What the Oregon Standoff Is Really About
Forget the Bundys and "terrorism"—the real crime is what federal bullies do to ranchers like the Hammond family.
This is their story.
Dwight Hammond and his wife Susan bought their ranch in 1964. The Hammond ranch consists of 6,000 acres, grazing rights in four areas on public land, and rights at three separate water sources. They live in a small ranch house—a beautiful structure of stone and hand-hewn wood—on the property.
The land sits in Oregon’s Harney Basin, an area first settled at the tail end of the 19th century. While the narrative we are getting in the media depicts the ranchers as despoilers of the land, implacable enemies of the Malheur Wildlife Refuge established by Teddy Roosevelt in 1908, the true history of the region shows that the “cowboys” who lived there and ran as many as 300,000 head of cattle were in fact its best defenders. Without them, there would be no Malheur Wildlife Refuge.
As the cattlemen developed an elaborate irrigation system in order to feed their herds, what had been a huge swampland surrounding Malheur Lake was transformed into rolling meadows, wildlife flocked to the area, and it became a favored spot for migratory birds. In 1913, however, the Oregon state legislature passed the Thompson Act, which authorized anyone who won approval from the Land Board to drain any lake and “reclaim” it for development. Drainage districts were established all over the state, and taxes were extracted from landowners in order to further approved development schemes. The Oregon Swampland Act created a “Reclamation Service,” which surveyed and facilitated the drainage of riparian areas, applying for title to lands owned by the federal government, which would then be turned over to developers who envisioned selling plots for agricultural purposes. (As it turned out, however, the land around Malheur Lake was too salty for crops to grow, but since no one had bothered to investigate, this wasn’t discovered until much later.) In 1913, the year the Thompson Act was passed, there were no fewer than eight attempts to drain Malheur Lake filed with the Reclamation Service.
These efforts were thwarted by the ranchers, represented by the Pacific Livestock Company, who contested the water rights and fought the developers to a standstill. As Nancy Langston puts it in Where Land and Water Meet: A Western Landscape Transformed: “What saved the Malheur Refuge from being destroyed by drainage along with other federal refuges in the region were precisely its tangled water rights and the stubbornness of local ranchers.”
Yet the federal officials who today preside over the refuge don’t remember or don’t care to recall that it was the ranchers who saved the land from being despoiled. Imbued with what can only be described as an imperialistic impulse, the feds have relentlessly sought to expand the refuge, using every method, legal and illegal, to drive them off the land.
As Ammon Bundy explains on his blog, in the 1970s the Bureau of Land Management (BLM) and the Fish and Wildlife Service (FWS) launched their campaign of conquest: ranchers were informed that grazing was inimical to wildlife and had to be reduced, if not eliminated. Out of a total of 53 permits, 32 were revoked; grazing fees were raised sky-high, and many ranchers were forced to give up their land. The irrigation system they had created and which had attracted birds and other wildlife to the area was appropriated by the refuge. While the original refuge established by Teddy Roosevelt included only Malheur Lake, and neither the rivers whose waters flowed into it nor most of the land surrounding it, today it covers some 187,000 acres, completely surrounding the Hammonds’ ranch.
Those who held on, including the Hammonds, were continually pressured to sell, but the hardscrabble ranchers—who had fought the developers, the state politicians, and the forces of nature to preserve their land and their way of life—were not about to surrender to an army of bureaucrats and the urban elites who ran the environmentalist lobby. Their answer was a firm: no way, no how.
As 1980 rolled around, the feds came up with a new battle plan, taking a leaf from the playbook of the Israelis, who have seized Palestine’s water and dole it out in dribs and drabs to their Palestinian helots. The FWS was keen to acquire privately owned land on the nearby Silvies Plain, so the refuge diverted the water, channeling it into Malheur Lake. Water levels rose, soon doubling, and over 30 ranches on the plain were utterly destroyed: homes, barns, and the verdant pastures on which cows once grazed were under water.
This broke the back of the rancher resistance: most came to the FWS and gave their land away for a song. It wasn’t until 1989 that the waters began to recede. By then the entire plain was in the grasping hands of the refuge.
