Category: Legal (Page 2 of 2)

Protest against Gorsuch appointment

Don’t Make Gorsuch into a Purity Test for Democrats

I normally agree with much of what Think Progress writes, but not in one of its latest pieces on how Senate Democrats stand on Gorsuch appointment. It’s interpretation of their stand is obvious from subheadings of “Team Spine”, “Team ¯\_(ツ)_/¯”, and “Team Trump”.

I am not happy with a Gorsuch appointment because of his strong beliefs against the Chevron Defense. This legal standard has allowed federal agencies to survive challenges to laws typically related to the environment and endangered species. He’s also a conservative judge when we had a chance to appoint a moderate who would actually make decisions based on the law, not ideology.

At the same time, Gorsuch is a much better option than some of the judges Trump was considering. And these latter judges may be up for consideration in the next few years if another Justice retires or dies. Gorsuch has demonstrated a willingness to buck conservatives in decisions if he interprets the law in a way that’s independent of their reasoning.

If I were a Democratic Senator, I wouldn’t vote for Gorsuch, but I wouldn’t filibuster his appointment, either.

By not voting for Gorsuch, I’m signaling that I believe the seat he’ll feel is a stolen seat. I’d want him to know that this “stolen seat” legacy will follow him throughout his years, and his decisions. I’d want him to think about this legacy, especially in light of his professed love of the law. I’d want him to remember that Merrick Garland is highly qualified, more experienced, and was lawfully appointed by the President of the United States.

However, by not filibustering him, I am acknowledging that he is a better option than what we could face from Trump. It’s a long two years until the Senate race when we can hopefully take back the Senate.  The Senate Republicans will destroy the SCOTUS filibuster rule if Democrats filibuster Gorsuch. Guaranteed.

Gorsuch will still be judge, but we’ll have lost the ability to force in-depth, stringent confirmation hearings for future appointees; hearings that may cause some Senate Republicans to question whether what’s being said in these hearings is worth the possible hit in their upcoming re-election bid. Because there’s a whole lot of Republicans coming up for re-election along with the Trump administration in 2020.

With the filibuster in place, Senate leaders are going to be more willing to allow for lengthy, robust questioning during the committee hearings, in hopes of appeasing those who might be thinking of filibustering the appointment. Without the threat of filibuster, why should they waste time when they know the control the votes to just vote the person in?

A longer confirmation process may expose information that not only is game changing for Democrats but could be game changing for some Republicans. Republicans who might actually join the Democrats…especially if they’re coming up for re-election.

That’s my take. Others, including many Democratic Senators, have different takes. Regardless of how each Senator handles the Gorsuch appointment, one thing I’m adamant about: I’m not turning this into a purity test for Democrats.

Purity tests, inspired by Sanders and sledgehammered by Jill Stein, helped us lose the election and put Trump into the Presidency. Trump’s Presidency has already hurt people. Trump’s Presidency has already killed people.

That Garland isn’t a Supreme Court Judge is the Republicans’ fault. That Gorsuch and not Garland is the current choice is Trump’s fault. Trump, his cabinet, and the Republican-controlled Congress are, and will remain, my only targets. My entire focus is to limit the damage this Congress and President can do, and to kick them all out in the next three federal elections. To me, nothing else matters.

Too much is at stake to play purity games.

Photo courtesy of Elvert Barnes CC BY-SA 2.0

 

 

Bird in a tree

Writing at Crooks and Liars

I have been writing some pieces at Crooks and Liars, primarily to extend my audience reach. My poor little weblog just doesn’t have the oomph it once had—probably because I write on such an odd mix of topics.

About my pieces at Crooks and Liars…

I’m a Clinton supporter, but even if I weren’t, I’d be unhappy at the obvious attempt to turn her use of a personal email server into the next Apocalypse. That the hysteria about her use of a personal server is manufactured is obvious. The problem is compounded by a media that has done a poor job of covering the story, aided and abetted by the GOP. Sadly, their efforts have also been helped by Bernie Sanders and his supporters. Yes, Bernie says he doesn’t want to get into the Clinton email server, but he always manages to insert an aside about “how serious this situation is” in some form or another.

