Cliven, Ammon and Ryan Bundy walk free after Judge Navarro dismisses case with prejudice

Carrie Stadheim
The trial for Cliven Bundy and his sons Ammon Bundy and Ryan Bundy and Ryan Payne was dismissed Dec. 8. Cliven, pictured here with is wife Carol, traveled home that afternoon. Photo courtesy Bundy family

We learned about Cliven Bundy when he duked it out, figuratively of course, with the Bureau of Land Management and a slew of armed federal agents on his ranch in southeastern Nevada in April 2014. But that was far from the beginning of the battle.

The Bundys are the last ranching family in Clark County, Nevada.

While the felonies they were charged with stemmed from their role in the “standoff” with the federal government, the root of the issue is federal lands grazing and unpaid “fees.” Opinions about just who owns the land, and the forage and how it should be managed are about as plentiful as sage brush in the west.

Fifty-one fellow ranchers from Clark county were pushed off the federal land in order to make room for a desert tortoise that was declared endangered, Ryan Bundy said.

Cliven Bundy could see the writing on the wall. According to Ryan, Cliven chose to ignore the new grazing strategies that would “save” the tortoise. He “fired” the BLM and stopped paying for “services” he said were only going to drive him out of business and do nothing to help the tortoise.

Upon further research, Cliven Bundy came to the conclusion that the federal government did not, indeed, own the land his cattle were grazing. The state of Nevada did. Upon statehood, each state became the owner of the land within its borders, Ryan said, pointing out that the original 13 colonies were owned by Great Britain until they declared independence. “How much of the land within each state did Great Britain retain after the war? None. One of the characteristics of a free and independent state is that the people own 100 percent of the land within its boundaries.”

The Bundy family owned the grass they had been using for decades, Cliven determined, and therefore, no payment to the federal government was necessary.

The Bundys own the grass their cattle graze, although they don’t own the soil, Ryan says, and the fees they had been paying were not covering rent or paying for forage, but were compensating the BLM for management, which he said was anti-grazing to the core.

Their strategy was a bold one, but what did they have to lose?

Executive Director of the Range Allotment Owners Association, Angus McIntosh, of Craig, Colo., agrees with much of the Bundys’ philosophies.

“If people could just grasp the concept of split estates —the fact that the Bundys own the surface rights based on an act of Congress, then they would understand.”

While McIntosh doesn’t agree that the state owns the land, he says that the federal government, as a landowner, is just a proprietor.

“Congress disposed of the surface rights to bona fide settlers like the Bundys’ predecessors, but they maintained mineral estates for separate disposal.”

“The title to the minerals remained with the government but the duty to dispose of the mineral rights was very real, thus the minerals should be disposed of to the State of Nevada if not to private claimants.

“That’s what the federal government was supposed to do all of these years but since 1920 they have been leasing mineral rights instead of selling them.”

While McIntosh believes case law disagrees with the Bundy’s position on state ownership of federal lands — most recently Utah division of State Lands v. the United States, — he clarifies that while the federal government might own land, it does not have exclusive jurisdiction over it. Specific words are used for a reason - and each has it’s own definition, says McIntosh. “An ‘allotment’ is a property interest in real estate like a lot or Homestead, whereas a ‘permit’ is a permissive regulatory document such as a building ‘permit.’ Many people confuse the two. A permit is not a property interest in real estate, an ‘allotment’ is real property and can be sold, mortgaged, or inherited.”

Ryan Bundy points out that because the ranchers don’t own the soil, they can’t and won’t exclude others from using the land.

“Our cattle can be grazing and someone can go out sight-seeing, hiking, fishing. There is no conflict there. And the cattle are not destroying the land, they improve it. Any rancher foolish enough to rape the land will just lose productivity in the long run.”

The BLM website offers this insight into grazing permits: “Any U.S. citizen or validly licensed business can apply for a BLM grazing permit or lease. To do so, one must either:

• Buy or control private property known as base property (property that has been legally recognized by the BLM as having preference for the use of public land grazing privileges), or

• Acquire property that has the capability to serve as base property and then apply to the BLM to transfer the preference for grazing privileges from an existing base property to the acquired property (this would become the new base property).

