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?

 

 

Welcome to the Star Chamber

Justice must not only be done, but it must be seen to be done.

Much of the evidence in the high-profile Bunkerville standoff case has been cloaked in secrecy due to a blanket court protective order that requires just about everything filed in the case to be filed under seal.

Ammon Bundy (R-J pix)

Now, U.S. District Judge Gloria Navarro is conducting hearings behind closed doors. After dismissing the jury until Dec. 20, the judge closed the court to all but the parties in the trial to hear arguments about whether the prosecution failed to disclose evidence to the defendants in a timely manner, according to a press account.

Cliven Bundy, his sons Ammon and Ryan, and self-styled militia member Ryan Payne face felony charges, including conspiracy, assault and threats against federal officers, firearms counts, obstruction and extortion for which a conviction could carry a sentence of 170 year in prison. They are accused of staging an armed confrontation in 2014 with BLM agents who were rounding up Bundy’s cattle for failing to pay grazing fees for for 20 years. The roundup to collect $1 million in grazing fees is said to have cost $3 million, though it is questionable whether Bundy’s mangy range cows were worth even $1 million. Who knows how much the string of trials is costing taxpayers.

Ryan Bundy (R-J pix)

Prosecutors have been given until Friday to respond to the judge’s questions about whether they failed to meet deadlines for providing discovery evidence on at least seven occasions and and 14 other potential violations of the defendants’ rights.

The judge has hinted that failure by the prosecution to adequately respond could result in a mistrial because the failures might be “sufficient to undermine the confidence in the outcome of the trial,” but defense attorney are asking that the charges be dismissed outright  due to prosecutorial misconduct.

 

The newspaper quoted Cliven Bundy’s attorney Bret Whipple as saying, “I hope to get the case dismissed before the jurors come back.”

Daniel Hill, an attorney for Ammon Bundy, said, “That’s exactly what dismissal is designed for — when the government proceeds while violating their constitutional mandates.”

But, since the hearings were behind closed doors, the taxpayers were denied the ability see just how serious the allegations against their tax-funded prosecutors really are. We can’t see what we are paying for — justice or injustice.

Justice must not only be done, but it must be seen to be done.

 

 

Editorial: A suggestion for a presidential commutation

The Hammond family.

President Obama has now commuted the federal prison sentences of more than 1,000 prisoners, mostly non-violent drug offenders. Most have served far more time in prison than if they committed the same crime today, because previous mandatory sentencing laws have been relaxed.

Which brings us to H.R. 5815 — Resource Management Practices Protection Act of 2016 — introduced by Oregon Rep. Greg Walden. The bill would amend the Antiterrorism and Effective Death Penalty Act of 1996, which was passed following the Oklahoma City bombing and requires a minimum of five years in prison for anyone convicted of damaging federal property by fire or explosives.

The bill would exempt from prosecution anyone who sets a fire on his own property to prevent damage — such as a backfire — or if that person is using a generally accepted practice for managing vegetation on timber, grazing, or farm land and fire doesn’t result in death or serious bodily injury — even if that fire spreads to federally controlled land.

Which brings us to Dwight Hammond and his son Steven, two Oregon ranchers now serving mandatory five-year sentences because fires set on their own property escaped onto federal land, burning a grand total of 140 acres — one was a controlled burn and the other a backfire to protect their own property from a lightning sparked blaze.

Even if passed, the bill would not result in the freeing of the Hammonds but could protect others from such frivolous prosecution in the future.

The bill has cosponsors from Idaho, Washington, Arizona and Utah but none from Nevada.

When the Hammonds were first convicted veteran federal Judge Michael Hogan refused to impose the five-year mandatory minimum, saying that was “grossly disproportionate to the severity of the offenses here.”

The judge reasoned, “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.” He gave the father three months in jail and the son a year and a day.

The U.S. attorney appealed and the 9th U.S. Circuit Court of Appeals, based in San Francisco, ordered the Hammonds must serve the remainder of that five-year sentence.

It was the resentencing of the Hammonds that prompted protesters to take over the buildings at the Malheur National Wildlife Refuge for more than a month this past January. But the Hammonds made it clear at the time they had nothing to do with the protesters and peacefully turned themselves in to the authorities and have been jailed since.

The protesters included two of the Bunkerville Bundy brothers, Ammon and Ryan, already notorious for their standoff with federal agents in 2014 who were trying to confiscate their cattle.

A jury earlier this year refused to convict the Bundys and five other protesters for the refuge takeover, but the Bundys and others face charges next year over the Bunkerville incident.

