Cliven Bundy: Hero or villian?
May 9, 2014
It would be unusual for a Nevada resident to have not heard of Cliven Bundy, although a month ago I couldn't make that statement. Since his historic standoff with the BLM, he has been called both villain and hero. I have watched local and national news and can't help but notice the incomplete or completely lacking information used to develop media positions. Hopefully, I can shed some factual light on the issues.
As a refresher, Mr. Bundy is the last BLM permittee in Clark County, the others having been bought out or forced out of business since the desert tortoise was listed as endangered. The BLM showed up with over 100 personnel, many armed, to gather about 500 head of cattle for nonpayment of grazing fees. Media exposure and the arrival of over 200 citizens, many armed, caused the standoff to end and gathered cattle were released.
Before I go any further, Mr. Bundy assumption that prevailing once over the government validated his views on all things political backfired badly on him. He learned the hard way that an unfriendly media can turn what could be viewed as a relatively harmless support for a viewpoint into a negative. Mr. Bundy should stick to the issue at hand.
I am not an attorney but have found it necessary in the course of work to become familiar with public lands grazing. There are two main issues in my layman's view. The first is the issue of grazing fees. Mr. Bundy has not paid the BLM since 1998 but has reportedly attempted instead to pay Clark County each year.
Uses of BLM and Forest Service AUM fees are determined by law. Half of the fee is to be used to improve ranges in the areas from which they are received, with input from area grazing boards made up of local permittees.
According to Mr. Bundy, he quit paying the BLM when they quit using the fee revenues as required. In other words, the BLM supposedly chose not to follow their own rules for grazing fee use yet still demand the fee. Does this make Mr. Bundy's decision not to pay the fee right? You'll have to make up your own mind.
The second thing omitted by all media reports I saw was a landmark case called Hage vs. U.S. They state repeatedly that the land is under federal ownership. It is and it isn't. The Supreme Court in 2002 determined that Hage has a prescriptive right in grazing ownership interest in public lands, which I term a "possessory interest."
The simplest analogy I can think of, although much less complex, is that of your house. You have certain rights that go with ownership. If you rent the house, you cede some of those rights to your tenant. You may also not own all of the mineral rights or air rights. Your ownership is subject to taxes and maybe land use restrictions such as zoning.
Absolute ownership of property is called freehold and is extremely rare in the U.S. The federal government ceded several rights to the land by various laws that are the foundation of the Hage case. These include the Homestead Act, Taylor Grazing Act, and the Acts of 1866 & 1870 that provided easements over federal land and recognized existing uses. Remember the Sagebrush Rebellion in the 1980's when Nye County bladed a road in the Toiyabe Range that the Forest Service had closed? Nye County said it was their road. According the Hage case, they were right.
Reportedly the BLM told an outside party that they went to Federal Court for unpaid fees. They did not pursue actually revoking his grazing interest because they feared that he had prescriptive rights. In other words, they think he may have a valid ownership claim via the Hage case so instead tried to bully him into ceding his livestock. It almost worked.
These are the basic facts as I understand them. Now you get my opinion. The BLM and Forest Service have long ignored any law or decision they don't like, and stretched the laws they to like to the limit. Maybe that is where Obama got his methods. From off-road vehicle restrictions to wilderness study areas (defacto wilderness designations) to reducing livestock grazing by almost 50 percent since 1978, they have run amok.
They have bullied and bluffed too many for too long. After the Sagebrush Rebellion they became easier to deal with. Maybe it is time for another one, but this time demanding state management of federal lands.
Tom Riggins is an LVN columnist.