Month: January 2016

What’s The Beef? Part One: The Anger Over Federal Land Management

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Katie Aguilera

The land out here is vast, in some places stretching as far as the eye can see in between homes, towns, any signs of humanity.  It is rugged and dry, and holds a sense of emptiness, of loneliness.  But to the observant wanderer, it is in fact a place full of life, from the twisted juniper trees to the strange-colored lichens spreading over the ground.  One can find traces of the animals that have passed through, coyote scat, rabbit tracks, the remnants of a cougar kill up in a tree, huge bird nests up in the craggy cliff bands.  And, of course, the evidence of people, shotgun shells, broken glass, old appliances, and cows.

People seem to have a habit of taking what they have for granted until threatened with its loss.  It is certainly true when it comes to land use.  We have a long history of over-use, it is evident in any industry that involves using or extracting natural resources.  It begins with discovery, then fortunes are made, and more and more people jump on board, and then, the resource begins to run out.  That is the point at which people either destroy the resource altogether, or take steps to protect and manage it.

It is undeniable that humans impact the environment, our proliferation around the world has clearly changed the land.  It is also undeniable that natural resources are required for our survival.  We need food, water, shelter, just like every species.  And this need, and all the times we’ve allowed it to devolve into excessive over-use of resources, along with the desire to protect what we don’t want to lose, has left us with a decades-old, emotional, sometimes violent debate.

Once again, this debate has exploded out of its usual confines of rural America and into the national spotlight with the occupation of the Malheur Wildlife refuge in Harney County.  Ignoring the very basic fact that nature seeks balance, the media is frantically fueling the polarizing rhetoric.  Either you are an angry, spoiled white guy with lots of guns attempting to grab all of the public land, or you are against the occupation and want the spoiled white guys arrested, maybe even bombed with drones.  Few seem willing to pause long enough in the argument to really listen to each other.  Just what is the beef with Federal land management?

The situation in Harney County presents a good starting place to look at this question because there is a long history of problems there.  Anyone who has paid any attention to the story of the refuge occupation knows that it began with a protest rally in support of Dwight and Steven Hammond, who were sentenced for arson under the Anti-Terrorism and Effective Death Penalty Act for starting two fires on their land that spread to BLM land, burning a total of 140 acres.  The group occupying the refuge want the Hammonds freed from prison, among other things.  The Hammonds’ battle with the BLM has been going on for decades, long before they lit the two fires that got them branded as terrorist arsons.  And they aren’t alone.

Water

Many from the area claim that there have been numerous attempts to get ranchers off of their private lands over the years.  According to Ammon Bundy, some of those attempts included reducing the number of grazing permits from 53 to 21, raising grazing fees, and even deliberately flooding Malheur, Harney and Mud Lakes to force ranchers from the lands around the lakes.  The lakes did flood in the early eighties, causing an estimated $32 million in damage in 1984.  According to The New York Times:

‘Twenty-seven families have been flooded out as the lakes’ level has risen about 12 feet over the last three years,’ said William H. Beal, Harney County’s water master.

I haven’t found any evidence to support Bundy’s claim that the US Fish and Wildlife Service deliberately flooded the lakes somehow, but the solution sought by the ranchers to make a flood-relief canal to lower the levels in the lakes was ultimately dismissed.  Again from the above New York Times article:

Harney County officials want to deepen and widen the old waterway to the Malheur River and use it as a flood-relief canal, timing the releases to minimize flood danger downstream.  Mr. Beal said the canal would cost $8 million to $12 million.

The Army Corps of Engineers said two years ago that the economic benefits would far outweigh the cost of the canal.

In the end, after another study by the Army Corps of Engineers, in a reversal from their previous statement, the canal was ruled out as its benefits would not outweigh the costs of construction, or possible detrimental effects on the river from the influx of lake waters.  This study goes into much more detail about the different ideas for mitigating the flood damage and resolving the problem.  I can see why local residents might feel as though their needs, and solution ideas, were disregarded, and perhaps that has led to Ammon’s claim.

