Crazies or Patriots?
We hesitated to weigh in on this issue last week even though it was breaking news. Our initial reaction was one of non support, then after a little digging into the background of the Hammond story we began to understand that there were some serious problems with the Hammond prosecution and why so many patriots were flocking to the cause.
This You tube video by a lawyer/talk show host lays things out very well as far as the overreaching federal government aspect. Indeed Article One, Section Eight has been a concern from the beginning of the Tea Party movement and a simple reading of the Constitution indeed shows that federal ownership of vast swaths of property in the U.S. is hardly necessary nor is it Constitutional. Oregon has control over less than one third of the land in that state despite Article One, Section Eight’s requirement that the feds purchase land from the states on a volunteer basis:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”
Nationwide it is said that the federal government owes nearly one third of all land, a number so vast that the interpretation of the necessary and proper clause that follows this clause seems hardly reasonable:
“The Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The lawyer brings up the only other possible section that can be used to support the owner ship of vast amounts of land by the federal government, Article Four, Section Three which is very brief:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Now it seems clear that Article Four, Section Three refers only to the lands owned under the auspices of Article One, Section Eight where the Constitution specifically outlines the 18 enumerated powers given by the states to the federal government.
The lawyer makes a valid point that once a territory becomes a state all the land within the boundaries of that new state are now property of the new state, excepting the land and buildings authorized by the Enumerated Powers clauses of Article One, Section Eight. She also makes the point that the feds own nothing but hold every federal property in trust for the states. The point is also made about the “equal footing” doctrine, Constitutional interpretation handed down by the Supreme Court originally in Coyle v. Smith, 221 U.S. 559, an Oklahoma lawsuit over the moving of the State Capital from Guthrie to Oklahoma City! While it is true that an equal footing clause was removed from the Constitution prior to ratification the U.S. Supreme Court and Congress have always considered the original intent and have always given new states equal footing when turning a territory into a state.
This leaves the federal government restricted by the Enumerated Powers of the Constitution and the lawyer drives this point home in her video.
At the heart of this theory is the simple fact that the states created the federal government and the states are the final arbitrator of what is Constitutional, not the Supreme Court. To argue otherwise would be to also say that a corporation or partnership can tell the owners of the stock or equity what they can and cannot do!
The authorization of the Supreme Court to override the legislature or create new law is not contained in the brief wording that authorizes the federal judiciary:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
— U.S. Constitution, Article III, Section 2, Clause 1”
As the foundational document of all U.S. law the federal government also has to follow the Constitution. The premier case law that is attributed when arguing the right of the U.S. Supreme Court to be the final arbitrator of all law is Marbury Vs. Madison, 1803, and there law under review in that case is quite simple:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
— U.S. Constitution, Article III, Section 2, Clause 2
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under the authority of the United States.
— Judiciary Act of 1789, § 13”
The lawyer in the video calls this circular logic and she is right. Clause 2 affects Ambassadors, public ministers and consuls, cases in which a state is involved. Clause 2 also includes the Supreme Court being the appellate court for cases covering treaties, admiralty and maritime laws, between citizens of different states or a citizen and a different state, on land grants and foreign states, citizens or subjects. Nothing is ever written that allows the Supreme Court to go outside the judicial power given it by the Constution. The Judiciary Act of 1789 does give appellate jurisdiction from the local and state courts but only in cases provided for by the Judiciary act itself and to issue writs of prohibition to district courts (federal) and any courts appointed or persons holding office under the authority of the United States.
Strangely enough, the court ruled that it did not have jurisdiction over the case and denied the petition yet the “decision” was used later to give the Court the ability to decide what their powers were and what the Congressional powers despite the clear language of the Constitution!
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| The Hammond Family or terrorist arsonists? |
Marbury had argued that the Constitution merely set a floor for duties and powers that could be expanded up by the government. Justice Marshall said no, that the Congress didn’t have the power to modify Constitutional original jurisdiction! Marshall decided that Congressional acts that did not follow the Constitution were not valid law and said that in those cases the Supreme Court must follow the Constitution.
