2014, Rhonda Karges, Field Manager for the BLM, and her husband Chad Karges, Refuge Manager for the Malheur Wildlife Refuge (which surrounds the Hammond ranch), along with attorney Frank Papagni exemplified further vindictive behavior by filing an appeal with the 9th District Federal Court seeking Dwight’s and Steven’s return to federal prison for the entire 5 years.
In October 2015, the 9th District Court “re-sentenced” Dwight and Steven, requiring them to return to prison for several [four] more years. Steven (46) has a wife and 3 children. Dwight (74) will leave Susan (74) to be alone after 55 years of marriage. If he survives, he will be 79 when he is released [a real travesty of justice].
During the court [proceedings] the Hammonds were forced to grant the BLM first right of refusal; if the Hammonds ever sold their ranch they would have to sell it to the BLM [the excessive fines will ensure that]. To date the Hammonds have paid $200,000 to the BLM, and the remainder $200,000 must be paid before the end of year (2015) [now in default]. If the Hammonds cannot pay the fines to the BLM, they will be forced to sell the ranch to the BLM or face further prosecution.
So that’s the full story about the federal bullying tactics that led up to this travesty of justice. In response several conservative organizations, including Oath Keeper’s Stuart Rhodes and the Constitutional Sheriffs and Peace Officers Association (CSOPA) with Sheriff Richard Mack, organized a major protest in nearby Burns, Oregon to support the Hammonds and encouraged them to refuse to report for the additional prison time. About 600 people traveled to Oregon in support of the rally, which was peaceful.
Ammon Bundy, the son of Clive Bundy, decided that more had to be done to publicize the plight of beleaguered ranchers like the Hammonds and led a small group of armed conservatives to take over and occupy the small group of buildings at the Malheur Wildlife Refuge. The Hammonds repudiated their efforts and announced they were going to report for prison in California, as ordered. I have one other confidential source that says they were threatened with being sent to a much more “hostile” federal facility if they showed any resistance or continued to publicize their opposition. The government is ruthless.
I know Ammon Bundy as an honest, fairly mild-mannered conservative, but he does feel strongly, as we all should, about the illegal and unethical way in which federal agents have treated ranchers. That said, I feel that targeting a set of buildings for occupation was unwise. Fortunately, the buildings were empty for the winter, so there was no overt threat or violence used to take possession.
In the Bundy family conflict with the BLM, the BLM was the aggressor and it was easy to mount a campaign to gain public support for their plight. But taking over a federal facility allows the government to play the defensive role. Bundy wants the Wildlife Refuge to be given back to state hands, but that is a battle he can’t win. No government is going to cede all of their presumed authority over the wildlife refuge or federal lands in general based upon the threat of an occupation—even if it turns into a standoff, which it will soon.
If this occupation turns violent, it will poison the waters for the legislation, since the feds can't be viewed as backing down on protests when there is a legislative avenue for Western states to pursue.
Because the Hammonds succumbed to the threats of government and the courts and decided to comply with the outrageous court decision, Ammon Bundy and his small group was left without a direct defensive cause. Giving in to the demand of dismantling the refuge isn't going to be an option for the feds, and although the injustices that allowed the expansion of the refuge were egregious, those will never be sufficiently aired to the public to allow them to get behind this occupation. Perhaps they should have waited for another similar defensive cause to arise, rather than to occupy the wildlife refuge where they could be painted as the aggressor by law enforcement. But, it is not too late to salvage this situation and make the most of it.
First, it’s important to realize that the occupation has gained some modest favorable press, in spite of the LA Times and others trying to demonize them as domestic terrorists. The Oregon press and even NPR, though leftist and pro-government, noted how unthreatening the group was as it dealt with reporters; how they were shoveling snow and not trashing the place. That’s a good start that should be capitalized on.
If the occupiers stay, the entire weight of the local and federal police will move in to end it, and if the group defends themselves they will be outgunned. Fortunately, the feds realize that they don’t want another Waco or Ruby Ridge, and that is probably why they haven’t moved in to start a siege. But once they do, the group will lose whatever goodwill they have based upon non-violent conduct. At best they will be arrested and at worse killed. Either way, they are not going to be effective in the Sagebrush rebellion anymore.
Second, Bundy should realize that by asking for volunteers to come and assist, the government is sure to put agent provocateurs into the occupation that may even initiate gunfire on police in order to provoke a violent outcome. The Feds certainly want to paint Bundy as a domestic terrorist (some in the media already are, including erroneous references to a “militia” and “standoff” which this is not....yet) so if this moves into a confrontation or siege, further protests on behalf of ranchers will be poisoned. Here’s what I suggest Ammon Bundy should do, and I have communicated this to his family email address:
1) Before any siege starts announce that they are voluntarily leaving and because, a) we have accomplished our goal of bring to the attention of the world the hostile treatment of ranchers by the BLM, b) we have publicized the importance of returning Western federal lands to the states, c) and we are “putting the government on notice that we will march in support of any ranchers who need citizen protection against further BLM, Forest Service, or Fish and Wildlife abuses."
2) Short of getting Western lands back in state hands, the movement should also encourage conservative members of Congress to support a “Rancher’s Bill of Rights,” just as the general aviation pilots were successful in passing a Pilots Bill Of Rights in response to the FAA’s unfair ways of prosecuting pilots for minor violations. This would include a defined due process before a neutral court relying on neutral experts and scientific evidence before water rights or grazing rights can be diminished or terminated. In this legislation government agents should be held to the same standards of accountability in case of a controlled burn as ranchers, and fines should be limited to actual damage discounted for any long-term benefits to the land.
Sadly, I don’t have confidence that a legal challenge to the constitutionality of federal control of Western lands will succeed. The courts have already separated any connection between the “unlimited” control the feds have over lands in Art IV, and the more restrictive Art I section 8, so all the states are convinced they can only beg the government for their land back, which isn’t working.
A number of Western conservatives have called for the return of federal lands to state and local government. The movement has stagnated since the so-called Sagebrush Rebellion of the 1980s, which centered on ranchers’ rights and the money that could be made from timber harvesting, mining and ranching. The American Lands Council, a Utah-based group, is now leading the states' movement by educating "lawmakers on the benefits of relinquishing federal lands to the states." In 2012 Utah passed a law demanding 20 million acres of federal land and the legislature has since allocated taxpayer money to studying the issue and devising a winning legal strategy. In summary, this is a long battle and more protests are going to be necessary to get movement on these issues. Without them there will be no progress.
