Cliven Bundy

Image Copyright belongs to the Bureau of Land Management, with which I am unaffiliated in any way

Image Copyright belongs to the Bureau of Land Management, with whom I am not affiliated in any way

The standoff between Cliven Bundy and the Bureau of Land Management has been all over the news. As such, there are many, many opinions about it, and just as many misconceptions and misunderstandings. That’s a problem, because ill-informed opinion can turn into tragedy and violence when unleashed into a volatile situation like this. While I’m not so egotistical that I think anyone with deep influence over this situation is listening to me, I nevertheless feel a duty to stand up for truth and the rule of law.

Lets begin with a bit of history.

The area known as the Bunkerville Allotment came into the possession of the United States when it was ceded to us by Mexico at the end of the Mexican-American war. Most of the land in Nevada is still owned by the Federal government, including that area, basically because people didn’t move there and buy it when the Federal government was willing to sell it. As a result, and because Nevada could not afford that much land (and didn’t want to own and therefore be responsible for a bunch of empty desert, anyway), it remained in the hands of the Federal government.

In 1934, Congress passed the Taylor Grazing Act (TGA). It allowed farmers to graze on many areas of Federal lands, provided that they got a permit and paid a fee.

In 1954 or thereabouts, Cliven Bundy and his father began grazing their cattle in the Bunkerville Allotment, paying the fee and keeping up the proper permits to do so.

In 1976, the Federal Land Use Policy and Management Act (FLPMA) was enacted, which superseded the TGA and was designed to put many Federal lands into a multi-use policy, with the general goal of making sure that all of the ways that Federal lands are useful are recognized and protected. This meant that grazing permits were given equal weight to things like recreational or scientific use, or mineral extraction or whatever. Under this Act, the Bunkerville Allotment was classed as “Ephemeral” grazing land, meaning that it only has sufficient forage to be useful as grazing land some of the time. As such, only a limited number of permits are ever granted for use of that land, in order to avoid depleting the forage and permanently reducing the stock available for native animals and whatever other herds need it. At this point, Cliven Bundy was still in compliance with the law.

In 1993, Cliven Bundy decided to stop paying for grazing rights in the Bunkerville Allotment, but continued grazing his cattle there. I’ll let Federal Judge Johnnie B. Rawlinson explain what happened next: “On February 26, 1993, Bundy sent an Administrative Notice of Intent to the BLM, which stated his intent to graze cattle “pursuant to my vested grazing rights.” Bundy sent several more Administrative Notice[s] of Intent in the months that followed. On June 16, 1993, the BLM sent Bundy a letter informing him that his application had not been received to graze livestock for the June 15, 1993 to August 31, 1993 period. The BLM included another application for Bundy to fill out and return.” That appears in the 1998 decision that he wrote when the matter went to court. It would not be the last time it went to court.

The legal battle escalated through the mid 90’s, until as I mentioned a second ago it went to court in 1998. The decision can be found here. Essentially, it is that Mr. Bundy’s claim that the Federal government has no claim to that land has no merit, that he and his cattle are trespassing, and he needs to pay the fees that he owed and stop grazing his cattle there. He ignored that order.

Over the next 15 years, Mr. Bundy not only grazed his cattle in the Bunkerville Allotment but also in several new areas, including the Lake Mead recreation area. The BLM took him to court again in 2013 to demand not only that he stop and pay the feed he owed, but that if he didn’t the government had the authority to remove the cattle if they were still in trespass 45 days after the judgment. The decision is here. That was in July of 2013; as you can guess by the news, they only started trying to round up cattle a week or two ago. That is quite a bit past their 45 day deadline.

So there’s that. A few of the legal questions are pretty well settled just by that chronology, but I’d like to deal with the questions directly as well.

1. Who owns the Bunkerville Allotment?

It appears to be a fairly well settled question that the Federal government owns that land. There are no native tribes in that area that might have a prior claim to ownership, so the oldest claim to ownership belongs to Mexico. It ceded ownership to the United States in the Treaty of Guadalupe Hidalgo, which like all treaties is signed by the President and ratified by Congress. When Nevada was created, that land was not settled, and so by the terms of Nevada’s admission to the Union, in compensation for the fact that its population was so small (and therefore that it could not supply many soldiers for the Army), that land remained in Federal control. Cliven Bundy implicitly acknowledged this when he paid grazing fees from 1954 to 1993; you don’t pay for the right to graze on land you own. He stopped paying for it and asserted his property rights after he acknowledged that he did not have them, thus when the question was put before a Judge, it was decided that the Federal government owned that land.

2. Which court has jurisdiction over the case?

This is also a fairly well settled question. It is a case against the United States Department of the Interior, Bureau of Land Management. Any case where the Federal government is being sued or is suing someone is a Federal case, and has to be decided by a Federal judge. This is called federal question jurisdiction (thanks to my friend Cherry for pointing out that I was misphrasing this earlier tonight). This is stated in Article III, Sec. 2 of the Constitution, which says “The judicial Power shall extend … to Controversies to which the United States shall be a Party;” The United States is a party, so it is a Federal question. In case there is any doubt, Article VI of the Constitution reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Federal law trumps state law when the two are in conflict, in essence.

3. What actions has the Bureau of Land Management taken to try to resolve the situation?

It communicated with Mr. Bundy through letters throughout the period of 1993 to 1998, as well as serving him several notices. In 1997 the BLM offered to sit down with him and work out the conflict; he refused. In 1998 is got a court order for an injunction requiring him to pay a fine, which he did not pay. In 2013, the BLM got a second court order to seize the cattle if they were not moved in 45 days. More than 266 days later, they started trying to round up his cattle. They didn’t act sooner because, “The government contends it could have impounded Bundy’s livestock, but it took no action because any action could have resulted in physical confrontation.” This was in 1998. The following sentence is also worth noting, “The government has shown commendable restraint in allowing this trespass to continue for so long without impounding Bundy’s livestock.” I think Judge Rawlinson said this because at no point did the BLM actually need a court order to impound his cattle; they were unambiguously trespassing, and therefore the BLM was within its rights to remedy the situation through any reasonable remedy. The FLPMA allows for the impoundment of trespassing livestock, so they never needed to take him to court. They only did, I imagine, to try and avoid what has happened anyway – a physical confrontation.

There are more questions, I’m sure, and I’ll get to them in time but this ought to be enough to combat some of the myths that are floating around about this situation. I feel there’s a larger story to tell about Cliven Bundy himself and his role in this, as well as the role in citizen militias and how this relates to the rule of law, but that will have to wait for another time.