Friday, April 11, 2014

Dear Militia, Don't Tread on Me. Love- The Constitution

The news since Saturday has been riddled with controversy concerning the trespass of several heads of cattle on federal lands by Cliven Bundy’s ranch in Southern Nevada. While I have been interested in grazing rights before, something about this case made me want to do additional research. Also, after reading several posts about militias, the trampling of constitutional rights, and the mistreatment of protestors I really couldn’t help myself. Therefore, I have researched grazing rights, land use acts, and federal precedent leading up to this Bundy fiasco (you know since you don’t want to or don’t actually care enough about the issue to find out what it is actually about). The more nonsense I read by people that don’t know what they’re talking about the more my blood boils.

1- I don’t care about the Desert Tortoise or minor fees or fines.

2- The First Amendment 
     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

a) The people have the right to peaceably assemble. I saw the video from the Bundy’s place too and here’s what working for the BLM under a federal court order were moving trucks off of federal lands. While they attempted to get back onto a maintained roadway protestors stood in their way. Bundy’s son walked in front of a large haul truck and was nearly run over. The officer with a taser and a dog told him to back up and get out of the way. He continued to advance and was tased. When he and others in the group continued to do it after being repeatedly told to back up, to step down, and to move away he was tased again. 3 times. The guy isn’t bright.

b) The US Supreme Court has upheld that the government may regulate the time, place, and manner—but not content—of expression. That doesn’t mean you can do whatever you want whenever you want in regards to the words you choose to express yourself with. Think yelling fire in a crowded theatre. Free Speech Zones have been used for years to help promote safety at places like abortion clinics, during Westboro Baptist pickets, national political party conventions, etc. Why this case should be exempt is beyond me. It in no way tramples on the rights of the protestors, and if they had been in the designated zone no one would have been tased, thrown, hit, bit or whatever else because they would have been safely behind a barrier where they were supposed to be.

 3- The Fifth Amendment

      This one is important because most cases argued in front of the Supreme Court regarding property and grazing rights use the Fifth Amendment.
     No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

a) Due Process - In the case of Bundy the argument could be that he’s being unfairly deprived of property. However, the guy’s 21 years of court orders more than cover the federal government’s procedural due process of notification.

b) Just compensation- Many cases have argued that they didn’t receive just compensation for the land based on their grazing permits when the government revoked them. Unfortunately, permittees aren’t guaranteed the land, have no vested interest or ownership of it, and as you’ll see below, the courts have ruled just compensation does not mean fair market value.

4- Everyone hates the BLM until fire season comes along and they’re all you’ve got between your house and the flames. Or when they are playing volleyball at Zephyr but that’s a separate kinds of love.

5- The Supreme Court
     It baffles my mind how so many people, many self-described true-blooded, honest, god-fearing Americans can spout their love for this country and then in the next breath tear it’s very structure down.      Article III of the Constitution establishes the federal judiciary. Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The Supreme Court plays a very important role in our Constitutional system of government. First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities. In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion, and due process of law.

a) The Supreme Court has repeatedly upheld that the government retains ownership of the lands under its jurisdiction - like the BLM, the Forest Service-- anything under the Department of the Interior. See- Grazing and Property rights of permitters on federal lands.

b) If you love this country so much and you find yourself to be a great American then do us all a favor and uphold and fight for the decisions made by the highest court, our Supreme Court, which was established to uphold the constitution which you seem to all be treading on.

5- Many rebuttals I have heard contain the ‘fact’ that this land is owned by the Bundy’s Is that the land that belongs to the US government as part of the Treaty of Guadalupe Hidalgo in 1848? Because that land doesn't belong to the Bundy's, their parcel that is fee-simple, is theirs however the land that they have a permit to graze on is property of the US Government and they have the ability to revoke the grazing permit at any time. As they did in 1993 when this crap started. He has had 21 years to comply and they have been more than patient in waiting for him to do so.

