Fox commentator explains what probably will happen next in the Bundy saga

Cliven Bundy addresses crowd. (R-J photo)

Judge Andrew Napolitano on Fox & Friends today explains what the government did wrong in trying to impound Bunkerville rancher Cliven Bundy’s cattle and what they should have done.

As I mentioned Monday, the way to handle a civil judgment is not to send in an invading army but to sit down at a computer somewhere in a government cubicle and file a lien against Bundy’s property.

I wonder how many desert tortoises, just coming out of hibernation, got stomped to death in this fiasco. This is the very time of year the BLM told Bundy he could not graze his cattle on the Gold Butte range because they might step on baby tortoises — a contention that has been proven false.

As for why Harry Reid would have any knowledge or say in any of this is another mystery. But he told a Reno television station Monday: “Well, it’s not over. We can’t have an American people that violate the law and then just walk away from it. So it’s not over.”

Federal Judge Lloyd George dismissed out of hand Budy’s states’ rights arguments:

“Bundy principally opposes the United States’ motion for summary judgment on the ground that this court lacks jurisdiction because the United States does not own the public lands in question. As this court previously ruled in United States v. Bundy, Case No. CV-S- 98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998), “the public lands in Nevada are the property of the United States because the United States has held title to those public lands since 1848, when
Mexico ceded the land to the United States.” CV-S-98-531 at 8 (citing United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir. 1997)). Moreover, Bundy is incorrect in claiming that the Disclaimer Clause of the Nevada Constitution carries no legal force, see Gardner, 107 F.3d at 1320; that the Property Clause of the United States Constitution applies only to federal lands outside the borders of states, see id. at 1320; that the United States‘ exercise of ownership over federal lands violates the Equal Footing Doctrine, see id. at 1319; that the United States is basing its authority to sanction Bundy for his unauthorized use of federal lands on the Endangered Species Act as opposed to trespass, see Compl. at ¶¶ 1,3, 26-39; and that Nevada’s “Open Range” statute excuses Bundy’s trespass. See e.g., Gardner, 107 F.3d at 1320 (under Supremacy Clause state statute in conflict with federal law requiring permit to graze would be trumped).”

Instead of ordering a lien on Bundy’s property, George concluded “that the United States is entitled to seize and remove to impound any of Bundy’s cattle for any future trespasses, provided the United States has provided notice to Bundy under the governing regulations of the United States Department of the Interior.”

George cites a 9th U.S. Circuit Court of Appeals ruling against Humboldt rancher Cliff Gardner, who argued that the state Disclaimer Clause violated the Equal Footing Doctrine and cited the 10th Amendment — to no avail.

The court also dismissed his argument about the Guarantee Clause of the Constitution:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.”

Gardner was jailed for a month and fined $5,000.

Advice to the Bundys of Bunkerville: Time to liquidate

The Bureau of Land Management issued a statement when it backed down from an angry, armed mob and released Cliven Bundy’s confiscated cattle.

“After 20 years and multiple court orders to remove the trespass cattle, [rancher Cliven] Bundy owes the American taxpayers in excess of $1 million. The BLM will continue to work to resolve the matter administratively and judicially,” Fox News quotes a BLM statement.

Cliven Bundy (George Frey/Getty Images)

Bundy has refused to pay grazing fees for 20 years and BLM has been assessing fines and building interest.

Advice to all Bundy family members: Cash out your bank accounts and don’t expect an IRS refund.

The Washington Post this weekend reported that hundreds of thousands of people expecting income tax refunds this month are instead getting letters telling them their refunds have been seized to repay decades old debts, some incurred by their parents.

The WaPo story led with an example of Mary Grice of Maryland, whose IRS and state tax refunds were grabbed by the feds.

In 1960, When Grice was 4, her father died, leaving her mother with five children to raise with Social Security survivor benefits. Social Security claims it overpaid the family $3,000 and is taking the money from the surviving children. The mother died four years ago.

That could be what the words “administratively and judicially” mean. 

Where does one stand to protest something that takes place on a computer in some far-flung government cubicle?

 A federal judge rejected Bundy’s states’ rights arguments and gave the BLM the go-ahead to confiscate his cattle. If the feds say he owes a $1 million, there are many ways they can go about taking that money without going back to court.

Cattle confiscation in Bunkerville comes to an abrupt end, but what comes next?

Cliven Bundy forks hay. (R-J photo by John Locher)

The Director of the Bureau of Land Management Neil Kornze — a former aide to Sen. Harry Reid and a former Elko resident who just recently was named to head up the agency — released a statement today calling off the confiscation of privately owned cattle from public range land near Bunkerville. His statement implied a fear that continuing the operation might devolve into gunfire:

“As we have said from the beginning of the gather to remove illegal cattle from federal land consistent with court orders, a safe and peaceful operation is our number one priority. After one week, we have made progress in enforcing two recent court orders to remove the trespass cattle from public lands that belong to all Americans.

“Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public. 

“We ask that all parties in the area remain peaceful and law-abiding as the Bureau of Land Management and National Park Service work to end the operation in an orderly manner. 

“Ranching has always been an important part of our nation’s heritage and continues throughout the West on public lands that belong to all Americans. This is a matter of fairness and equity, and we remain disappointed that Cliven Bundy continues to not comply with the same laws that 16,000 public lands ranchers do every year. After 20 years and multiple court orders to remove the trespass cattle, Mr. Bundy owes the American taxpayers in excess of $1 million. The BLM will continue to work to resolve the matter administratively and judicially.”

Yes, it is a matter of fairness and equity. At one time there were 52 cattle ranchers in Clark County. Cliven Bundy, whose family has run cattle in the area since 1880, long before there was a BLM, is the last of the breed.

Twenty years ago the BLM, as it is wont to do, came to Bundy and flat out told him he could not graze his federal allotment in the spring to prevent his thousand-pound cows from stomping on little baby desert tortoises, as recounted by then-Las Vegas Review-Journal columnist Vin Suprynowicz.

Up until then, Bundy paid the BLM so much per head per month to “manage” the public lands.

His cattle were being kicked off the range even though biologist Vern Bostic had demonstrated decades earlier that desert tortoises do better where cattle are grazed, the column said. He stopped paying for such “management.”

Bundy was also told to remove all his water tanks and the lines that feed them from local springs. Never mind that water rights are granted by the state and federal government is not allowed to interfere with those rights.

The column reported:

“But what’s real-world, empirical evidence provided by local yokels with calloused hands and funny western drawls, to ‘experts’ who’ve got the proper college degrees?

“The only time cattle will fatten on a desert range is in the springtime. Cliven explained to the BLM guys that he had no big feed lot on which to hold his cattle during the spring — even if he could afford to do so, with hay now at $400. The only option they were giving him was to sell his cattle for slaughter in February, and then to buy new stock and put them on the land in July. He says the BLM guys told him that would be fine.”

“But from mid-summer through February, cattle on a desert range LOSE weight. Besides which, ‘You can’t bring in cattle from elsewhere and start them in this desert,’ Bundy explains. ‘If they’re not raised on this range by their mamas, who show them what to eat, those cattle starve.’”

“But you can’t outlast the federal government, nor beat them with logic, principle, hard work or evidence.”

According to reports today, federal agents have brought in backhoes and torn up Bundy’s water pipes. Will the federal government reimburse him for his lost water rights? Sounds like a willful act of sabotage.

Also, there is no word as to what will happen to the 400 head of cattle the federal government has already rounded up.

Even though Bundy is in the headlines, the same thing is happening quietly all over the state.

J.J. Goicoechea — veterinarian, rancher, chairman of Eureka County Commission and past president of the Nevada Cattlemen’s Association — says the federal land agencies are using drought, sage hens and wild horses and any other excuse to kick ranchers off the land.

Goicoechea estimates Nevada has lost half of its breeding cows over the past three years — approaching 300,000, down from more than a million in the 1980s.

“We’re on a bubble right now. If we get this reversed and we get some moisture and we get what we need to get a green up, some of these guys can survive,” Giocoechea said. “They can bring their cattle back and see over the next couple of years a rebuild. If they liquidate and go away that next generation isn’t going to be there to fill their shoes. … The next 12 months will be critical to the livestock industry in the state of Nevada, and that will dictate whether we’re here in 10 years or not.”

Fox News quoted Bundy as saying“Years ago, I used to have 52 neighboring ranchers. I’m the last man standing. How come? Because BLM regulated these people off the land and out of business.”

Bundy, 67, is the last rancher standing in Clark County. It is questionable, in the face of BLM mismanagement, how long he and others of his ilk can survive.


BLM excuses for Bundy invasion: Cache as cache can

For some reason a web page the BLM had once posted listing its reasons for the confiscation of Cliven Bundy’s cattle in the Gold Butte area has been taken down, but a cache of the page is still extant.

Desert tortoise. (R-J photo)

“Cliven Bundy has no legal authority to graze cattle on federal lands in the Gold Butte area, including Lake Mead National Recreation Area. The U.S. District Court of Nevada has permanently enjoined Cliven Bundy’s trespass grazing, ordered him to remove his trespass cattle from public lands inside and outside the former Bunkerville Allotment (including from the Lake Mead NRA) before December 2013, and stated the U.S. is entitled to seize and impound any cattle that have not been removed by the judicially imposed off-date and that remain in trespass,” the page begins.

