DuBois column: Bundy Boondoggle

 

The Ninth Circuit recently affirmed the mistrial in the Bundy case 

Bundy Boondoggle 

The saga of Cliven Bundy and his battles with the feds over livestock grazing go back many years. From a strictly administrative/legal basis, here is a quick summary: 

° In 1993, BLM sent Bundy a notice of trespass and an order to remove his cattle

° In 1998 a federal district court permanently enjoined Bundy from grazing livestock within the    Bunkerville allotment. Bundy filed an appeal and in 1999 the Ninth Circuit Court of Appeals denied his appeal and affirmed the lower court’s order.

° In 2011, BLM sent Bundy a notice of intent to roundup his cattle.

° In 2013 a federal district court ordered Bundy to remove his cattle within 45 days and authorized the feds to impound any cattle that were not removed. Bundy appealed and lost.

° In March of 2014, BLM issued a notice of intent to impound Bundy’s cattle, and on April 5, 2014 the roundup began. 

This was a large operation for the feds, as the court recently summarized: 

BLM made extensive preparations for “Operation Gold Butte Impound.” Coordinating with agents from the National Park Service and Federal Bureau of Investigation, BLM anticipated resistance from Bundy and his supporters. It planned to escort the contractors in and out of the area each day. BLM established a Listening Post/Observation Post (LP/OP) “strategically placed at elevated positions around the Bundy residence each evening” where agents were outfitted with binoculars, spotting scopes, night-vision goggles, and thermal-imaging devices. The LP/OP personnel were to have “agency-issued rifles with them at all times.” BLM also established a Tactical Operations Center (TOC), Forward Operating Base (FOB), a media site, and a “free speech area.”

I and many others have written about what transpired during the so-called standoff and there is no need to repeat it here, as our interest today is in the court case. Suffice it to say the feds backed down and left, handing a major victory to Bundy and his supporters. I vividly remember both the surprise and joy I personally experienced at this outcome. 

However, in March of 2016 a federal grand jury indicted nineteen individuals, including Cliven Bundy and his two sons, Ammon and Ryan, for a slate of federal crimes, including impeding federal officers, threatening federal officers, and extortion, as well as conspiracy to commit those crimes. Trial began on October 30, 2017, and that is when the government’s transgressions and abuses started coming to light. 

During the trial 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.”  

It also became apparent that important evidence had been withheld by the feds. The presiding judge held a series of hearings in November of 2017. Based upon those hearings the judge found the following pieces of evidence were 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   

In total, it came to 3,300 pages of evidence withheld. As a result the judge said this represented “outrageous” abuses and “flagrant misconduct” by the prosecutors. The judge 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.  

Unbelievably, President Trump’s Justice Department appealed this decision to the Ninth Circuit Court of Appeals, the most liberal circuit in the nation.    

On August 6 of this year the Ninth Circuit rendered their decision and I’m pleased to report the government’s CYA appeal was not successful. 

The court affirmed the prosecution was guilty of “flagrant misconduct”, with such a finding necessary for charges to be dismissed “with prejudice.” 

The court affirmed that the withholding of information about the surveillance camera “was willful rather than merely inadvertent.” The court also stated, “Rather than looking into the request and locating the documents before trial began, the government chose to fight rather than respond to the request.” 

On the withholding of evidence concerning the government’s use of snipers, the court stated: “Of particular concern is the government’s handling of evidence related to the presence of snipers. This was a hot-button issue… The government said the Bundys’ claim of “snipers” was “false” and “deceitful,” yet the government’s own documents referred to its agents as “snipers.”…”In short, the government had to know the import that any evidence regarding snipers, or agents who looked and functioned like snipers, would have in this case. Nevertheless, it withheld a slate of information…” The court also found the government’s position this evidence was irrelevant to be “preposterous and reckless.” 

With respect to the threat assessments, the court said, “…the government failed to turn over beneficial information speaking to Bundy’s potential for violence. These documents could have helped bolster the defense’s claim that the government had engaged in an overmilitarized impound operation that the Bundys claim fueled their fears of being surrounded by snipers. But irrespective of the theory defendants were to put forward, these documents should have been released. They, at the very least, provided impeachment evidence because some of their findings contrasted with the 2014 threat assessment used as the basis for planning the impound operation, and they undermined the prosecution’s opening statement.” 

There is more, but in all instances the appeals court affirmed the lower court’s decision. 

There are still many questions concerning the design, implementation and costs of this government boondoggle. Shamefully, neither political party has seen fit to conduct a complete investigation and report on this operation. That failure increases the odds that similar abuses will occur in the future.  

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 September issues of The New Mexico Stockman and The Livestock Market Digest. 

Now look at the post below: its only been a few months since federal troops were sent to various big cities, and we already have a GAO report on their activity. No such report has ever been requested concerning the Bundy Standoff. Any one of the 535 members of congress could make such a request, but they haven't. Careful scrutiny for social justice, nada for range justice. 