6-Where’s PETA?
    This may be my favorite argument right now. Rumors swirl on the internet faster then Sally is pregnant would in a junior high hallway. Please show me one CREDIBLE source that can attest to any slaughtering of cattle, burying of cattle on the federal lands where they don’t belong and I will be more sympathetic to the cry that the BLM is mistreating these animals. Don’t get me wrong, I agree that they have mishandled animals- i.e. roundups of wild mustangs and burros but those animals aren’t owned or cared for by anyone and Bundy has had ample opportunities to move his cattle before any of this needed to happen.

7- We must fight before/what it the BLM decides our homes are on protected lands
     If you own your home or the land it is on, or are in the process of making payments to someone for that purpose then this is EXTREMELY unlikely to happen (READ- NOT POSSIBLE). I see the spirals in your eyes, the mantra you have been repeating for days - Bundy owns that land. No he doesn’t. There is such a thing as pre-emptive rights: a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity. Also called a "first option to buy.” Again I go back to the Treaty in 1848. Even according to Bundy’s daughter (Shiree Bundy Cox) their family ‘bought’ the land in 1887, 39 years after the land was granted to the US. The only cases I could find granting pre-emptive rights were ones involving Native Americans because they pre-date us all! If you can find a better legal case or definition please let me know.

This isn’t tyranny- the government isn’t being oppressive by upholding the constitution. The officers with tasers weren’t being violent or aggressive until they had to be. I, of course, don’t want to see a pregnant woman thrown on the ground but think about it this way: Bundy has stated he will do whatever it takes to protect his alleged land. There are calls for militas, for weapons, for mobilization. Wouldn’t you, if you knew that was coming your way, rather be safe than sorry? On one of the Facebook pages I saw someone wrote they hope the BLM fires first so they can use their second amendment to protect their first. That is asinine, childish, foolish....I could think of some more ishes but I think, or at least I hope, you see my point. This is adults playing cowboy and it isn’t cute. This is adults pretending they remember history class and they don’t. This is adults behaving in a manner that teaches kids bad habits and behaviors. This is sad. Below are several of the court cases ruled on by the Supreme Court regarding land use, grazing, property, and water rights. Please take a look and remember this Court was established to uphold the Constitution- Maybe you should read it.

1890 Buford v. Houtz
         Buford’s own land was interspersed with land owned by the government - public lands. A nomadic sheep herder was grazing on the public lands and Buford wanted to prevent him from doing so, he wanted to fence his lands but would have needed to include the public lands as well which would have been illegal. The court found in favor of the sheep herder, concluding that public lands are a type of open-access resource for all to use on an equal basis until otherwise announced by the government. The court anticipated and dismissed an argument for exclusive ownership or private ownership of public lands. The decision stated that, “We are of the opinion that there is an implied license that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States. . .shall be free to the people who seek to use them where they are left open and unenclosed, and no act of government forbids this use. . .No doubt...this has been done with the consent of all branches of the government...and with its direct encouragement.”

 1911 Light v. United States
          The court found that the failure for the government to object to ranchers grazing on federal lands did not give ranchers vested rights to use the range nor did it eliminate the federal power to recall any implied license for private use at any time.

 1911 United States v. Grimaud 
          Ratified the authority of then the new US Forest Service to declare regulations on its reserve lands. 

1917 Omaechevarria v. State of Idaho
         The court ratified an Idaho statute excluding sheep from grazing public lands that were traditionally grazed by cattle. The statute was found to have been enacted to prevent ‘breaches of the peace’ between range uses rather than provide any rights in public lands to specific citizens.

 In 1934 the Taylor Grazing Act (TGA) was established.
           The TGA was the first formal attempt by the US Government to regulate grazing in the public domain. TGA set up grazing districts and a fee and permit system as well as the Division of Grazing to regulate and protect rangeland.

