Joseph E. Taylor III Leisl Carr Childers

What Happens Now That the Bundy Trial is Over?

In the wake of the shocking outcome of the Bundy trial, two scholars weigh in on its possible ramifications. 

“The Mess, Put Succintly” by Joseph E. Taylor, III

Last month I took my fourteen-year-old daughter to Shakespeare’s Julius Caesar. Afterwards I asked her what she thought of all the rationalizations, manipulations, and stabby-stabby. She replied, “Who were we supposed to root for?”

I recalled that moment yesterday when I learned that Chief U.S. District Judge Gloria Navarro had dismissed all charges against Cliven Bundy, his two sons Ammon and Ryan, and Ryan Payne. Although the ruling is not yet published, quotes from Navarro’s decision, which took a half-hour to read aloud in a Las Vegas courtroom, ought to be read by everyone who cares about a case that started with Cliven Bundy not paying his grazing fees.

Do not listen to Bundy, who is delusional about the U.S. constitution and sovereignty, and do not listen to environmentalists, who are cultivating apocalyptic fears. This case turned on prosecutorial incompetence, bureaucratic blundering and abuse, and dumbass policy decisions made two decades ago. Like Shakespeare’s play, there are no good guys.

So, let’s start at the beginning in 1980 with the Santini-Burton Act, and in 1998 with the Southern Nevada Public Land Management Act, both of which empowered the BLM to sell lands in Nevada and use the revenues for recreation and land consolidation. The course of this legislation has always been controversial, but Clinton-era policy decisions worsened matters.

The SNPLMA was designed to fuel the growth of Las Vegas. The problem was that the lands being sold were desert tortoise habitat, which is protected by the Endangered Species Act. Interior Secretary Bruce Babbitt nevertheless agreed to transplant the affected tortoises to nearby rangelands. From there, Babbitt wrote, “it remained only to purchase a few scattered private tracts, mostly old homesteads in the outlying areas, and to retire the grazing rights.” Uh huh.

For Babbitt, this was enlightened environmentalism. Some ranchers did sell. One who famously or infamously resisted was Cliven Bundy, the patriarch of a Mormon family with a long and vexed relationship with the federal government and a twisted notion of the Constitution. Bundy balked at selling and paying his grazing fees, setting up the confrontation at Bunkerville, Nevada, when BLM agents tried to confiscate his cattle.

For those who only tuned in spring 2014, the ensuing confrontation seemed like a classic example of an anachronism rebelling at environmental stewardship, or a tyrannical government oppressing a working family. There was no nuance. There was no middle ground. Armed federal agents met armed resisters, and the government backed down. The warrants remained, however, and years later the leaders and many participants were arrested. Some plead, others had their day in court. Shockingly to many non-rural and non-western observers, the Bundys and Payne walked out of the courtroom yesterday, as Cliven Bundy put it, “free men.”

The reactions were overdetermined. Conservatives crowed, and the Bundys declared Judge Navarro’s ruling divine justice. Environmentalists predictably predicted the end of civilization. A few also condemned the Mormon Church. But the ruling is far narrower than either side admits. The decision to throw out the case turned on the rules of discovery. Navarro concluded that prosecutors withheld evidence in a “reckless disregard to fulfill . . . constitutional duties,” and that “a universal sense of justice has been violated.” This was not an endorsement of Bundy’s ideology; nor was it comfort for federal prosecutors, who are rightly being investigated by the Attorney General’s office. Among the gleanings of evidence belatedly released, the Portland Oregonian found that BLM personnel intimidated and assaulted members of the Bundy family and overstated the environmental threat that Bundy’s cattle posed to tortoises. The case was a mess, and, even if prosecutors had been less inept, conviction was not a slam dunk.

Where things go from here is a mystery. Federal bureaucracies are not particularly adept at learning from mistakes, let alone culture change. Zealots like the Bundys, imbued as they are with a messianic certitude about their conspiracy theories, seem impervious to reason and fact. Partisans on all sides confirm an observation made by J. K. Rowling: “people find it far easier to forgive others for being wrong than being right.” It’s also the case that Bundy’s cattle are still grazing on federal lands, and he still owes back fees and penalties. A little more humility, and a lot more curiosity, would go a long way toward getting Americans to grasp the messiness of this episode. Like my daughter after that play, I’m still not sure who we ought to root for, except probably Judge Navarro.

“Disturbing Conclusions,” by Leisl Carr Childers

This is definitely the Upside Down, that alternate universe in Stranger Things. It has to be. This week not only did Chief U.S. District Judge Gloria Navarro rule the case against Cliven, Ammon, and Ryan Bundy, and 3 Percenter Ryan Payne a mistrial, she did so with prejudice, stating “The court finds that the universal sense of justice has been violated.” Navarro especially cited the prosecution’s failure to turn over evidence critical to the defense a violation of due process.

What happened? What in the world was the prosecution thinking? It was almost as if prosecuting attorneys and the defendants’ lawyers—Ryan Bundy represented himself—spoke completely different languages. Where prosecutors regarded concealed cameras for surveillance and patrols as normal law enforcement activities, defense attorneys saw grounds for self-defense. Except self-defense isn’t actually applicable when those being surveilled commit crimes. But was it a crime for the Bundys to impede federal law enforcement from rounding up their cattle? There’s twenty years of evidence that indicates the Bundys were indeed in violation of the law. Prosecutors tried to limit self-defense theories in court, but it didn’t matter because they withheld evidence.