The lawyer repeats what Jefferson said in critique of Marbury Vs. Madison, that to allow the Supreme Court to decide the limits of its powers created an oligarchy of unelected, unaccountable men, appointed for life, which is hardly a representative Constitutional republic. The standoff is more about if we are a free people that provide the power to govern through our states, to the federal government, and if a faraway government has the right to control how a person uses their privately owned land. Also at stake is if a person can be sent to prison for that many years if the person has no way to hold the agency or court accountable through their state or elected representatives. Are there no limits on the federal government?
This young woman isn’t the best spokesperson for the cause, chem trails, Jade Helm and all of that, but she does give a pretty accurate description of the back story.
Another good source is this interview with Sheriff Mack.
The feds hang their hat on calling the vast amount of federal lands “enclaves”. But since the fifties the legal precedent has been that federal and state jurisdiction is concurrent, meaning the state does have a lot of control and iF there is no federal law covering a crime then state law kicks in to solve legal disputes.
Enclaves began after the new federal government began purchasing land for federal property from the original 13 states. Problems arose quickly, with the U.S. Attorney General quickly claiming that the states also gave up all rights except the serving of processes in civil and criminal matters. In 1885 the Supreme Court decided that there were two ways for the feds to control land, cessation of land from the state including handing over all rights to sovereignty over that land, and reservation of certain properties at the time of statehood. A handful of federal laws were passed to cover these new lands and later the state laws were adopted under the Assimilative Crimes Acts so the local laws could be prosecuted in federal court. International law was also adopted that said that when land changed from one government to the next the original laws were in force until and unless the new government changed the laws. But this led to more problems as residents of these lands couldn’t vote in state elections, couldn’t send their kids to public schools, couldn’t obtain a divorce in local courts, or call local/state law enforcement for protection from criminals!
By the late thirties Congress and the states were moving to fix things and the laws were changed at both the state and federal level. By the 1940’s Congress repealed a 1841 law that said states gave up all jurisdiction when selling land to the feds and the new laws said that a state did not give up jurisdiction over the land when transferred unless the feds filed a notice with the state accepting what the state offered in the way of jurisdiction. In the early fifties the states began to revolt and numerous state courts ruled that enclave residents were indeed residents of the state and could enjoy the public schools and law enforcement and other state services.
The U.S. Supreme Court dragged their feet another two decades before ruling the same in 1971. To this day the federal government’s policy is to limit further enclaves yet BLM and the U.S. Forest Service continue to try to expand public lands by forcing the sale of privately held lands.
The fires were set long ago, in 2001 after Hammond had agreed with the BLM range conversationist that Hammonds private lands needed a controlled burn to kill off the invasive juniper trees. Hammond called the BLM at noon before setting the fire and was told it was permitted and that the BLM would be setting other fires that very day. Then as sometimes happens with controlled burns the fire got out of control and burned 139 acres of public land that just happened to be Hammond’s own grazing allotments. The Hammonds put the fire out by themselves and there was zero communication about the “damage” from the fire from either the BLM or the Fish and Wildlife Service (FWS). The fire wasn’t intentional on the public lands; it grew out of a well accepted land management process in the West. After the 2001 fire the BLM ruled that the fire had improved range conditions on the public lands.
Then in 2006 the Hammonds once again burned some of the desert scrub in an attempt to “backfire” an out of control blaze that had started after lightening had hit the public lands. The backfire was successful, the Hammond’s private land was saved so their cattle had grass for the winter and only one acre of public land was damaged.
Then years later the BLM decided to press charges for the 2001 and 2006 fires, claiming human lives were endangered and damage to federal land. Local district courts laughed and threw the cases out of court as no one had been harmed, no one had been threatened, and little to no damage had been done by the fires. Again the local court found that the fires had improved the land for grazing.
This area was settled in the 1870’s and was capable of handling around 300,000 cattle thanks to an irrigation system set up by the ranchers. The land became so lush that migrating birds started stopping off at the local ranches during their migrations.