  •  Permits were first given to land owners with a history of use on that lands (use in the preceding 5 years) 
  •  Gave rights to renewal of grazing permits at the discretion of the Secretary of the Interior and entitled them to payment or compensation from new permittees for range improvements if the permit changes hands. 
  • Protected pre-existing rights, under existing law, unless otherwise provided in the act itself. 
  • Explicitly protected existing water rights. 
  • Grazing privileges would be recognized and acknowledged to be safe-guarded, however, the creation of a grazing district of the issuance of a permit would not create any right, title, interest, or estate in or to the land 
  • Section 3 states that the Secretary is authorized to issue permits to “bona fide” settlers and ranchers under his rules and regulations are entitled to participate in the use of the range. 
  • Section 7 says the Secretary is authorized to examine and classify all grazing district lands and open them to other uses, such as homesteading, where they see fit. 
 The US Code referring to these issues states the Secretary is authorized to lease additional land for grazing districts in order to promote orderly use of the district and aid in conserving the forage resource of the public lands therein (43 U.S.C)

 1938 Red Canyon Sheep Co. v. Ickes
          The government planned to trade lands currently being grazed under a permit by Red Canyon Sheep Co. in order to consolidate their holdings. Red  Canyon sued to stop the trade arguing that their private holdings and improvements would be valueless without the permitted lands, leaving them unable to run their business. The court found, “Yet, whether they [the permits] be called rights, privileges, or bare licenses, or by whatever name, while they exist they are something of real value to the possessors and something which have their source in an enactment of the Congress” (Red Canyon, p. 315). They also found that ‘water rights’ are vested interest but something less than full ownership because they are the right ONLY to use the water (usufructuary rights). The court looked at grazing and hunting on public lands finding “...both are subject to restriction or withdrawal, yet both are of value to the persons possessing them.” The court said that ‘real value’ to the permittee merits legal protection and invalidated the trade of the land, however they indicated that the protection is only against the illegal acts of the government. They refrained from ruling on whether other transfers or trades would be illegal under any other circumstances such as those presented in section 7 of the TGA. Therefore, protection of the permit against legal government actions was not addressed by this case. 

1944 Osborne v. US
         This decisions stated that “it has always been the intention and policy of the government to regard the use of its public lands for stock grazing, either under the original tacit consent or...under regulation through the permit system, as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation.”

1951 Chournos v. US 
         Chournos had grazing lands he owned interspersed with lands permitted with the federal government. He temporarily lost his permits to the federal lands and sued for damages when they were reinstated. The court found in favor of the government, that they were well within their rights to reject the rancher’s application.

1955 Shufflebarger v. Commissioner 
         The Shufflebargers argued that their preference right to grazing land has value only for the years of the grazing permit, therefore is depreciable for tax purposes. The court found otherwise, stating that most permits are renewed indefinitely even while the government retains the right to cancel at any time. Permits, they said, are given to applicants who have an established preference which give the holder special consideration over other applicants. These preferences, the court noted, convey no legal right to the use of the range. A preferences is “a thing of value” and therefore subject to taxation as property according to the IRS.
         The Shufflebareer decision may encourage private-rights advocates by using the word “property” in conjunction with a grazing preference, but it is clearly a very different kind of property than the vested, compensable property rights.

1960 McNeil v. Seaton 
         McNeil sued to prevent the loss of his grazing privileges due to changes in the rules of eligibility made by the secretary of the Interior for his grazing district. The decision only safeguarded against other potential competitors for the land not the government. The court noted that the government may withdraw the permit at any time. A rancher can rely on preference only against other potential graziers. 

1963 LaRue v. Udall
         A Nevada grazing permittee was threatened with the loss of his permit due to a government transfer of the permitted lands to a private defense contractor. LaRue argued that under the TGA the transfer of the land was not authorized when it would destroy a ranch business. He also argued that he had pledged his permits as collateral on a loan and therefore could not have them revoked per Section 3 of the TGA. The court found in favor of the transfer stating that it was within Secretary Udall’s rights to do so, that the renewal of a permit is not a vested interest in the land that would prevent government action. The legal government action of the transfer of the land to a defense contractor was permitted to occur without compensation to LaRue.