He’s been in DC for decades, he knows this ‘scandal’ is engineered. Why can’t he just say so, and then go on to the issues?

I’m also unhappy about the continued abuse of the FOIA by groups like Judicial Watch and the Competitive Enterprise Institute. So it was natural for me to follow the FOIA lawsuits associated with the Clinton emails, especially when I discovered one was being presided over by Judge Emmet Sullivan—not my favorite federal judge.

Judicial Watch, CEI, and others like them make most of their income trolling through public records. They make sweeping and broad FOIA requests to agencies already maxed to the limit with trying to support open records requests. Then, when the agencies don’t respond in a fairly short time, or respond in the way they want (and they’re seldom happy with the results of a search), they file a lawsuit.

What most people don’t know, is those lawsuits cost the American taxpayer money. Judicial Watch got close to a million dollars in legal fees with one lawsuit, $330,000 in another, and that’s just a start. I suspect all of Judicial Watch’s efforts have cost taxpayers millions, if not tens of millions of dollars.

The agencies do make good faith efforts to find records, such as the State Department made a good faith effort to find Clinton emails. But State also has to respond to an average of 20,000 or so FOIA requests in a year, with a budget that’s been decreased 15% by the Republican-dominated Congress.

That Clinton’s emails weren’t found is more a result of confusion about what’s stored than not. From all of the emails I’ve looked at, she either responded to someone with a State email address, or forwarded the email to someone with a State email address. Everyone seemed to assume that all emails in a State email account were automatically saved, and searchable by FOIA. Of course, from the recent OIG report, we know this isn’t true. Does that make State negligent and Clinton criminal?

Of course not.

When Clinton did give her backup of the emails to State, they put everything online. Everything. No one individual ever working for any government agency has ever had this much exposure of their emails.

State had had to hire 44 more people, just to handle FOIA requests, primarily related to Clinton.

Despite that, Judge Sullivan and Judge Lamberth, another judge who demonstrates some of the same characteristics as Sullivan, are allowing Judicial Watch to do discovery in their FOIA lawsuits. It’s absurd. FOIA is administrative law. If the Judge decides that the agencies didn’t do enough to fulfill a request, they can sanction the agency, and order it to pay legal fees. But discovery?

And the direction of the discovery in the Sullivan case is disturbing. State offered to bring in  personnel responsible for FOIA requests to be deposed, but no, Judicial Watch wanted people that Clinton had on her staff, such as Cheryl Mills. These are people that had, at most, a remote connection to anything to do with the emails, but oh, they know a lot about Clinton. Judicial Watch wants to depose Bryan Pagliano, the person who set up her server, but he’s demonstrated since the beginning of this fiasco he wants nothing to do with it, and now that’s caused even more issues.

We’ve already seen Judicial Watch blast through the narrow confines Sullivan set for discovery. They do so with impunity, because they know Sullivan, like I know Sullivan: once you trigger Sullivan the Crusader, say good-bye to Sullivan, the thoughtful and balanced jurist.

All combined, I’m going to continue to write about the FOIA lawsuits. Unless Crooks and Liars tells me enough already with the FOIA lawsuits and depositions, I’m going to continue covering them at the publication, but may start duplicating them here, for those of my regular readers who might be interested.

My most recent piece for Crooks and Liars is not on FOIA lawsuits, but was a direct response to  recent interviews Susan Sarandon did with MSNBC and Young Turks (I originally saw the interview in Salon). In a piece at The Hill, we read:

Sarandon, who supports Bernie Sanders for president, said Trump’s ideas are too implausible to be dangerous.

“This is what we’re fed — ‘he’s so dangerous, he’s so dangerous,’ ” she said. “Seriously, I’m not worried about a wall being built and Mexico paying for it.

“He’s not going to get rid of every Muslim living in this country. Has he made it the norm to be racist and vent these kinds of things? Yes. But seriously, I don’t know what his policies are.”