As for the Hammonds, Ammon Bundy writes this:

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 that the Hammonds obtained new water rights near the Malhuer Wildlife Refuge, they were agitated and became belligerent and vindictive towards the Hammonds. The US Fish and Wildlife Service challenged the Hammonds right to the water in an Oregon State Circuit Court.  The court found that 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 Hammonds did indeed try to disrupt the building of the fence repeatedly.  It resulted in a hostile showdown, angry threats made towards government employees, and the arrest of Dwight Hammond.  You can read more about that here, I recommend the read.
Land

Grazing fees are a hotly disputed issue.  The low fees charged by the federal government for ranchers to graze their herds on public lands is often described as a subsidy because it is lower than private land owners charge for grazing rights, and it doesn’t cover the costs of managing those lands where the grazing occurs.

Wildlife advocates have long criticized the low price for grazing fees on public lands, calling it an effective subsidy to a fraction of the ranching industry. Generally, grazing fees returns only a fraction of the money the Federal government spends to manage public lands grazing: less than a sixth in 2004, according to the General Accounting Office .

[Read more of that article here on the argument for raising fees.]

According to this:

The Federal grazing fee for 2015 will be $1.69 per animal unit month (AUM) for public lands administered by the Bureau of Land Management and $1.69 per head month (HM) for lands managed by the U.S. Forest Service. The 2014 fee was $1.35.

An animal unit month is defined as “the use of public lands by one cow and her calf, one horse, or five sheep or goats for a month.”
It does seem like a good deal.  But the BLM itself says that “the grazing fee is not a cost-recovery fee, but a market-driven fee.”
There are several important reasons for keeping grazing fees low to consider according to this article written in 1992 by William G. Laffer III and John Shanahan.  They point out that grazing on private land typically costs more because the grazing is generally of better quality, and the property owners “provide ranchers with fences, roads, water, and protection for livestock.  Ranchers must provide these services for themselves on public land.”  Public lands are “of poorer quality, more remote, and more difficult to manage and control than private lands.”
Not only that, and perhaps even more important, is the matter of fencing.  It is no small matter.
…if ranchers are priced off federal rangelands, the government would have to build hundreds of thousands of miles of fences to keep cattle from trespassing onto federal land.  In the Eastern states, a cattle owner is responsible for putting a fence around his land to keep his cattle in, and is liable to his neighbors if his cattle escape and trespass onto the neighbors’ land. However, in most Western states, a landowner who fails to put a fence around his own land may not recover for trespass if other people’s cattle come onto his land because the landowner is legally responsible for fencing the cattle out.  Billions for fences.  No one knows precisely how many miles of fencing the federal government would have to build.  Because federal land in most Western states is interspersed with private land in a checkerboard pattern, however, the amount of fencing required would be enormous.  In one grazing district in Wyoming alone, the BLM estimates that it will have to put up 13,222 miles of fencing at a cost of almost $98 million if cattle grazing is discontinued because of excessive fees.
Remember, that was back in 1992, and the estimated cost doesn’t include the cost of surveying the land to determine actual property boundaries.  Of course, a little pressure from the federal government could certainly push states to change their laws to require ‘fencing in.’
As to the argument over whether or not cattle should be grazed at all on public lands, well, I would say that I agree they shouldn’t be allowed everywhere.  Cattle move slowly over the land, remaining in one place until they can no longer find anything to eat, and this causes soil compaction and the destruction of plants.  It is reasonable to believe this is harmful to native species, and there are studies that show how harmful.  From another perspective, however, they can be beneficial too, mowing down potential fuels for wild fires.  But regardless of what you think about the issue, the fact is people eat beef, a lot of beef, and it is no more environmentally responsible to ship our beef from far away lands.  A more reasonable approach is compromise, grazing on some lands, and cattle-free areas too.
Fire