Obama announced in 2014 that he would use commutations to right the wrong of overly harsh sentences that did not fit the crime.

White House Counsel Kathryn Ruemmler said at the time, “The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice.”

The Hammonds would appear to fit in that category.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Behind the Bundy bluster is there a constitutional leg to stand on?

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

Even though he is still in jail, apparently the acquittal in Oregon has emboldened one of the Bundy brothers to bluster.

In a Monday telephone interview from jail Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area next to his family’s Bunkerville ranch a national monument, something Sen. Harry Reid has said is all but certain before he and Obama leave office in January.

Ryan Bundy

Bundy — who still faces a February trial in Nevada, along with his father Cliven, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

 

“The only peaceful resolution to all this is for them to obey the Constitution,” he told the Post. “Read it, understand it, abide by it. There doesn’t have to be violence. None of that has to happen if they would just abide by the Constitution.”

Asked whether violence was justified, Bundy tersely told the paper, “Ask George Washington.”

The Post dismissed his constitutional arguments out of hand, saying:

Repeating an argument common in the West but disputed by most mainstream constitutional scholars, Bundy said the Constitution does not grant the federal government power to own large tracts of land, nor does the president have legal authority to create national monuments. Bundy said that creating the Gold Butte monument would be an abuse of presidential power and a valuation of tourism and endangered species over the economic needs of struggling communities.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

A Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the Antiquities Act three times, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign states.

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, 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.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states, where the federal government controls so much land, ever consented.

This previously was addressed in 1828, when the Western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land:

The petition read:

It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest.  The numerous petitions, memorials, and legislative resolutions, heretofore presented from them, evince the lively and anxious concern with which the present state of things impresses them.

If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction.  Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth, by means of works of internal improvements, because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the benefits conferred upon its owner by roads and canals.

When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.

Today the federal government controls only 4 percent of the lands in those “Western” states, while it controls 50 percent of the current Western states, including 86 percent of Nevada.

In fact, the Nevada statehood document includes language saying the state would get “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

That is an implicit promise that the land shall be sold.

So, who is right? Bundy or most mainstream constitutional scholars? With or without the saber rattling.

 

 

 

Son of embattled Moapa rancher claims feds have deployed snipers

Photo posted on Facebook by Bailey Bundy Logue.

Looks more like an invading army than a roundup. (R-J photo by John Locher)

According to the Moapa Valley Progress, that million-dollar roundup of Cliven Bundy’s cattle from the open range includes the deployment of snipers.

If that is the case, and it is based on one man’s word, have the feds learned nothing from the Branch Davidians and Ruby Ridge?

Ryan Bundy, one of Cliven’s sons, described how federal agents swooped in and arrested his brother Dave for the crime of filming from the right-of-way of a public highway.

“He was doing nothing but standing there and filming the landscape,” Ryan Bundy told the newspaper. “We were on the state highway, not even off of the right-of-way. Even if they want to call [the area that we were filming] federal land; which it’s not; we weren’t even on it. We were on the road.”

Apparently they were not in the federally designated Free Speech Zone, whatever that is. I thought it was that region between the Pacific and the Atlantic oceans and between the Canadian and Mexican borders and the Gulf of Mexico.

“I counted, they had 11 vehicles all with at least two agents in each one, maybe more,” Ryan Bundy said. “They also had four snipers on the hill above us all trained on us. We were doing nothing besides filming the area.”

Bundy said none of the family was armed.

“They said that we had no first amendment rights except for up by the bridge where they had established an area for that,” Bundy said.

The newspaper said BLM has established two fenced areas near Mesquite for free speech areas.

Ryan Bundy described the arrest of the brother thusly: “He was filming and talking on the phone, I don’t know to whom. It happened pretty fast. They came down on him hard and had a German Shepherd on him. And then they took him. …

“I stayed and witnessed the whole thing,” he said. “I told them that I was not going to engage them and that I just wanted to take my brother with me. But they were pushing, pushing, pushing! So I did stay there long enough to witness the whole thing, about 10 feet away from me.”

The Progress reported it received an email from the BLM saying, “An individual is in custody in order to protect public safety and maintain the peace. The individual has rights and therefore details about the arrest will not be disclosed until and unless charges are filed.” Secret detention?

The paper reported that Cliven had called emergency response in both Mesquite and for Metro, but was told to get off the phone or he would be arrested.

The Las Vegas newspaper had not updated this morning’s story on its website by noon.