She basically dismisses all the appalling statements Trump has made, as if they’re inconsequential because everyone knows they won’t happen. This is the exact same rhetoric we’ve started to see from the GOP this week: oh, don’t worry, Trump can’t do any of that stuff, so you can elect him President. Congress will control him.

Sarandon then accuses Hillary Clinton of being more dangerous. Trump wants to ban Muslims, build a wall, threatens a federal judge, seems to see the Presidential role as a personal perk, has disdain for Constitutional separation of powers, wants to play patty cake with the leader of North Korea, is bellicose about China, Japan, Mexico, NATO, and every single one of our allies…and Clinton is more dangerous!?

Sarandon also used the opportunity to chastise the media for not covering Clinton’s upcoming indictment, which, according to her is a certain thing:

“Nobody’s even talking about this indictment,” she told MSNBC. “What happens with that, besides the trust issue of catching her in so many lies?”

“Well, there has been no indictment,” Chris Jansing responded.

“No, but there’s going to be,” responded Sarandon. “I mean, it’s inevitable.”

I answer her “it’s inevitable” at C & L, but a short summary: what a crock.

In my opinion, if Sanders doesn’t get the Democratic nomination, Sarandon wants Trump to win.  She once slipped and said she thought it would shake things up, but then disclaimed the statement. But I truly believe she thinks this. And she’s encouraging other Bernie supporters to think the same.

“Well, you know, some people feel Donald Trump will bring the revolution immediately,” Sarandon told Chris about why she’d vote for Trump. “If he gets in, then things will really explode. The status quo is not working. I think it’s dangerous to think that we can continue the way we are … to think you can’t do something huge to turn that around, because the country is not in good shape if you’re in the middle class.”

My piece may seem over the top, but it’s relatively restrained considering what I really wanted to write.

My Crooks and Liars pieces:

I’m still writing here and my other sites. Still writing about tech. Still writing about all the other stuff I write about.

 

 

 

 

 

Picture of Andy Johnson's dam

Andy Johnson EPA Consent Decree

Previous coverage here and here

Andy Johnson created a “stockpond” by building a dam on a creek that is covered under the Clean Water Act. The EPA issued a violation to him for not getting a permit for unauthorized dumping in said creek. The solution outlined in the violation was to work with the agency to remediate the damage. If he didn’t comply, he could face significant fines.

Rather than work with the EPA, Johnson sued, to the accompaniment of press conferences, news storiesCongressional hearings, op-ed pieces by Paul Ryan, and videos featuring a plethora of American flags and small children.

March 22, lawyers with the US Department of Justice and representing Andy Johnson filed a consent decree in court to resolve the court case of Andy Johnson V EPA. The consent decree outlines steps that Johnson must take in order to settle the matter. These are:

  1. Plant dormant willows partially around the pond he created, and ensure they live until September of 2017.
  2. The site must be monitored for invasive species until September of 2017.
  3. Fence the north side of the pond to keep livestock away from the planted areas. The fence must be maintained until September 2017.

That’s it.

I obtained the Administrative Records for this case from the EPA. These are records the EPA maintains for any violation or possible violation, which are then submitted to the courts if the violation results in a court case. In the Administrative Records we discover:

