On the Bundy Ranch confrontation

by Walter Olson on April 14, 2014

Ted Frank, who formerly blogged in this space, wrote this which I thought worth passing on:

I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

Ted also calls our attention to this article by Logan Churchwell and Brandon Darby on the 20-year history of the controversy and the positions advanced by rancher Cliven Bundy to justify contempt of the court orders:

“I believe this is a sovereign state of Nevada,” Bundy recently told a radio reporter. “…I abide by all of Nevada state laws. But, I don’t recognize the United States Government as even existing.”

More: A different emphasis from John Hinderaker (arguing for sympathy with Bundy while conceding the meritlessness of his legal position) and Kevin Williamson.

{ 7 trackbacks }

Insta-Millard: Bundy Ranch issue history | Millard Fillmore's Bathtub
04.14.14 at 5:03 pm
Resource Media - Calming winds amidst the Nevada ranching storm
04.15.14 at 6:02 pm
Thick and Thin Legal Issues at the Bundy Ranch | Josh Blackman's Blog
04.16.14 at 6:57 pm
Cliven Bundy and the U.S. Constitution - Overlawyered
04.17.14 at 6:45 am
Davis Political Review | Bunkerville is no Bunker Hill
04.22.14 at 8:00 pm
Additional Bundy Ranch thought - Overlawyered
04.24.14 at 11:30 pm
Angry Cows Are Angry | Illuminate
05.05.14 at 9:38 pm

{ 25 comments }

1 Incunabulum 04.14.14 at 7:54 am

The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

I can *sorta* agree with this, except – what else do we have left to ‘encourage’ the federal government to stick to its core business? Its not like we get to vote on the existence of *any* federal agency, let alone the regulations that agency puts into place. Given that Congress has basically given their authority to write law over to these agency, even voting for (or against) the re-election of a representative or senator will not reign these agencies in.

The federal government is not going to get out of the land management business *voluntarily* – its going to have to be pushed out.

Other than this, what is there left except either complete submission or open conflict?

2 OldmanRick 04.14.14 at 10:52 am

It appears that Ted has forgotten that Bundy’s family was grazing this land from the 1870′s. In other words he had grandfather rights to use the land. Another item not considered is the possible Harry Reid involvement in the current and past land issues which more than likely were unethical if not illegal.

3 Walter Olson 04.14.14 at 11:00 am

Claims that the family’s earlier use of the federal land created some sort of grandfather right to go on using it forever had ample opportunity for airing during the twenty-year history of the dispute, and the Ninth Circuit saw it differently, hence the court orders of which Bundy is in contempt. As to the Reid angle, the authors of the above-linked article from Breitbart News — not exactly a source known for leaning over backward to exonerate Democratic office holders — write as follows: “Despite the obvious partisan gain to be had if Senate Majority Leader Harry Reid’s son Rory (a failed 2010 Nevada gubernatorial candidate) had somehow been involved in a ‘land grab’ affecting the Bundy family ranch operation—the facts just do not pan out as such.”

4 Incunabulum 04.14.14 at 11:03 am

I don’t think being ‘grandfathered in’ is a legitimate defense.

Unless I’m mistaken, the previous owner letting a guy do something on his land does not impose a requirement for a new owner to continue to allow it.

And Reid’s involvement (scuzzy as it is) doesn’t change the underlying issue – does the BLM have the right to set conditions on the land they allow others to use.

Regardless, I have to give some credit to BLM – the FBI wouldn’t have backed down (with the attendant loss of face) to avoid violence.

5 Anonymous Attorney 04.14.14 at 11:15 am

This is one of those disputes that quickly transcends the particulars and creates a platform for the (in my view, righteous) expression of frustration with overbearing government. In the view of many — not all of whom are kooks — the system is so rotten that it’s beyond internal reform and needs to start unraveling. And at some point, bloodshed or acts of violence may not even be needed — the incompetence of Big Government will collapse on itself.

6 D 04.14.14 at 5:20 pm

“But, I don’t recognize the United States Government as even existing.”
That’s the sticking point.
Ted, et al do recognize the authority of the federal government, corrupt as it is. The Bundys, et al do not recognize that authority, for many (and probably convoluted) reasons.

This exchange may enlighten us:
Dennis: You’re fooling yourself! We’re living in a dictatorship! A self-perpetuating autocracy in which the working classes–
Woman: There you go, bringing class into it again…
Dennis: That’s what it’s all about! If only people would–

Dennis: Listen – Strange women lying in ponds distributing swords
is no basis for a system of government! Supreme executive power
derives from a mandate from the masses, not from some… farcical
aquatic ceremony!
Arthur: BE QUIET!
Dennis: You can’t expect to wield supreme executive power just ’cause some watery tart threw a sword at you!!
Arthur: Shut UP!
Dennis: I mean, if I went ’round, saying I was an emperor, just because some moistened bink had lobbed a scimitar at me, they’d put me away!
Arthur: Shut up, will you, SHUT UP!
Dennis: Aha! Now we see the violence inherent in the system!

