DuBois column

Flagrant misconduct by prosecutors, Congress to investigate and questions about the DOI reorganization

With Prejudice

Federal Judge Gloria Navarro has dismissed all charges against the Bundys, citing “outrageous” abuses and “flagrant misconduct” by the prosecutors. Judge Navarro was most concerned about the following pieces of evidence withheld from the defense:

° Records about surveillance at the Bundy ranch

° Records about the presence of government snipers

° FBI logs about activity at the ranch in the days leading up to the standoff

° Law enforcement assessments dating to 2012 that found the Bundys posed no threat

° And internal affairs reports about misconduct by BLM agents  

Judge Navarro declared “a universal sense of justice has been violated” and dismissed all charges against the Bundys “with prejudice”, meaning those charges cannot be brought again.                                         

Congressional investigation

This case raises many questions, and I'm pleased to see that Congressmen Bishop and Westerman have initiated an inquiry, with the Committees staffs to be briefed by the BLM. Perhaps this is just a first step, but I'm not convinced asking BLM to assess its own actions, identify problems and propose solutions, will provide the public or Congress with sufficient information to fully analyze what happened and why. Until we have a complete picture of who did what and when, any proposed changes in policy or procedure would suffer. Here are some things Congress should be pursuing.

° There should be an inventory of BLM law enforcement assets. First of course, would be the number and type of personnel, and an examination of their authority, including the statutory authority for their classification. Also, an inventory of the number and type of weapons, the number and type of vehicles, the number of aircraft, including drones (owned or leased), the amount and types of ammo, the number of attack dogs or other tools and equipment in BLM's possession. At some point, this type of inventory should be made of all the land management agencies in the Interior Dept. and the Forest Service

° A complete list of the personnel and their agency which were involved in the Bundy ranch operations (to include NPS, FBI and all federal agencies).

° A complete list of assets that were deployed for the Bundy operation by all agencies. 

° A thorough review of all memos, emails, phone logs, notes, etc. to determine what factors and alternatives were considered prior to undertaking the operation

° A thorough review of all memos, emails, phone logs, notes, etc. to determine who made the final decision to undertake the operation as a law enforcement effort and who made the decision to continue the operation by bringing in the FBI after the Clark County Sheriff withdrew his officers

° A thorough review of all memos, emails, phone logs, notes, etc. to determine who, and on what basis, made the decision to stand down.

° A thorough review of all post-operation memos, emails, phone logs, notes, etc. to determine who was responsible for providing agency documents to the U.S. Attorney's office, and any issues related to the prosecution of the case.

° A complete explanation of the authority and role played by BLM management and line officers and the same for the DOI Office of Law Enforcement and Security (OLES), and how those dynamics played out prior to and during the operation.

° An explanation and analysis of why BLM refuses to comply with state law on trespass the way other landowners do, so that the confiscation and disposal of trespassing livestock is accomplished by state officials, based on state law and procedures.

Again, for the public to have meaningful input, we must first have a complete understanding of all that occurred during the operation. Only then could we make reasonable recommendations for change.

Zinke reorganization

Secretary Of Interior Zinke has proposed a massive reorganization of the department. He says  Interior will no longer draw its boundaries based on state and regional lines, but will draw them based on "ecosystems, watersheds and science."  The plan includes dividing management of millions of federal acres into 13 multistate regions, and would in many cases split states in to multiple sections.

At first blush this looks suspiciously similar to the Landscape Conservation Cooperatives (LCCs) launched by the Obama administration. Some will say the Obama LCCs were the first step, and now Zinke proposes to implement the same management scheme in a fashion not even dared by the Obama administration. Indeed, Marcia McNutt, who served as former President Obama's first USGS director, said the idea was floated during her tenure to better align regional bureaus. "It's not a new idea, and it's not a bad idea," she said.

We will be evaluating all this as more information becomes available. One should not, however, limit their evaluation through the lens of "what is the most scientific way to manage resources." That has to be overlaid with our form of government. Will this proposed reorganization increase or diminish the role of states in resource management? Will it increase or diminish the role of the feds in resource management? How will this affect the role of Congress in authorizing, oversight and appropriations?

Surely there is a more "scientific" way to pass a budget than what we are currently witnessing, but it is a small price to pay to maintain our representative republic. Our Founding Fathers designed a multitiered system to protect our liberty by restraining government. Their efforts had nothing to do with "scientific" management or efficiency. That is the lens through which we should evaluate this and other proposals.

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 February issue of the New Mexico Stockman and the February issue of the Livestock Market Digest.