Where there’s smoke
October 29, 2015
The story could be the plot for a western-style soap opera.
The latest scene involved two ranchers being sentenced to five years in federal prison for inadvertantly burning about 140 acres of Bureau of Land Management (BLM) rangeland in two separate fires. That is an area big enough to feed about three cow-calf pairs for a year in that neck of the woods.
"I call it 'as the sagebrush burns,'" said Erin Maupin, a former BLM range technician and watershed specialist and rancher in the area, of the long history involving the Bureau of Land Management (BLM), special interest groups and the cattle ranchers on the Steens Mountain of Oregon.
Dwight Hammond, 73 and son Steven Hamond, 46, admitted in a 2012 court case to lighting two different fires. Both fires started on Hammonds' private property.
The Harney County ranchers are paying the BLM $400,000 for the costs of fighting fires the BLM claims they set.
"The jury convicted both of the Hammonds of using fire to destroy federal property for a 2001 arson known as the Hardie-Hammond Fire, located in the Steens Mountain Cooperative Management and Protection Area," said a Department of Justice news release.
"The jury also convicted Steven Hammond of using fire to destroy federal property regarding a 2006 arson known as the Krumbo Butte Fire located in the Malheur National Wildlife Refuge and Steen Mountain Cooperative Management and Protection Area. An August lightening storm started numerous fires and a burn ban was in effect while BLM firefighters fought those fires. Despite the ban, without permission or notification to BLM, Steven Hammond started several "back fires" in an attempt to save the ranch's winter feed. The fires burned onto public land and were seen by the BLM firefighters camped nearby. The firefighters took steps to ensure their safety and reported the arsons," continued the DOJ release.
The two men were sentenced to prison in 2012. Steven served eleven months and Dwight three.
The men were charged with nine counts, including conspiracy, using aerial surveillance of sites they intended to burn, and burned, attempting to destroy vehicles and other property with fire, and more. Dwight and Steve were found guilty of two counts – the two fires they readily admitted to starting on their own property.
In order to draw the original court case to a close, the two men, in a plea deal, agreed that they would not appeal the 2012 sentence.
The Department of Justice news release said arson on federal land carries a five-year mandatory minimum sentence. Judge Michael Hogan, however, did not give the two men the minimum sentence called for under the Antiterrorism and Effective Death Penalty Act of 1996, saying it would have been "grossly disproportionate" to the crime. He added that a longer sentence would not meet any idea he has of justice and that he didn't believe congress intended that act to be applied in cases like the Hammond one. A longer sentence than the few months he gave them would "shock his conscience" he said.
The Department of Justice appealed for a full sentence.
The Ninth Circuit Court of Appeals agreed to a review of the case and District Chief Judge Ann Aiken went ahead with a full sentence – five years in federal prison for both men, minus time already spent.
The first fire, in 2001, was a planned burn on Hammonds' own property to reduce juniper trees that have become invasive in that part of the country. That fire burned outside the Hammonds' private property line and took in 138 acres of unfenced BLM land before the Hammonds got it put out. No BLM firefighters were needed to help extinguish the fire and no fences were damaged.
"They called and got permission to light the fire," Dwight's wife, Susan, said, adding that was customary for ranchers conducting range management burns – a common practice in the area.
"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.
In cross-examination of a prosecution witness, the court transcript also includes an admission from Mr. Ward, a range conservationist, that the 2001 fire improved the rangeland conditions on the BLM property.
Maupin, who resigned from the BLM in 1999, said that collaborative burns between private ranchers and the BLM had become popular in the late 1990s because local university extension researchers were recommending it as a means to manage invasive juniper that steal water from grass and other cover.
"Juniper encroachment had become an issue on the forefront and was starting to come to a head. We were trying to figure out how to deal with it on a large scale," said Maupin, whose family neighbored the Hammonds for a couple of years.
"In 1999, the BLM started to try to do large scale burn projects. We started to be successful on the Steens Mountain especially when we started to do it on a large watershed scale as opposed to trying to follow property lines."