Or, in the present context,
Bundy: “Supreme executive power derives from a mandate from the masses, not from some… farcical pretense of elections rigged by gerrymandering, quid pro quo maneuvers, financial doctrine of overwhelming force, and media blacklisting!
media: (silence)
Bundy: “You can’t expect to wield supreme executive power just ’cause some movie stars threw a party for you!!”
media: “This guy is a kook!”
3 letter agency: “Lock and load.”
Bundy: “Aha! Now we see the violence inherent in the system!”

7 JuanitaRojas 04.14.14 at 5:37 pm

When courts effectively rubber stamp government tyranny with logorrhea almost without exception, what else are The People to do? Commit economic or literal suicide?

8 John Fembup 04.14.14 at 8:04 pm

I recall a time when the government sent troops to confiscate a cache of armaments from citizens in a suburb of Boston.

It was certainly “legal” but, as you will recall, the citizens of Lexington and Concord objected.

Perhaps, sometimes, the modern-day Tories can still get it wrong. Perhaps the people can be right even if they do not observe the letter of the law. Perhaps that happens when the government has overreached so far as to undermine the authority they have been given by the very same people.

However this turns out, a long train of abuses of governmental power will not end well for anyone.

PS – as to how the government came to control such vast tracts of the American west, I recommend starting with Wallace Stegner’s “Beyond the 100th Meridian.”

9 bw1 04.14.14 at 11:59 pm

Fembup hit the nail on the head. The question for Walter is whether his objection is that it hasn’t yet reached the point where he’d get on his horse and ride across the countryside crying “to arms!” If so, just what would be his criteria. If not, and his position is that it could never reach that point, then why isn’t he an enthusiastic supporter of expanding government power?

10 theBuckWheat 04.15.14 at 9:33 am

None of this would be an issue except for the fact that the present federal government can print and borrow all the money it needs out of thin air, and thus can fund every department wildest dreams, and by which it does not have to economize nor sell off any unused land or assets. The federal government presently owns about 70% of Nevada. It owns > 50% of all the land west of the Mississippi. It should be selling land to pay for government operations instead of borrowing from our yet unaborted grandchildren.

The first order of business of an Article V Convention the States must call to consider Constitutional amendments must be to force the federal government to live within its financial means. Near-infinite money enables near-infinite government.

Every day more people are coming to the judgment that a carefully organized effort to repair the constitution via the States’ power to propose and ratify amendments has less risk to our liberty and prosperity than the present trajectory of the federal government and especially the federal bureaucracy.

11 KB 04.15.14 at 10:46 am

Grazing rights, Tortoise control… whatever. To me these were all side issues about the whole process. I’m not a big defender of Bundy and his theories of government but the part that struck a nerve with me was the federal response. 200 armed agents! snipers!!! And actual black helicopters…. all over cattle eating scrub plants??? It was an invading army, no other way to see it. If the intent was to enforce a court order there are a lot of other ways it could have been handled without resorting to snipers from the get go.

We’re seeing this time and time again, the governments response to “reasonable” protests is an overwhelming armed, “military” response. They wanted to provoke a confrontation to show others what would happen if you defy the government. It just didn’t turn out the way they planned. I think it’s interesting that now, Harry Reid, is promising “it’s not over”.

12 gitarcarver 04.15.14 at 1:46 pm

RE: “Snipers”

The BLM does not employ nor train snipers in the military sense of the word.

The BLM does have personnel who have long guns with scopes in as part of animal control in shooting animals from long distances or fast moving game.

But the use of the term “snipers” is indicative of the escalation of the rhetoric rather than facts on this issue. BLM officers with long guns and scopes are “snipers.” Members of militia groups with the same long guns and scopes called “patriots.”

This is a classic case where neither side is totally in the right but is fighting for the perception they are right. That fight is based on social media, blogs, etc. and has very little to do with facts.

13 No Name Guy 04.15.14 at 3:37 pm

Git
Actually, if the BLM deployed men with scoped rifles who have specific skills at accurate long range shooting and who were in concealed positions, the description of “sniper” fits the bill to a T.

“A sniper is a highly trained marksman who operates alone, in a pair, or with a sniper team to maintain close visual contact with the enemy and engage targets from concealed positions or distances exceeding the detection capabilities of enemy personnel. These sniper teams operate independently, with little combat asset support from their parent units. Snipers typically have highly selective and specialized training and use high-precision/special application rifles and optics, and often have sophisticated communication assets to feed valuable combat information back to their units.”
http://en.wikipedia.org/wiki/Sniper

BLM agents (or anyone, for that matter) armed with scoped bolt action rifles chosen for accuracy who are assigned to engage targets from extended range and positions of cover ARE snipers, by definition. To claim otherwise is to willfully misstate how a particular person is being employed tactically.