DuBois column: Fly over permits, grazing allotments and wildfire damage

Fly over permits, grazing allotments and wildfire damage

Federal management

Some argue for federal control of resources because of the economies of scale. The big boys would rather deal with the feds than fifty different states, and the enviros have always favored a centrally planned, top-down approach, where they only have to lobby in D.C.

A recent court decision highlights a great example of federal management of air and land resources. In a D.C. Court of Appeals decision, we learn that Congress passed the Air Tours Management Act of 2000 which requires vendors who wish to conduct commercial air tours over certain national parks and tribal lands to first obtain a permit from the FAA. The act specifies that the FAA, “in cooperation with” the National Park Service, “shall establish an air tour management plan . . . whenever a person applies for authority to conduct a commercial air tour operation.” Congress wanted this to be done in a timely fashion, as it instructed a decision be made “not later than 24 months” after an application is received.

Well guess what? After twelve years not one single management plan had been completed. Twelve years! What did Congress do? They amended the act to make it easier by exempting smaller parks and allowing the agencies to enter into the “more flexible and easier to implement” voluntary agreements. The result? The agencies continued to argue among themselves and the court found that due primarily to interagency conflict, the agencies “have failed to comply with their statutory mandate for the past nineteen years.”

Nineteen years and they can’t get it done. What would happen to you or I if we failed to comply with a federal statute for nineteen years? Actually, we would have already been in jail for eighteen years and six months.

Hammonds & Bundy

Rancher Steve Hammond and his father Dwight, you will recall, were pardoned by President Trump, and the Interior Dept. restored their grazing permits. Enviros filed suit challenging the awarding of the grazing permits, and a federal judge vacated the permits. The Hammonds then filed suit, but recently announced they were dropping their challenge and would compete for the allotments. Earlier this year the BLM announced they would prepare an analysis of the qualified candidates which includes the Hammonds and three neighboring ranches. At stake are four allotments, comprising about forty-one square miles. A BLM spokesman said they haven’t set a specific time-frame to reach their decision. The Hammonds, in their application, said if the permits were awarded to another rancher they would require “immediate compensation” for their water rights, intermingled private lands and range improvements. The Oregon Cattlemen’s Association is “fully supportive” of the Hammond family and would have preferred that other cattlemen not compete for the grazing allotments, said the group’s executive director, Jerome Rosa.

Ryan Bundy is back in the news, with the BLM saying they are investigating whether Bundy constructed illegal irrigation ditches across land within the Gold Butte National Monument. Apparently, hikers visiting the area have filed a four-page complaint with the BLM. Bundy told E&E news he was unaware the BLM was looking into his irrigation activities.

Smokey damages property

An interesting case is developing in Montana, where two ranchers are claiming they should be compensated nearly $9 million because the federal government burned their rangeland while attempting to control a wildfire. In their lawsuit, the ranchers allege the U.S. Forest Service intentionally ignited their property for “burnout and backfiring” operations while fighting the Alice Creek fire.  The lawsuit claims, “the ranches would have suffered no material or substantial damage as a result of the naturally ignited Alice Creek Fire,” except for the actions of the agency. The ranchers also allege the Forest Service had “safe and effective alternatives” to suppress the fire, but instead chose “to manage the Alice Creek Fire with land management goals primarily in mind rather than fire suppression.”

This case will be watched by many in the West.

Coronavirus & Climate Change

The enviros are doing their best to use the so-called pandemic to promote their policy goals. The most recent examples involve climate change. At a town hall called "Saving our Planet from the Existential Threat of Climate Change”, Washington Governor Jay Inslee said, "We should not be intimidated by people who say you should not use this COVID crisis to peddle a solution to climate change". Well, peddle away Governor. Of course Al Gore has jumped into the picture, telling MSNBC, “This climate crisis and the COVID-19 pandemic are linked in some ways…The preconditions that raise the death rate from COVID-19, a great many of them, are accentuated, made worse by the fossil fuel pollution.”  Al Gore can out peddle Jay Inslee any day of the week, and he has made millions of dollars doing it. You can always count on Gore to see the dark at the end of the tunnel, and I have to wonder what his next Uncle Sam Scam will be.

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 June issues of The New Mexico Stockman and The Livestock Market Digest.

DuBois column: An attack on Westerners and freedom of speech

An attack on Westerners and freedom of speech

The Hearing

On the very day I am writing this column, a subcommittee of the House Committee on Natural Resources is scheduled to hold a hearing, the title of which is No More Standoffs: Protecting Federal Employees And Ending The Culture Of Anti-Government Attacks And Abuse.

And some think elections don’t matter?