Because private and federal land is intermingled, collaborative burns were much more effective than individual burns that would cover a smaller area, Maupin said.
Maupin said prescribed burns to manage juniper were common in the late 1990s and early 2000s, best done late in the fall when the days are cooler.
Prescribed burns on federal land in their area have all but stopped due to pressure from special interest groups, Maupin said. As a result, wildfires now burn much hotter due to a "ladder" of material on the ground – grass, brush and trees.
"The fires now burn really hot and they sterilize the ground. Then you have a weed patch that comes back."
Maupin said planned burning in cooler weather like the Hammonds chose to do improves the quality of the forage, and makes for better sage grouse habitat by removing juniper trees that suck up water and house raptors – a sage grouse predator.
Susan said the second fire, in 2006, was a backfire started by Steven to protect their property from lightning fires.
"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," she remembers.
The BLM asserts that one acre of federal land was burned by the Hammonds' backfire and Susan says determining which fire burned which land is "a joke" because fire burned from every direction.
Neighbor Ruthie Danielson also remembers that evening and agrees. "Lightning strikes were everywhere, fires were going off," she said.
The Hammonds were charged with nine counts in the original court case.
The BLM accused the Hammonds of several 2006 fires, including a large one known as the Granddad, which blazed about 46,000 acres.
According to the 2012 sentencing document, the jury found the men innocent or were deadlocked on all but two counts – the two fires the men admitted to starting – burning a total of about 140 acres.
Judge Hogen dismissed testimony from a disgruntled grandson who testified that the 2001 fire endangered his life and that of local hunters, saying the boy was very young and referencing a feud that may have influenced the testimony.
"Well, the damage was juniper trees and sagebrush, and there might have been a hundred dollars," he added.
More to the story?
During her tenure as a full time BLM employee from 1997-1999, Maupin recalls other fires accidentally spilling over onto BLM land, but only the Hammonds have been charged, arrested and sentenced, she said. Ranchers might be burning invasive species or maybe weeds in the ditch. "They would call and the BLM would go and help put it out and it was not a big deal."
On the flip side, Maupin remembers numerous times that BLM-lit fires jumped to private land. Neighbors lost significant numbers of cattle in more than one BLM fire that escaped intended containment lines and quickly swallowed up large amounts of private land. To her knowledge, no ranchers have been compensated for lost livestock or other loss of property such as fences.
Gary Miller, who ranches near Frenchglen, about 35 miles from the Hammonds' hometown, said that in 2012, the BLM lit numerous backfires that ended up burning his private land, BLM permit and killing about 65 cows.
A YouTube video named BLM Working at Burning Frenchglen-July 10, 2012 shows "back burn" fires allegedly lit by BLM personnel that are upwind of the main fire, including around Gary Miller's corrals. The fire that appeared ready to die down several times, eventually burned around 160,000 acres, Miller said.
Bill Wilber, a Harney County rancher, said five lightening strikes on July 13, 2014, merged to create a fire on Bartlett Mountain. The fire flew through his private ground, burned a BLM allotment and killed 39 cows and calves.
While the fire could have been contained and stopped, BLM restrictions prevent local firefighting efforts like building a fireline, so only after taking in 397,000 acres did the fire finally stop when it came up against a series of roads.
The issue isn't limited to Oregon. In 2013, two South Dakota prescribed burns started by the U.S. Forest Service–over the objections of area landowners– blew out of control, burning thousands of acres of federal and private land. Ranchers that suffered property damage from the Pautre fire in Perkins County, South Dakota filed extensive tort claims in accordance with federal requirements, but will receive no compensation because USDA found the U.S. Forest Service not responsible for that fire.
Why the Hammonds?
"The story is like an onion, you just keep peeling back the layers," Maupin said.
In an effort to stave off what they feared was a pending Clinton/Babbitt monument designation in 2000, a group of ranchers on the scenic Steens Mountain worked with Oregon Representative Greg Walden, a Republican, to draft and enact the Steens Mountain Cooperative Management and Protection Act that would prevent such a deed. The ranchers agreed to work with special interest "environmental" groups like the aggressive Oregon Natural Desert Association and others to protect the higher-than 10,000-foot peak.