The BLM has information on the status of the grazing privileges attached to the base property, including the terms and conditions of the associated grazing permit or lease that authorizes the use of those privileges and other important information. All applicants for grazing permits or leases must meet the qualifications for public land grazing privileges that are specified in the BLM’s grazing regulations.”

Another expert and user of federal lands in the region says that the federal government does, indeed own the land, and that grazing fees are like lease payments.

“We all pay our grazing fees,” said Dave Eliason, Chairman of the Federal Lands Council, a division of the National Cattlemens Beef Association. “We all try to follow the rules and regulations. We have permits to graze them and they are real property with great value — banks will loan money on them, but we don’t think the state owns the permits,” said the Tremonton, Utah, rancher.

“Again, I want to stress that the BLM and the U.S. Forest Service own the ground and the grass but we pay a permit to use that grass.”

Eliason said he has no deeds to the BLM or U.S. Forest Service land his cattle graze. He also believes that if his permits were unfairly reduced or eliminated, he could prove through the court system, using historical monitoring evidence, that he was caring for the land appropriately, and would then regain the right to use the land.

Eliason, whose cattle graze both BLM and USFS land in Utah and Idaho, stressed that he was happy to see that the Bundy family was released and that the case was dismissed.

Ryan Bundy is more skeptical than Eliason when it comes to dealing with the feds.

“I do want to say that the Endangered Species Act is being used to take control of the land and resources that belong to the people of Nevada. In our area it’s the desert tortoise but it doesn’t matter what the critter is, in other areas it’s a prairie dog or some other critter.”

The listing of the tortoise became a big stick for the government to use to battle ranchers, Bundy believes. “I don’t know why they want the ranchers off the land other than they want control.”

The BLM website says that, while the agency originally focused mostly on working side by side with ranchers, society dictated in the 1960s and 1970s that other interests could trump grazers.

“...during the 1960s and 1970s, the appreciation for public lands and expectations for their management changed. This shift in the approach to land management was made clear by such laws as the National Environmental Policy Act of 1969; the Endangered Species Act of 1973; and the Federal Land Policy and Management Act of 1976.

“As a result, the BLM also shifted from managing grazing in general. The agency began to improve the management or protection of specific rangeland resources such as riparian areas; threatened and endangered species; sensitive plant species; and cultural or historical objects. Consistent with this enhanced role, the BLM developed or modified the terms and conditions of grazing permits and leases. The agency also implemented new range improvement projects to address specific resource issues.”

For ranchers in that area to lose the ability to graze federal permits or what Ryan calls ‘land belonging to the Nevada people,’ is akin to a pink slip, he said. About 85 percent of the land in Nevada is under some kind of federal oversight.

“We ranch on hundreds of thousands of acres,” Ryan said of the land their cattle graze. But they own 160 acres, about 60 of which are irrigatable.

“First they claimed that cattle caused the desert tortoise harm and reduced grazing numbers,” he remembers.

The ranchers whose cattle grazed in common with Bundy cattle sued the federal government over tortoise management planning that required severe grazing cuts. “We won the lawsuit. The BLM had no proof that the cattle adversely affect the habitat of the tortoise,” he said, but explained that the BLM held strong to their grazing cuts, saying that cattle “may” damage the tortoise and its habitat.

While cattle have never been shown to damage a tortoise or its home, ravens (a protected bird) and coyotes are known tortoise predators. Cattle and sheep have improved tortoise living conditions - leaving behind manure that the tortoises happily consume, he said. “They aren’t tall enough to reach a lot of shrubs, and they get nutrition and moisture from droppings.”

Bundy also points out that hundreds of thousands of tortoises were euthanized when a “sanctuary” became so overrun with them they were without resources to care for them.

“It just goes to show that salvation of the critter is just an excuse to do away with ranchers.”

The county bought out his neighbors’ BLM grazing rights - those who had grazed in community pastures with him - for around $60,000 apiece, he said. “So they are out of business now.”