Look at what the Committee posted on their Facebook page three days before the hearing:

“Extremists – sometimes encouraged by elected officials – treat our federal employees as enemies and subject them to illegal threats and abuse. The people who protect the public lands we all love need protection themselves, especially when anti-government rhetoric leads to real physical abuse. Join us at 2:00 p.m. on Tuesday, Oct. 22, for our hearing on combating anti-government extremism in all its forms and protecting our Public Lands.”

This is what the Committee posted on the day before the hearing:

“Remember the heavily armed Bundy militia taking over Malheur National Wildlife Refuge in Oregon a few years ago? Public Lands managers have faced HUNDREDS of threats, attacks and even murder attempts over the past few years. We're holding a hearing on Tuesday at 2:00 p.m. Eastern on the serious human consequences of anti-government rhetoric.”

I wonder if they believe pro-government rhetoric is just as dangerous?

There are three non-agency witnesses scheduled to testify, and their written testimony does not reflect the hyperbole used by the Committee majority.

The first scheduled to testify is former County Commissioner and rancher Dan Nichols, who opposed the takeover of the Malheur National Wildlife Refuge and is no friend of the Bundys. In his written testimony, Nichols says:

“There are lessons to be learned from the armed occupation of the Malheur National Wildlife Refuge, as well as Harney Counties experiences with the government’s management of public lands resources. It is important to note that the majority of ranchers in Harney County did not support armed occupation of the Refuge. But at the same time, there are legitimate grievances with federal land management policies. Without a forum in which to air and address these concerns – and a fair, collaborative process by which to resolve them – we continue to push more people toward the hostile, unacceptable approaches adopted by individuals such as the Bundys. Much of what is often described as being “antigovernment” is really coming from a place of feeling excluded or on the losing end of unbalanced natural resource management.”

The second person scheduled to testify is Dr. Peter Walker, a professor of Geography and Environmental Studies at the University of Oregon, and the author of the book Sagebrush Collaboration: How Harney County Defeated the Takeover of the Malheur National Refuge.

In his written testimony, the professor makes two points of interest. 

First, Dr. Walker states: 

“It is important to note that while the media at the time often described the militants as ranchers, in fact only one of the outside militant leaders, and only two active local supporters, could even plausibly be described as working ranchers. The overwhelming majority of outside militants and local supporters had no direct interactions with federal resource management agencies. The occupation of the Malheur National Wildlife Refuge was primarily an ideologically-based anti-federal government political movement, not a movement of ranchers, loggers, or other resource users.”

Dr. Walker asserts, “As a nation we are enormously fortunate that by chance the militants chose Harney County.” Why? Because, “the outside militants had no idea Harney County was recognized nationally as something of a poster child for collaborative approaches, including building positive relationships with federal workers.” 

One can only speculate what the final outcome would have been had the occupiers selected a different area in the West.

The third non-agency presenter was Katie Tubb with the Heritage Foundation, who explained why there is so much potential for conflict in the management of federal lands:

“…management of these massive and diverse lands is disjointed, being spread across multiple departments and bureaus governed by a complex of overlapping and often conflicting laws, missions, and regulations as well as historical uses and arrangements predating certain federal laws. Different administrations have interpreted and implemented the same laws guiding management in drastically different ways to either encourage access to federal lands or heavily restrict their use. Special interest groups leverage these complexities to pressure elected leaders and bureaucrats to enact policies that benefit powerful constituencies. A litigation culture all but invited by broad, unclear, or outdated laws has led to perverse incentives.”

Notice her testimony does not list “anti-government rhetoric” as a significant or primary cause of conflict. Ms. Tubb uses the rest of her testimony to provide many examples of instances where local groups and entities have come together to resolve conflicts.

The hearing was chaired by Rep. Deb Haaland (D-NM). In her opening statement, Rep. Haaland unfortunately chose to emphasize the theme of “anti-government rhetoric” and launched a partisan attack on Senators Ted Cruz (R-Tex.) and Dean Heller (R-Nev.) for some of their public statements and on former Utah Governor Gary Herbert for signing land transfer legislation, and by implication blaming them for contributing to the “culture of threats and violence.”

Ranking minority member John Curtis (R-Utah) was having none of this. In his opening statement Rep. Curtis took issue with the “assertion there is a widespread problem of anti-government threats and abuse occurring in the West.” Rep. Curtis stated that “calling for local ownership and control of public lands does not embody an attack on the federal government” and that “the vast majority of my constituents impacted by federal land management decisions are hardworking taxpayers raising families and contributing to their communities.” “Land owners and users who disagree with specific management decisions should not be made to feel that somehow they will be placed on a government watch list” said Rep. Curtis, and “vilifying Westerners and those who disagree with federal management decisions” does nothing to contribute to the proper stewardship of the land.

Clearly this hearing was designed to be part of the larger left-wing attempts to silence those who disagree with current government policy, and it is sad to see Rep. Haaland participate in this effort to limit diversity of opinion on public issues.

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 November issues of The New Mexico Stockman and The Livestock Market Digest.