Thursday, November 17, 2016

DuBois column

Fire preventers start a forest fire and no Constitution or Scripture allowed in Bundy trial

Dog Head Fire

The Forest Service recently published their official report on the 17,912-acre Dog Head Fire in the Cibola National Forest.  The fire was initially reported on June 14 of this year, declared contained on July 13, controlled on August 10 and out on September 12. Along the way, 12 single residences and 44 other structures were destroyed along with habitat for the Goshawk and the Spotted Owl.

The official cause of the fire, says the report, was human-caused and originated from a masticator, “a machine that shreds brush and trees into mulch to reduce forest fuels.” It was all part of the Isleta Collaborative Landscape Restoration Project to reduce the threat of wildfire.

So we have poor management, caused by a myriad of environmental laws which hamstring the agencies and drastically increase the chances of wildfire. Given the current political environment all the feds can do is fund these piddling little projects which, in this case, actually started the fire. We should be allowing commercial harvests, which are effective and provide for little or no cost to the taxpayer. When will Congress take action? Until they do, fires like this will continue to occur across the West, multiplying the loss of lives, resources and property, and the consumption of taxpayer dinero.

Bundy Trial

Ammon and Ryan Bundy and five co-defendants are charged with conspiring to impede U.S. Fish and Wildlife Service or Bureau of Land Management employees from doing their work at the Malheur National Wildlife Refuge during the 41-day occupation.

So far, the judge has been ruling consistently for the feds.  She has denied Ryan Bundy’s motion to ditch his standby counsel, and sided with the U.S. Marshall to deny Ammon Bundy’s request to wear his cowboy boots in court. The judge has denied Ryan Bundy’s (who is representing himself) request to hand each juror a pocket-sized version of the Constitution. She has ruled the ownership of the Wildlife Refuge and the circumstances surrounding the shooting of Robert LaVoy Finicum by FBI agents are not to be mentioned and has threatened to fine Ammon Bundy’s attorney for referring to those issues. She has ruled for the U.S. Marshall to end the ability of Ammon to meet with his attorney and his brother Ryan, and that Ammon can only meet with his attorney through a screened window. Why? Because Ammon sent a message to his wife on his attorney’s computer and then showed “disrespect” when ordered to stop.

When Ammon Bundy took the stand, he testified his plan was to stake claim to the refuge property through the adverse possession principle because he didn't believe the federal government had authority to control it, citing the enclave clause of the U.S. Constitution. If anything, he expected federal officials to cite occupiers for trespass or issue an eviction, and send the matter to a civil court to address who has control over the land. "This is the issue,'' he testified. "This is the reason why we went into the refuge and did what we did.” He was also adamant that what they had done was "completely legal.''

The prosecutor objected to Bundy stating his view of the law.  The judge agreed, instructing the jury that what they heard was Bundy's opinion of the law and not to regard it as factual. The judge also instructed Bundy that he was not to read from the Constitution in his shirt pocket.

In explaining his actions, Bundy read from The Doctrine and Covenants of the Church of Jesus Christ of the Latter-day Saints, telling the jurors that among the church teachings is the following: "It is our duty to go to the judge. It is our duty to go to the representative. It is our duty to go to the president and plead with them to stand up for what is wrong,'' he said. "It's our duty to give each of the officials the opportunity to do what's right." "We are not to act until that has been done,'' he said.

The prosecutor objected to the relevancy of the testimony.  The judge agreed and warned Bundy not to read scriptural passages to jurors.

No Constitution, no Scripture. 

And now you see the power of the U.S. Attorney’s office.  They pick what the charges are, which then determines which issues can be discussed in court. No wonder they have a conviction rate of 93 percent.  The trial also disclosed the FBI had 15 informants, including Mark McConnell, who was driving the vehicle in which Ammon Bundy was arrested.

There were a few light-hearted moments.

While cross-examining an FBI agent, defendant Ryan Bundy asked if pocket Constitutions depicted in a photo of one of the rooms in the refuge bunkhouse were seized as evidence. The agent said he didn't take them. "So you did not find anything of value in there?'' Bundy queried.

Things turned tumultuous though, when after closing arguments had been given and the jury had convened for three days, the jurors sent two hand-written questions to the judge.  One of the questions 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 defendants’ attorneys argued a biased juror would violate the defendants’ Sixth Amendment right to an impartial jury and thus a fair trial.  Judge Brown interviewed the juror in question and initially ruled the juror would stay.  The next day, however, she reversed her opinion and removed the juror. An alternate juror has been selected, but that means the jury deliberations must start over. "You need to start over with that alternate juror,'' the judge told the remaining jurors. The judge said they must "set aside the conclusions'' they've drawn and destroy any verdict forms they were given. "It's a new jury, a new day, a new start,” she said.

As it turned out - in spite of the feds having 15 informants, a friendly judge and such a high conviction rate - the jury found the Bundy brothers and the other five defendants not guilty.  It was Ammon Bundy’s 10 hours of testimony that likely won over jurors according to Lewis & Clark law professor Tung Yin. “It gave Ammon a chance to explain his side,” Yin said. “And apparently the jury seemed to agree. I think it’s really hard to see this as anything other than jury nullification.”

During his three days on the stand Ammon Bundy explained his views on the federal government and the Constitution.  He said their occupation of the refuge was a protest against federal control of millions of acres in the West and of their grievance against how the Hammonds were unfairly treated in their arson case. “This is much bigger than the Hammonds,” Ammon Bundy told the court. “Everything comes from the Earth and if [the government] can get control of the resources, they can get control of the people,” he said.  Bundy also described federal government officials as modern day Roman emperors attempting to rule over their subjects by restricting access to resource-rich territories.

Speaking of the jurors, Professor Yin said, “The fact that they acquitted on everything must be representative of some kind of mistrust of the government or a symbolic protest, or anger at the government.”

Till next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner ( and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This article originally appeared in the November issue of The New Mexico Stockman and the November issue of The Livestock Market Digest.

NOTE: As I'm sure you've noticed this article was written while the Bundy trial was proceeding. Caren Cowan had kindly moved the deadline back several times. A final due date was given and luckily, that was the same day the jury issued a verdict.

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