But one of the more unusual aspects of the page comes under the heading of “Examples of Restoration Funding and Viability Impacted”:

“Non-Governmental Organizations have expressed concern that the regional mitigation strategy for the Dry Lake Solar Energy Zone utilizes Gold Butte as the location for offsite mitigation for impacts from solar development, and that those restoration activities are not durable with the presence of trespass cattle.”

I have no idea what any of that means in English.

The desert tortoise, which was the reason for the Bundy’s dispute with BLM 20 years ago when the agency tried to limit when and where he could graze cattle, is barely mentioned.

But in a lengthy BLM document on regional mitigation for the 6,000-acre Dry Lake Solar Zone, the agency points out that erection of thousands of acres of solar panels would mean the “loss of desert tortoise habitat and the potential loss of individual desert tortoises. The desert tortoise is listed as a threatened species under the Endangered Species Act.” So other areas need to be set aside as safe habitat for tortoises so they can be destroyed for solar panels at Dry Lake.

So, cattle bad. Solar panels good.

Harry Reid likes solar panels.

The mitigation plan notes:

“Niche modeling, completed by the National Park Service for the Lake Mead National Recreation Area, suggests, under future climate change, high-quality  desert tortoise habitat will remain in the Gold Butte ACEC while most of the adjacent desert tortoise habitat in the national recreation area will decline and disappear.”

It also says Gold Butte should be closed to mineral development, off-road vehicles and grazing.

Got to save the tortoises. Or is it the solar panel companies who contribute to Reid’s campaigns?





Newspaper column: Fracking good for the economy and not likely to harm the environment

Nevada Division of Minerals Administrator Rich Perry talks about fracking at a hearing in Elko this past month. (Elko Daily Free Press photo)

Recently the Nevada Division of Minerals held a series of public hearings across the state to obtain comments on its new rules regulating hydraulic fracturing, commonly called fracking, used in oil and natural gas wells.

At the hearings Division of Minerals Administrator Rich Perry explained how Nevada’s 20-page revised rules will require groundwater testing before and after drilling, pressure testing of equipment, notifications to landowners before fracking begins and abiding by strict engineering standards, as recounted in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

Public comments ranged from the rationally cautious to the histrionic.

“We trusted the Bureau of Land Management to protect and preserve our public land so that future generations of Americans could continue to enjoy them, and now they’ve leased millions of acres to oil and gas companies, turning wilderness into industrial hell holes that can potentially contaminate the land beyond repair,” testified Las Vegas resident Shannon Salter.

Map of Noble Energy leased exploration area. (R-J graphic)

Asked about the potential to contaminate the land beyond repair, the Division of Minerals staff replied, “From our review of existing studies, we can’t find any substantiate contamination of groundwater from the actual hydraulic fracturing treatment.”

Speaking at hearings on behalf of Noble Energy, the primary company doing any major exploration in Nevada, Kevin Vorhaben, Rockies Business Unit Manager, said, “We firmly believe that with good regulation we can have the energy we need, the economy we want and the environment we deserve.”

In a follow-up interview, Vorhaben said his company is leasing 370,000 acres in Elko County and has already drilled two wells. One should be producing oil by the end of this month.

Though many seem to think hydraulic fracturing is some new, untested technology, it has been used extensively since the 1940s. Vorhaben estimates 90 percent of all wells drilled today are fracked. Fracturing methods date back to the mid-1800s when drillers would drop explosives down a well to break open rock formations.

Of the 370,000 acres leased, approximately 63 percent is on private land, while the remainder is largely on BLM land. On public lands a royalty of 12.5 percent is collected on the value of the oil produced, split evenly between the federal and state governments. Vorhaben said owners of private land typically receive a similar royalty.

If the company reaches its anticipated production of 50,000 barrels a day by 2021, and the price remains near $100 a barrel, royalties could amount to more than $600,000 a day.

With that kind of money, one can afford to spruce up the industrial hell hole.

Read the entire column at the Ely or Elko site.

Margin tax passage could cost thousands of Nevadans their jobs

Information on the deleterious affects of the proposed 2 percent margin tax on November’s ballot keep trickling out.

Atop a previous report on how the tax would make Nevada’s effective corporation tax rate nearly double California’s comes a study that says the tax could cost the state nearly 9,000 private sector jobs.

The analysis by economist Jeremy Aguero of Applied Analysis, a Las Vegas-based fiscal and policy research firm, for the Coalition to Defeat the Margin Tax Initiative, concluded that sucking $700 million in taxes from the private sector would translate into about 5,800 private jobs lost directly as a result and a total of nearly 9,000 private jobs when the indirect and induced factors are added in. This would cut the state’s private payroll by more than $400 million a year.

The Education Initiative would raise taxes, supposedly for education.


