Written on January 27th, 2016
At 4:25 P.M. Pacific Time on
Tuesday, January 26th, 2016, seven or eight people were arrested by
F.B.I. agents along Highway 395 in Oregon, during a traffic stop near a roadblock,
and charged with felony counts of impeding federal officers. One person was
killed during the arrests.
The people who were arrested are members
of the group of so-called “militia” which, on January 2nd, 2016, staged
an armed occupation of the Malheur National Wildlife Refuge in rural
southeastern Oregon, in protest of what they consider an illegal and
unconstitutional land-grab of the Hammond ranch, by the Federal Bureau of Land
Management (B.L.M.). The wildlife refuge is located about thirty miles south of
the town of Burns, Oregon, and the Hammond ranch lies 53 miles south of Burns.
One of the arrestees, Ammon Bundy, whose
brothers are also among the protesters (or “militia”), has been described by
some sources as the leader of the protests, but the Hammonds have said that the
Bundys and the militia men do not speak for them. According to Ammon Bundy’s
brother Ryan Bundy, whom was shot during the arrest, the militants demanded
that the Hammonds be released, and that the surrounding federal lands be ceded
back to local control, referring to Harney County, Oregon.
Ammon and Ryan Bundy are the sons of
Cliven Bundy, the Nevada rancher who, in the spring of 2014, was involved in a
standoff with federal authorities over cattle grazing rights, and came under
fire nationally after an interview on FOX News, in which he suggested that
blacks had a better quality of life under slavery than in modern times.
According to the Facebook page of the
Bundy Ranch, Arizona resident and rancher Robert “LaVoy” Finicum, was shot and
killed by police during the arrest. It has been alleged that Finicum was shot
three times, while he had his hands above his head, and was surrendering. It is
unclear who shot first during the encounter. Authorities claim that Finicum
failed to surrender as directed.
In a video titled “Mark McConnell
describes LaVoy Finicum’s fatal shooting”, which was posted to the YouTube
channel of Travis Gettys on January 27th, Mark McConnell, whom was
also arrested, and said he was Ammon Bundy’s bodyguard, stated that according
to Shawna Cox and Ryan Payne, Finicum drove away from F.B.I. agents, and then charged
officers. However, McConnell also stated that Cox changed her story several
times. McConnell's video has since been taken down.
In a video entitled “Government
Treats Native Artifacts as Doorstops!” which was posted to the Bundy Ranch
Facebook page on the night of the arrest, Finicum stated that he grew up on a
Navajo reservation; spent time with Lakota on a Sioux reservation; and has
Navajo, Comanche, and Pima ancestry.
In the same video, Finicum stood outside
the office of the occupied Malheur National Wildlife Refuge, and showed some
Native American artefacts that were on the ground outside the door of the
building. Finicum criticized the federal government for neither handling the
artefacts carefully nor holding them sacred, and invited the people of Harney
County to “throw off the B.I.A.”; the federal Bureau of Indian Affairs.
Since 1964, two different properties have
been owned by Dwight Hammond, Jr., whose son Steven also works at the ranch.
Throughout the 1970s, 1980s, and 1990s, the B.L.M. and the U.S. Fish and
Wildlife Service (F.W.S.) expanded the size of the now 187,000-acre Malheur
National Wildlife Refuge, and bought up many of the ranches adjacent to the
Hammonds’ property.
During that time period, conflicts between
the B.L.M. and the F.W.S. and the Hammonds (over road and water rights, and cattle
grazing permits) – as well as between county and federal authorities – resulted
in financial hardships which resulted in the Hammonds selling-off their
original 6,000-acre property. The conflicts also resulted in the Hammonds being
required to build fences which cut the size of their property in half. The
Hammonds purchased another ranch, but acquired the original property again
after the man who purchased it from them, passed away. Today the Hammonds own
12,000 acres in the Diamond-Frenchglen area.
In the early fall of 2001, the Hammonds
set a fire on their own 10,000-acre private property, which spread to the Steens
Mountain Cooperative Management and Protection Area. The Hammonds informed the
fire department that they were going to set this fire, as a routine prescribed
burn, to burn off invasive species.
According to conflicting reports, the fire
burned 139 acres of grass (127 according to some sources) out of the 26,420
acres of B.L.M.-managed land that the Hammonds used for summer grazing. At that
time, there was no communication about the burn from the federal government to
the Hammonds. After the fire, Steven Hammond called the B.L.M. office in Burns,
Oregon, to inform them about the fire.
At trial, witnesses, including a relative
of the Hammonds, testified that the fire occurred shortly after Steven Hammond
and his hunting party killed several deer on B.L.M. property, allegedly
illegally. Prosecutors, and a teenage relative of the Hammonds, told the jury
that Steven Hammond instructed others to light matches, drop them on the
ground, and told them that they were going to “light up the whole country on
fire”. The Hammonds allegedly told one of their relatives that nobody needed to
know about the fire, and not to tell anyone about it. One witness testified
that he barely escaped the eight- to ten- foot high flames.
According to a June 2013 writ of
certiorari, the fires “caused minimal damage and, arguably, increased the value
of the land for grazing. The district court found no one was endangered by the
fires.”
In August 2006, the Hammonds set another
fire, a backburn, in order to protect the winter range of their ranch, as well
as their home, from an approaching wildfire, which was sparked by a massive lightning
storm. Dwight Hammond’s wife Susan later said that “the backfire worked
perfectly, it put out the fire, saved the range and possibly our home.”
The government later sought $1 million in
damages from the fire, which reportedly threatened the lives of volunteer
firefighters who were camping nearby.
The Hammonds were charged with arson, and
served two years in prison. However, due to a provision of the Antiterrorism
and Effective Death Penalty Act of 1996, “Whoever maliciously damages or
destroys… by means of fire… any… real property… owned or possessed by … the
United States … shall be imprisoned for not less than 5 years” and not more
than twenty years.
In 2012, the first federal judge to handle
the case deemed the mandatory minimum sentence to be too stiff, and sentenced
the Hammonds to two years in prison. According to the U.S. Attorney’s Office,
the trial court “imposed sentences well below what the law required based on
the jury’s verdicts”.
The federal government’s attorney appealed
the case, seeking additional prison time for the Hammonds. According to some
sources, such appeals are routine; but according to other sources, such appeals
are rare.
In October 2015, the Ninth Circuit Court of
Appeals imposed the mandatory minimum sentence, ruling that the five-year
sentence was “not grossly disproportionate to the offense” of arson. The court
gave the Hammonds credit for the time they had already served. The Hammonds
turned themselves in to a California prison on the afternoon of January 3rd,
2016.
A video posted to YouTube, which was made
in January 2016 by a protester supporting the Hammonds’ cause, alleged that the
government had violated the Bill of Rights in its actions against the Hammonds;
namely, the First Amendment right to file a petition for redress of grievances;
the Fifth Amendment freedom from double jeopardy, and the Eighth Amendment freedom
from cruel and unusual punishment.
The creator of the video claimed that
government had denied a petition for redress of grievances, most likely
referring to an online petition filed to the Governor of Oregon and several
other government officials, on December 11th, 2015, which asserted
that the Hammonds “were not afforded their rights to due process” by the state
and Harney County, that the Hammonds “committed no crime” in setting the
prescribed burn, and that “the U.S. Government does not have authority to
enforce Territorial law under Article Four within the State of Oregon”.
The creator of the YouTube video also
asserted that the second prison sentence imposed upon the Hammonds constituted
double jeopardy; and also that to send Dwight Hammond, now 74 years old, back
to prison, would constitute cruel punishment.
In my opinion, the Hammonds are not guilty
of arson, and should not be punished in pursuance of the Antiterrorism and
Effective Death Penalty Act of 1996. Regardless of which level of government
owns the damaged land, it is simply not the case that the Hammonds lit the 2006
backburn maliciously, which in my
opinion should be viewed as the operative and key word of that law.
In my opinion, since the Hammonds did not
act with malicious intent to destroy
public or government property, but rather lit the fire in order to protect
their home and property, they are not guilty of arson, and certainly should not
be punished further, especially not in pursuance to a federal law originally intended
to punish terrorism.
Even if the witness was correct that
Steven Hammond told him that the fire would “light up the whole country”, this
does not necessarily mean that the intent was to destroy public property. Moreover,
the word “country”, most likely, simply refers to the land, rather than the
nation or its government.
However, the allegation that the Hammonds
set the 2001 fire following illegal deer poaching, and in order to cover that
poaching up, it very well may be that there was malicious intent in that act,
if indeed it could be successfully argued that those deer were government
property. But that even if that could be argued, that is not the property that
the government sued the Hammonds for destroying.
Regardless of the conflicts between the
various levels and agencies of government, versus
the Hammonds and their private property, and regardless of the Hammonds’
guilt or innocence, it seems obvious to me, now, after examining these facts,
that one very important thing has been ignored throughout all the reporting on
the Hammonds and the Bundys, and the armed occupation of the so-called “federal
building”, the shack office at the Malheur National Wildlife Refuge.
This is that – keeping in mind that the
office was occupied the day before the
Hammonds turned themselves in to authorities in order to report for their
prison sentences – the Hammonds are not,
and have not been, the parties occupying that office. Perhaps this explains
why the Hammonds told media that the Bundys and the self-described militia do not represent them. Therefore, in my
opinion, we can hardly blame the Hammonds for the occupation, nor the behavior
of the occupiers, nor the actions of Ammon Bundy and his brothers.
Bibliography:
1. http://www.usatoday.com/story/news/2016/01/26/reports-protest-group-leader-ammon-
bundy-arrested/7930650
2. http://www.rollingstone.com/politics/news/wtf-is-happening-in-the-oregon-militia-
standoff-explained-20160103
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oregon-a-lawsplainer/
4. http://abcnews.go.com/US/oregon-ranchers-expected-report-california-prison-amid-
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hammond-family-persecution/
6. http://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/12/ranchers_fight_
with_feds_spark.html
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8. http://landrights.org/or/Hammond/Hammond-v-United-States-Oregon-Petition-for-
Writ-of-Certiorari-Filed-June-17-2013.pdf
9. http://bundyranch.blogspot.com/2015/12/notice-redress-of-grievance-action.html
10. http://www.newsfoxes.com/2016/01/lavoy-finicum-the-oregon-militiaman-allegedly-
shot-by-police-in-cold-blood-while-unarmed/
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shot-by-police-in-cold-blood-while-unarmed/
11. https://www.facebook.com/bundyranch/videos/951100138300128/
