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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. Reprinted with Permis-
sion.
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