Monday, April 14, 2014

This land is your land

I won't pretend to understand the nuances of the dispute between Nevada rancher Cliven Bundy and the federal Bureau of Land Management. 

The basic facts are these: Bundy and his family own a 160-acre tract of land near Bunkerville, Nevada, northeast of Las Vegas.  Bundy uses that land to raise cattle.  As is consistent with ranching practices in that area, Bundy's cattle have historically roamed freely--freely in the sense of being not limited by fences--off that land onto public lands surrounding Bundy's ranch, which are owned by the U.S. Government and managed by the BLM.  In 1993, the BLM imposed new rules governing grazing in the area where Bundy's cattle roam, partly to protect the habitat of the then-endangered desert tortoise, and partly to reduce overgrazing of the lands.  In response, Bundy ceased paying the grazing fees BLM charges for the privilege of using those public lands for grazing, but did not cease using the land for that purpose.

Over the last twenty years, the BLM has allowed the unpaid fees to accumulate without much action.  The dispute has gone to court twice, and in both cases, the court has sided with the BLM.  According to the fee schedule that went into effect in 1993, Bundy owes the BLM about $1.1 million.  Bundy contends that he owes only about $300,000--calculated under the old schedule--but, more importantly, that he owes the money to the State of Nevada.

Bundy's arguments--which, bear in mind, have been fully considered by the courts and rejected on two occasions--include that the federal government does not own the land; that the BLM lacks the authority to impose grazing fees; that he is the heir to grazing rights established when his family (he alleges) began grazing on the land in 1870; and that he lacks a valid contract with the BLM for grazing, meaning that he has not agreed to the fees.

I have a great deal of experience in dealing with federal judges.  While I have had my differences with some, and while I have on an occasion or two seen judges' prejudices affect their ability to comprehend a dispute and decide it objectively, in my general experience, federal judges do try very hard to examine facts fairly and render decisions that are both correct on the law and fair to the parties.  I have seen nothing that would indicate something different in this case.

In fact, Bundy's arguments appear more akin to the long-discredited arguments of tax resisters and conspiracy theorists, than to carefully considered, legitimate disputes.

As I see it, then, this dispute is relatively simple:  Bundy has grazed his cattle on public land without paying for the privilege of doing so. He owes the money, and BLM is within its rights to prevent Bundy from doing so in the future and to seize--with an appropriate court order--Bundy's assets to pay the debt.

Against that backdrop, however, there is much more serious issue.  As the radical right wing has long threatened to do, Bundy has been supported in his effort by armed individuals who have presented themselves in the area, ostensibly to protest but also to provide armed resistance to the BLM's efforts.  They see themselves as a bulwark against an overreaching federal government bent on taking their liberty away.  (Apparently they believe they have the unrestricted liberty to run their cattle on federal lands without interference.)  Some of them--the amateur Constitutional scholars--have suggested that it is illegal for the government to own the land (it isn't) or to charge fees for grazing (it isn't).  Some have even posited that the BLM's activities are part of a UN/federal government conspiracy to give that land to the Chinese, or some other whackadoodle Dale Gribble fever dream.

After several days of tense conflict and protest, the BLM--which had collected about 350 of Bundy's cattle--backed down, returned the cattle, and withdrew from the scene.  The protesters regard this as a victory, and they no doubt feel emboldened by BLM's withdrawal.

I am conflicted by the BLM's withdrawal.  On the one hand, this is mostly a dispute about money, and it is not worth the spilling of blood that may have ensued if BLM had elected to press its interests.  On the other, we cannot tolerate a situation where an individual can avoid a lawful court order with the assistance of a private army.

Regardless of the withdrawal of the BLM--and I'm certain they will seek another way of enforcing the order--the protesters should not see this as a victory.  They have not proven that they are more powerful than the federal government.  They have proven only that they are willing to provoke an armed conflict in which the federal government is not willing to engage.  Unfortunately, that places them above the law in that sense, because a law we cannot bring ourselves to enforce is not a law at all. 

Moreover, should enforcement attempts resume, and the protesters turn violent, well, that would be war.  And for that, there is a ready remedy in the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

No comments:

Post a Comment