Tag: Oregon Stand Off

Oregon Stand Off Trial Verdicts Are In

The verdicts are in this afternoon for the seven defendants on trial in Portland for their roles in the occupation of the Malheur National Wildlife Refuge earlier this year.  The verdicts are as follows:

Ammon Bundy, not guilty on all counts

Ryan Bundy, not guilty on conspiracy charge, not guilty on firearms charge, no verdict on theft of property charge.

Jeff Banta, not guilty on all charges

Shawna Cox, not guilty

Ken Medenbach, not guilty on all charges

David Fry, not guilty on all charges

Neil Wampler, not guilty

After Questions of Bias Arise, Juror Dismissed in Oregon Stand Off Trial

Yesterday in the trial of seven defendants accused of conspiring to impede federal employees from doing their jobs after the January 2, 2016 occupation of the Malheur National Wildlfe Refuge, the jury sent questions to the judge.  One of those questions, hand written in all capital letters, was:

“Can a juror, a former employee of the Bureau of Land Management, who opens their remarks in deliberations by stating, ‘I am very biased…’ be considered an impartial judge in this case?”

The defense asked for the juror to be dismissed.  Judge Anna Brown met with the juror and the attorneys and decided she would not immediately dismiss the juror.  She gave the attorneys until 9am today to present case law to support the argument to dismiss the juror.  This is an unusual development, and has resulted in a flurry of discussion and speculation from all sides on how it will effect the trial.

Ammon Bundy’s defense lawyer, Marcus Mumford, filed a motion  to dismiss the juror this morning.  Many reporters in the court room tweeted that Judge Brown stated, “there is not a way forward that is not fraught with risk.”  Judge Brown asked that all parties agree to dismiss the juror on ‘good cause’ and she had a replacement juror chosen from a cup in preparation.  She said if the prosecution did not agree to dismiss the juror, she would hear oral arguments on the motion to dismiss.

Meanwhile, the jury continued to deliberate.  Judge Brown said if they reached a verdict while the court was deciding whether or not to dismiss the juror it would be yet another problem.

Finally, the prosecution agreed to dismiss the juror. The judge informed the jury that she had determined that juror 11 needs to be excused in the interest of justice, and that everyone would be back in court tomorrow morning for another round of jury instructions.  She told the jury they will have to set aside the conclusions they had already come to and start over.

 

Homework, After More Than a Decade

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Today, for the first time in years, I had a homework assignment due.  When I say years, I mean more than a decade.  I have no idea what sort of grade I will receive for my work, but I enjoyed doing it.  This assignment was to attend an event and report on it as if I was writing a piece for a newspaper.  Not an easy thing for me as a blogger who enjoys a lot of freedom to editorialize all I want, and as a novelist who has the power to kill off any character that disagrees with me.  But the challenge is what made it so fun.

I chose an event that I thought would be interesting to me personally, but also worth writing about here at seeking redress.  I chose to ‘report’ on a presentation given in Bend, Oregon, on October 6, 2016, by the Rural Organizing Project.  There is a lot I would like to say about this presentation, about the atmosphere in the room, about the security team present, about this organization, about the responses I heard afterwards…but that was not the purpose of this assignment, so maybe another time.

I really wanted to focus on something positive that I saw during this event.  So, for my homework assignment, this is what I reported:

Community members come together in spite of differences to discuss solutions to common rural problems.

October 7, 2016

By Katie Aguilera

The Rural Organizing Project gave a presentation Thursday night in Bend at the Nativity Lutheran Church as part of their statewide “Beyond Burns: the Growing Patriot Movement” tour.  Following the presentation and a short question and answer session, members of the audience were divided into smaller groups to discuss the issues presented.

This led to a positive exchange between Central Oregon residents concerned about the Patriot and militia movements and leaders of several Oregon Patriot groups.  Both groups agreed they share more common ground than expected after talking with each other.  In spite of their different opinions, all agreed that further dialogue about solutions to local problems was both possible and necessary.

The presentation was given by Jessica Campbell, co-director of the Rural Organizing Project.  The problems she discussed included the lack of funding for basic services like emergency dispatch services, full time law enforcement services, the lack of jobs, and more.  Campbell explained how these often lead to numerous problems, including a growing sense of discontent and disenfranchisement in rural communities.