A number of ranchers at the top of the mountain traded their BLM permits and private property for land on the valley floor, allowing Congress to create a 170,000 acre wilderness in 2000, with almost 100,000 acres being "cow-free."
"The last holdouts on that cow-free wilderness are the Hammonds," said Maupin. Though some still have BLM grazing permits, the Hammonds are the last private landowners in the area.
"It's become more and more obvious over the years that the BLM and the wildlife refuge want that ranch. It would tie in with what they have," said Rusty Inglis, an area rancher and retired U.S. Forest Service employee.
The Hammonds also lost their ability to water cattle on one BLM permit when refuge personnel drained a watering hole that the Hammonds had always used.
Maupin said the government scientists and resource managers working "on the ground" supported the Hammonds' use of the water but that the high level bureaucrats backed special interest anti-grazing groups. "There is a huge disconnect between employees on the ground and the decision-makers." She said that divide builds tension between ranchers and federal agencies.
In the Hammonds' plea agreement in the 2012 trial, the BLM obtained the first right of refusal should the family have to sell their private land, Maupin added.
The Maupins themselves had a small lease that also bordered the "cow-free wilderness" and the Oregon Natural Desert Association was "relentless in their pursuit to have us off, in order to expand the cow-free wilderness," Maupin said. The group would criticize the ranchers' water usage, causing them to pipe water to their cattle, which in turn instigated more complaints from the group.
Eventually the Maupins sold their permit and moved.
But the Hammonds remained.
Steve and Dwight Hammond will turn themselves in for their prison sentences in early January, Susan said.
The family has sold cattle. Their BLM permit has not been renewed for two years, leaving them unable to use a large amount of intermingled private land.
The family is in the "last challenge" to re-obtain their grazing permit. "I don't know what happens after that," Susan said. "We have done everything according to their rules and regulations and there is no reason that they should not give us back our permit. We don't understand how a federal land management agency can 'take' personal private property (checkerboarded with BLM land) in this manner.
"We've been fighting it for five years. We don't want to destroy people as we are fighting it even if it is a BLM employee," she said, "They live in our community and they have families. We respect that." The situation could get even more ugly but "it's not going to be our fault," she said.
"The Hammond family is not arsonists. They are number one, top notch. They know their land management," said Inglis, who spent 34 years with the USFS and now ranches about 40 miles from the Hammonds and is unique in the area, operating strictly on private land.
Inglis, president of his county Farm Bureau and a member of the Oregon Cattlemen's Association said both groups are working to help gain media attention for the Hammond case. The state Farm Bureau group gathered signatures online for a petition to show widespread support for the family. "Enough is enough," Inglis said. "We are not in Nazi Germany. We are in the United States of America."
The five-year prison sentence sets a worrisome precedent for area ranchers, Maupin said.
"Now the sky is the limit. It doesn't have to be fire, it can be trespass with cattle."
Another precedent – one for fire that burns beyond expectations – should apply to everyone, including federal employees, Maupin points out.
Maupin talked about the Hammonds helping her and her husband with ranch work like hauling cattle and lending portable panels, not expecting repayment. Wilber recalled them hauling 4-H calves to the fair for neighbors and Inglis said Dwight once offered to lend him money because he thought he needed help. "Here's a guy with $400,000 in fines and legal bills I can't imagine, worrying about my welfare," said Inglis.
"I think that's the biggest point of all of this – how can you prosecute people as terrorists when they aren't a terrorist?"
Property rights attorney Karen Budd-Falen from Cheyenne, Wyoming, agrees.
"What totally amazes me is what these guys did – they burned 140 acres. If you compare that to the EPA spill in Colorado, it amazes me that nothing will happen to those EPA employees. You have cities down there with no drinking water. The Hammonds didn't do anything like that," Budd-Falen said.
"It's going to get worse before it gets better," said Maupin.
The BLM deferred all questions to the Department of Justice, who shared their official news release but did not respond to emailed questions as of print time.