And you’re willfully conflating terms – “patriot” is not a typical job description in a military or law enforcement organization. Sniper is, as is infantryman, tanker, artillery man, cop, deputy, detective, agent, combat engineer, medic, etc – these job descriptions are the same if the individual in question serves the “right” or “wrong” side of a cause.

14 JoYo 04.15.14 at 9:21 pm

We the People must start pressing our Congress to sell all of the Federally-owned lands and force them to use the proceeds solely to pay down our $17.3 Trillion national debt. We must force Congress to eliminate disband or severely limit the power of Federal agencies that are abusing the American people such as the BLM, DOI, EPA, DOE, Dept of Education, and the IRS.

15 Carol Herman 04.15.14 at 11:11 pm

And, the good news is that lots of Americans are now aware that Nevada is “80% owned” by the Federal Government. And, it’s possible Harry Reid sold “his” interest in Nevada to the Chinese. Who knows?

It smells bad that there were once a dozen ranchers raising cattle, here. And, now there’s just one. BUNDY.

Americans need a new history lesson. Because we got our revolution when farmers got angry. (Not the high faluten types who thought we were better off belonging to England.

PLUS, since the video went viral … the guy in the glasses and backwards hat, threatening ALL the folk who had gathered at the BLM “point” … isn’t a BLM fella at all. He’s a Special Forces dude. Who carried on in Afghanistan. And, how he ended up threatening the crowd of Bundy supporters leads me to believe our Feds are looking to go to war with CITIZENS! (While obama can’t find anything wrong with what Putin is doing!)

Can our gubmint be stupid enough to attack the Bundy ranch ahead? Waco anybody? Ruby Ridge?

Now, you tell me, this doesn’t scare democratic politicians who weren’t polling all that well with white guys?

Politicians, in general, have a rather sour reputation these days. Besides, Joe Biden and the Lurch … Nevadans have moved forward to look like a bunch of jerks who voted in the most corrupt politician in the US Senate: Harry Reid. He can go have a cow, now. But not one from Bundy’s ranch. This may turn out to be a story that keeps on giving.

Wonder if the democrats can locate “their last page.”

16 Daybrother 04.16.14 at 12:34 am

Bundy never had a legal case to present after two failed attempts. However you must look at the extended timeline: Bundy family raises cattle and the open range is traditionally well, open for grazing. Federal government doesn’t care and is happy for the beef. Statehood comes and recognizes the Federal claim. BLM is created and starts charging fees to “manage” the land. Fees rise, services decrease and BLM seems more interested in running people out of business than “managing”. attle numbers are limited, all the Bundys’ neighbors are forced out and bought off with some of their own fees basically. The Desert Tortoise must be protected from trespassing cattle and Bundy is squeezed harder. Bundy has since given up giving money to the people putting him out of business. @00 paramilitary troops arrive with 100 vehicles and 8 helicopters to seize cattle and tell protesters they can only protest in special designated “first amendment zones”. Hundreds of fed up citizens show up with their own guns and tell the feds to back off.

Are you really going to scold those who have broken the law by throwing cases of tea overboard into Boston harbor? Or are you going to see the nitty gritty where the Law is reduced to first principles?
Hundreds of thousands have refused to register their weapons in Ct and NY. Do you think they should be rounded up because they interpret the second amendment differently than you do? Who shall do the rounding?

17 John Fembup 04.16.14 at 9:47 am

“We the People must start pressing our Congress to sell all of the Federally-owned lands”

I think that’s a bad idea – mainly because of the scarcity of water in the west. The scarcity of water presents huge problems. Except for coastal areas, most of the west is desert or near-desert, in which crops and people are highly dependent on irrigation and on water brought in from far away. More land in private hands will mean greater demand for water that simply isn’t there.

If the feds were to sell the land, who would decide what private interest gets the land with with accessible water? How would those decisions be made? And how would other westerners get water?

Resolving such questions is one of the reasons the feds acquired all that land in the first place. It’s certainly true that the feds – at least this administration – are dishonest stewards of the federal land. But kicking them out will have no effect on rainfall or help answer the many questions private ownership will pose.

Maybe someday these questions will have satisfactory answers. They don’t today. And until that happens, I think it would be a serious mistake if the feds begin to sell off their western lands.

Besides, I suspect there’s too much covert government stuff going on out in the desert that Congress will never make the military give up.

