DuBois column

A mistrial, a Heinrich maneuver, and a monument misstep

Bundy Mistrial

Chief United States District Judge for Nevada, Gloria Maria Navarro, has declared a mistrial in the charges against the Bundy family and one accomplice. What started as a simple case of failure to pay grazing fees has, thanks to the disturbing actions by the feds, turned into a national showcase of federal abuse of power.

Chief Judge Navarro found that in six different instances the federal prosecutor had failed to turn over exculpatory evidence to the defense, which is required under the so-called Brady rule. How much was not turned over? Oh, just 3,300 pages.

Initially, prosecutors said there was no surveillance of the Bundy family prior to the raid on their cattle. They lied. Then prosecutors said the cameras just provided a live feed.  They lied about that too. The prosecutors originally claimed there were no federal snipers. Again, they were found to be lying.

The prosecutors fought to keep the Bundys in jail because they were a threat to society. Some of the documents they failed to disclose were FBI threat assessments of the Bundy’s which found just the opposite. Imagine being kept in federal confinement for two years under false pretenses.

And just prior to Judge Navarro declaring a mistrial, a bombshell memo from a BLM law enforcement officer to the Dept. of Justice was made public. In the memo, BLM Special Agent Larry C. Wooten stated, “I routinely observed, and the investigation revealed a widespread pattern of bad judgement, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical and legal violations among senior and supervisory staff at the BLM’s Office of Law Enforcement and Security.”

Wooten further stated these issues, “…made a mockery of our position of special trust and confidence, portrayed extreme unprofessional bias, adversely affected our agency’s mission and likely the trial regarding Cliven Bundy…” and “put our agency and specific law enforcement supervisors in potential legal, civil and administrative jeopardy.”

Some of the actions taken by certain BLM officers are simply too crude to include in this publication. However, Wooten did report:

º Conduct that was, “discriminatory, harassing and showed clear prejudice against the defendants, their supporters and Mormons.”

º Uncovered comments where BLM agents “bragged about roughing up Dave Bundy” and “grinding his face into the ground.”

º That BLM employees, “didn’t properly turn in the required discovery material (likely exculpatory evidence)”

º That one BLM Supervisor, “instigated the unprofessional monitoring of jail calls between defendants and their wives, without prosecutor or FBI consent.”

º That former BLM Special Agent-In-Charge Dan Love purposely ignored federal and state recommendations, “in order to command the most intrusive, oppressive, large scale and militaristic trespass cattle impound possible.”

BLM Agent Wooten also say his investigation found, “excessive use of force, civil rights and policy violations.” Further, Wooten says, “there was an improper cover-up in virtually every matter that a particular BLM SAC participated in, or oversaw.” 

This has turned into a textbook case of federal abuse and incompetence, all because a federal land management agency refuses to allow themselves to be treated like other landowners within a state. In New Mexico and most other western states, the landowner reports that estrays are trespassing on their property and the appropriate state agency takes steps to remove the trespassing livestock.  Usually a clean and efficient operation conducted by state employees under state law. That procedure, though, can’t be used to justify larger federal budgets, additional employees or an increase in the federal arsenal, so the feds refuse to utilize this tried and true method.

I’m reminded that in his opening statement to the jury, the Acting U.S. Attorney said this case was not just about grazing fees, it was really about upholding the rule of law. Five weeks or so later, the case is still about the rule of law, only now it is the feds who are the accused transgressors.

By the time you read this, we should know whether Navarro declares it a mistrial with prejudice, or without prejudice. If she dismisses it with prejudice, the defendants cannot be brought up on those charges again. Let’s hope the rule of law prevails.

Another Heinrich Maneuver

As one of its last items of business this year, the U.S. Senate passed S.432, the Cerros Del Norte Conservation Act, which would establish two wilderness areas within the Rio Grande del Norte National Monument. It may have been the last order of business of the Senate but it was one of the first orders of business of the Senate Committee on Energy and Natural Resources, which passed the bill on May 3. Weirdly, the Committee didn’t invite the views of the Trump administration, and instead inserted the testimony of an Obama administration official which had been given two years prior.

This seems to fit in with the typical legislative methods employed by Senators Udall and Heinrich. Remember the Sabinoso Wilderness? That was the wilderness pushed by Udall that had no public access. It only passed because it was part of an Omnibus bill. Then they brought us the Columbine-Hondo Wilderness and transferred the Valles Caldera as part of a national defense bill. The action on this new wilderness bill shouldn’t surprise us.

Monument Misstep

In a recent interview, Interior Secretary Zinke shared some interesting information concerning the monument review and the Organ Mountains-Desert Peaks National Monument.  “The president tasked me to get the local voice,” Zinke said, and, “Overwhelmingly, the communities were comfortable with the monuments.”

That tells us the millions of dollars the environmental foundations spent in funding the NM Wilderness Alliance, the Friends of the Organs, the green chamber of commerce, etc., and their multi-year spending on television ads, newspaper ads, radio spots and other marketing venues, was money well spent. I mean, it fooled Zinke, now didn’t it.

Until 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 (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

 This column originally appeared in the January issue of the New Mexico Stockman and the January issue of the Livestock Market Digest.