Then in 1908 Teddy Roosevelt created an Indian reservation in the area, albeit without any Indians, and later the land was turned into a wildlife refuge. The Hammond’s bought 6,000 of private land in 1964, land that included four federal grazing rights, three water rights, and a small ranch house. By 1970 almost all of the other ranches in the area had been purchased by U.S. Fish and Wildlife Service and incorporated into the wild life refuge and the Hammond ranch had become surrounded by the newly purchased land. But Hammond and some other ranchers refused to sell their property until the government took a different approach and started revoking grazing permits, then raised grazing fees, then taking over the irrigation system from local control. They then used the water to flood the Malheur lakes, backing up water into the massive mountain meadows in a nearby Silvies Plain and flooding 31 ranches. Homes and outbuildings were destroyed by the flooding, breaking the ranchers, driving them into bankruptcy until they begged the federal government to purchase their land. By 1989 the flood waters receded and the Silvies Plains are once again meadowland incorporated into the Malheur National Wildlife Refuge.
By the 1990’s the Hammonds were one of a few ranchers hanging onto their property. The Hammonds began researching the refuge and found that the refuge admitted that the “no use” policies were ruining the refuge and encouraging wildlife to leave the refuge and move to private property where four times as many ducks and geese lived. The Fish and Wildlife Service did not appreciate it when the Hammonds made a point of the study on wildlife and quickly began abusing and cheating the Hammonds. The Hammonds had obtained a deed from the State of Oregon for water rights for their livestock, further upsetting the Fish and Wildlife Service who promptly sued the Hammonds and lost in a Oregon State Circuit Court. The Hammonds were found to have legal rights to the water at the trial but the BLM and FWS decided to ignore the judge’s decision and they built a fence around the Hammond’s legally owned water source!
The Hammonds needed that water for their cattle and having just proven that they owned the water they tried to stop the building of the fence. The feds had one of the Hammonds arrested by the local sheriff on felony counts of interfering with federal officials, hauled to jail where Dwight Hammond spent two nights in jail before seeing a federal magistrate and released without bail. The hearing on the charges was postponed and the federal judge never set a second court date so the matter was dropped. But soon the FWS started using another tactic, cutting access to parts of the Hammond’s private property which we should remember is surrounded by the wild life refuge. The FWS barricaded the road and threatened arrest, the Hammonds removed the gates and barricades and used the county owned road anyway and won their case.
BLM responded by revoking one of their grazing permits without cause, warning, or court proceeding. Recall that the Hammonds had bought these grazing rights and were paying the usual fees for the annual use of the grazing rights. Oregon is an open range state, if you want livestock kept out of your land you have to build your own fences, there is no obligation for the Hammonds to build fences on their own land under state law and the Hammonds wanted to use their 6,000 acres of land for grazing their own cattle. Despite this the BLM told the Hammonds to fence their own lands or not use their private property, forcing the Hammonds to remove their livestock and make half of their own land useless. Eventually they had to sell their ranch and home and they purchased another tract of private land that included two grazing rights on public lands which were promptly revoked by the BLM. Then the man that they had sold the original ranch to died of a heart attack and the Hammonds traded for the land and ranch house.
But after the 2006 fire, the fire started by lighting that had already burned thousands of acres of public lands before the Hammond’s backfire extinguished it, federal agents filed an arson report against the Hammonds for setting the backfire. Asked by a local Range Conservationist to meet for coffee in a nearby town Steven Hammonds agreed to meet and was arrested by the local sheriff and a BLM ranger. Steven was ordered to return to his ranch and come back with Dwight Hammonds and both were jailed on Oregon state charges relating to the setting of the back fire. Then the Harney County D.A. reviewed the charges and evidence and determined that the charges did not meet prosecution standards and he dropped all charges against the two men.
One would think that it was over, right? No, five years later the U.S. Attorney Office charged the two men with terrorism under the Federal Antiterrorism Effective Death Penalty Act of 1996, federal felonies that carried minimum sentences of five years and even the death penalty. The men were branded arsonists by the media and the men were convicted of the crimes by a misinformed and heavily pressured jury.
