Traitors, Militias, Welfare Moochers, or Lobbyists?

Those Who Took Over the Oregon Wildlife Refuge are Robbing the Rest of Us

Cliven Bundy CartoonThe Internets are filled with excellent (and some not-so-excellent) commentary on the right-wing militia takeover of a building in Oregon’s Malheur National Wildlife Refuge: I recommend this piece from the great Charles Pierce on the meta-political aspects. But the standoff is suffused with legal issues, and for Legal Planet readers, particularly environmental legal issues.

At FiveThirtyEight, Leah Libresco points out something that natural resource scholars and policy wonks have known about — and complained about — for a long time, perhaps decades, namely: these supposedly tough, flinty, independent-minded ranchers are robbing the taxpayers blind, literally feeding off of the public trough. But citing a study from the Center for Biological Diversity, Libresco article gets more specific: the Bureau of Land Management charges ranchers 93% less than the market rate for grazing.

BLM Fees

It’s a rather typical trope for one element of supposed anti-government activism: get the government off our backs — but only after giving us free land, free resources, and free water (the last after the feds pay for massive irrigation projects). It’s hardly a surprise that Ammon Bundy, one of the ringleaders of the group (and son of lawbreaker Cliven Bundy) has benefitted from a federal loan guarantee program.

But from a legal standpoint, this paragraph in Libresco’s article stands out:

The bureau’s fees are so much lower than the market price in part because its fees are set at a flat, national rate and can’t be adjusted to match demand in local markets. Plus, the bureau sets that national grazing price using a formula, rather than any kind of bidding system or market appraisals, as some other federal agencies with higher prices do. As a result, in 2014, grazing fees covered only 15 percent of the bureau’s costs to maintain grazing lands. The rest of the cost is made up in federal appropriations and covered by taxpayers.

The question for lawyers, of course, is why does the Bureau maintain these policies? It’s possible that the Taylor Grazing Act, the principal federal statute governing grazing, mandates it: this would make it akin to the infamous 1872 Mining Act, which allows companies to strip public lands of valuable minerals without paying a dime in royalties to the public or even clean up the mess they make.

But, like the song says, it ain’t necessarily so: I am far from an expert on federal grazing laws, but the summaries I have read appear to give the Bureau a large amount of discretion. So these anomalies could stem from the Bureau itself, for reasons familiar to students of bureaucracy. This could be a classic iron triangle, with the Bureau subsidizing the ranchers, the empowered ranchers pushing their Congressional representatives to support the Bureau in its efforts, leading the Bureau to support the ranchers even more. It could be what James Q. Wilson called “client politics,” where the benefits of a regulation are concentrated but its costs are dispersed: those paying the costs each only pay a little bit and those who benefit get a lot, so why should the agency take on the beneficiaries. It could be a matter of personnel: maybe the sorts of people who work at BLM are sympathetic to ranchers. Or it could just be inertia. Holly and Sean know far more about this than I do, and they might pop up on the issue: as I said, I claim no expertise.

So in addition to being traitors, because they reject the authority of the federal government, and moochers, because they are living off the public dime, and dangerous, because they are armed, the folks who have taken over the building at Malheur just might be very good lobbyists, either in the legislative or the executive branch or both. They are the very coddled insiders that they claim to be protesting. Ironies abound in literature, and in politics as well.

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One Reply to “Traitors, Militias, Welfare Moochers, or Lobbyists?”

  1. Protesters march in support of an Oregon ranching family facing jail time for arson in Burns, Oregon.

    ​Bundy Militia Musters Again Over Paiute Land

    Steve Russell
    1/3/16
    Some of the same armed “militia” involved in the Cliven Bundy affair in Nevada have occupied federal land in Oregon formerly reserved for the Northern Paiute. Ironically, the “legal” basis for starting a fight with the federal government is that sovereignty “really” belongs to Oregon rather than the Paiutes, who have seen their federal trust land shrink from over one and a half million acres to a tiny remnant of 760 acres in Burns, Oregon, where this current armed standoff began.

    Cliven Bundy is a Nevada rancher who engaged in an armed standoff with the federal government in 2014 when some of his cattle were seized over 20 years of unpaid grazing fees. “Militia members” and “patriots” from all the western states and phototropic politicians from as far away as Arizona joined Bundy. Video at the time showed “militiamen” taking aim at federal officers, and the authorities decided a bloodbath over grazing fees was not sensible. When the federal agents stood down, the militias declared a major victory.