1972 US v. Fuller
         This case centered on a condemnation action by the government of 920 acres of a range permittee’s base property owned in fee-simple. The legal question was whether the access or right to the permitted lands should be included in calculating the value of the fee-simple lands condemned. Here the Supreme Court ruled that the government should not compensate landowners for value ‘given’ by virtue of ongoing government action.
          Fuller owned a ranch, leased some land from the State of Arizona, and had grazing permits for nearby Federal lands. The government took most of his lands under eminent domain, which they are allowed to do under the Fifth amendment which states they must also provide just compensation to the property owner. The US argued that Fuller didn’t own much land and therefore couldn’t graze much cattle meaning his land wasn’t worth much. Fuller argued that even though he didn’t own the land his permits on the adjacent federal lands meant he could support a large cattle operation giving him property interest and increasing the property value. The US argued that the TGA explicitly said that permits do not create property interest. The Supreme Court found in favor of the US under the TGA and therefore they did not have to factor in that value when deciding how much to pay Fuller for the land. The court acknowledged that had Fuller been able to sell his land on the open market the grazing permits would have substantially increased the selling price. However, the 5th Amendment doesn’t require the government to pay fair market value only just compensation.

1996 Hage v. US
         This case has been tied up in the courts for years, much like the Bundy case. However, in 2008 Judge Smith ruled that the impounding of the cattle was not considered a taking since the USFS were well within their rights to revoke grazing permits. However, he did rule that the Hages had vested water rights based on the Ditch Act of 1866 and the fencing of the water sources resulted in a taking of water rights. In June 2013- Supreme court refused to review the Hage case. The last procedural step for the Hages involves the case being remanded back to the US Circuit Court of Federal Claims for a hearing and final order consistent with the Federal Circuit ruling.
(This is a very interesting and complicated case so I plan to do a separate post looking into it more.)

1 comment:

  1. There are a lot of interesting things going on here.

    1) The media's take coverage, or lack of coverage on this issue. This includes social media.
    2) The question of appropriateness by the appointed law enforcement agency.

    And lastly,

    3) Who's in the right.

    I can't really speak to the first. Depending on what is happening in the news that week often dictates what's important or not. I do question how relate-able the issue is the rest of the nation. Growing up on the Mid-west the land our cattle was raised on was owned by the farmer, and taxes were paid for said land.

    As to the second, I know from my dealings with friends in the Law Enforcement community they are drilled with one thought from day one, and that is "Take control of the situation". The second thought they are drilled with is "Once you have control, don't loose control of the situation". Those agents acted on the information at hand to control the situation. And while occasionally, Law Enforcement Officials are called on the carpet for their handling of situations, rarely are they in the wrong. (Statistically speaking, if you count every time a cop of one branch or another stands in court and has to defend their decision, it's a rare day the court doesn't stand with the Law Enforcement Official). When it does happen, and if it does happen here, there was some sort of witch hunt, media circus atmosphere going on that mitigates it's validity.

    As for the third point. Here's where I think Bundy and his supporters are wrong, or at the very least they gloss over the fact that this guy is, for lack of a better word, criminal.

    That may be a bit harsh and hard to swallow, but if I may be allowed to put forth a parallel example; say that Bundy was a banking investor, who had a dispute with the FTC, especially when his dealings infringed upon the well being of the public, and the FTC revoked his license, I don't think we would be having this discussion. Of course this guy would be guilty. Either in the press' eye or the FTC would have done it's job so thoroughly there would be no doubt to the guys guilt.

    I believe that there are two main reasons for his perceived innocence.

    Reason #1. In this case the media coverage that this guy is getting paints the picture of the BLM as the villain and as Bundy the helpless woman being tied to the train tracks, ala Dudley Do-Right's where the BLM is played by Snidely Whiplash and Bundy plays Nell Fenwick. The part of Dudley Do-Right seems to be played by every Tea bagger out there, each having the same grasp on what is going on as old Dudley himself.

    Reason #2. It could also be the case that the BLM legal department doesn't have the same set of tools as other three letter agencies. There's some serious questions to be answered right now as the reason why it took them twenty years to act.

    Regardless the collar color (White vs Blue); laws and statues from these agencies are all about fair play, and fair treatment in the market place. Bundy chooses to ignore the restriction to cattle allowed by the BLM, Bundy is in violation. Bundy chooses to ignore the fines and penalties levied against his property, Bundy is in violation. When in violation the courts can seize property.

    He maybe has the sense to market his position as infringement of his rights. Good for him, A+ in Marketing, F in Civics.