Grazing rights had been established by the Bundys and others by use of the water and resources during settlement days, he said.

“A lot of this land, it got developed differently than the east. Instead of a man saying ‘I’ve got this many acres that I own,’ the rights were divided. A man might graze and area but he didn’t claim to own it.”

The federal government does not own the land, the Bundy’s insist, so they don’t owe the BLM any money. The family has made an attempt to pay the county but has been denied because the county to help manage the land didn’t have a means to deal with the funds.

Jon Alt from Silver Springs, Nevada, said his organization - the Nevada Live Stock Association - agrees with much of the Bundys’ ideas.

His organization believes that water rights existed before state-hood, and that those rights are the means to grazing rights. When a settler used water, he was creating his rights to the water (but not ownership - that belongs to the state.) When water rights had been established, grazing rights naturally fell in line.

“The water is the dominant estate. People on the other side of the Rocky Mountains have a hard time getting their head around that.”

Alt also said that fees paid to the BLM are not rent, but rather a “management” fee. “The grazer owns the easement. The water rights - the right to use the water, but not actual ownership of the water — gives them the easement. The land is owned by the federal government.”

Alt believes the Bundy family could eventually win a court case over their grazing rights. “I think the case got dismissed because the prosecution knew they couldn’t win. The case would be appealed and the Supreme Court would favor the Bundys in a 5-4 decision.”

The Congressional Research Service reports that half of all grazing fees (set at $1.87 per AUM for 2017) go into a Range Betterment Fund to be used for range such as fence, water upkeep, etc.

The other half of the fees go to the states and in some cases, some goes to the U.S. treasury.

About 22 cents per month of the grazing fee would make its way to the federal government, which is obviously not enough to be considered a rent payment for the land, Ryan said. “You’re not paying for feed. That’s because they aren’t selling you feed. You own the grazing rights, you are paying for management.”

Critics of federal land grazing complain that income from federal lands doesn’t cover expenses.

A High Country Journal commentary reported that in 2014 the government spent about $144 million in grazing programs and took in about $19 million in fees. Government efficiency is not discussed in the piece. The BLM employee, Dan Love, who instigated the impoundment of the Bundy cattle was found to have misused the government checkbook on more than one occasion.

Ryan Bundy hopes more ranchers will “fire” the BLM and Forest Service by refusing to pay fees.

“There is no constitutional reason for these ranchers to pay a government agency unless they have a contract, and then they are bound by the contract, not the law.”

He realizes that withholding fees could result in more conflict, and that perhaps the federal agents could be successful in removing another rancher’s cattle from his or her allotment. He believes the local authorites should stop this from happening. But there is no guarantee.

“You yourself are your first line of defense, then the county sheriff, then other officials like brand inspectors, and lastly the federal government should defend you against anyone who comes to harm you.”

Because the vast majority of the land in his county is going ungrazed, Bundy believes it is “open for claim.”

“Someone should come and use it and defend it. It’s going to waste,” he said.

The Nevada BLM did not respond to interview requests.

Judge Gloria Navarro of the Nevada District Court dismissed “with prejudice” the case against Cliven Bundy and his sons Ammon and Ryan Bundy, and Ryan Payne on Jan. 8. This means federal prosecutors will not have the option to reopen or retry the case.

Ryan Payne will now travel to Oregon to await trial for charges related to the Malheur Refuge protest that he, the Bundys and others staged in 2016. While other participants in that takeover were found innocent, Payne pled guilty and continues to await trial.

Judge Navarro set Feb. 26 as the date to begin the trial for four more men involved in the standoff – Dave Bundy, Mel Bundy, Joe O’Shaughnessy and Jason Woods, known by the court as “tier 2 defendants.”

It was discovered in December that the prosecution violated the “Brady Rule” at least seven times, by willfully withholding evidence that it should have shared with the defense. The revelation of these violations eventually led Navarro to dismiss the case, Bryan Hyde, a reporter with “Who’s Next” news reported that the judge said the prosecution, led by Steven Myhre acted in ways that were “especially egregious,” “grossly shocking,” and she also talked about “flagrant prosecutorial misconduct,” “reckless disregard” and more. She said the only fair recourse was not to have another trial but to dismiss it because it involved a serious constitutional violation and there was a need to preserve judicial integrity and prevent future misconduct on the part of the government.