On top of all of that, we can’t forget fire.  It’s no secret that forest fire management policies over the past century have led to dangerous conditions throughout the western United States.  The idea that all forest fires are bad, and must be extinguished immediately has left forests and rangelands loaded with fuel.  When fires start, they burn hotter and longer, causing greater damage to the land, and they are much harder to contain.  In the sweeping sage brush country of eastern Oregon, prescribed burns were used as a means to improve grazing lands and reduce Juniper trees, preventing a build up of fuel and lowering the risk of catastrophic fires.  According to this article by Carrie Stadheim:

[Erin] Maupin, who resigned from the BLM in 1999, said that collaborative burns between private ranchers and the BLM had become popular in the late 1990s because local university extension researchers were recommending it as a means to manage invasive juniper that steal water from grass and other cover

and,

‘In 1999, the BLM started to try to do large scale burn projects.  We started to be successful on the Steens Mountain especially when we started to do it on a large watershed scale as opposed to trying to follow property lines.’

Because private and federal land is intermingled, collaborative burns were much more effective than individual burns that would cover a smaller area, Maupin said.

Like the Hammonds’ fires, these prescribed burns, as well as fires lit as back-burns while fighting wild fires, haven’t always stayed within their intended boundaries.  Again from Stadheim’s article:

During her tenure as a full time BLM employee from 1997-1999, Maupin recalls other fires accidentally spilling over onto BLM land, but only the Hammonds have been charged, arrested and sentenced, she said.  Ranchers might be burning invasive species or maybe weeds in a ditch. ‘They would call and the BLM would go and help put it out and it was no big deal.’

On the flip side, Maupin remembers numerous times that BLM-lit fires jumped to private land.  Neighbors lost significant numbers of cattle in more than one BLM fire that escaped intended containment lines and quickly swallowed up large amounts of private land.  To her knowledge, no ranchers have been compensated for lost livestock or other loss of property such as fences.

Gary Miller, who ranches near Frenchglen, about 35 miles from the Hammonds’ hometown, said that in 2012, the BLM lit numerous backfires that ended up burning his private land, BLM permit, and killing about 65 cows.

Oregon Representative Greg Walden, in a strong statement to the U.S. House of Representatives after the refuge occupation began, had this to say about back-burns started by federal employees:

There was nobody sentenced under the terrorist laws there.  Oh heck no, its the government, they weren’t sentenced, no one was charged.

Good point.  Its no wonder the residents in Harney County, and Ammon Bundy, are suspicious of the motives behind charging the Hammonds for their fires by the federal government.  It really doesn’t surprise me that there seems to be growing support for the occupation on the ground as residents of Harney County, and surrounding counties and states, see an opportunity to force these issues into the spotlight.  And an opportunity to find solutions.  And I think that makes the federal government increasingly nervous, and it shows in the media narrative.

It may be that it is simply too boring to report on the people on the ground, directly affected every day by the land use debate that is more vast than the land itself.  Or, maybe reporting on their efforts to find balanced solutions to the problems doesn’t serve the purpose of the Federal government as it seeks to increase its control.  Reporting on the reality on the ground might expose a widening crack in that control as the people are re-discovering that they don’t need the federal government to solve their problems for them.

Don’t miss “What’s The Beef, Part Two:  How Lawsuits Shape Land Management Policies.”  Read it here.

Another note: just as I finished this, I learned the news that Ammon Bundy and three others have been arrested after an incident involving shots fired while they were on the way to a meeting in John Day, Oregon. 

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What the Stand Off in Oregon is Distracting Us From

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Katie Aguilera

On April 24, 1996, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act into law.  This act was introduced by Senator Bob Dole, and it had bi-partisan support.  It passed the Senate with a vote of 91 to 8 and passed in the House of Representatives with a vote of 293 to 133.  Not unlike the Patriot Act, this act was introduced and passed in response to terror attacks, both the bombing of the World Trade Center in 1993 and the Oklahoma City bombing of the Alfred Murrah building in 1995. The stated purposes of the act are to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.”

