Federal Court Smacks Down Bundy Land-Seizure Theories

On February 27th, Judge Gloria Navarro of the U.S. District Court of Nevada handed down a ruling with major implications for Cliven Bundy and his allies in the land-seizure movement. The ruling assessed $587,294.28 in penalties against rancher Wayne N. Hage who, like Cliven Bundy, was trespassing his livestock on federal public lands for at least 12 years without a permit and without paying fees. The ruling also requires the rancher to permanently remove any remaining livestock on federal public lands within 30 days.

It was the last gasp of a family feud against public lands that began with Wayne N’s father,  E. Wayne Hage. The elder Hage engaged in a decades-long legal battle with the federal government, making him a central figure in the early sagebrush rebellion days. He fancied himself something of a legal scholar, authoring a book laying out his theories in 1989.

The Hage case was a replay of federal legal actions taken farther south in Nevada against Cliven Bundy, who likewise is trespassing his cattle on federal lands closed to livestock grazing, and which led to the armed standoff between armed militias and federal officials at Bunkerville, Nevada in 2014. Two of the armed participants backing the rancher in that standoff, Jerad and Amanda Miller, subsequently were arrested for the murder of two off-duty police officers at a shopping mall in Las Vegas. The Bundys currently are on trial in Nevada for their involvement in the Bunkerville incident.

The Bundy rabble is fueled by a bundle of fanciful notions. Some believe that the federal government has no right to own land in the United States under the Constitution. Others have proposed that federal and state governments have no authority, and only county sheriffs have the right to enforce laws. The Hages proposed that the establishment of state-based water claims gives a rancher de facto ownership of the surrounding federal lands. Others held that grazing livestock on federal lands conveys a property right to those lands (and even to the point of posting ‘no trespassing’ signs and keeping federal officials out). Some of these crackpot legal theories are being peddled around the West by Angus McIntosh, a self-proclaimed legal expert with a background in agricultural economics who headlined a series of presentations while the Bundys’ armed occupation was underway at Malheur National Wildlife Refuge in January of 2016.

To critics, these assertions amount to treason, and their heavily-armed proponents are seen by many as domestic terrorists.

Judge Navarro’s ruling contains some blistering rebukes to these legal theories. “Ownership of state-based stockwater rights located on federal land does not confer the right to place livestock on federal land or to use forage without a permit, nor does it create an exception to the prohibition against placing or allowing livestock on federal land without authorization,” says the ruling, citing to legal precedents set in previous cases. Even the privilege of leasing of federal forage for livestock grazing is limited, because “Congress explicitly chose not to grant rights for livestock grazing or the use of forage on federal land” and “[p]ast custom and use does not confer a right to use federal rangeland.” Finally, Judge Navarro gave the Hage family a schooling on Constitutional law: “Any and all rights on federal property must be expressly granted by Congress and the law of the United States exclusively governs the disposition of federal property, and interests therein, under the United States Constitution, Article IV.”

The courts are the real experts on federal law, and the uncommonly strongly-worded legal smackdown administered by Judge Navarro shreds the flimsy claims of legal legitimacy to which land-seizure proponents have been clinging.

But Congress can always pass new laws, and the Bundy gang has aligned itself with anti-environmental factions in Congress, particularly the Utah congressional delegation. This anti-environmental caucus, styling itself the “Federal Lands Action Group” or FLAG, is working to privatize public lands, transfer them to the states, or hand over management authority to state or local governments. These legislative attacks on America’s public lands are backed by corporate interests tied to big-money lobbying firms like the American Legislative Exchange Council, Federalism in Action, the Heritage Foundation, and the State Policy Network.

Arrayed against all this dark money and anti-conservation intent are the real landowners – the American public. Across the United States, and even in rural western counties, an overwhelming majority of Americans treasure and support their federal public lands, and have been rallying in western state capitols against efforts to take these lands away. So far, the failure of state land seizure legislation to spread much beyond Utah makes this a fringe political movement. Even in Utah, the public is pushing back in defense of their federal lands in angry town hall meetings, and there is an exodus of the recreation industry from Utah in recognition that the state government is an entrenched enemy of the public lands upon which the recreation and tourism sectors depend. The anti-public-lands agenda espoused by the Bundys and Wayne Hage seems to be retreating in disarray.

Yet anti-public-lands statements are proliferating on Capitol Hill, and it remains to be seen whether Interior Secretary Zinke and the Trump administration will live up to their Teddy Roosevelt rhetoric or switch sides and join in the far-right push to liquidate public lands in the West.

The next chapter in the Bundy tale, and whether political leaders in Washington will take up the Bundy battle to deprive Americans of their western public lands, will be written over the next several years. In an interesting twist, Judge Navarro is now hearing the criminal case against Cliven Bundy and his allies involved in the Bunkerville standoff. Stay tuned.

Erik Molvar is the Executive Director of Western Watersheds Project, a nonprofit environmental group working to protect and restore western watersheds and wildlife.

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