Campbell explained how Patriot and militia groups seek to fill these voids in order to spread their message and recruit new members.  These groups often organize community service projects to gain support and also work to get politicians supportive of their goals elected to local offices.

A brief introduction of various groups such as the Oath Keepers, Oregon Three Percenters, Constitutional Sheriffs and Peace Officers Association, and the Pacific Patriots Network was given.  Campbell went on to discuss confrontations that have occurred between these groups and law enforcement over the past two years, from Cliven Bundy’s standoff with the Bureau of Land Management in Bunkerville, Nevada in 2014 over cattle grazing fees, to the occupation of the Malheur National Wildlife Refuge in Oregon earlier this year.

Another confrontation Campbell discussed occurred near Galice, Oregon, at a mine known as the Sugar Pine Mine, where various militia groups sought to prevent the Bureau of Land Management from shutting down operations at the mine.  This incident, occurring near Campbell’s hometown of Cottage Grove, brought the growing movements to Campbell’s attention, and led to Rural Organizing Project’s partnering with Political Research Associates of Somerville, Massachusetts, to co-produce the report, “Up In Arms: A Guide To Oregon’s Patriot Movement.”

People attended the presentation for various reasons.  Connie (Smith*) of Bend, said she came because she is concerned about the “mainstreaming of the [Patriot] movement,” and explained that while it is easy to recognize a member of a militia visually, it isn’t easy to recognize politicians supportive of the movement who are running for office.

Kathleen Brady, of Redmond, said she came to learn about the Rural Organizing Project.  She said she felt that much of the information presented was factually flawed, and while there was common ground between the Rural Organizing Project members and the Patriot movement, the methods of creating dialogue at the meeting were seriously lacking.

Bj Soper, also of Redmond, and founder of the Central Oregon Constitutional Guard and co-founder of the Pacific Patriots Network, said a lot of information was left out of the presentation, specifically in regards to the Sugar Pine Mine incident and another incident discussed that occurred at a mine in Montana.  However, he agreed the community could work together to solve problems faced by rural areas, stating, “we’re crazy not to try.”

The Rural Organizing Project was formed in 1993 in an effort to promote liberal democracy in what has largely been considered conservative rural areas of the state.  It began as a network of over 40 human dignity groups and formed a permanent staff to facilitate local organizing, communication, and political analysis.

The group will host four more presentations around the state, in Canyon City on October 7, Baker City on October 8, Lostine on October 9, and finally La Grande on October 10.  More information about the group can be found on their website at www.rop.org.

*I neglected to ask Connie her last name while speaking with her.

 

FBI Agent Testifies of Advance Warning of Malheur Wildlife Refuge Takeover Plan

According to testimony given by FBI Agent Chadd Lapp in the ongoing trial of seven defendants charged with conspiring to impede federal officers from fulfilling their duties as a result of their occupation of the Malheur National Wildlife Refuge that began January 2, 2016, the FBI received advanced warning of the plan on January 1, 2016.  It has been acknowledged during the trial that there were informants at the refuge during the occupation.

On Wednesday, September 28, 2016, Agent Lapp testified that on January 1, one day before the planned rally supporting the Hammonds, FBI agents learned there was a plan to take over the refuge.   Maxine Bernstein wrote in the Oregonian on September 29, 2016:

“Lapp said he heard the information from another agent. Ammon Bundy’s lawyer Marcus Mumford referred to an email sent to the chief regional refuge law enforcement office that he said made mention of ‘intelligence from four people within the militia about a plan to take the refuge.’

‘I remember telling him there was intelligence. It was a potential target,’ Lapp said. ‘It was really basic words…Malheur…wildlife refuge, and there may be a plan to take it.’

Under questioning from Mumford, Lapp said he conveyed the intelligence to several people in his office, but didn’t do anything further with the information.”

That nothing was done to prevent this plan, even with the short notice, is surprising given the testimonies made previously by Harney County Sheriff Dave Ward and Chad Karges, the manager of the Malheur National Wildlife Refuge, who both spoke of taking preventative measures prior to the January 2 rally.