The ruling made moot both the armed standoff at Bunkerville and the claims by both the federal government and the defendants. The case sets no legal precedent. Its outcome failed to answer any real questions about the use and management of federal lands. Neither did it legalize armed resistance to federal authority. But the reality is, in lieu of a definitive decision, this mistrial with prejudice has left a vacuum. Which narratives will fill it?

Already, the Bundys and their supporters have rewritten the narrative of what happened at Bunkerville to validate their faith, their political ideology, and their actions. The verdict also has tacitly sanctioned the supremacy of local authority on public lands, which means the $1 million or so in grazing fees and fines that the Bundys owe will never be paid. At least that is what the Bundys hope it means. Even if they are wrong, it seems likely that another effort by federal agents to confiscate the family’s cattle, which are still wandering the former Bunkerville allotment, will result in another altercation.

Among federal officials and conservation groups, the fears of this rule establishing a precedent for armed resistance to land managers and field agents is very real. Can you imagine being an employee of the Bureau of Land Management in Nevada right now?

The court decision could even impact future negotiations over federal land management in Southern Nevada. The Bunkerville allotment, which has been closed to grazing for the past twenty years, sits inside the new Gold Butte National Monument. For the moment discussions are on hold regarding the monument pending the Trump administration’s final decision on the protected area’s boundaries. Interior Secretary Ryan Zinke has recommended shrinking the size of the monument “to ensure that the monument reservation is limited to the smallest area compatible with the protection of the objects identified and protect historic water rights.”

That bodes particularly well for Cliven Bundy and his ranch operation. The family patriarch has title to nearly a dozen vested water rights that can only be acquired through forfeit or abandonment. No grazing range in Nevada is usable without such rights. How else would the cattle be able to drink in the desert?

Conversely, the Bundys will have to prove that the rights remain viable. In 2017, the Nevada State Legislature—not the federal government—ordered water right holders to file proof of ownership and to update pumping systems to measure more accurately actual water flow. The Bundys have until 2027 to meet these requirements. If they fulfill the state mandates, the family will continue to hold water rights on a grazing range that may or may not exist. In the meantime, the cattle are still on the range.

So where does this leave us? We are definitely in the Upside Down. It’s going to take some time to figure out how to get back to our own universe.

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3 comments on “What Happens Now That the Bundy Trial is Over?

  1. Wednesday, January 10, 2018
    PRE-EXISTING VALID RIGHTS UNDER ATTACK BY GOVERNMENT(S)

    Pre-existing valid rights are under attack by government(s).

    Listen up folks. Please.
    I FINALLY connected the dots respective of government attacks against its citizenry.
    It’s all about Pre-existing Valid Property Rights.
    Government continuously and blatantly ignores the pre-existing valid rights of Private Property Owners!
    Here are some examples: DOI, USDA, EPA violated pre-existing valid property rights of individuals including Cliven Bundy, Dwight Hammond, John Duarte and Delane Griffin.
    Government ignores pre-existing valid property rights of Water Rights Owners in Colorado (and likely all states west of the 100th meridian).
    How’s that?
    In simple, Colorado’s 1969 Well Registration and augmentation plan, was created to PROTECT EXISTING Water Rights.
    In other words, Judge Roger Klein’s WAS (Well Augmentation System) decision to close wells, so order 100% augmentation and make up for past depletions going back to 1976, applied ONLY to wells popped AFTER 1969!
    Not one well, pre-dating 1969, should have been shut down, expected to 100% augment, or make up for past depletions!
    Furthermore, think on this: If Judge Roger Klein thought Senior Water Rights Owners had committed a crime deserving of “shut down your well” punishment, then where the hell were the state water engineers from 1976 to 2006? Complicit? Eyes diverted? Where?
    Not one American Citizen (like the Bundy’s, Hammonds, Duarte, Griffin, Senior Water Rights Owners) should ever have to shoulder the cost of protecting themselves from their own government.
    Government is destroying the pre-existing valid rights of countless private property owners in America.
    I can give you my thoughts on why, but will save them for another write.
    Damn’t all folks, please think on this: Who protects, Pre-existing Valid Rights of Private Property Owners, from government attacks?

  2. In other words Joseph, you approached this inaccurately by ignoring Bundys “pre-existing valid rights.”

  3. Sorry, but no. The only “pre-existing” rights belong to Indigenous peoples. By the terms of the “Discovery Doctrine,” a concept rooted in ancient European law and articulated fully in American law in 1824 by Justice John Marshall in Johnson v. M’Intosh, native peoples retained rights to all lands and resources until such time as the government acquired those rights legally via conquest or session, usually via sale or treaty or both. At that moment the state gained and held title until such time as it relinquished it through sale or cession to another government, corporation, or individual. No other form of title has or can supersede this process. Legal title does not precede the state in U.S. law. As a subset of that, water adjudication in Colorado or anywhere must still be confirmed through a state-mandated process. Title isn’t like Captain Piccard in Star Trek, where you just wave your arm and command, “Make it so.”

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