    This Saturday, January 2, the war over federal authority continued when an unknown number of militia members seized a building in the Malheur National Wildlife Refuge and Ammon Bundy—Cliven Bundy’s son—released a video urging like thinking people to arm themselves and come to Oregon, declaring, “We’re going to be staying for several years.”

    The “militiamen” claimed the occupation of the empty building was accomplished by 150 armed men. The armed occupation of Malheur Wildlife Refuge grew out of demonstrations over the impending deadline for Steven Hammond, 46, and his father Dwight Hammond, Jr., 73, to report to federal custody to begin serving five years in prison each for arson on public lands.

    At the Hammonds’ trial, the government argued that the fires were set to cover up evidence of poaching activities. The Hammonds did not deny setting the fires but claimed their purpose was to destroy invasive species.

    In the 2014 standoff, Cliven Bundy claimed that federal agents had no authority in Nevada. He now claims the same of Oregon, stating Saturday, “United States Justice Department has NO jurisdiction or authority within the State of Oregon.”

    If anything is clear-cut about Indians in the Constitution, it is that relations with Indian nations are a federal responsibility. Carrying out that responsibility in Oregon, President U.S. Grant established the Malheur Indian Reservation for the Northern Paiute in 1872. It is no coincidence that the historical reservation shares a name with the Malheur National Wildlife Refuge, site of the current armed standoff.

    White settlement nibbled at the Maiheur Indian Reservation until the Bannock War in 1878, which ended with surrendered Paiutes and Bannocks on the reservation being removed, officially to the Yakama Reservation in Washington Territory. Unofficially, Paiutes had scattered all over the Western States that comprised their aboriginal lands. The Burns Paiute Reservation is the remains of the Malheur Reservation and the Maiheur Wildlife Refuge is an alternative use for the federal land, for those who believe the federal government exists.

    As in Nevada, the Bundys claim the only lawful authority in the area is the Harney County Sheriff David Ward, who they have petitioned to take the Hammonds into “protective custody” from the U.S. Marshal.

    In a video posted on YouTube, Ammon Bundy said, “This is a time to stand up.” Willamette Week reported that militia members have been arriving in Burns, Oregon, for weeks.

    Jon Ritzheimer made a farewell video for his family before heading out to fight with the “oppressive, tyrannical” federal government and posted it on YouTube. If he were not promising to “die a free man,” his rant about the Constitution would be humorous. While he would fail my constitutional law course, his, ahem, unusual reading of the document loses some humor value when he offers it as a reason to “lay my life down to fight against tyranny,” tyranny put in place by “kids who never got their hands dirty who went off to college” and came back thinking they know as much about land management as farmers.

    Ammon Bundy claims on video to be doing God’s work and says of the 2014 standoff, “because people came, we are free.” He also claims that the U.S. Attorney threatened to get the Hammonds assigned to “a less desirable prison” if they kept consulting with the militia and that would be “a death sentence.” Urging people to join in, he referred to the occupation of the Wildlife Refuge as, “This wonderful thing that the Lord is about to accomplish.”

    The Oregonian reported that one of the occupiers is Ryan Payne, an army veteran who claimed to have organized snipers to target federal agents during the 2014 standoff at the Bundy ranch in Nevada.

    Another veteran of the Bundy standoff, Blaine Cooper, told The Oregonian, “I went there to defend Cliven with my life.”

    Oregonian coverage was up to date as of early January 3, and included this statement on the situation from Harney County Sheriff David Ward:

    After the peaceful rally was completed today, a group of outside militants drove to the Malheur Wildlife Refuge, where they seized and occupied the refuge headquarters. A collective effort from multiple agencies is currently working on a solution. For the time being please stay away from that area. More information will be provided as it becomes available. Please maintain a peaceful and united front and allow us to work through this situation.

    According to reporting by the Associated Press, the Hammonds are not as quick to advocate shooting at federal officers as Cliven Bundy. The AP quoted a letter from the Hammond family lawyer, W. Alan Schroeder, to Sheriff Ward: “Neither Ammon Bundy nor anyone within his group/organization speak for the Hammond family.” Dwight Hammond himself told the AP that he and his father intend to turn themselves in on January 4 as ordered. “We gave our word that’s what we would do, and we intend to act on it.”

    While state and federal law enforcement agencies discussed how to end the occupation without bloodshed, Cliven Bundy from his Nevada ranch and the occupiers in the Malheur National Wildlife Refuge used social media to call for supporters to come to Oregon. And come armed.

    Read more at http://indiancountrytodaymedianetwork.com/2016/01/03/bundy-militia-musters-again-over-paiute-land-162939

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About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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