Still the Hammonds refused to sell, and along with a few other holdouts they began to develop a strategy of resistance. Susan Hammond, the matriarch of the family, began to research how the refuge managed its considerable resources. What she discovered was that the ostensible purpose of the refuge—to provide a habitat for birds that might otherwise be endangered—was ill-served by refuge personnel. She dug out a 1975 study conducted by the FWS itself (as Bundy’s blog notes), which showed that the policies pursued by the refuge and allied federal bureaucracies were driving the birds away. It turned out that private lands bordering the refuge provided a haven for four times as many geese and ducks as the federally held lands. Migrating birds turned up their beaks, so to speak, at the refuge and were 13 times more likely to alight and breed on ranchers’ land.
One of the reasons for this is that federal overseers have allowed carp to take over the waters of Malheur Lake and the streams that feed into it. Massive numbers of carp have invaded and destroyed a habitat which once contained grasses and aquatic plants that provided birds and animals with a steady diet. No more. As Oregon Public Broadcasting put it:
Scientists say Malheur Lake once provided expansive habitat for waterfowl and other migratory birds along the Pacific Flyway.The refuge, the BLM, and the FWS profit from this disaster by hiring commercial fisherman to come in and catch the carp, which is then sold in areas of the country where immigrant communities for whom carp is a favored foodstuff buy it. Forget the birds: it’s the carp that bring in the money.
That was before common carp were introduced to the lake. These fish are native to Eurasia. Malheur wildlife biologist Linda Beck says the common carp was brought to the lake as early as the 1920s, likely as a reliable food source for people living in this arid region…
Now the shallow Malheur Lake is mostly brown, open water, free of the plants that provide food, shelter and nesting grounds for the birds… The lake’s estimated carp population runs in the millions.
Another big problem—one that would come to figure prominently in the Hammonds’ legal problems—is the invasion of junipers, which are crowding out other plant species and turning what were once fields—maintained by ranchers, who regularly cleared the land for grazing—into forests. Junipers suck up water at an amazing rate, and the result is that those fields have now turned into desert. For years, environmentalists objected to cutting down the junipers because it might encourage grazing on “public” lands, and the federal bureaucracy’s “no use” policies encouraged the juniper invasion, which has now conquered over 6 million acres. Finally, the BLM got wise to the problem, but as with the carp invasion, they reacted far too late. This is another reason why the refuge is not popular with the bird population, who are losing their habitat and being driven out—along with the ranchers.
And it isn’t just the junipers that are hogging all the water. In the early 1990s the Hammonds applied for and were granted water rights in an area adjacent to the Refuge by the state authorities. The BLM and FWS went ballistic, with the latter challenging the water rights in Oregon State Circuit Court. They lost—and that’s when the bureaucrats really starting going after the Hammonds.
Not long after being told by a judge to back off, the BLM and FWS fenced off the Hammonds’ water—a brazenly illegal act. The Hammonds struck back, dismantling the fence: the feds called in the Harney County sheriff, who arrested Dwight Hammond. Charged with “disturbing and interfering with federal officials,” a felony, Dwight was jailed for two days. Brought before a federal judge, he was released without bail: the hearing was at first postponed, and then it looks like the government was so embarrassed by the illegal actions of the BLM and FWS that they forgot to schedule another hearing date. The whole matter was dropped. But the feds had sent a message to the Hammonds—that the government would not be bound by the law.
The lawless behavior escalated. The FWS declared that the Hammonds would no longer have access to a road that enabled them to get to the northern reaches of their land: the only road went through the refuge. The road was barricaded, and FWS officials threatened the Hammonds, warning that there would be consequences if they tried to use the road. But that tactic backfired in the feds’ faces when it was discovered that the road was owned by Harney County, not the refuge.
Undeterred, the Energizer Bunnies of the federal bureaucracy revoked the Hammonds’ grazing permit without cause, bypassing any legal procedures. According to Oregon state law, owners of livestock are not required to keep herds within a fence or control their movements. But the law doesn’t apply to vindictive bureaucrats: a federal judge ordered the Hammonds either to fence their land or stop grazing. They were effectively forced to give up grazing on half their land.
This was a major blow: it forced them to sell their ranch in order to feed their cattle. They purchased property with sufficient grass and with grazing rights on “public” land. The government soon counterattacked, however, and the grazing rights were arbitrarily revoked.
When the new owner of the Hammond ranch suffered a heart attack, the Hammonds managed to reacquire it. But their battle was far from over. Indeed, it had just begun.