  • That a neighbor warned Johnson he needed a permit to build the dam he was building. He was warned before he started, and again during the work. The same neighbor also asked to be notified when Johnson was informed of the complaint, as the neighbor wanted to notify the Sheriff’s office ahead of time because of other unspecified actions Johnson had taken against the neighbor.
  • That same neighbor, or neighbors, had significant problems with the work, detailed in photos showing potential points of erosion and problems with shared driveways, and silt contamination of surrounding areas.
  • Wyoming gave Johnson a stockpond permit, even though the State knew Johnson was really building a fish pond, “with the understanding that the local official could use it”. Which “local offical”? This isn’t given, but if I lived in that area, I sure would like to know which “local official”.
  • Regardless of the “local official” who would also benefit from the pond, the general feeling in the  local community was that they did not like the pond and felt “if this type of project is allowed to happen“, it would set a precedent that would then be followed by others in the area.
  • Johnson had one single horse, which is sufficient for Wyoming to give a stockpond permit, but the neighbor never saw the horse actually use the “stockpond”.
  • The construction of the simple “stockpond” required a heavy construction plow, and what looked like a whole lot of rock and concrete.
  • The resulting pond easily exceeded the State mandated 20 acre feet as maximum size for a “stockpond”.
  • The “stockpond” is an “ongoing source of irritation between neighbors“. Yeah, we caught that.
  • The County was concerned about the “stockpond”: that it was misrepresented, that it would cause problems with neighbors and an adjacent county road, and that the public wasn’t given an opportunity to comment. “It would appear from the permit that this reservoir has been constructed under the pretense of providing waters to livestock or wildlife although this is an eight (8) acre, residential subdivision.”
  • It’s necessary to maintain the same flow of water for downstream fisheries, even in low-flow times. A dam with a spillway can adversely impact this flow.
  • Though the dam doesn’t look it might blow and take out the roadways (knock on wood) it did puzzle the State engineers as to why it didn’t match the permit request to the State.
  • Andy feels entitled

Well, then. Seems there is much more to this “stockpond” than Mr. Paul Ryan mentioned in his opinion piece, or reflected in the video with all those American flags.

I’m disappointed in the consent decree. Johnson’s actions were an egregious violation of the CWA. I have received documents from the Justice Department in response to a FOIA about the communications leading to this decree, and will post an update.

 

 

 

Bundy's cows

Excerpts from Court Documents for the 2012 Cliven Bundy Court Case

Today, a Judge ordered that Cliven Bundy be held pending trial. In the request to hold Bundy, the prosecutor, Charles Groder, wrote:

Bundy is lawless and violent. He does not recognize federal courts – claiming they are illegitimate – does not recognize federal law, refuses to obey federal court orders, has already used force and violence against federal law enforcement officers while they were enforcing federal court orders, nearly causing catastrophic loss of life or injury to others. He has pledged to do so again in the future to keep federal law enforcement officers from enforcing the law against him.

The document also details one experience that BLM agents had with Bundy’s family—details that read more like Deliverance than reality.

On June 5, 2015, three civilians working on behalf of the BLM traveled to the Gold Butte region for an overnight assignment involving site surveys, which included surveying cattle troughs and other cattle-related sites. At the final site a truck came up the road at around 6:30 p.m. and parked behind the civilians’ truck, blocking them in. One female employee approached the truck and observed a man who appeared to be 50-65 and who was subsequently identified by her as Cliven Bundy, and a younger man (18-25), subsequently identified by her as Arden Bundy, in the truck. Bundy said to her in a joking manner that they had been chasing these BLM employees all day. He asked why they were there and she said they were there to camp. Bundy said they were welcome to stay and that he was there to fix a leaky pipe and then feed the cattle.

At approximately 9:00 pm that night, the employees heard a vehicle coming up the road and stop approximately 500 meters from their camp. Three gunshots or popping noises were fired in fairly rapid succession. The vehicle then drove away. At approximately 10:00 pm, a vehicle came to the same spot and again three gunshots were fired in rapid succession, which one employee understood is sometimes meant to signal danger. The employees also heard several male voices but could not make out what was being said. They could see headlights in the direction of their camp. After a few minutes, the vehicle drove away. The employees immediately packed up their camp and left Gold Butte, returning to Las Vegas after 1:30 in the morning.

No surprise that the Judge denied Cliven Bundy’s request for release pending trial.

I’ve followed the Bundy case for years. Reading through the criminal documents reminded me of the hundreds of pages of exhibits and sworn statement (now accessible at Burningbird Docs) filed in the Government’s 2012 case against Bundy. I thought I’d pick out some of the interesting bits to share.