18 DEM 04.16.14 at 11:24 am

“and force them to use the proceeds solely to pay down our $17.3 Trillion national debt”

“They” — as in Congress — can’t and won’t be forced to pay down debt with proceeds from federal land sales. They’d blow such a windfall almost immediately.

19 Allan 04.16.14 at 11:42 am

Tyranny? Then George Washington was a tyrant. See, e.g., Whiskey Rebellion. So was Eisenhower. See, e.g., Little Rock. So was Hoover. See, e.g., Bonus Army. And, of course, Abraham Lincoln. See, e.g., civil war.

History is full of cases where our government has used force to subdue armed insurrections.

I would point out that there really is no scandal here, at least to the ownership of land. The federal government either got its land from foreign nations, from states in exchange for debt, or by purchase. Perhaps there is a scandal that the federal government is keeping the land, perhaps not. The problem is that a person who does not like the law is threatening a range war to solve the problems. That, simply, is wrong (unless, of course, you support overthrowing the government, in which case you support a new civil war).

20 gitarcarver 04.16.14 at 12:08 pm

No Name Guy,

Actually, if the BLM deployed men with scoped rifles who have specific skills at accurate long range shooting and who were in concealed positions, the description of “sniper” fits the bill to a T.

You made my point. The BLM did not deploy the men in concealed positions. The first notice of the “snipers” was when they were seen standing on a ridge / small hill while Bundy’s son was taking pictures outside a “Free Speech Area.” The men were not concealed, were not pointing their weapons at anyone. They simply had their weapons with them.

The “militia groups” had people in prone positions on overpasses and concealed. They too had long guns with scopes on them.

I’ll stand by my assertion that by saying the BLM deployed “snipers” while the other groups deployed only “patriots” is an attempt to sway the narrative and not deal factually with what was actually going on.

“Snipers” has a highly negative connotation. “Patriot” has a good connotation. In the propaganda war, you first start demeaning and demonizing your opponents. It doesn’t matter if you are doing the same thing. The only goal is to make the other side look bad.

BTW – under your definition of “sniper,” every hunter with a gun and a scope is a “sniper.” I am not sure I agree with that assessment, but that is not the point I was trying to make.

21 John Fembup 04.16.14 at 12:22 pm

“deal factually with what was actually going on”

gitcarver, please elaborate. What is actually going on?

22 gitarcarver 04.16.14 at 1:02 pm

No Name Guy,

I have seen Facebook feeds linking this picture and describing the fellow as a “true patriot.”

http://boingboing.net/2014/04/15/the-most-mindblowing-photograp.html

(He doesn’t work for the BLM either.)

23 No Name Guy 04.16.14 at 1:14 pm

Git
So both sides had people in the role of snipers, so what? That’s my point. Call the militia / patriot types snipers, also call the BLM ones snipers as well.

Oh and that SOME of the BLM agents were out in the open with their scoped rifles was a show of force. Had the spaghetti (foolishly) hit the fan, you can bet the ones that weren’t in the open (yes, I’d say there were some – only a fool in law enforcement would have shown all their cards) would have engaged from their concealed positions. To believe there weren’t is to be naive of law enforcement tactics in the extreme.

24 gitarcarver 04.16.14 at 2:34 pm

Call the militia / patriot types snipers, also call the BLM ones snipers as well.

But that didn’t happen. It was only the BLM guys who were called “snipers.” The terms used matter in ratcheting up the conflict.

To believe there weren’t is to be naive of law enforcement tactics in the extreme.

I prefer to believe in facts as opposed to conjecture.

25 archibald tuttle 04.17.14 at 3:38 am

KB got it right. This is just what Helen Chenoweth was talking about. An amorphous alphabet soup of armed cowboys with questionable jurisdiction in black helicopters.

Law of the case here sets some legal teeth on edge because Bundy was already behind the eight ball of a court order, but if we’re talking about overlawyered, this is yet another case of making a federal case of something that shouldn’t be. Bundy is clumsy and crochety in refusing to recognize the existence of federal govt. when what shouldn’t be recognized here is their jurisdiction.

This is proprietary land, not a federal enclave. The feds want to evict Bundy. So they should go to state court like anyone else with a tresspass action. Now a fast growing state like Nevada that basically has ranchers like him in the rear view mirror might not have the time of day for him in state court either. The Clark County sheriff couldn’t be bothered. But the Nevada politicians who have taken up his cause recognize this as a case of federal overreach. Where they were for the first 20 years of his case . . .

The federal case here is that he doesn’t just have ‘grandfathered rights’ as some instinctively recognize, but property in the water on the ranch under split estate principles. If the feds are regulating that to disutility, that is a taking. Sadly, the process for vindicating that principle took Wayne Hage over 20 years that included a similar confiscation of his cattle and he didn’t live to see it come to fruition. That is a travesty and it doesn’t surprise me that it breeds contempt for the law.

brian

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