“We’re not surprised by the judge’s decision. It’s been a long time coming. We knew we were not guilty of these crimes, we knew that the truth would be revealed.” Ryan Bundy

The judge was referring not only to the fact that evidence was withheld, but the blatantly arrogant way with which it was withheld, said Hyde.

U.S. Attorney General Jeff Sessions, late last month, said he was calling for an investigation into the government’s handling of the case – including multiple instances of mishandling of evidence.

The investigation probably will be conducted by investigative attorneys, said Roger Roots who serves on Cliven Bundy’s legal team. While there is no way of knowing how long the investigation will last, the investigators will be looking at then-acting U.S. Attorney Steven Myhre’s Brady violations. Myhre, who was appointed acting U.S. attorney by President Donald Trump about a year ago, recently was replaced because his one-year appointment ended.

Sessions made the call to look into Myhre’s handling of the case when Judge Navarro last month declared a mistrial, saying it would have been “impossible” for the four co-defendants to receive a fair trial because of the willful witholding of evidence in at least seven instances by the prosecution.

Ryan Bundy said the Jan. 8 dismissal with prejudice was not unexpected.

“We’re not surprised by the judge’s decision. It’s been a long time coming,” he said. “We knew we were not guilty of these crimes, we knew that the truth would be revealed.”

Judge Navarro, who from the beginning prevented the defense from talking about the First Amendment, the Second Amendment, the BLM’s use of force and other such matters, showed bias against the Bundy family early on, Ryan Bundy said.

“It’s terrible, judges are supposed to be neutral but she was decidedly on the side of the government. I believe it is that way in most cases. The government has a 98 or 99 percent conviction rate. Many judges are past prosecutors and they have the mindset that everyone is guilty.”

Bundy said he doesn’t think that the judge necessarily believes in the innocence of the Bundy family but that “the truth was out so plainly that she could not deny it. She couldn’t rule any other way without being in gross misconduct. She had to protect herself.”

Social media did help the Bundy family garner support and keep those interested in their situation informed.

Ryan Bundy said that he had been out of prison, albeit with an ankle bracelet to track his movement, since mid-November but that his father Cliven had not been released until the day of the dismissal, Jan. 8. “He already ditched me,” Ryan said of Cliven.”He’s ready to get home.”

Ryan, who ranches with his father (some of the children, including Ammon, no longer live or work on the ranch), does not fear the federal government or any future attempts to collect money.

“We own the rights. That’s what we’ve been saying. Grazing fees are a fabrication of the federal government. They don’t own the land. We aren’t going to make a contract with the federal government. Why would we pay a grazing fee?” he asked.

Cliven Bundy said if the BLM shows up again to take his cattle, he will call on the local authorities for protection.

“I will call our county sheriff. It is his duty to protect our life liberty and property,” he said.

Ryan said he and his father paid a visit to their county sheriff this week, but he avoided them.

“We will have a talk with him. If he won’t do his job then we’ll replace him. That’s the good thing about this kind of government.”

Charges against the Bundy men ranged from conspiracy to commit an offense against the United States, conspiracy to impede and injure a federal officer to use and carry of a firearm in relation to a crime of violence and interstate travel in aid of extortion.

The indictments are not directly related to money the Bundy family owes the federal government for grazing Bureau of Land Management land. The charges stemmed from a “standoff” in April of 2014 when the BLM attempted to gather Cliven Bundy’s cattle and the Bundy family along with hundreds of supporters from around the country protested the government’s removal of family’s cattle from the ranch.

The BLM said they were gathering the cattle to sell them, to settle a debt they said the Bundys owed for about 20 years of unpaid fees on BLM land. The BLM turned the cattle loose and left the Bundy ranch after the actions escalated to a “standoff” between federal agents and Bundy supporters, many of which were armed on both sides. F