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

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.