Sheriff Ward testified earlier in the trial that after several meetings with Ammon Bundy prior to the January 2 rally and numerous emails, warnings, and his own research into what had happened at Bunkerville, Nevada in 2014, he prepared by moving the inmates from his jail in Burns, Oregon to the next county.  He added that he moved all of the weapons and ammunition to the jail, which could serve as a fortified bunker should something happen during the January 2 rally.

Chad Karges testified that “he made the decision to keep employees away after New Year’s Day because of the ‘continued intimidation and threats towards federal employees,’ ‘type of arms that they had,’ and the ‘type of stand they were taking.'”  Defense Attorney Lisa Maxfield asked Karges why no security was placed at the refuge before the rally, Karges answered, “at that time, federal agencies were being told the threat was towards the BLM, and the refuge hadn’t entered into the conversation.”

If the FBI had received information a day in advance of the takeover of the refuge, as Agent Lapp testified yesterday, why indeed weren’t steps taken to increase security at the refuge?  Clearly law enforcement and federal employees were concerned in the months leading up to the Hammonds returning to prison and the January 2 support rally.  Considering that, and the stand off that had occurred in Nevada nearly two years before, why would such a warning not be taken seriously?

With the well-known presence of the Bundys and the others who joined them in taking the refuge, as well as that of the Pacific Patriots Network and other “militia” groups in Burns, Oregon, for the support rally for the Hammonds, I find it difficult to believe there was a shortage of law enforcement in Harney County on January 1, 2016.  Why then was there no law enforcement presence placed at the Malheur National Wildlife Refuge on January 2, 2016 after the FBI received warning of the planned occupation?

 

 

 

Man Arrested After Attempting To Bomb BLM Facility in FBI Sting Operation

Yesterday, June 22, 2016, the Federal Bureau of Investigation arrested William Keebler in Nephi, Utah, after he allegedly attempted to detonate a fake bomb they had provided him with.  Keebler was present in Bunkerville, Nevada in 2014, at the Bundy ranch and apparently at the stand off between Bundy supporters and the BLM on April 12, 2014.  He is described as the leader of a citizen militia group, the Patriots Defense Force.

The felony complaint document states that Keebler was an associate of Lavoy Finicum, the Arizona rancher killed by law enforcement at a roadblock in Oregon during the occupation of the Malheur National Wildlife Refuge earlier this year.

According to the felony complaint, the FBI had had undercover officers inside the Patriots Defense Force, acting as members and participating in various training exercises with the militia group, for several months.  The felony complaint describes several meetings over that time period in which Keebler discussed “going on the offensive” and “gathering intelligence on potential targets.”  One such meeting is described as follows:

On March 19, 2016, Keebler organized and led an FTX [field training exercise] for the PDF militia group.  Keebler described the direction the PDF was going to focus on.  Keebler said the government had been allowed to harass people, but the repercussions were going to start.  Keebler had previously said the BLM was overreaching their authority to implement grazing restrictions on ranchers.  Keebler had opined the land belonged to “the people” and could be used responsibly at the American people’s discretion.  Keebler said the PDF was going to target BLM facilities in the “middle of nowhere.”  Keebler stated the PDF was going to sneak in and severely damage vehicles or buildings.  Keebler requested a PDF member/UCE [FBI undercover employees] who has explosive materials expertise, to build an explosive device that could disable a BLM vehicle or damage a building.  Keebler made it clear he didn’t plan on blowing people up for now, but he wanted his group to be prepared to escalate things, and take people out if necessary.

On May 14, 2016, Keebler announced to the group that they would target a BLM facility at Mount Trumbull, Arizona and requested two bombs be built by the UCE, one to place at the facility to be remotely detonated, and the other for use in case they were stopped by law enforcement on the way to or from the BLM facility.

According to the felony complaint, Keebler had previously scouted the Mount Trumbull facility in October, 2015, with Lavoy Finicum, accompanied by an FBI undercover employee who took pictures of the facility.

On June 21, 2016, one of these devices was “placed against the door of one of the BLM cabins in Mount Trumbull [Arizona].  After the device was placed against the door, Keebler was handed a remote detonation device.  Keebler then pushed the detonator button multiple times in order to remotely detonate the inert explosive.”  Keebler was arrested the following morning after he had returned to Utah.

This calls several things into question for me.  First of all, who placed the bomb next to the door of the BLM cabin?  Who handed the detonator to Keebler?  Was it entirely Keebler’s idea and decision to bomb a BLM facility?  It wouldn’t be the first time the FBI has stopped  a crime that they helped to plan.