In early fall 2001, the Hammonds called the local fire department and received permission for a controlled burn on their own property: this is a common method of controlling invasive growth, and in this case it was aimed at getting rid of the junipers that were invading from the neighboring refuge—where little effort had been made to eradicate them—and gaining a foothold on the Hammond ranch. That fire burned out of control onto refuge land; the Hammonds put it out with no help from the BLM or refuge personnel. They didn’t hear from the BLM or any other government agency until charges were brought 13 years later. Remarking on the incident, the judge said:
Well, the damage was juniper trees and sagebrush, and there might have been a hundred dollars [in damages], but it doesn’t really matter. It doesn’t affect the guidelines, and I am not sure how much sagebrush a hundred dollars worth is. But I think … mother nature’s probably taken care of any injury.The Tri-State Livestock News quotes Susan Hammond as saying:
“We usually called the interagency fire outfit—a main dispatch—to be sure someone wasn’t in the way or that weather wouldn’t be a problem.” Susan said her son Steven was told that the BLM was conducting a burn of their own somewhere in the region the same day, and that they believed there would be no problem with the Hammonds going ahead with their planned fire. The court transcript includes a recording from that phone conversation.Court testimony from a prosecution witness, a range conservationist, elicited the statement that the burn had “improved the conditions on the BLM property.” Environmentalists had put pressure on the BLM to cease controlled burns, and the conditions on the range had deteriorated, so that not only did the juniper invasion increase but fires that did break out due to lightning or other factors burned much hotter, sterilizing the soil and leading to a profusion of weeds. When the problems became all too apparent, the BLM started a program of controlled burns. According to Erin Maupin, a former BLM watershed specialist and range technician, due to the intermingling of public and private land, “collaborative burns” are much more effective, as opposed to trying to follow property lines. This is precisely what the first fire was all about: not “arson,” but rational land management.
The second fire Dwight and Steven Hammond were charged with starting occurred in 2006: it happened during a lightning storm, and according to Susan Hammond the reason was to protect their home and property: “There was fire all around them that was going to burn our house and all of our trees and everything. The opportunity to set a back-fire was there and it was very successful. It saved a bunch of land from burning.”
According to the feds, a grand total of one acre of federal land was affected, although how this conclusion was reached is hard to say because fires were burning all over the place during the fierce lightning storm. The Hammonds’ neighbor, Ruthie Danielson, confirms this: “Lightning strikes were everywhere, fires were going off,” she said.
The morning after the fire, according to Ammon Bundy’s write-up, BLM agents filed a police report with the Harney County Sheriff’s office, charging Dwight and Steven Hammond with arson. A few days passed without any action on the part of the authorities, until a BLM ranger called Steven and asked to meet with him in the town of Frenchglen “for coffee.” As Steven was leaving the meeting he was intercepted by the sheriff and a BLM ranger, arrested, and told to go back and collect his father, who was also being charged. Both were booked on several charges—essentially the same charges that would be brought five years later, minus the “terrorism” angle. The case was reviewed by the district attorney, who deemed the accusations unworthy of prosecution: all charges were dropped.
In a just world, that would have been the end of the story. In the world we are living in, however, it was the beginning of the end for the Hammonds.
In 2011, the U.S. attorney’s office, responding to agitation from the usual suspects, filed charges against Dwight and Steven Hammond under the Clinton era “Anti-Terrorism Effective Death Penalty Act of 1996,” which carries a minimum sentence of five years in prison for doing damage to federal property. The “Death Penalty” part is included because that’s the maximum penalty: the bill was passed in response to the bombing of the Oklahoma City federal building.
The government brought nine charges against the Hammonds, including several alleged arsons over the years, conspiracy, utilization of aerial surveillance to further a “terrorist” act, and trying to destroy government property including vehicles and fences.
Locals were kept off the jury: some jurors had to drive for close to four hours from Pendleton, 196 miles away. The prosecution was given all the time in the world to make their case: the defense was given a single day, and much testimony was disallowed. However, the testimony of Dwight’s estranged grandson, Dusty Hammond, who was 13 at the time of the fires, and was 24 when he testified, was permitted. Dusty had been having mental problems for some time, and the judge himself admitted that the grandson’s testimony was “unreliable.” Dusty’s testimony was the basis for the government’s assertion that the first fire was started in order to cover up evidence of poaching on federal land: he claimed that he was told to start a fire.
Neither judge nor jury bought this testimony, yet it is being broadcast all over the place as “proof” the Hammonds are malicious “arsonists.”