One of the exhibits contains a map outlining the range that Bundy’s cattle roamed. Looking at it, I’m surprised they haven’t shown up in Las Vegas. They have shown up in the Lake Mead National Recreation Area (NRA), at one point forcing a closure

Trespass and stray cattle have damaged or destroyed natural and cultural resources within Lake Mead NRA. In addition, trespass and stray cattle present a serious threat to public safety by roaming on public roads, causing traffic accidents, and threatening people in the Park. In the past, parts of the Park were closed because of attacks of trespass or stray cattle on people in the park. Because responding to trespass and stray cattle requires the NPS to re-direct staff and resources from other needed functions in the Park, the cattle have a significant adverse affect on Park operations. Because Cliven Bundy is the only person to have cattle within Lake Mead, I believe that damage to natural and cultural resources, the threats to public safety, and the affect on Park operations can be attributed to Mr. Bundy’s cattle.

The prosecutor’s document noted that Bundy may call himself a rancher, but is anything but.

While Bundy claims he is a cattle rancher, his ranching operation – to the extent it can be called that – is unconventional if not bizarre. Rather than manage and control his cattle, he lets them run wild on the public lands with little, if any, human interaction until such time when he traps them and hauls them off to be sold or slaughtered for his own consumption. He does not vaccinate or treat his cattle for disease; does not employ cowboys to control and herd them; does not manage or control breeding; has no knowledge of where all the cattle are located at any given time; rarely brands them before he captures them; and has to bait them into traps in order to gather them.

In the 2012 court case documents,  there are many photos of trespassing cows, including several of dead and dying cows. A Parks ranger investigation report wrote about finding a group of dead cows, the state of which contradicts the claims of a loving caretaker that Bundy and his minions have claimed to the press.

On July 09, 2008 I received a telephone call from my supervisor, U.S. Ranger Lisa Wilson. She informed me she had been advised there was a bunch of dead horses off of Gold Butte Rd., near a powerline road, on the opposite side of Gold Butte Rd. from some farms, uphill from an abandoned trailer.

I investigated and found myself on public lands, up a wash directly across the road from the Bundy Ranch, at GPS coordinates N36 42′ 55.6″ and W114 13′ 53.9″. I observed at least eleven dead cattle, including one calf and one horse. The animals were in an advanced state of decomposition; however, of the cattle, only the calf had its ears intact. Two of the cattle had colored nylon rope still around their necks.

Bundy did put in some minimal caretaking, but always on government land, which leads one to wonder whether he was caring for the cows, or making modifications that he thought would allow him some claim to the land.

He would build corrals of rusty metal and bring in tankers of water, setting them up on in protected areas. He’d leave garbage about, and also fence the areas in with barbed wire, and post No Trespassing signs. When we hear about the damage the marauders inflicted on Malheur, and compare that to the damage Bundy did to the Lake Meade area, we’re seeing a trend—a gross disrespect for anything publicly owned. A disrespect to we, the people. The occupation of Malheur was less a protest against government overreach, and more an homage to Daddy Bundy, and his megalomania. And the idiots who called themselves “militia” followed blindly along, still unaware of how badly they’ve been duped.

But to return to the documents, Bundy defended himself in the civil case. You can see his peculiar interpretation of the law in documents labeled 9, 30-32,  and 34. The government also deposed him, and he admitted he would do “whatever it takes” to prevent the government from removing the cattle.

Q. Now, let’s go back to the question. Let’s assume the federal authorities have the authorization to present themselves on land, whether you call it your ranch or the former Bunkerville Allotment, or for that matter the new trespass lands, and they’ve got the authorization in hand to remove cattle that belongs to you and they literally, physically, take the steps necessary to accomplish that right there and you’re standing by. Are you going to undertake any effort to physically stop that?

A. Yes.

Q. What efforts would that be?

A. Whatever it takes.

Q. Okay. Would that include — when you say “whatever it takes,” would that include the soliciting, the assistance of neighbors, friends, family, supporters of yours to do whatever it takes in the scenario I just described?

A. Yes.

The government captured hundreds of photos of damage and cows. The documents labeled 20 through 26 contain most of the photos, as well as the sworn statements.