One example that most of my fellow Oregonians probably remember is the case of Mohamed Osman Mohamud who was arrested in Portland, Oregon, in 2010 for attempting to detonate a fake car bomb at a Christmas tree lighting ceremony.  The FBI had provided him the bomb after encouraging the plot.

In a September 18, 2011 Los Angeles Times Op ed, Petra Bartosiewicz writes:

The government’s marquee post-9/11 terrorism investigations, including cases such as the Miami Seven, the Ft. Dix Six and last year’s Portland Christmas Tree Bomber, have not involved real attacks but, rather, have been sting operations involving plots invented by law enforcement. New York University’s Center on Law and Security, which tracks federal terrorism prosecutions, reports that since 2009, the FBI has escalated its use of stings in which a confidential informant or undercover officer approaches a suspect and “assists him in the planning of an attempted terror crime.”

The defendants in these plots, most of them male Muslim immigrants with no history of terrorism or violence, have become unwitting actors in a disturbing theatrical performance: The FBI scripts the plot and provides the weapons, along with money, cars and any other logistical support needed to carry out the “attack.”

She goes on to discuss the argument that only the “true bad guys will take the bait” in such sting operations by stating, “terrorism stings go much further than presenting a likely bad guy with a passing criminal opportunity. The operations last for months and sometimes years, with suspects offered all manner of enticements to participate in a plot they probably would never have come up with on their own.”

I suppose that we should all feel so much safer as the FBI is so effective at stopping their own plots.  Even though they were unable to stop Omar Mateen from killing 49 people in Orlando, Florida in spite of the fact that the gun dealership where Mateen requested a thousand rounds of ammunition and body armor reported concern about him to the FBI weeks before the shooting.  And this after Mateen had previously been on the terrorist watch list and under intense investigation in 2013-2014.

Even though they seem unable to stop armed wildlife refuge “take overs” in spite of their success, as demonstrated in this case with Keebler, at infiltrating groups associated with those who did occupy the Malheur refuge.  Clearly all the surveillance and infiltrating works wonders.

UPDATE, June 29th, 2016:  According to this Salt Lake Tribune article published today,  “Lavoy Finicum did not accompany Keebler when he scouted the BLM cabins in October 2015, as was alleged in the charging documents.”  The article also states that Keebler’s federal defender said in court:

“…undercover agents proposed the explosive types, drove Keebler to the location, placed the bomb, handed Keebler a remote trigger and told him to press the button three times.”

 

 

Grant County, Oregon’s Sheriff Palmer Has Enemies In High Places

Author’s Note:  I am no longer affiliated with Newsbud and no longer endorse the site.  I have removed most of this post because I cannot in good conscience, promote Newsbud’s work.  I originally posted this with a link to a Newsbud article because I was asked to do so.  I am leaving the link to that article, but I do not agree with the conclusions of that article.  11/2/2017  You can read more about why I don’t agree with those conclusions here.

Sheriff Glenn Palmer, of Grant County, Oregon (the only county in the United States that, interestingly, has declared itself a UN free zone by vote) appears to be in the cross hairs for some of his actions during the occupation of the Malheur Wildlife refuge in neighboring Harney County.  Sheriff Palmer met with some of the people involved at the refuge and also voiced support for releasing Dwight and Steven Hammond (more on their story here and here.) and for sending the FBI packing from Harney County.  Those are two opinions I suspect the majority of Harney County residents would agree with, but the federal government certainly does not.

…The rest is deleted.  The Newsbud article that this post originally linked to can be found here.

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 Author’s Note: I am no longer affiliated with Newsbud and I no longer endorse the website, or the linked article above.  Additionally, when I attempted to contact Sheriff Palmer to ask for verification of his reaction to the strange letter, my phone call was not returned.

What’s The Beef, Part Two: How Lawsuits Shape Land Management Policies

Range management is more a result of lawsuit than science…Special interest groups sue the land management agencies and they agree to settle on terms that do not benefit the general public and are almost never disclosed…

Victor Iverson in Deseret News, January 22, 2016

When protesters occupied the Malheur National Wildlife Refuge in Harney County on January 2nd, 2016, I had no idea where the story would lead me.  I’ve written before about being open to opposing viewpoints and ideas, and questioning one’s own opinions.  This story has certainly had me questioning mine, in many ways.  One of those is my feelings and opinions on the ways we go about preserving and protecting our wild lands and wild life.