On June 22, 2012, the jury threw out or deadlocked on all the charges but two—the two fires the Hammonds admitted to setting. In sentencing them, Judge Michael Hogan declined to impose the minimum sentence, which is five years under the “Anti-Terrorism” statute, averring it would have been “grossly disproportionate” to the crime. He remarked that such a sentence would “shock my conscience,” and furthermore contended that Congress never meant to apply the act in cases like this one.
Dwight Hammond was sentenced to three months: Steven was given a year and a day. The sentence was handed down contingent on the understanding that they would not appeal the court’s decision. They were also fined $400,000—this in spite of the judge’s admission that the total damage amounted to about $100. Failure to pay the fine would result in confiscation of their ranch by the BLM, which had been the goal of the government’s long war against the Hammonds all along.
Both served their sentences and returned to the community. But the government wasn’t through with them—not by a long shot.
In June 2014 Refuge Manager Chad Karges, BLM Field Manager Rhonda Karges, his wife, and Assistant U.S. Attorney Frank Papagni, who had prosecuted the Hammond case, filed an appeal of the sentencing with the Ninth District Federal Court, demanding that the full sentence of five years mandated by the Anti-Terrorism and Effective Death Penalty Act be imposed. With Dwight and Steven out of the way, the ranch would be sure to fall into the government’s hands: failure to pay the $400,000 fine by the end of 2015 would result in confiscation of their ranch. To my knowledge, they’ve only paid half that. Furthermore, the Hammonds were forced to give the BLM the right of first refusal if they ever did sell their ranch in order to pay the fine. In either case, the land-grabbing BLM will have achieved their decades-long goal: seizure of the Hammond ranch.
There is no resentencing in a case of this kind without the approval of the Justice Department: clearly the intent here was to make an example of the Hammonds, to send a message that any resistance to the federal government’s aggressive tactics in their long war against Western ranchers will be mercilessly crushed. The Ninth District judge, one Ann Aiken, got the message and ruled that the Hammonds be returned to jail for the full five year term, minus time already served.
Another factor in the unusual sentencing appeal was the stance of Amanda Marshall, former U.S. attorney for Oregon, who while still in office denounced the original sentence as “unlawful.” It was she who formally authorized the appeal. Marshall has an interesting history: she had never served as a federal prosecutor prior to her appointment by the Obama administration. Her previous employment was as a “children’s advocate” in the Oregon Department of Justice. Prior to that she was a deputy district attorney in Oregon’s Coos County. She resigned her U.S. attorney position last April, claiming to be suffering from “post-traumatic stress disorder.” The “trauma” here was no doubt the scandal surrounding her stalking of Assistant U.S. Attorney Scott M. Kerin, who says she had been bombarding him with unwanted text messages, phone calls, and other communications for over a year. Kerin filed a hostile workplace environment complaint against her, claiming she followed him after work hours, and drove by his house, in addition to sending numerous emails. The Justice Department launched an investigation, withdrawing Marshall’s security clearance and essentially making it impossible for her to continue as U.S. attorney.
A U.S. attorney whose mental stability is at least questionable, a vindictive cabal of government bureaucrats intent on stealing property they have long coveted under color of “law,” and now a howling lynch mob of left-leaning Twitterers, who hate rural folks and especially ranchers who are professed Christians—these are the people who are celebrating the martyrdom of the Hammonds, denouncing them as “arsonists” and “welfare bums” out to steal public land.
While the focus among vaunted “civil libertarians” is the resentencing and mandatory minimums, the fact is that the Hammonds should never have been prosecuted to begin with. Their long agony is a clear case of government persecution motivated by avarice and politics—for this is a warning to anyone who opposes the federal government’s campaign to retain and expand its ownership of huge swathes of Western land. Consider the scope of their Western empire: they currently control more than 80 percent of Nevada; approximately half of California, Utah, Oregon, Idaho, Arizona, and New Mexico; 42 percent of Wyoming; 36 percent of Colorado; and 30 percent of Washington and Montana.
And, as the Hammond case dramatizes, they want more.
The response of the defenders who are rallying around the Hammonds and demanding the privatization of the refuge is an act of civil disobedience that is both heroic and pathetic: the former because it limns what would have been the response of ordinary Americans in better days, and the latter because those days are long gone. I would not be in the least surprised if the feds go in there, guns blazing, while our urban elites and their lower-middle-class imitators dance around the resulting bonfire, just as they did during the Waco massacre.
Justin Raimondo is editorial director of Antiwar.com.