In the years between the two bombings, the panic-inducing rhetoric was in full swing over home-grown, right-wing extremist, anti-government terrorism (not unlike today).  Of course, Timothy McVeigh played into that perfectly with a Ryder truck with home-made fertilizer bombs in the back.  It is easy to see, after that bombing, how law makers on all sides would want to be viewed as doing their part to fight terrorism.

Since 1996, the existence of this law, and its use, seems to have been largely under-reported.  I have not been able to find out just how often it has been used in prosecution to date.  David Cole, lawyer and Georgetown University Law Professor, in an interview on Democracy Now discussing possible revisions to the Patriot Act in 2009 said:

This law was passed, as you indicated, in 1996, but it really was left unenforced until September 11th. Since September 11th, however, it’s been a favorite tool of the government. There have been over a hundred prosecutions. And the reason it’s the favorite tool is precisely because it doesn’t require the government to prove up that an individual actually is connected to any kind of terrorist activity. It allows them to paint with a broad brush.

It is a very broad brush indeed.

In 2012, the Bureau of Land Management (BLM) filed charges against Dwight and Steven Hammond, a father and son and long time residents and ranchers in Harney County, Oregon.  The Hammonds were prosecuted under the Anti-Terrorism and Effective Death Penalty Act.  What was this act of terror committed by the Hammonds?  Well, Dwight and Steven Hammond were charged with, and they admitted to, setting two fires on their land which subsequently spread to federal land.   Admittedly, there is a lot of background to this case, including questions surrounding the two fires and a long history of protests and threats, and I am working on another post that will go into greater detail on those.  But, for now, lets look at the two fires in question, and consider how these acts qualified the Hammonds for prosecution under this broad law.

The first fire was lit in 2001.  According to the Western Livestock Journal, it was a prescribed burn that spread to 139 acres of BLM land.  From court documents:

At trial, historical data and testimony established a long-standing plan between the Hammonds and their BLM range conservationist to burn off invasive species on the “School Section” of the Hammonds’ property. ER-316-18. Fire is a tool regularly used by the BLM to rehabilitate grazing lands.
Defendants had acknowledged intentionally setting a fire on September 30, 2001 to burn off invasive species on the School Section, which then spread to approximately 139 acres of adjacent public land (the “Hardie-Hammond Allotment”). ER-287, 243.
At trial, the government presented evidence that the fire was set in
a manner designed to spread on to the public land, and had endangered members of the Hammonds’ party.
The “endangered members” part is referencing testimony during the trial of Dwight and Steven Hammond by Dusty Hammond, Dwight Hammond’s grandson.  This OPB article says:

Nearly 11 years after the fact, Dusty Hammond recalled for a jury Wednesday in a U.S. District Court how he stumbled through juniper and sagebrush to escape a fire bearing down on him, a fire he helped set.

Hammond, 24, softspoken and clean cut, explained how his first-ever deer hunt near Frenchglen turned to arson after his uncle Steve Hammond passed out boxes of strike-anywhere matches to the four-man hunting party.

“Light the whole countryside on fire,” Dusty said his uncle told him. “I started lighting matches.”

Afterwards, he said, over lunch his grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”

It has been reported that this fire was started to cover up evidence of poaching on federal land by the Hammonds.

The second fire that plays a role in the Hammonds’ case was lit in 2006.  This fire is said to have been started as a back burn to protect the Hammond’s winter feed from fires that were ignited by lightning.  Court documents say:

The facts of this fire are straight forward. The Ninth Circuit stated:
In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.
So there you have it.  Poaching deer and destroying the evidence with fire, lighting fires without the proper notification in an attempt to save property in what may well have been an emergency response, burning a total of 140 acres of federally held land.  Regardless of the Hammond’s history of conflict with the BLM and the federal government (I’ll get into that in my upcoming post), it seems like a stretch to say that these are crimes that should be prosecuted under the anti-terrorism act.  Also, as I will get into here, the Hammonds were not prosecuted for the charges related to their previous threats and actions against federal employees, which could arguably be considered terrorism under the legal definition:
(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be 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
(C) occur primarily within the territorial jurisdiction of the United States.
According to this report in 2010, the Hammonds were originally indicted on 19 counts, “charges that include conspiracy, arson, depredation of federal property, threatening federal officers, and tampering with a witness.”
Two years later, according to this article, they were brought to trial, now facing nine counts.

