William Perry Pendley
In April, President Trump pardoned I. Lewis “Scooter” Libby Jr., top
aide to former Vice President Dick Cheney, who was convicted in an abuse
of prosecutorial discretion. Now the president should do the same thing
for Dwight L. Hammond, Jr., 76, and his son Steven Dwight Hammond, 49,
long-suffering ranchers in rural Oregon.
...The Hammonds are the victims of one of the most egregious,
indefensible and intolerable instances of prosecutorial misconduct in
history. Their situation cries out for justice that can come only from
President Trump.
The Hammonds’ crime? They set a legally permissible
fire on their own property, which accidentally burned out of control
onto neighboring federal land. Normally, that is an infraction covered
by laws governing trespassing, and the guilty party is subject to paying
for damages caused by the fire – if the neighboring land belongs to an
ordinary citizen.
But not when a vindictive federal government is involved.
In the “high desert” environment of Harney County – and throughout
the West – federal, state and private landowners use controlled or
prescribed burns for prairie restoration, forest management and to
reduce the buildup of underbrush that could fuel much bigger fires.
But sometimes the controlled fires get out of control
and sweep onto neighbors’ land. That is legally deemed a trespass, and
the landowner who set the fire is liable for any damages.
Only the federal government has the power to cite the
trespasser criminally for his or her actions. That is what happened to
the Hammonds.
It did not happen in a vacuum. The U.S. Fish and
Wildlife Service has long coveted the Hammond Ranch for inclusion in its
surrounding Malheur Wildlife Refuge. The federal agency pressured
members of the Hammond family for decades to follow all of their
neighbors in selling their property to the federal government.
...In 2001, after alerting the Bureau of Land Management, the Hammonds
set a legal fire to eradicate noxious weeds. It spread onto 139 acres of
vacant federal land. According to a government witness, the fire
actually improved the federal land, as natural fires often do.
In 2006, Steven Hammond started another prescribed fire
in response to several blazes ignited by a lightning storm near his
family’s field of winter feed. The counter-blaze burned a single acre of
federal land. According to Steven Hammond’s mother, “the backfire
worked perfectly, it put out the fire, saved the range and possibly our
home.”
The Bureau of Land Management took a different view. It filed a
report with Harney County officials alleging several violations of
Oregon law. However, after a review of the evidence, the Harney County
district attorney dropped all charges in 2006.
The Bureau of Land Management did not give up. In 2011,
federal prosecutors – referencing both the 2001 and 2006 fires –
charged the Hammonds with violating the ‘‘Antiterrorism and Effective
Death Penalty Act of 1996,” which carries a mandatory minimum prison
sentence of five years.
...In 2012, the Hammonds went to trial. As the jury was deliberating,
they agreed not to appeal the jury verdicts in exchange for the
government dismissal of a slew of ancillary charges, including
“conspiracy” to commit the offense.
The jury found both Hammonds guilty of the 2001 fire
and Steven Hammond guilty of the 2006 blaze; he was acquitted on charges
the 2006 fire did more than $1,000 in damages.
At sentencing, U.S. District Judge Michael Hogan
concluded the fires did not endanger people or property. He declared
that the law the Hammonds were convicted of violating was aimed at more
serious conduct than their case involved.
Hogan added that the Hammonds had “tremendous”
character, and stated that the Eighth Amendment to the Constitution –
barring “cruel and unusual punishment” – justified a sentence below the
statutory minimum sentence.
Consequently, Judge Hogan sentenced Dwight Hammond to
three months in prison and his son to a year and a day. Both served
their sentences and then returned home.
But the federal government was not finished. Federal
prosecutors, contending the agreement did not bar them from further
action, appealed to the Ninth U.S. Circuit Court of Appeals, which,
without oral arguments, quickly issued a terse ruling reversing the
Oregon federal district court.
...Congress passed the 1996 law under which the Hammonds were convicted
in response to the 1993 World Trade Center bombing in New York City and
the 1995 federal building bombing in Oklahoma City in order to “deter
terrorism.” Lawmakers did not have in mind a rancher’s efforts to
eradicate noxious weeds or to prevent the spread of a lightning fire
onto valuable crops.
That apparently did not matter to the U.S. Attorney’s
Office in Oregon, the Bureau of Land Management, the Fish and Wildlife
Service and officials who are supposed to provide adult supervision to
prevent personal animus, agency vendettas and prosecutorial abuse.
...Now it’s up to President Trump to deliver justice to the Hammonds – something the federal government has long denied them.
William Perry Pendley is president of Mountain States Legal Foundation in Denver and author of "Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today" (Regnery, 2013).
A big THANK YOU to Pendley for this column. Amongst all the hub-bub over the Malheur and related events, the plight of the Hammonds and this total miscarriage of justice continues to fly below the radar. Let's hope that Pendley's exposure of this issue on Fox News will catch the eye of someone in the White House.
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