I love rivers.  I have spent years paddling on them, hiking beside them, swimming in them, finding peace sitting next to them.  And there are a few that are especially precious to me, right in the middle of my favorite place I’ve been to so far, the Kalmiopsis wilderness in Southwestern Oregon.  These rivers, and this area, are the scene of another land use debate, and I side with saving the rivers, and the land.  Because I love them, they are home, and, well, I am not a nickel miner.  Another one of my favorites is the incredibly remote and beautiful Owyhee River, yet another place that is contested, and again I view that issue from the perspective of one who wants to preserve the river and canyon.  Again, I’m not a miner, or a rancher.

If you love the lands, the wild places of our world, and you are upset over the occupation of the Malheur refuge because you see it as an attack on your right to public lands, I can understand.  If you believe that ranchers are subsidized with low grazing fees and are still demanding more hand-outs from the government by grabbing land, well, then I would ask you to take a step back and consider some things.  Take some time to consider their side of the story.  Because you may realize that the reasons they are angry isn’t all that different from the reasons you are angry.

Sue and Settle

Back in the heyday of clear-cutting, over-grazing, strip-mining, etc, when a generation of passionate environmentalists were inspired by Hayduke and his Monkey Wrench Gang, it seemed that the only way to bring attention to the problems of over-use and degradation of lands was with aggressive, sometimes dangerous, protest actions.  From removing survey stakes and tree spiking to bombings and arson labeled as eco-terrorism, considered one of the greatest threats of terrorism in the United States, environmentalists wanted to be heard.  In desperation to save what they loved, they demanded change in the only ways they felt were left to them.  But then another way was found to effect change in land use policies.

We decided, let’s just sue instead.  It got settled with the Service agreeing to do a wolf study, which led to reintroduction.

That was the moment when we looked at it and said, ‘Wow.’  The environmental movement spent a decade going to meetings and demanding action and getting nothing done.  They were asking powerful people for something from a position of no power.  We realized that we can bypass the officials and sue, and that we can get things done in court.

Kieran Suckling of the Center For Biological Diversity in an interview with High Country News

The use of lawsuits to force the agency overseeing the land or wildlife in question to act has proven to be effective.  And it has been steadily increasing.  When the agency agrees to reach a settlement in these lawsuits, the terms are negotiated behind closed doors, outside of the public’s view, away from the public’s input.  It is referred to as ‘sue and settle.’  Here is a short definition from a report from the US Chamber of Commerce:

“Sue and Settle” refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

Here is another from the Washington Examiner:

Here’s how the process works: First, the private environmental group sues the EPA in federal court seeking to force it to issue new regulations by a date certain. Then agency and group officials meet behind closed doors to hammer out a deal. Typically in the deal, the government agrees to do whatever the activists want. The last step occurs when the judge issues a consent decree that makes the deal the law of the land. No messy congressional hearings. No public comment period. No opportunity for anybody outside the privileged few to know how government regulatory policy is being shaped until it’s too late.

This means that the very people affected by the policies and actions agreed upon are left out of the decision making process, they are not a part of the equation.  Until it costs them their livelihood, or until they are the local officials in charge of enforcing the policies, often at the expense of their neighbors and even families.  Add to that the issues of water rights, reductions in land use, and devastating wildfires that threaten homes and livestock that are the result of federal mismanagement.  Now can you begin to see where some of the anger comes from?

Beaver County Commissioner Tammy Pearson described struggling ranchers held hostage by the proliferation of wild horses that are ruining a drought-striken range for cattle, wildlife and other uses.

Pearson, a rancher herself, said the situation is dire.

“Producers have exhausted their financial reserves, have lost their faith in federal agencies and have been backed into a corner by those agencies and so-called environmentalists and advocacy groups,” she said. “This grief has caused the uprisings that we see in Nevada, Oregon, and quite possibly in Utah.”

