Law & the Courts

The Case for Civil Disobedience in Oregon

Ammon Bundy talks to reporters about the Oregon protest. (Image: Fox News)

Editor’s NoteOn July 10, 2018, President Trump pardoned Dwight Hammond and his son Steven Hammond, a pair of Oregon cattle ranchers whose conviction for arson on federal lands led to an armed standoff in 2016. The following piece concerns the charges for which they were imprisoned.

Watching the news yesterday, a person could be forgiven for thinking that a small group of Americans had literally lost their minds. Militias are marching through Oregon on behalf of convicted arsonists? A small band of armed men has taken over a federal building? The story practically writes itself.

Or does it? Deranged militiamen spoiling for a fight against the federal government make for good copy, but what if they’re right? What if the government viciously and unjustly prosecuted a rancher family so as to drive them from their land? Then protest, including civil disobedience, would be not just understandable but moral, and maybe even necessary.

Ignore for a moment the #OregonUnderAttack hashtag — a rallying cry for leftists accusing the protesters of terrorism — and the liberal media’s self-satisfied cackling. Read the court documents in the case that triggered the protest, and the accounts of sympathetic ranchers. What emerges is a picture of a federal agency that will use any means necessary, including abusing federal anti-terrorism statutes, to increase government landholdings.

The story as told by the protesters begins not with the federal criminal case against Steven and Dwight Hammond but many years earlier, with the creation and expansion of the Malheur National Wildlife Refuge, a tract of federal land set aside by President Theodore Roosevelt as “a preserve and breeding-ground for native birds.” The federal government has since expanded the preserve in part by buying adjacent private land.

Protesters allege that when private landowners refused to sell, the federal government got aggressive, diverting water during the 1980s into the “rising Malheur lakes.” Eventually, the lakes flooded “homes, corrals, barns, and graze-land.” Ranchers who were “broke and destroyed” then “begged” the government to buy their “useless ranches.”

What if the government viciously and unjustly prosecuted a rancher family so as to drive them from their land?

By the 1990s, the Hammonds were among the few private landowners who remained adjacent to the Refuge. The protesters allege that the government then began a campaign of harassment designed to force the family to sell its land, a beginning with barricaded roads and arbitrarily revoked grazing permits and culminating in an absurd anti-terrorism prosecution based largely on two “arsons” that began on private land but spread to the Refuge.

While “arsons” might sound suspicious to urban ears, anyone familiar with land management in the West (and to a lesser degree, in the rural South and Midwest) knows that land must sometime be burned to stop the spread of invasive species and prevent or fight destructive wildfires. Indeed, the federal government frequently starts its own fires, and protesters allege (with video evidence) that these “burns” often spread to private land, killing and injuring cattle and damaging private property. Needless to say, no federal officers are ever prosecuted.

The prosecution of the Hammonds revolved mainly around two burns, one in 2001 and another in 2006. The government alleged that the first was ignited to cover up evidence of poaching and placed a teenager in danger. The Hammonds claimed that they started it to clear an invasive species, as is their legal right. Whatever its intent, the fire spread from the Hammonds’ property and ultimately ignited 139 acres of public land. But the trial judge found that the teenager’s testimony was tainted by age and bias and that the fire had merely damaged “juniper trees and sagebrush” — damage that “might” total $100 in value.

The other burn was trifling. Here’s how the Ninth Circuit described it:

In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.

In 2010 — almost nine years after the 2001 burn — the government filed a 19-count indictment against the Hammonds that included charges under the Federal Anti-terrorism and Effective Death Penalty Act, which mandates a five-year prison term for anyone who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States.”

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At trial, the jury found the Hammonds guilty of maliciously setting fire to public property worth less than $1,000, acquitted them of other charges, and deadlocked on the government’s conspiracy claims. While the jury continued to deliberate, the Hammonds and the prosecution reached a plea agreement in which the Hammonds agreed to waive their appeal rights and accept the jury’s verdict. It was their understanding that the plea agreement would end the case.

At sentencing, the trial court refused to apply the mandatory-minimum sentence, holding that five years in prison would be “grossly disproportionate to the severity of the offenses” and that the Hammonds’ fires “could not have been conduct intended [to be covered] under” the Anti-terrorism act:

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. . . . It would be a sentence which would shock the conscience to me.

Thus, he found that the mandatory-minimum sentence would — under the facts of this case — violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.” He sentenced Steven Hammond to two concurrent prison terms of twelve months and one day and Dwight Hammond to one prison term of three months. The Hammonds served their sentences without incident or controversy.

The federal government, however, was not content to let the matter rest. Despite the absence of any meaningful damage to federal land, the U.S. Attorney appealed the trial judge’s sentencing decision, demanding that the Hammonds return to prison to serve a full five-year sentence.

The case went to the Ninth Circuit Court of Appeals, and the court ruled against the Hammonds, rejecting their argument that the prosecutor violated the plea agreement by filing an appeal and dismissing the trial court’s Eighth Amendment concerns. The Hammonds were ordered back to prison. At the same time, they were struggling to pay a $400,000 civil settlement with the federal government, the terms of which gave the government right of first refusal to purchase their property if they couldn’t scrape together the money.

There’s a clear argument that the government engaged in an overzealous, vindictive prosecution here. By no stretch of the imagination were the Hammonds terrorists, yet they were prosecuted under an anti-terrorism statute. The government could have let the case end once the men had served their sentences, yet it pressed for more jail time. And the whole time, it held in its back pocket potential rights to the family’s property. To the outside observer, it appears the government has attempted to crush private homeowners and destroy their livelihood in a quest for even more land.

If that’s the case, civil disobedience is a valuable course of action. By occupying a vacant federal building, protesters can bring national attention to an injustice that would otherwise go unnoticed and unremedied. Moreover, they can bring attention once again to the federal government’s more systemic persecution of private landowners.

RELATED: The Case for a Little Sedition

With vast segments of the American West in government hands, private landowners often find themselves at the mercy of the federal government — a government that often seems to delight in expanding its power and holdings at the expense of ranchers and farmers, one in the habit of placing turtles before people. Ranchers and farmers fighting the federal government are a tiny minority up against the world’s most powerful body. “David versus Goliath” simply doesn’t do the conflict justice.

While civil disobedience is justified, violence is not. So far, no one has been hurt, the “occupation” is occurring in a vacant federal building in the middle of nowhere, and there is no reported threat to innocent bystanders. It would be absurd for the federal government to treat the protesters like it treated the men and women at Waco or Ruby Ridge, and it would be absurd for the protesters to shoot police officers who are ordered to reasonably and properly enforce the law. The occupation is far less intrusive and disruptive than the Occupy Movement’s dirty and violent seizure of urban public parks, and authorities permitted that to go on for weeks. Now is the time for calm, not escalation.

RELATED: The Problem with Cliven Bundy

I sympathize with the ranchers’ fury, and I’m moved by the Hammonds’ plight. According to multiple accounts, they are good American citizens. Even the prosecutor noted that they “have done wonderful things for their community.” The district court noted that the character letters submitted on the Hammonds’ behalf were “tremendous” and that “these are people who have been a salt in their community.” Yet now they’re off to prison once again — not because they had to go or because they harmed any other person but because the federal government has pursued them like a pack of wolves.

They are victims of an all-too-common injustice. Ranchers and other landowners across the country find themselves chafing under the thumb of an indifferent and even oppressive federal government. Now is the time for peaceful protest. If it gets the public to pay attention, it won’t have been in vain.

— David French is an attorney and a staff writer at National Review.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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