Categories
Documents Legal, Laws, and Regs

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.

Categories
Documents Political

Put that FOIA down and back away slowly

Latest last update

My friend Karoli wrote an excellent article on all this fooflah. She has more reach than I do, so hopefully this information will eventually work its way around to the original publications.

There’s enough BS about the Clinton emails without additional false associations.

Because we’re all damn tired of hearing about the Clinton emails.

last update

Confirmed. The documents were issued by the State Department in 2014, in response to a FOIA request by The Telegraph’s Philip Sherwell. They have absolutely nothing to do with Clinton, and were not on Clinton’s email server.

Update:

I believe the Philip Sherwell, who instigated the FOIA request, also is the author of this piece, in the Telegraph. I’ve asked him if this was so, and whether he was familiar with the recent stories. Will update when I hear back from him.

earlier

I noticed a story claiming to be about a “smoking gun” proving that Hilary Clinton knew she had top secret information on her server. They got the information from a Daily Mail story. The story has since been picked up by Newsmax, the Telegraph, the BBC, and many other publications too numerous to list.

Five minutes is all it took to discover the FOIA request that produced these documents from the State Department. The request is completely unrelated to Clinton or her email server. The request was initiated by a Philip Sherwell, in August of 2012, and the request was for “references concerning a meeting Saturday April 6, 2002 in Crawford, TX between George W Bush and Tony Blair.”

It has nothing to do with Clinton, and was not among the documents turned over related to the Clinton FOIA requests. We know this for a fact because the FOIA case number and release date are printed at the bottom of the documents. And it seems that the publications weren’t aware that this story was told previously…in 2006. That smoking gun is looking more like a cap gun right about now.

Categories
Documents

Mother Jones Fascinating Murder Mystery with an NRA Twist—and Documents

Mother Jones has a fascinating, longer look at an early murder mystery associated with none other than the NRA’s general counsel, Robert Dowlut. It would seem that Dowlut was originally convicted of second degree murder, a conviction that was later overturned.

In an act I’ve come to expect from Mother Jones, the publication has also provided easy access to all of the documentation that provided the basis for the story.

Journalists can’t always provide all of their background material, but when they can, they should. This allows others to review the material, enabling them to either agree or disagree with the writer based on the same material, if the writer forms a conclusion. At a minimum, this sharing ensures open access to documents that may be difficult for non-journalists to obtain—documents that may form the basis for other, future works.

There is nothing to agree with or disagree with in the Mother Jones article, since it’s very careful to remain neutral and factual in its retelling of the older story (and the more recent activities Dowlut has undertaken for the NRA). But the author, Dave Gilson, provides much to think about.

Categories
Documents Legal, Laws, and Regs

Who owns the law?

I follow several legal cases, most related to animal welfare, climate, the environment, or agriculture and food. Like others, I have a PACER account, which gives me access to most court documents at the federal level, but at a price. I’m not overfond of the cost, as I’ve noted in the past, but I am, at least, grateful for such simple access to the documents.

I also re-publish the documents for access by all, and that includes discovery material and and evidence exposed during a trial. If it’s posted by PACER, it’s public domain. When I pay for PACER I’m paying for access to the system, not the documents. So far, no cease and desist letters, knock on wood.

I also re-publish other interesting government produced documents I find. Most are from US agencies, but some are from states. So I was surprised when reading about the experiences of Carl Malamud, creator of Public.Resource.Org, when he was attempting to access statutes for several states. He recounts his experiences in the excellent article, Who owns the law? Technology reignites the war over just how public documents should be, in the June edition of the ABA Journal:

During the January hearing, Malamud spoke about how, during the past year, he has been targeted by opponents that have blurred the distinction between government entity and private organization. For example, state and local governments often contract private publishers like West or LexisNexis to produce and publish their official codes. In 2013, Georgia, Idaho and Mississippi asserted copyright protection after Malamud posted their laws on his website. “While it is clear that the law has no copyright, a few states have evidently not received the memo,” he says.

Idaho, for instance, claimed in its cease-and-desist letter that it owned a copyright in the “analyses, summaries and reference materials” contained in the annotated code. However, the state went one step further and claimed copyright protection for the native statutory content itself, stating that Malamud needed a license (which could be provided free of charge) if he wanted to use it on his website. Georgia also claimed copyright infringement, writing in its takedown letter that while “the state asserts no copyright in the statutory text itself,” Malamud allegedly copied annotated text, which the state claimed was copyrighted. Mississippi made a similar claim, noting that LexisNexis, which published the code, had provided a clean, unannotated copy of the code that was available for free.

To Malamud, that’s a false distinction. He says the codes are not independent endeavors by private companies but are, instead, clearly labeled as official state laws.

A copyright on state code? Impossible.