The documents also detail the costs. There’s been some discussion among the media that the government hasn’t provided a detailed cost accounting for the million dollars frequently quoted. Even a casual look through the civil case documents shows us that a million dollars doesn’t even begin to cover the damages—that’s just for grazing fees and fines.

One document lists damages in one area at over $47,000. Another detailed the costs to track where the cattle were located at $91,000. (And this was only one of several investigations over the years.) Another document had a bill submitted to Bundy for unauthorized grazing and fines of close to $300,000. Yet another provided a table of costs totaling over $30,000. The one million dollars of fees and fines talked about with Bundy doesn’t even begin to approach how much this man has cost the government. And yet he wants the tax payers to pay for his lawyer, too.

The ongoing conservation work at Malheur was interrupted because of the Bundy invasion. There were  interruptions in important restoration work in the Lake Meade area, too, because of his cattle.

The implementation of this $1,000,000 restoration project in FY 2013/2014 was dependent on the removal of all unauthorized livestock from the Virgin River ACEC and adjoining areas within the Gold Butte ACECs. Smaller restoration pilot projects have shown that even when an area has been fenced to keep the cattle out of a site, the cattle still get in and destroy the restoration work. For this reason, the BLM and other outside partners are not able to invest this kind of money on a restoration project that has a high probability of being damaged or destroyed by cattle. Because of the continuing presence of trespass cattle on the public lands, this funding was reallocated to lower priority restoration areas that do not benefit the endangered SWFL, and where unauthorized livestock grazing is not an impediment to restoration activities. Those lower priority project sites will not be eligible for the Walton foundation matching funds since none of those areas are within SWFL habitat and therefore do not directly benefit the endangered SWFL.

The cows, themselves, were dangerous.  The civil case documents detail a truck/cow collision, and Bundy was sued when another  driver hit one of his cows, and was seriously hurt. Bundy tried to push the blame for that one on to the state. Due to lack of care, the cows have turned feral. Contrary to the fluffy images of cows from dairy companies, feral cows are large, can be aggressive, and have wicked horns. The cows threatened people, to the point where national park areas had to be closed to the public, for their own safety.

In all of the sworn statements by government employees attached to the civil care, we see evidence of the Bundy family’s intimidation tactics. Employees were warned, repeatedly, never to confront Bundy.  In one instance in the 2012 court documents:

While we were finishing gathering our equipment, a truck approached us from the east (we were coming from the west), stopped and parked facing our vehicle on the narrow backcountry road, leaving no room for either vehicle to get by.

An older white male stepped out of the vehicle and began to express his displeasure about the construction of the fence. Although we were on federal land and there were no private lands nearby, he referred to the Gold Butte area as his ranch and complained that the fence would interfere with feeding his cows.

He asked for our names, told us to contact the sheriff before coming to his “property” and indicated he might file a lawsuit against us. We attempted to explain, without success, that he should contact the BLM Los Vegas Field Office and that we were simply field personnel.

He abruptly ended the conversation after approximately 5 minutes then turned and headed back to the back of his pickup truck. He returned with a square box in hand that resembled salt licks we had seen at other areas in Gold Butte. He stepped over the fence and walked through the closed area where he was soon behind a small knoll and out of sight. At this point another vehicle pulled up behind us and was also waiting to get by, but neither of us could pass due to the vehicle in front of us.

For over twenty years Bundy and his family and his bully boys have destroyed critical habitat, degraded land, damaged cultural sites, and harassed and intimidated federal employees. His cows have been in car collisions, have threatened people, and have forced the government to shut down recreational areas that were supposed to be open for all. The charges against Bundy and his sons don’t even begin to cover the extent of the harm they have wrought.

I was surprised Bundy made the trip to Portland. True, it was obvious that he wasn’t happy about his sons stealing his fame, and the temptation to get in from the camera must have been great, but his own native caution should have outweighed all. This is a man who likes to lead from behind—to trigger others to do his dirty work for him when he can, preferring to leave his own particular brand of intimidation for smaller, unarmed groups. But he did travel to Portland, and he was busted. Frankly, I hope he rots in jail for the rest of his life.

