Newspaper column: Bundy lawsuit addresses public land ownership

A civil lawsuit filed on behalf of Bunkerville rancher Cliven Bundy in state district court asks the court to declare that the public land on which Bundy grazes his cattle is owned by Nevada and Clark County, not the federal government.

The chances of success are most likely slim and none, but the suit raises some salient points about the power of the federal bureaucracy to hold sway over more than 85 percent of the land in Nevada.

Bundy and his sons are notorious for the 2014 armed standoff with Bureau of Land Management agents who attempted to confiscate his cattle for his failure to pay $1 million in grazing fees and fines over two decades. Federal criminal charges against the remaining defendants in that case were dismissed when the judge ruled the prosecution failed to turn over potentially exculpatory evidence to the defendants.

Cliven Bundy (R-J pix)

The civil lawsuit — drafted by Larry Klayman, often described as an activist right-wing lawyer and founder of Judicial Watch, and Craig Mueller, who earlier this year lost a primary bid for attorney general — cites court cases, U.S. and Nevada constitutional history, the Treaty of Guadalupe Hidalgo in which Mexico ceded much of the West to the United States and legislative proclamations.

The suit notes the state Legislature has never consented to allow the U.S. government to own more than 85 percent of the land within the state’s borders.

When the Constitution was being drafted James Madison raised concerns about giving Congress too much power to purchase land in the states, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Constitutional Convention delegate Rufus King moved to add the phrase “by consent of the legislature of the state” to the section that mentioned the federal government owning forts, docks and “other needful Buildings.” It passed unanimously. With the exception of the Nevada Test Site, few of the federal land holdings in Nevada have been with the consent of the Legislature.

Bundy’s suit further explains the intent of a section of the Nevada Constitution known as the Disclaimer Clause that said the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

Klayman and Mueller write, “The intent of the Territorial Legislature was not to ceed (sic) the land to the US Government ‘forever’, but to clear title of all unappropriated lands within the Territory so U.S. Congress could dispose of the lands to the State of Nevada.”

Which is probably why the admission document promised 5 percent of the proceeds to Nevada when land would be “sold by the United States subsequent to the admission of said state into the Union …”

In fact, though the suit doesn’t mention it, that so-called Disclaimer Clause was repealed by the voters in 1996, “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary …” Might the court make such a legal determination? Doubtful.

The lawsuit also mentions a section of Nevada Revised Statutes 321 that declared, “The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada’s borders because: … The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states. … The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.”

Not only has the Legislature not consented, it has vehemently protested.

The lawsuit points out on four occasions that the Bundy ranch has been in existence for 141 years, during which it has held water, grazing and property rights, adding that Bundy “has suffered substantial injury, as his cattle are his only source of income … (and) is entitled to declaratory judgment that the lands upon which he and his family have conducted its ranching, The Bundy Ranch, for generations is property belonging to the People of Nevada and its subdivision, Clark County …”

The suit raises some serious questions.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Why the Bundy charges were dismissed and what next?

Cliven Bundy

Columnist Bob Barr took a gander at the reasons behind the judge’s dismissal of charges against Cliven Bundy, two of his sons and a Montana militiaman in the Bunkerville standoff and described the government’s behavior thusly:

What appears to have been at the heart of the Justice Department’s unconscionable behavior was sheer hubris; the arrogance that comes from a superior sense of status and power, built on decades of legislative and judicial decisions concluding that the federal government can do whatever it wants, whenever it wants, to whoever it wants and that its actions are not to be questioned.

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Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?



Will remaining Bundy defendants face a new trial?

Bunkerville standoff (Reuters pix)

On Monday federal Judge Gloria Navarro will hear arguments as to whether Cliven Bundy, two of his sons and a Montana militia man should again face trial on charges growing out of the Bunkerville standoff with BLM agents attempting to impound Bundy’s cattle in 2014.

The judge declared a mistrial in December when she ruled the prosecution had failed to timely turn over evidence to the defendants.

Now she must decide whether that mistrial is with prejudice, meaning no retrial, or without prejudice, meaning still another trial.

The first trial also ended in a mistrial for four of six defendants when the jury could not reach unanimous verdicts. Of the remaining four, two were acquitted during retrial and two others pleaded guilty to misdeamnors and were released on time served after the jurors again could not reach unanimous verdicts.

One of those convicted was sentenced to 68 years in prison. In doing so Navarro called the man and other protesters “playground bullies,” adding, “You don’t just go to the tax office and threaten them to not collect taxes.”

During the sentencing to seven years in prison of a protester who copped a plea, Navarro called him “a bully vigilante, threatening peacekeepers of the community.”