Sure enough, when I tried to pull up the Georgia state code, as linked from the official George state web site I get this—an assertion that I can access a free copy of the code, only if I acknowledge that the material is copyright the state of Georgia.

A copyright on state code? Oh, hell no.

If the state wants to allow a private entity to annotate the state code, then the private entity can provide a link to the annotated copy. It’s the state’s responsibility to provide direct access to the code without asserting any form of copyright that must be agreed to before the individual can access. The material is prepared with tax payer funds and therefore is public domain. More importantly, as Malamud notes, laws that impact on citizens must be freely available to the citizens.

Not just state laws, though. Malamud also posts standard organization regulations, and is currently involved in lawsuits related to the standards organizations’ claims of copyright. It brings up an interesting question: we can consider that a private entity has rights to material it produces, but what happens when the material it produces is referenced in laws?

The organizations claim that they shouldn’t lose their copyright just because the regulation is referenced in law, but Malamud notes that “Access to justice should not require a gold card.”

Or even a plain old bank debit card, which is what I use with PACER.

The ABA Journal article is a fascinating and informative read, especially for those interested in open document access.

For more on Malamud’s legal cases, the Electronic Frontier Foundation provides access to the court documents for the Sheet Metal and Air Conditional Contractors court case, and Archives.org provides access to the documents for the most recent American Educational Research Association case, uploaded via RECAP. I’m rummaging around for the court documents related to the American Society For Testing and Materials court case and counterclaim. Recent filings in both show them being reassigned from Judge Emmet Sullivan, a judge I’m very familiar with, to Judge Tanya S. Chutkan.

Categories
Documents Legal, Laws, and Regs

Don’t Mess with one of the E-Discovery Triumvirate

I dabble more than a little in the legal world, but that’s OK, because the legal world dabbles quite heavily in the world of technology. Nowadays, metadata is the smoking gun in court, and e-discovery is the ballistics test that uncovers it.

The concept of e-discovery, or electronic discovery is simple: it is the discovery, identification, and production of electronically stored information (ESI). However, the execution can be involved, complex, and frequently contentious.

Take for example something seemingly simple and benign: the keyword search. If you and I want to find out about something online, we open up Google or Bing and type in some words, such as “e-discovery keyword search”. We typically get back a ton of links, in order of relevancy. We pick and choose from among the links to find what we need. Rarely do we have to go beyond the first few pages to get the information or resources we’re looking for.

In a legal case, though, what keywords are used can trigger a conference between parties, and even hearings with the judge. If there’s too much material produced, both parties may want to refine the keywords; too little material produced, and the parties may question what keywords were used, or whether the use of keywords is even useful.

In a white paper titled Where Angels Fear to Tread: The Problems of Keyword Search in E-Discovery (pdf), the author notes:

The heavy reliance on keyword search in e-discovery places an enormous burden on today’s legal teams. Inconsistencies in language, inefficiencies in search techniques and software user interfaces, which conceal more than reveal, place the attorney in a difficult position: determining what is relevant in a compressed timeline using obsolete tools and tactics. These outdated tools are a key factor behind the spiraling costs and risks associated with e-discovery.

There’s an entire science devoted to keyword searches within the legal community. As for other metadata, oh my goodness, let’s not even get started.

The use of e-discovery was an important component of the Ringling Brothers/animal welfare group Endangered Species Act case (now titled “AWI et al v. Feld Entertainment”). It has continued as an important component of the fees allocation process for this same case.

In a decision that is both unusual and controversial, the judge in the case, Judge Emmet Sullivan, decided that the animal welfare groups should pay attorney fees to Feld Entertainment for the 9+ year court case. After many months, Feld’s lawyers submitted their fee request in a set of filings spanning thousands of pages. (See my copy of the case history, starting with docket number 635.) Not only is the $25 million dollar (and change) fee request large, it’s also been provided in a not useful format: PDF documents with manual redactions, and color coding (example).

The animal welfare groups asked for something a little more useful:

The Fee Petition, which spans at least four-and-a-half four-inch binders, includes nearly two thousand pages of time records and invoices as well as numerous other Excel spreadsheets and tables. The time records and invoices, accounting tens of thousands of attorney and staff hours, are so voluminous that FEI’s paid experts were unwilling to review them. Plaintiffs, unfortunately, do not have the luxury of limiting their review of the time records and invoices to a determination that the “time entries provide level of detail . . . that is typical of appropriate block billing practice,” as Mr. Millian did, see D.I. 664 at 18, or to review only a supposedly “representative sample of litigation activities” limited to three brief periods of time, as Mr. Cohen did, see D.I. 663 at 11-12.5 Rather, Plaintiffs and their experts must scrutinize all of the hours that Feld now seeks to pass on to them.