In the meantime, there are over 900 cattle on government land, still causing damage, still suffering from lack of care. The BLM is hesitant to send people back into potential danger, so right now, there’s no oversight in the Gold Butte area. When the BLM does move, it will cost the government over $100,000 to remove all the cattle. I suspect, though, that the next time someone tries to stop this effort, the very capable FBI agents who handled the Malheur take-over will be nearby.

Montage of photos of Malheur

Cato: Neither the Bundys Nor the Hammonds are Poster Children for Land Use

During a Twitter exchange with Jonathan Wood, from the Pacific Legal Foundation, Jonathan sent me a link to a Cato Institute article on the armed takeover of the Malheur National Wildlife Refuge.  The Cato article condemns the Bundy actions, even as it deplores what it views as an overly harsh penalty for the ranchers (Dwight and Steven Hammond) at the center of the dispute.

The article notes that neither the Bundys nor the Hammonds are exactly poster children for the land use movement:

Property rights advocates who want to change public views need to find ranchers more appealing than the Bundys, who want to overgraze other people’s land without paying for the right to do so, or the Hammonds, whose unauthorized fire on federal lands threatened firefighters’ lives. Without better representatives–preferably ones willing to pay their own way and not rely on taxpayer subsidies–they won’t be able to capture the hearts and minds of the American people, which means the future of ranchers who depend on federal lands is dim.

The article also mentions Section 8 of the Constitution, which property and states rights people continually use to demand that the federal government turn over land to state control.

I can agree with the author, Randal O’Toole in his assessment of the Bundys and Hammonds, but disagree with him about the severity of the punishment the Hammonds received. And I disagree with his reference to Section 8, without mentioning the Property Clause, which does give the government right to own land:

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, even without mentioning the Property Clause, O’Toole does note that the only way to battle federal land ownership is via Congressional action:

The Supreme Court has heard hundreds of cases involving federal land and has never ruled that the Constitution does not allow the federal government to own land in the West. So any battle against federal ownership would have to be fought politically, not in the courts.

Supreme Court decisions have upheld the federal government’s right to own and maintain land, until and unless, Congress revokes this right. And even attempts by President Reagan to sell off all federal land failed. Why? As a Washington Post article notes, private ownership of the land didn’t suit ranchers because they would lose the free ride they’ve had from the government. In addition, environmentalists rose in one body to demand the government stop its actions. And it wasn’t just environmentalists who were alarmed: something about paving over Yellowstone, and putting McDs in the Grand Canyon just doesn’t quite suit the majority of people in this country.

Returning to O’Toole’s criticism of the sentence the Hammonds received,  was the punishment unjust?

It’s unfortunate that the law the Hammonds were charged under is named The Antiterrorism and Effective Death Penalty Act, because everyone focused on “terrorism” in defense of the Hammonds. The Hammonds aren’t terrorists, the critics scoffed.

Of course they aren’t terrorists. To call them terrorists is to lessen acts such as the recent shootings in California and Paris. But the Hammonds were tried and convicted, by a jury of their peers, for the following:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

Dwight and Steven Hammond were convicted of deliberately setting a fire on federal land in 2001 that burned 139 acres. In addition, Steven Hammond was convicted of setting fire to federal land in 2006. They both claimed to be burning invasive species, or in the latter fire, protecting a crop of winter wheat. However, it was not their call to make—not only to set fire to federal land, but to their neighbor’s land, when the fire spread; particularly when it comes to a wildlife refuge, where incorrectly set fires could prove detrimental to not individual birds, but an entire species if endangered birds are threatened.

In addition, the 2001 fire was created not to burn invasive species, as the Hammonds imply, but to cover up an illegal deer hunt, according to a relative of the Hammonds who testified against them. They also endangered a three-person fire crew during the 2006 fire, almost trapping them behind a fire line. All of the Hammond fires, not just the two related to the criminal case, ended up costing the government over $600,000. The government sued the pair after the fires, and was able to recover $200,000, but we tax payers ended up footing the bill for the rest. The Oregonian noted the Hammonds paid $200,000 in 2014, and the rest, recently. That still leaves at least $200,000, or more, firefighting costs and damages to the tax payers.