What are the chances of Navarro declaring the mistrial is with prejudice?

All the remaining defendants, except Cliven Bundy, have been released on what amounts to house arrest. Bundy refused to agree to the conditions of release and remains jailed for almost two years now.

Six more defendants, including two more Bundy sons, Dave and Mel Bundy, are scheduled to be tried 30 days after the end of the current trial, if there is one. What will become of that trial if this one does not go on?

Millions have been spent prosecuting this case. What are the odds?



Defense attorneys accuse Bunkerville prosecution of making a ‘mockery’ of trial

The federal public defenders representing Montana militia member Ryan Payne mince no words in responding to the prosecution’s response to their motions — unsealed on Wednesday, though heavily redacted — to have charges dismissed against their client and co-defendants Cliven Bundy and his sons Ammon and Ryan.

The attorneys accuse the government of failing to turn over pertinent evidence to the defense. They write that the government is relying on incorrect legal arguments to excuse their failure.

Quoting the 9th U.S. Circuit Court of Appeals, the motion states, a “trial prosecutor’s speculative prediction about the likely materiality of favorable evidence . . .should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be ‘material’ after trial,” adding, “Thus, ‘there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.’”

The four face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers as a result of the 2014 armed standoff with federal agents who unsuccessfully attempted to impound Bundy’s cattle for failing to pay grazing fees for two decades.

Ryan Payne at an Oregon protest

About a month into their trial the judge declared a mistrial over the fact the prosecution had failed to timely disclose evidence to the defendants. But the very evidence that prompted the mistrial was evidence the judge had earlier deemed inadmissible because it amounted to an argument that the accused were provoked to act.

“As a general defense to the numerous discovery violations this Court recognized in its preliminary oral findings, the government now claims the withheld materials are irrelevant because Payne’s purported defense is ‘non-cognizable,’” the public defenders argue. “This argument misrepresents both the nature of Payne’s defense and the government’s awareness of it, and seeks to relitigate matters this Court has already decided. More fundamentally, however, the government ignores that the withheld evidence undermines its own theory of prosecution advanced in the indictment and in every trial since then.”

Some of the withheld evidence was an admission that snipers were deployed around the Bundy ranch, though the indictment itself stated, “On or about April 7, 2014, PAYNE used the internet and other facilities in interstate commerce to recruit gunmen and others to travel to the Bundy Ranch for the unlawful purpose of interfering with impoundment operations, stating falsely, among other things, that the Bundy Ranch was surrounded by BLM snipers …”

The motion called the prosecution’s handling of disclosure reckless and said “for nearly over a year, while Payne sat in pretrial detention, the government assured both the Court and the defense that it was aware of its disclosure obligations, that it had complied with its obligations, and that the defense was merely fishing in a dry pond by making outlandish discovery requests.”

The motion concludes, “The government has treated this trial as a scrimmage game, a practice exercise, to see what it can get away with, peeking into the defense case while it did so and taking advantage of its preview. The government’s handling of its disclosure obligations and the government’s late disclosures have made a mockery of this trial and ‘nothing more than a colossal waste of everybody’s time,’ during which Payne remained incarcerated for the vast majority of that time.”

The attorneys asked that the charges be dismissed with prejudice because of the government’s conduct, as has occurred in a similar case.



Newspaper column: What evidence is pertinent in Bundy trials?

Pardon us plebs, but we are a tad bit confused about just what is admissible evidence in the Bunkerville standoff trials.

This past week, about a month into the second of three scheduled trials, the judge declared a mistrial because the prosecution had failed to timely turn over potentially exculpatory evidence to the defense.

Federal Judge Gloria Navarro listed six instances in which prosecutors willfully withheld evidence — including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the material might have been useful in shaping a defense for the protesters who showed up at Cliven Bundy’s ranch in April 2014 when BLM agents attempted to impound 500 head of his cattle for failing to pay $1 million in grazing fees and fines for two decades.

Cliven Bundy (Getty pix)

According to press accounts, Judge Navarro noted FBI log entries said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no accuse, the judge chided.

Curious. In an earlier trial, Judge Navarro kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense.

During that trial the judge had granted a sweeping prosecution motion to bar arguments about the defendants’ “state of mind,” such as whether they were provoked by the government’s massive show of force.

She ruled that defense could not mention nor show video or audio depicting the arrest of Cliven’s son Dave Bundy in which he was wrestled to the ground; nor any recordings showing the tasering of son Ammon Bundy or a BLM agent grabbing Cliven’s sister Margaret Houston from behind and throwing her to the ground; nor any testimony or opinion about the level of force displayed by law enforcement; nor references to Bundy’s grazing, water, or legacy rights on the public lands; no references to infringements on First and Second Amendment rights; and no mention of the punishment the defendants faced if convicted.