Deseret News, January 22, 2016

It shouldn’t be surprising either that mistrust in the Federal government has only increased alongside these sue and settle, closed door agreements that increasingly shape policies.  It is reminiscent of the mistrust environmentalists felt towards federal agencies and wealthy land owners and corporations in the days of Hayduke.

Another thing to keep in mind is that these lawsuits cost money.  Karen Budd-Falen, an attorney with a long history in land use law who works to protect property rights, and to bring attention to the use of the legal system to effect environmental policy, has been attempting to find out just how much they cost for years. “I was floored to learn that the federal government couldn’t tell me (after multiple Freedom of Information Act requests) how many times they had been sued and how much money they had paid,” said Budd-Falen in this article from The Dalles Chronicle from May of 2014.  The article goes on to quote her claim that environmental groups received settlements of more than $4.7 billion as a result of more than 15,000 suits filed in a six year period in the 2000’s.

According to another article from The Dalles Chronicle published two days later, John Buse, legal director for the Center for Biological Diversity, disputed the claim.  He also disagreed with a figure of $52, 518,628.00 total payouts for 489 cases filed between January 2009 to April 2012 that was revealed in a U.S. Department of Justice report provided to the House Natural Resources Committee.  Buse stated, “although that report appears to cover a little over a three year period, we believe it actually covers more than 20 years.”  He said that the figure included cases from the past that were still open.

Budd-Falen also points out that,

Unlike lawyers who seek redress of grievances on behalf of veterans, senior citizens and the disabled, the fees that an environmental attorney can recoup are not capped, according to Budd-Falen.

“Attorneys suing most agencies can recover $200 per hour in fees if they prevail but environmental lawyers are often awarded $750 per hour or more,” she said…

…“There are lawyers across the nation that make their total living from suing the government.”

That article goes on with this:

Dustin Van Liew, executive director of the Public Lands Council, which is affiliated with the National Cattlemen’s Beef Association, believes the U.S. Forest Service and Bureau of Land Management, the two agencies that oversee public grazing, are also trying to pre-empt lawsuits by using administrative powers to appease environmentalists.

For example, he said the bureau has cut 30-50 percent of livestock grazing in Owhyee County, Idaho, by placing restrictions on permits. He said the agency is making those decisions without a scientific review of any issues that environmentalists raise or attempt to work out a mitigation plan with ranchers, if that is necessary.

“We believe they are not making decisions based on what’s happening on the ground,” he said.

It would make sense, in order to limit the money being paid out in these settlements, for agencies to do just that.  And that only adds to the list of grievances of ranchers and loggers, etc.  It adds to their mistrust of these agencies and their employees, as it appears to be collusion with environmental organizations.

Kieran Suckling of the Center for Biological Diversity, in the interview with High Desert News linked above, has this to say about the use of lawsuits:

They are one tool in a larger campaign, but we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species. That plays out on many levels. At its simplest, by obtaining an injunction to shut down logging or prevent the filling of a dam, the power shifts to our hands. The Forest Service needs our agreement to get back to work, and we are in the position of being able to powerfully negotiate the terms of releasing the injunction.
New injunctions, new species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners want to tear their hair out. They feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules and at least get something done. Psychological warfare is a very underappreciated aspect of environmental campaigning.

I would argue that what may have been a useful and sometimes justifiable tool has been corrupted and turned into an industry.  And it prevents communities on the local level, people from all sides of an issue, from coming together to work out solutions that probably won’t make everyone completely happy, but will at least keep people working while preserving lands and wildlife.  As a result, we are seeing more and more aggressive and sometimes violent acts of protest coming from the people who rely on land use.  From bulldozing fences and turning cattle loose to graze without paying grazing fees, to occupying wildlife refuges.

The reality is, as long as the balance of power keeps shifting back and forth between huge, special interest lobby groups and wealthy power players on both sides of this issue, we on the ground with our passionate desires to save what we love, will be forced apart.  We will continue to fight it out by enforcing increasingly over-bearing restrictions, and resorting to increasingly aggressive guerrilla tactics.

“In a lot of ways, the forest service and grazing community have more in common than not.  Anyone whose livelihood comes from the land understands that we have to keep the land healthy to sustain production.”

Laura Pramuk, public affairs officer for the forest service, said in The Dalles Chronicle in May, 2014

 Read What’s the Beef Part One: The Anger Over Federal Land Management here.

 

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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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