At the federal trial the judge allowed no evidence that would exonerate the Hammonds, the prosecution was given six days to make their case, the defense was given one day, the background facts of why backfires were set to control out of control wildfires was not allowed, nor was the fact that burning the land was a valid conservation method that actually improved the land for wildlife and grazing. None of the vindictive behavior by FWS and BLM was allowed either.
One estranged Hammond family member was found, a then 13 year old with metnal problems including carving his initials into his own chest, and the boy testified against his family. The judge found that the boy’s eleven year old memories were not clear or credible but he allowed the testimony anyway. Locals that understood the practices and customs of ranchers were not allowed on the jury and some of the jurors had to drive two hours each way to attend the trial. The jurors would up deadlocked but the judge pressured them to make a decision and refused to tell the jurors what penalties were applicable and the jury convicted the two men unaware that the terrorism charges could result in a life sentence. The jury found them guilt of setting two fires but they were convicted under the Antiterrorism Act and sentenced to three month in prison for Dwight and 12 months for Steven, the son. They were fined $400,000 to BLM despite there being no proof of intent or actual damage to the land. Yet the judge showed mercy, stating that the mandatory five year sentence would be a violation of the 8th amendment on cruel and unusual punishment so he waived the mandatory five year sentence.
Right after the sentencing a local paper ran a story that generated some comments by one Greg Allum, attacking the two men and saying they endangered firefighters while burning valuable range lands. Greg was a retired BLM dozer operator but he quickly complained that HE did not make the comments and it was found that the IP address tracked back to the BLM office in Denver Colorado! Greg said that there was hatred in the BLM for the two men and he did not understand why they were hated. The two men reported to federal prison a few months later and served their time and were released. They had served their time and were free men again, right? No….
Rhonda Karges, Field Manager for the BLM and her husband Chad, the Refuge Manager for the Malheur Wildlife Refuge decided to appeal the two men’s merciful sentence to the full five years mandatory sentence. In October of 2015 the 9th District Federal Court resentenced both men to many more years of prison. If Dwight survives the additional four years he will be 79 years old before he is released. As part of the resentencing the Hammonds were forced to give the BLM the right of first refusal if they ever sell the land.
So far the two men have spent one year and three months in prison and have paid $200,000 of the fine and the additional $200,000 must have been paid before January of 2016 or the land will be sold to the BLM to avoid further charges.
There were a lot of problems with this persecution of the Hammonds including the fact that no land was “destroyed” and there was no intent or malice involved. They had permission from the BLM to burn the first time, the only land burned accidently was their own grazing right land which even the BLM said was better for having been burned. The second backfire stopped an out of control wildfire, saving tens of thousands of acres of public land from being burned, disregarding the fact that BLM burns fare more acres every year to kill out the juniper trees and to allow the land to regenerate for the wildlife. Even the judge thought the five year sentence was insane but the appellate court used the three strikes laws for habitual criminals to justify the harsh sentences.
No, we don’t condone armed rebellion yet the men that have taken over that wildlife refuge did so in a very remote and abandoned location so that their protest wouldn’t endanger innocent bystanders. They didn’t break into an occupied building but they did arm themselves so they could defend themselves if the feds want to do another Waco or Ruby Ridge. No the Hammonds can’t back this, they are going to prison and anything that can be used against them will be used against them, they should stand off to the side on this.
Personally I am glad that we have these sort of men left in our country. Either crazy enough or brave enough to take a stand and risk their lives in cases of overwhelming tyranny. Every man and woman that showed up to participate or document the federal response is a hero in my book but I pray that cooler heads prevail on the federal side and that the feds realize that this is not a good case to go to the mat over. Will it be like the first battle of the American Revolution, caused by a single shot fired by an unknown person? Will the men and women be faced with their own persecution for protesting while carrying weapons, something that isn’t a crime as far as I know. Time will tell but lets hope that the feds are smart enough to just let things cool down in Oregon and these folks will eventually go home on their own.