The judge who originally sentenced them claimed that the mandatory five year sentence shouldn’t apply, because the fire was a “wilderness” fire, and in his opinion, that wasn’t what Congress intended for this law. However, I think we’ve all seen enough of “wilderness” fires this last year to know they are deadly, they are dangerous, they destroy homes, pets, people…they can even destroy entire towns. The appeals courts, rightfully, dismissed the unlawful sentencing and imposed the five year minimum.

Here, we need not progress beyond the first step.
Congress has “broad authority” to determine the appropriate
sentence for a crime and may justifiably consider arson,
regardless of where it occurs, to be a serious crime. Solem v.
Helm, 463 U.S. 277, 290 (1983). Even a fire in a remote area
has the potential to spread to more populated areas, threaten
local property and residents, or endanger the firefighters
called to battle the blaze. The September 2001 fire here,
which nearly burned a teenager and damaged grazing land,
illustrates this very point.
Given the seriousness of arson, a five-year sentence is not
grossly disproportionate to the offense.

This wasn’t the Hammonds’ first act of arrogant disregard for the welfare or concerns of others, either. When FWS attempted to build a fence to keep the Hammonds’ cattle out of the Refuge land around a watering spot, Steven Hammond parked a 25-ton Caterpillar earth mover on the fence line and refused to move it. Not only refused to move it, forcibly dropped the earth mover’s shovel near one of the federal employees in an act of intimidation.

The Hammonds were arrested for their actions,  but pressure from land-use groups, and Representative Wes Cooley, most likely kept them from being prosecuted.

arrest photo of Dwight Hammond

Cooley would later testify in a budget hearing for the Fish & Wildlife Service that the Hammonds had a successful injunction against the FWS, which would then allow them access to the land, but I can find no record in PACER to corroborate this statement. However, I did find an agreement between the Hammonds and various other organizations, including FWS, related to water rights in the region. This agreement did not specify that the Hammonds had the right to drive their cattle into the FWS land, only that they may divert water during the spring to another reservoir.

The Hammonds also refused to allow federal firefighting crews access to their land so they could fight fires, and tried to get the local Sheriff to arrest the crew for doing so.

As part of the sentencing deal the Hammonds made with the government, they agreed to give FWS first rights to purchase a parcel of Hammond property, but only if the Hammonds had to sell it in order to pay their fines. The Hammonds were able to pay their fines without selling the land, so the new adherence to the minimum sentence had nothing to do with a government attempt to get the Hammond land, contrary to what the land-use fanatics are proclaiming.

Misdirection and misinformation is a hallmark of any of the activities associated with the Hammonds. It is difficult to find the truth, among all the misrepresentations. Enforcing laws against people like the Hammonds isn’t all peaches and cream, either. In the article, Peril in the West: Enforcing Environment Laws Gets Scary, the author begins with:

Someone has threatened to kill Forrest Cameron, and to harm his wife and children.

Cameron, the manager of the Malheur National Wildlife Refuge, knows who threatened to kill him, and why. He doesn’t know who called his home in Princeton, Ore., to harass his wife and daughters. But he assumes it’s for the same reason he says Dwight Hammond threatened to shoot him: because Cameron was enforcing the law.

At least Hammond is consistent, he also threatened refuge managers in 1986 and 1988. No, I don’t find a sentence of five years to be disproportionate, at all.

As for Bundy boys, rather than piss in their own pond, they went to Oregon to piss in someone else’s. And that’s the least negative thing I can say about them.

Photo compilation:

Photos of Malheur National Wildlife Refuge
Sandhill Crane: Roger Baker, USFWS
Mule Deer: Barbara Wheeler, USFWS
Prescribed Burn: Carla Burnside, USFWS
Owl: Jim Maloney, USFWS

Arrest photo of Dwight Hammond from article about the arrest in the Burns Times-Herald, August 10, 1994.

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