A federal indictment charges the pair with nine counts, including conspiracy and setting illegal fires on federal grazing land, fires that coincided or contributed to the Hardie Hammond, Lower Bridge Creek and Krumbo Butte fires.

One count alleges witness tampering, a charge Papagni [prosecutor in the Hammonds’ case] said stems from a confrontation in Frenchglen between Steve Hammond and Joe Glascock, a rangeland conservation manager who suspected the Hammonds of setting rangeland fires. Hammond in 2006 told Glascock: ‘This could get ugly, and this could be a sticky situation,’ the prosecutor told jurors. ‘You set those fires, not me.’

This July 2015 article states:

BLM pressed charges for the above-mentioned fires, citing endangerment of human lives and damage to federal property. However, the district court found that no one had been endangered by the fires, and that the fires had caused minimal damage. In fact, the court found, the fire had arguably increased the value of the land for grazing.

The jury deliberated, and agreed that the Hammonds were guilty on two of the nine counts, for the 2001 Hardie-Hammond fire and the 2006 Krumbo Butte fire, but could not agree on the remaining seven charges.  A plea agreement was made, the Hammonds would not contest the two charges if the remaining charges were dropped.  Again from the July 2015 article:

In determining the Hammonds’ sentences, Judge Hogan had decided that applying the “mandatory minimum” of five years cited in the Antiterrorism and Effective Death Penalty Act would ‘shock the conscience…’ He referenced the Eighth Amendment of the Constitution, which states, ‘Excessive bail shall not be required…nor cruel and unusual punishments inflicted.’

To call for five years’ imprisonment, he said, ‘would result in a sentence which is grossly disproportionate to the severity of the offenses here…’ He said that Hammonds’ actions ‘could not have been conduct intended under [the Anti-terrorism and Effective Death Penalty Act]…’ Judge Hogan used his discretion under the Eighth Amendment to sentence Dwight (now 74) to three months in prison, followed by three years’ “supervised release.” Dwight’s son Steven (45), father of three, was sentenced to one year and one day in prison—also to be followed by three years’ “supervised release.”

The Hammonds were ordered to surrender their firearms, and Dwight Hammond’s pilot’s license was revoked.  In a separate settlement, they were fined $400,000.00 by the BLM for damages and they had their grazing permits withheld.  However, for the US Department of Justice, this wasn’t enough.

Judge Hogan’s decision to sentence the Hammonds to prison time of less than five years challenged the federal government’s mandatory minimum sentencing structure.  It challenged the use of the anti-terrorism act to prosecute the ranchers.  The prosecutor in the case, Assistant US Attorney Frank Papagni, said this:

“Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

In the comment section of the same article, I found the following two comments to be especially interesting.

Has an appellate court ever decided that a particular sentence under the USSG [United States Sentencing Guide] is grossly disproportionate to the crime? I don’t think so. It would open a huge can of worms and possibly undermine the entire federal sentencing scheme. I think that it being the judges last day and that these were decent white ranchers had more to do with this decision than anything else.

and:

From the government’s point of view, assuring that judges obey MM’s [mandatory minimum] is a paramount interest. That’s why it will appeal this. To do otherwise is to virtually send the other district judges a gold-plated invitation to deviate from the MM when they want to.

The US Department of Justice appealed the ruling, and the Ninth Circuit Court of Appeals remanded the case back to the Oregon US District Court.  In the appeal, according to this article, the government admits it doesn’t have to prove that someone is committing acts of terror when they state:

“the fact that they are ranchers who set fire to rangeland and not terrorists adds nothing to the analysis.”

