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About The Blue Mountain eagle. (John Day, Or.) 1972-current | View Entire Issue (Jan. 27, 2016)
A8 News Blue Mountain Eagle Wednesday, January 27, 2016 Demands by standoff leaders defy logic and law, authorities say written questions about what would become of the land un- der Bundy’s plans. By Les Zaitz The Oregonian/OregonLive BURNS — Occupiers of the Malheur National Wildlife Refuge for three weeks have made sweeping demands that local and federal authorities say are both brazen and unre- alistic. They want immediate freedom for imprisoned local ranchers. They want feder- al deeds voided and private owners to take over the prop- erty. They want the county to control the refuge. They want federal grazing permits va- cated, leaving ranchers free to graze as they choose. And they say they won’t go until they get their way. Interviews with lawyers, ranchers, federal authorities and others make clear: Lit- tle of what they want is like- ly to happen for reasons that include legal principle, basic property rights, economic forces and cost. Federal au- thorities also say the occupi- ers are making demands that Ày in the face of the U.S. &on- stitution. Federal land control A bedrock claim of the small group led by Arizona businessman Ammon Bundy is that the &onstitution limits federal ownership of land. As a result, they say, the federal government is violating Arti- cle 1, Section , &lause 17 by illegally holding about 76 per- cent of +arney &ounty. But scholars say Bundy and his followers are misread- ing the &onstitution. “You have to read the en- tire document and not just the clauses and provisions that you think support your case,” said Elizabeth Wydra, chief counsel of the nonpro¿t &onstitutional Accountability &enter, which monitors legal application of the &onstitu- tion. The provision cited by Bundy and others is “mostly about the 'istrict of &olum- bia and the idea that there would be the neutral place for The Oregonian/Mark Graves Ammon Bundy, the main public face of the occupation of the Malheur National Wildlife Refuge, speaks to local ranchers and community members at Crystal Crane Hot Springs Jan. 18. the government to be located instead of in an area belonging to a particular state. It’s really hard for me to see how that re- lates to their claims.” The more important provi- sion, Wydra and others said, is Article I9, Section , &lause 2 — known as the “Property &lause”: “The &ongress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property be- longing to the United States.” In a 1976 ruling, the U.S. Supreme &ourt confronted the point Bundy is trying to assert. New Me[ico state of¿cials tried to keep wild burros that they had seized from federal land. The of¿cials claimed what the Oregon occupiers claim ± that the &onstitution strictly limits what property the federal government can own or control. State of¿cials argued in Kleppe v. New Mexico that &ongress had no power over public lands without state consent. “This argument is without merit,” the Supreme &ourt ruled. State of¿cials confused a constitutional provision fo- cused more narrowly on how the federal government over- sees land it acquires from a state with the unlimited powers granted to the federal government under the &onsti- tution’s Property &lause, the court said. That clause trumps all, the court ruled. Unwinding federal ownership Bundy and other leaders of the refuge takeover none- theless assert that the federal government is out of bounds in +arney &ounty. They plan to rectify own- ership by voiding all deeds in the county that transferred land to the federal govern- ment. This would affect lands managed by the U.S. Bureau of Land Management, the U.S. Forest Service and the U.S. Fish & Wildlife Service. One challenge they face is that much of the federal own- ership dates to territorial days, so there’s no earlier owner. Homesteaders subsequently claimed some of the land, but the federal government still retained millions of acres in Harney &ounty. Over time, the government has bought or traded other parcels. The Burns Paiute Tribe would perhaps have the most distinct claim to much of the county -- by treaty, it never gave up its interest in tribal lands across the Great Basin. Tribal members did cede what was once the Malheur Indian Reservation, accepting com- pensation. The federal gov- ernment subsequently sold that land to private interests, so it’s not clear whether that land would be part of Bundy’s calculation. The refuge occupiers have provided few details on exact- ly how a land transfer would work. Would a rancher who sold land to the government simply get the land back or would the rancher have to refund what the government paid for the land? The Harney &ounty &om- mittee of Safety, a group of six local residents founded at the instigation of Bundy and other occupiers, has been identi¿ed as among those who would help with the transfers. “We do not have a concrete plan to transfer the lands away from the feds,” said Burns businessman Tim Smith, a committee member. “Every- thing is still on the table ex- cept the status quo of leaving the vast majority of land with- in the fed jurisdiction.” Smith himself was given title to 10 acres of federal land in 2010, but didn’t respond to Federal grazing rights The occupiers advocate voiding grazing permits is- sued by the U.S. government as well. Voiding grazing rights, though, would be a vexing de- velopment in a region where many ranchers count on using public lands to feed livestock. Occupiers say ranchers would revert to “historic” use of that land to continue grazing. What they seemed to have overlooked is that their plan calls for private ownership of the same high desert expanses that the fed- eral government now rents at subsidized cost to the ranch- ers. They haven’t answered how ranchers would graze on what becomes private land. Ranchers say the idea wouldn’t work in any event. Bundy’s claim to want to re- store economic vitality to the county doesn’t match the disruption his notions would cause for ranchers reliant on public grazing allotments. The occupiers haven’t ad- dressed what they would do about mining and water rights issued by the federal govern- ment. Hammonds freed Bundy told the FBI that his group’s primary demand is immediate freedom for the Burns area ranchers Dwight Hammond Jr. and his son, Steven. The father and son re- turned to federal prison Jan. 4 to serve the remainder of ¿ve- year sentences. They were convicted in federal court in Pendleton in 2012 of arson for ¿res that burned federal land. A federal judge initially reduced their sentences from what the law required, saying the punishment was too harsh. An appellate ruling later de- clared that to be wrong, and the Hammonds last October faced a second sentencing. Bundy’s claim for the Hammonds stems in part from his view of the &onsti- tution. Since the federal gov- ernment shouldn’t own the land it does in Harney &oun- ty, according to Bundy, it also lacked authority to prosecute the Hammonds. He and other occupation leaders want the Hammonds brought home im- mediately. That’s not as easy as turn- ing a key in a cell door at the Los Angeles-area prison hold- ing the Hammonds. “Inmates are sometimes released from incarceration due to a sentence being vacat- ed by the court, an executive order of clemency, or through a compassionate release/re- duction in sentence,” the U.S. Bureau of Prisons said in a statement. A presidential pardon could instantly free them from prison and clear their convictions. For this to hap- pen immediately would take circumvention of the normal years-long process used by the White House to consider pardons. Bundy himself acknowl- edged to the FBI that he didn’t expect this to happen. President Obama could commute the Hammonds’ sentences. That could lead to an immediate release but not exoneration. The U.S. Department of Justice may have mechanisms to go to court to vacate the convictions and dismiss the sentencing order. But the Jus- tice Department appealed the original sentence and U.S. Attorney Billy Williams in Oregon not long ago publicly justi¿ed the convictions. The Bureau of Prisons it- self could try releasing the men, but that would require convincing a federal judge that a compassionate reason existed to do so. The process likely wouldn’t happen fast and wouldn’t clear the Ham- monds of the convictions. © Oregonian Publishing Co. 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