As Feld’s experts make clear, and as Plaintiffs’ counsel explained to counsel for Feld, this is not a task that can be accomplished by reading the PDF versions of spreadsheets and invoices that Feld included in the Fee petition. It can only be accomplished via computer assisted analysis of the underlying time records using a program such as Microsoft Excel, which will allow Plaintiffs’ counsel and/or experts to (i) sort the data, (ii) perform complex searches within the data, and (iii) mathematically compare time entries across (for example) timekeepers, law firms, and parties to the litigation.

There is no commercially available computer program that can take a PDF of an Excel spreadsheet, much less a PDF of actual invoices, and generate a functioning spreadsheet containing the underlying data. Accordingly, the only way Plaintiffs could independently recreate the time records of Feld’s counsel would be to manually reenter tens of thousands of rows of numbers and text, a process that would take even highly-experienced data entry personnel hundreds to thousands of hours. It would be patently unfair to require Plaintiffs to undertake such an effort to recreate data that Feld’s counsel already have at their fingertips. Moreover, because an analysis of Feld’s billed time is one of the first steps needed to craft Plaintiffs’ response to the Fee Petition, requiring Plaintiffs to replicate Feld’s time records would inject months of needless delay into the fee application process, in addition to creating needless, and substantial, additional expense.

Feld’s lawyer’s response begins with:

Plaintiffs’ second request is for FEI to re-create all of the time entries for Fulbright (JS Ex. 31 and 32), Covington (EG Ex. 1), and Troutman Sanders (“Troutman”) (CA Ex. 2) in
sortable Excel spreadsheets because Plaintiffs say they want to “sort the data” and “perform complex searches.” Mot. at 6-8. These requests should be denied because: (1) the documents do not exist in sortable Excel format, (2) Excel format would not protect FEI’s privilege redactions that Plaintiffs cannot and do not challenge; (3) Excel format would not reflect the color-coding of the exhibits; and (4) FEI is not obligated to undertake the time, effort, and expense of creating new documents, to Plaintiffs’ specifications. It is not necessary for Plaintiffs’ response to the Fee Petition, and if they want to have such charts, they can create them themselves. JS Ex. 32, EG Ex. 1, and CA Ex. 2. These exhibits contain the time entries that were sent as part of invoices to FEI, and were produced to Plaintiffs in .pdf files, which is the same format in which they were sent to the client (or in some cases, the invoices were sent to the client in paper, in which case FEI provided a .pdf to Plaintiffs). The invoices do not, nor have they ever, existed in a sortable Excel format – a fact that FEI’s counsel represented to Plaintiffs. While the .pdf files are not sortable, however, they are word-searchable, as any Adobe document is. But as Plaintiffs themselves argue, there “is no commercially available computer program that can take …. a PDF of actual invoices, and generate a functioning spreadsheet containing the underlying data.” Mot. at 7. So Plaintiffs demand the creation of a document that does not exist, which is a requirement that is non-existent even within normal Rule 26 discovery on the merits of a case, let alone once the case has concluded and is in the final phase of assessing legal fees for frivolous and vexatious litigation.

The legal document goes on for several more pages, with the lawyers expressing increasing umbrage at the animal welfare groups’ request.

If the sheer volume of words and the level of outrage were any influence, a judge might be moved to side with Feld’s lawyer, John Simpson, from Norton Rose Fulbright. But the judge handling the fee allocation, Magistrate Judge John Facciola, isn’t just any judge. He’s one of three judges respectfully known as the e-discovery triumvirate—three men known far and wide for their expertise related to e-discovery.

And Judge Facciola was just a tad skeptical about Feld’s lawyers lamentations:

To that end, I will hold a one day evidentiary hearing, at which I expect knowledgeable representatives, such as billing database managers, from 1) Fulbright, 2) Covington, and 3) Troutman Sanders to be prepared to demonstrate the billing software used during their representation of FEI in the instant action. I also expect the representatives to be prepared to testify to the following issues:

1. Explain and demonstrate live (e.g. not in a PowerPoint presentation but in the actual database) how, within their particular software program(s), an individual timekeeper
makes an entry; what is recorded in that entry; how that entry is saved; who reviews that entry; how that entry is edited or altered for privileges or in an exercise of billing discretion; how that altered entry is saved; and finally, in what format the final bill is sent to the client.

2. Explain why that data saved within their particular software program(s) is NOT, through the use of commercially available software, capable of being converted into a sortable Excel-compatible delimited value spreadsheet format such as comma-separated value (CSV).

3. Explain why, if there exists data that was only saved in a .PDF format, it is NOT, through the use of commercially available software, capable of being converted into a sortable Excel-compatible delimited value spreadsheet format such as comma-separated value (CSV).

A noticeably subdued response indicated that the entries in Excel spreadsheet format would be forthcoming.