 Also in the appeal, the government uses the following disturbing examples of mandatory minimum sentences as justification:  25 years for the theft of three golf clubs; 50 years to life for stealing nine videotapes; 40 years for possession of nine ounces of marijuana with the intent to distribute; life sentence for obtaining $120.75 under false pretenses (what?!); 430 months for using arson in commission of a felony; and so on.  Because let’s see, one, two, three…many wrongs make a right, right?

Chief Judge Ann Aiken over-ruled Hogan’s sentence, and declared the Hammonds would have to return to prison and serve what remained of the mandatory minimum sentence of five years.

Dwight and Steven Hammond have returned to prison, but the re-sentencing sparked a protest rally in Burns, Oregon on Saturday, January 2, 2016.  The peaceful protest was subsequently over-shadowed by a takeover of the Malheur National Wildlife Refuge headquarters by non-local militia members who claim to have done so to demand that the Hammonds be released and the refuge lands be returned to the area ranchers.  You can read my thoughts on this take-over and stand off here, as well as a similar perspective here.

In the vast majority of the reporting and social media noise about this situation, very few are talking about the use of the Anti-Terrorism and Effective Death Penalty law in the prosecution of the Hammonds.  In my opinion, this case has demonstrated the government’s willingness to expand the use of this law in its efforts to shut down dissent of federal policies.  Ranchers angry over the increasing restrictions on their livelihood, pushed to the point of what has sometimes been destructive and threatening protest, can effectively be sentenced as terrorists.  And, as we know, terrorists are very, very scary.

The take-over of the Malheur refuge has created a distracting and extremely divisive debate here in America. In public opinion it seems that protests over police killings, which have also involved arson in the past, are acceptable because it involves racism and is a matter of authorities violating the rights of African Americans (and I 100% agree that rights are not just being violated, but entirely obliterated, racism is a problem, and I do support those protest movements) while the protests of frustrated ranchers over perceived violations of their land use rights by Federal authorities is unacceptable and labeled as terrorism.  In fact, both are about the violations of the rights and freedoms of Americans.  Consider a comparison different than the one the media is currently pushing with this quote from a 2001 article:

“They [rural land owners] are neglected by the state and by the federal government, and they’re mad,” says Eric Herzik, a political scientist at the University of Nevada. “They’re out of the loop; decisions get made for them. It’s not unlike inner cities, whose needs don’t get heard until there’s violence.”

While we argue and call names loudly over this stand off and those involved in it, the government has quietly set a precedence of using its very broad anti-terrorism law and its ability and willingness to set and enforce mandatory minimum sentences under that law.  Regardless of who is sentenced, and for what.

Consider the following from an ACLU report as you think about that.

There is a pall over our country. In separate but related attempts to squelch dissent, the government has attacked the patriotism of its critics, police have barricaded and jailed protesters, and the New York Stock Exchange has revoked the press credentials of the most widely watched television network in the Arab world. A chilling message has gone out across America: Dissent if you must, but proceed at your own risk.

Government-sanctioned intolerance has even trickled into our private lives. People brandishing anti-war signs or slogans have been turned away from commuter trains in Seattle and suburban shopping malls in upstate New York. Cafeterias are serving “freedom fries.” Country music stations stopped playing Dixie Chicks songs, and the Baseball Hall of Fame cancelled an event featuring “Bull Durham” stars Tim Robbins and Susan Sarandon, after they spoke out against the war on Iraq.

Compounding the offense is the silence from many lawmakers. There is palpable fear even in the halls of Congress of expressing an unpopular view.

No matter how you feel about the presence of those scary guns at the Malheur Refuge, and no matter how you feel about environmental stewardship, and no matter how you feel about inner city people or rural people or race or racism, it is time to look beyond all that and look at the underlying problems we are all facing.  It is past time to admit we have allowed our government to step way out of its boundaries. Each time we ignore cases like the Hammonds’, every time we give up rights of our own or others, we slide a little closer to fascism.

 

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