It appears some of the very things not allowed in evidence at an earlier trial are now grounds for a mistrial because the defense was not provided documentation.

To add further to the contortions and machinations of this case, just days before the judge declared a mistrial the prosecution filed a motion similar to the one granted in the prior trial. It asked the judge to not allow the introduction of “evidence or argument at trial that relate to instigation/provocation, self-defense/defense of others, entrapment, justification for violent self-help, impermissible state of mind justification, and collateral attacks on the court orders.” The motion said presenting any of this to the jury would amount to jury nullification. (Bundy motion on jury nullification)

In this trial Cliven Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Faced with armed protesters during the cattle impoundment, agents released the cattle rather than risk a shootout.

“The law does not permit the defendants to expand the legally cognizable defense of self-defense against a law enforcement officer by incorporating instigation and provocation,” the latest motion states. “To do so would eviscerate the well-recognized elements of self-defense. Defendants, rather, seek to introduce evidence of instigation and provocation to obtain jury nullification. Jury nullification is illegal.”

Rather than slap a lien on the Bundy ranch and cattle or freeze the ranch’s bank accounts, the BLM instead chose to send in an armed force to oversee the rounding up of Bundy’s cattle by contracted cowboys. The operation has been estimated to have cost $3 million. Once the cattle were corralled and off the grazing range, there was no hay to feed them and reportedly no one willing to take the cattle.

Additionally, withheld documents reportedly included statements that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, the reason the BLM tried to limit his grazing in the first place.

A hearing in the case is set for January. Unless the judge decides to dismiss the charges, a retrial is slated for late February. What evidence would be allowed?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Update: Motions seek to have charges thrown out.

Attorneys seek to have charges against Bunkerville defendants thrown out

Bunkerville standoff defendants and family members (AP pix)

Unsealed but redacted motions by federal public defenders demand that the judge dismiss charges against the four Bunkerville standoff defendants with prejudice.

Among other things the motions noted that the indictment of rancher Cliven Bundy, four of sons and others included allegations that  armed protesters were recruited to come to the ranch to oppose a BLM impoundment of Bundy’s cattle “by falsely stating Cliven Bundy’s house was ‘surrounded by snipers.’ … The government also alleges Cliven Bundy’s message over the internet stating
that ‘they have [his] house surrounded … [that the BLM] are armed with assault rifles … [and that] they have snipers’ was a deceptive statement made to encourage others to travel to Bundy Ranch for unlawful purposes.”

But there were in fact, according to documents revealed at the start of the current trial, snipers deployed.

“In essence, the government’s theory is that the recruitment of others flourished as a result of a ‘false narrative’ that was being disseminated, one which highlighted the surrounding of Cliven Bundy’s house and the presence of snipers,” one motion states. “This false narrative is an anchor in the government’s case: the government argues hundreds of people came to the Bundy Ranch in reliance on the false narrative and that the false narrative was further used as a pretext to mount a massive armed assault on the government on April 12, 2017. Given the government’s theory of the case, it was stunning to hear the government state on November 29, 2017, that it did not know information on the surveillance cameras and snipers would be helpful to the defense because it was ‘it’s not apparent to us that an LPOP would be or a surveillance camera would be interpreted as a sniper.'”

So the whole false narrative argument is itself false.

The motion argues that it matters not whether the prosecution intentionally withheld evidence from the defendants, but whether there was “flagrant prosecutorial misconduct” in a case in which defendants face sentences upward of 57 years, “a life sentence for any of them.”

This motion concludes:

The fact that the government sought to ask a jury to convict these defendants and then ask this Court to sentence them to prison for the rest of their lives without giving the defense the information recently disclosed should more than trouble this Court. Anything short of dismissing this case with prejudice implicitly conveys to the prosecution that “behave[ing] with such casual disregard for [their] constitutional obligations and the rights of the accused” is acceptable conduct
and “endorse[s] and invite[s]” repetition of those transgressions.

This motion further raises the issue as to the fairness of the earlier trials in which some defendants were convicted — with one being sentenced to 68 years in prison, noting that it is clear those defendants did not have the information the defendants in this trial have just received. “The legal theories of defense may have been structured differently, which would have allowed those defendants to present critical evidence,” the motion states.

Motions posted by The Oregonian include:

Ryan Payne motion to dismiss based on discovery provided Nov. 17, 2017

Ryan Payne motion to dismiss based on discovery provided Nov. 21, 2017

Ryan Payne motion to dismiss based on continuing pattern of evidence violations

Ryan Payne reply to a government response to motion to dismiss

From the indictment: