What Are the Bundys Protesting?
We’re often told that in order to defeat the terrorists, we need to understand their grievances. So, not to defend an armed occupation of federal property (#OccupyNowheresville!), but to understand some of what might motivate the folks doing it, let’s take a look at the case they are protesting, and the broader issue of federal control and management of Western lands.
First, let’s start with the following map, which creatively shows how much Western land is owned by the federal government. Each state has a red shape inside, which is the same shape as the state, but which depicts the acreage in that state owned by the federal government. The shapes do not show the actual territory owned, but accurately depict the amount owned by the feds. As you can see, in Nevada it’s almost 90%.
The actual percentages of land owned by the federal government for the Western states are shown in this chart:
I am not going to detail the Hammond case, but will give you some links — and some quotes from the court documents, which I pulled and do not find accessible to people without a PACER account.
Everything takes place in the context of the Fish and Wildlife Service buying up all the land around the Hammond ranch for a wildlife refuge. Apparently owning half the land in the West was not good enough for the feds; they had to have more and more and more and more. Then, the feds allegedly took many seemingly retaliatory actions against the Hammonds after they refused to sell. Then, we come to the arson fires, which as presented on the Internet is a hodgepodge of one-sided accounts.
The U.S. Attorney’s one-sided account is here, in its press release. There are a couple of one-sided accounts sympathetic to the Hammonds here and here. The Hammonds’ brief to the U.S. Supreme Court is here. I am not going to vouch for the accuracy of everything in those accounts, but these pieces will at least give you some idea of the other side of the story. Here is an excerpt from one of them:
The first, in 2001, was a planned burn on Hammonds’ own property to reduce juniper trees that have become invasive in that part of the country. That fire burned outside the Hammonds’ private property line and took in 138 acres of unfenced BLM land before the Hammonds got it put out. No BLM firefighters were needed to help extinguish the fire and no fences were damaged.
Dwight’s wife Susan shared some crucial details in an exclusive interview with TSLN.
“They called and got permission to light the fire,” she said, adding that was customary for ranchers conducting range management burns – a common practice in the area.
“We usually called the interagency fire outfit – a main dispatch – to be sure someone wasn’t in the way or that weather would be a problem.” Susan said her son Steven was told that the BLM was conducting a burn of their own somewhere in the region that very same day, but that they believed there would be no problem with the Hammonds going ahead with their planned fire. The court transcript includes the same information in a recording from that phone conversation.
In cross-examination of a prosecution witness, the court transcript also includes admission from Mr. Ward, a range conservationist that the 2001 fire improved the rangeland conditions on BLM.
. . . .
Susan said the second fire, in 2006, was a backfire started by Steven to protect their property from lightening [sic] fires.
“There was fire all around them that was going to burn our house and all of our trees and everything. The opportunity to set a back-fire was there and it was very successful. It saved a bunch of land from burning,” she remembers.
The BLM asserts that one acre of federal land was burned by the Hammonds’ backfire and Susan says determining which fire burned which land is “a joke” because fire burned from every direction.
Neighbor Ruthie Danielson also remembers that evening and agrees. “Lightening [sic] strikes were everywhere, fires were going off,” she said.
The father is 73 years old and had no prior record. He was convicted of one count of arson.
A couple of points. First: it’s not really the case that the jury accepted every aspect of the government’s case, just because there were a couple of arson convictions. The Hammonds admitted starting the two fires of which they were convicted, and the dispute was over whether they intended the fires to spread to public lands. The jury, as I understand it, found that they did — but that doesn’t mean the jury found that they were trying to act as terrorists, or burn down large swaths of the countryside, or do anything but protect their own property.
To me, rather than reading a bunch of partisan accounts from both sides, I thought I would look at the comments of the sentencing judge, which I pulled from PACER and you can access here. I also found the Ninth Circuit decision, which I have uploaded for your reading pleasure, and which you can access here.
I think that, to have a full understanding of everything that happened, you probably needed to sit through the trial. But here is my impression based on what I have read. The father and the son admitted setting the fires. In one case, there was a dispute about whether they were trying to cover up illegal hunting. The government’s position was based on a relative, Dusty Hammond, who apparently had had a falling out with the Hammonds (more about that below) and was 13 years old when the events happened. Apparently aspects of his testimony were at odds with some public hunting records. The judge seemed to think that witness was trying to tell the truth, but might have gotten some things wrong due to age and bias.
The judge also seemed to believe that the Hammonds were people of good character and not bad people, saying during the sentencing:
With regard to character letters and that sort of thing, they were tremendous. These are people who have been a salt in their community and liked, and I appreciate that.
The prosecutor also said that “both have done wonderful things for their community and those deeds are recognized in these letters.” He also alluded to “Dusty Hammond’s abuse at the hands of Steven Hammond.” The judge said about that: “There was, frankly, an incident, apparently it was removal of tattoos, that would have colored any young person’s thinking, and if that’s what happened, it can’t be defended, of course, but that’s not what’s before the court today.” Putting two and two together, the son apparently took some kind of violent action to remove Dusty Hammond’s tattoos, and Dusty Hammond did not like the son as a result.
As to the father Dwight Hammond’s single arson conviction, the judge said:
Well, the damage was juniper trees and sagebrush, and there might have been a hundred dollars, but it doesn’t really matter. It doesn’t affect the guidelines, and I am not sure how much sagebrush a hundred dollars worth is. But I think this probably will be — I think mother nature’s probably taken care of any injury.
Regarding the five-year mandatory minimum for both defendants, the judge (Judge Michael Hogan) said:
I am not going to apply the mandatory minimum and because, to me, to do so under the Eighth Amendment would result in a sentence which is grossly disproportionate to the severity of the offenses here.
And with regard to the Antiterrorism and Effective Death Penalty Act of 1996, this sort of conduct could not have been conduct intended under that statute.
When you say, you know, what if you burn sagebrush in the suburbs of Los Angeles where there are houses up those ravines? Might apply. Out in the wilderness here, I don’t think that’s what the Congress intended. And in addition, it just would not be — would not meet any idea I have of justice, proportionality. I am not supposed to use the word “fairness” in criminal law. I know that I had a criminal law professor a long time ago yell at me for doing that. And I don’t do that. But this — it would be a sentence which would shock the conscience to me.
The judge sentenced the Hammonds to much shorter sentences (three months for Dwight Hammond, the dad, and twelve months and a day for Steven Hammond), which they have served. The Ninth Circuit held that the minimum five-year sentence was not so disproportionate as to violate the Eighth Amendment’s “cruel and unusual punishment” clause. Now they have been resentenced to five years in prison, under an antiterrorism law passed by Congress.
I have read that the Hammonds do not want the help of the Bundys. My belief is that they are trying to get clemency from Obama and figure that a standoff with the federal government is counterproductive to that effort.
The Hammonds don’t seem like particularly bad people, from what I can tell. They certainly are not terrorists. The Bundy action, taking over a building in the middle of nowhere, may be bringing attention to an injustice.
The Hammonds surrender to serve their five-year sentences tomorrow.