Of course, 9,000 jobs lost would be hardly a ripple, since Nevada already has 120,000 unemployed, not counting those who have given up looking for work. But if it is your job lost, it would be pretty significant to you.

The Education Initiative will be Question No. 3 on the November statewide ballot. It calls for a 2 percent margin tax on all Nevada businesses that gross more than $1 million a year. Its sponsor, the Nevada State Education Association, has claimed it would raise $800 million a year for K-12 education. Proceeds from the tax would be placed in the distributive school account, but there is no language in the ballot measure prohibiting lawmakers from extracting a like amount or more and spending it on other things.

Aguero did note in his study that the loss of private jobs could be offset by public jobs if the tax money is used to hire additional teachers and staff.

The reports says “there are plausible scenarios where margin tax funds are not used to hire more teachers, but rather, are used to increase wages and salaries for existing teachers, administrators and support staff; to extend retirement or health care benefits to state workers; or to pay down the state’s unfunded pension and post-retirement health care liabilities. Similarly, there is also the possibility that upon passage of the Initiative that the Nevada State Legislature will allow one or more of temporary state taxes to sunset, including without limitation, the 0.35 percent Local School Support Tax currently deposited into the distributive school account.”

Also, in addition to killing current jobs, Aguero said the tax would chill economic growth and prevent the creation of future jobs:

“While net job losses may be somewhat modest, new job formation would potentially be far more significantly affected. Economic development and diversification have clearly played a critical role in Nevada’s economic recovery and are considered essential to the state’s long-term economic viability. While evaluating the impact on new investment and business relocation in beyond the scope of this preliminary analysis, it should not be ignored. Neither should the reality that even under the best possible outcome — whereby the tax increase does actually lead to substantial improvements in educational attainment — there will be a transitional period in which Nevada has both a higher-than-average business tax rate and a low performing public school system. It is hard to imagine a climate less conducive to economic growth.”

Though the Las Vegas Review-Journal had a story today on the margin tax, it failed to mention the jobs study. The Las Vegas Sun has a brief story, but only online and not in print.

Federal agency reopens comment period for listing of bi-state sage grouse

Whoa, did not see that coming.

On Tuesday the U.S. Fish and Wildlife Service posted on the Federal Register a proposal to reopen the comment period on its decision to list the bi-state sage grouse as threatened under the Endangered Species Act.

Back in October FWS reported there were only 5,000 bi-state or Mono Basin sage grouse, supposedly a distinct population, left along the northern California-Nevada border. The agency said it would set aside nearly 1.9 million acres in Carson City, Lyon, Douglas, Mineral and Esmeralda counties in Nevada, as well as land in Alpine, Mono and Inyo counties in California, as critical habitat. This could lead to restrictions on mining, grazing, farming, fences, oil and gas exploration, roads, power lines, wind turbines and solar panels, various forms of recreation and more — costing jobs and economic development.

This opened a 60-day comment period.

A Mono Basin sage grouse. (National Park Service photo)

In its Tuesday posting, FWS said it had found substantial disagreement regarding the interpretation of the best available data on the birds. “Some commenters stated that our science was flawed and that there are more sage-grouse in the Bi-State area today as opposed to the past, whereas other commenters (including peer reviewers) believe there is a declining trend and continuing threats. It is evident in the comment letters received that analysis or interpretation of data vary between state, agency, public, and peer reviewers,” the FWS concedes.

With the extension of the comment deadline, FWS now plans to make a final determination on the bi-state sage grouse no later than April 28, 2015. The agency already has a deadline of September 2015 to decide whether to list the greater sage grouse, which are found in 11 Western states.

Among those questioning the science behind the greater sage grouse proposed listing is the Center for Environmental Science, Accuracy and Reliability (CESAR), headquartered in Colorado.  CESAR claims the service relied almost exclusively on studies written by employees of federal agencies who basically peer reviewed each other’s work.

Those studies listed “threats” to the grouse as including converting sagebrush to crop land, livestock grazing, oil and gas wells, wind and solar farms, roads and the general “human footprint,” but made no mention whatsoever of predators or hunting, even though 207,000 sage grouse were killed by hunters between 2001 and 2007.

According to CESAR, it was unable to replicate the analyses used by federal researchers because none of the data or algorithms was publicly available.

“Thus, since the results are neither reproducible nor verifiable,” CESAR said, “the study fails the fundamental litmus test of sound science.”

Before listing either the bi-state or the greater sage grouse, someone needs to do some sound scientific studies and realistically look at what truly is a threat to these birds —including the lack of wildfire prevention efforts on federally controlled land.

Congressman Mark Amodei applauded the reopening of comments, but said only time will tell. “The proof will be at the end of the comment when we’ll be able to see if anything has really changed,” his spokesman said.