Hammond Ranches, Incorporated continues to be denied grazing permit on BLM-administered land
January 26, 2018
Dwight Hammond and Steve Hammond are in the midst of their five year prison sentences under the "Antiterrorism and Effective Death Penalty Act of 1996," for burning – and subsequently putting out – about 140 acres of Bureau of Land Management-administered land in their area.
But there is so much more to the story.
The family has been denied the ability to use their grazing allotment for nearly four years. Many in the community including Erin Maupin and Travis Williams wonder "why?"
No fences or other property were damaged in the fires and a range conservationist testified under oath that the larger fire improved the condition of the rangeland.
“They own a significant amount (around 10,000 acres) of private land intermingled with their BLM allotment (around 60,000 acres total) that they are unable to use because there are no fences to separate the two.” Erin Maupin, former BLM watershed specialist
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Dwight was found guilty of burning one acre of BLM land, when a prescribed burn on private land to reduce overcrowding juniper, spilled over slightly onto the adjoining federally administered land in 2001. The BLM incorporates the same prescribed burning in their management tactics.
Steven was found guilty of burning that same one acre, plus 139 more acres in 2006 when he lit a back burn to protect the family ranch headquarters from a series of lightning-lit fires were heading toward them. The backfire succeeded in protecting the home quarters. The BLM regularly uses backburns to slow or direct fire.
Hammond Ranch, Incorporated (HRI)- incidentally the only ranching family that continues to maintain a large tract of private land and graze BLM-administered land on the top of the Steens Mountain – was denied a renewal of their grazing permit in 2014, prior to a judge imposing the full five year prison sentence on Dwight and Steven.
According to Erin Maupin, former BLM watershed specialist and neighboring rancher, the other ranchers who had previously grazed BLM land in that area, traded allotments and large private inholdings to the government through the creation of the Steens Mountain Act. Much of the grazing allotments that were handed over were then declared a Wilderness Area of around 180,000 acres. Almost 100,000 acres were named "cow-free" wilderness due to pressure from environmental groups and from the Clinton administration, she recalls.
The two Hammond men served time in 2013 for the fires they admitted to starting.
Although they had been sentenced, imprisoned and released, a different judge decided to impose the mandatory minimum, five years in prison, and back to jail they went in 2016. They also paid a $400,000 fine to the BLM as the result of a civil suit.
The BLM denied them the renewal of their grazing permit in 2014, before the second sentencing, saying they have an "unacceptable record of performance."
HRI appealed, and the matter is now before the Hearings Division of the USDI, Office of Hearings and Appeals, for an adjudication of the merits of Hammond's appeal.
Onlookers are confused as they watch employees of federal lands – whether it is the BLM in Oregon or the US Forest Service in South Dakota – light matches that start burns on federal grazing permits with bought-and-paid-for grazing rights that spill over to private land, destroying in many cases hundreds of thousands of dollars in value of grass, fences, trees and more.
Ranchers have asked, if the Hammonds' "record of performance" is "unacceptable" to the point that they can no longer be allowed to graze their purchased grass, what is the reprimand for careless federal employees who destroy private property?
The Hammonds have appealed the grazing permit denial and also requested a stay (the right to graze while waiting for the decision). Their request for a stay has been denied and they are still waiting for a decision on their appeal.
"HRI applied to renew it's grazing permit because HRI has maintained its satisfactory record of performance as a permittee within the Burns District for the last 45 years and counting," reported the Hammonds in their appeal and petition for a stay.
Because the Hammonds can't use their grazing allotment, they are also unable to use their private land which is not fenced, and nearly impossible to fence due to the rough terrain. "They own a significant amount (around 10,000 acres) of private land intermingled with their BLM allotment (around 60,000 acres total) that they are unable to use because there are no fences to separate the two," said Maupin.
"Another thing people maybe don't understand – they've paid for their BLM allotment with the purchase of the land and grazing rights. It has real value," said Maupin.
"This is why this case is so important. The government is taking real property without due process. If this stands and they can do this to the Hammonds, they can take any of our property whether it is a BLM administered allotment or a house or anything. That's the problem – there was no due process. They just said 'you're done. We're not renewing your permit. We're taking what amounts to hundreds of thousands of dollars without just compensation."
A grazing allotment owner is not allowed by the BLM to sell or transfer his or her grazing rights when the permit has been denied, said Maupin, and she's seen denials lead to an eventual retirement of grazing rights more than once.
"The thing with the Hammonds, they've always been wonderful managers of the BLM allotment and their private ground. The BLM has never had any complaints on how they manage until this," said Maupin.
"The Hammonds are at the top of the mountain. There is green grass all the way up, all summer long, from April to September. The purpose behind this is that they are the last major private landowner on the Steens Mountain. If they get rid of the Hammonds, there will basically be an extension of the 'cow free' wilderness from the top of the mountain down to the Malheur Refuge," said Maupin.
While there are small parcels of private land here and there along the mountaintop, there is virtually no privately owned grazing left on the top of the mountain, other than the Hammond's, Maupin said.
While the Hammonds wait for a ruling by the US Department of Interior Office of Appeals, the grass on their permit goes unused and the family, already strained by two individuals imprisoned for five years, is forced to find alternate forage for their entire herd of cattle.
The family has sold some cattle and the remaining herd grazes in a co-op near Burns, Oregon.
"So this is how they roll," said Maupin referencing the boards that make decisions on federal lands discrepancies.
"They drag their feet for years, and meanwhile ranchers go out of business waiting for decisions."
Brendan Cain, the former BLM District Manager who denied HRI their grazing permit renewal because the ranch had an "unacceptable record of performance," used 11 pages to describe, in detail, the fires that the Hammonds readily admitted to starting, and the danger that the fires supposedly created for firefighters.
In the denial document, Cain references in great detail, testimony that was ordered by the judge in the 2012 case to be thrown out and also references charges that they were accused of but found not guilty of.
"In the final decision, BLM relied on the Hammonds' convictions as well as trial evidence of other fires in concluding that HRI did not have a satisfactory record of performance. That evidence includes multiple instances of the Hammonds setting fires to eliminate juniper for the purpose of increasing forage for their cattle," said Cain.
Cain, in the denial, goes into painstaking detail about the "damage" caused by the Hammonds' fires, and says that the Hammonds "could be found responsible for additional fires."
"The Hammond burning, without regard to BLM's prescribed burning objectives, has foreclosed some of BLM's flexibility for ecological restoration in the area. By unilaterally burning habitat, the Hammonds have removed areas that could have served as habitat while BLM conducted smaller prescribed burns in other areas. The BLM carefully considers the balance of available habitat on a large scale before undertaking a prescribed burn."
According to Jeff Rose, the current BLM Burns District Manager, the Burns District BLM burned over 28,000 acres in 2001 on private and BLM-administered land, in two big prescribed burn projects on the top of the Steens Mountain.
"We operated under cooperative agreements and the BLM conducted the two burns. Private landowners help put in firelines prior to the fires and helped with operations and logistics when the fires were conducted," he said.
According to a BLM report from 2002, the BLM and the U.S. Forest Service used prescribed fire to intentionally burn 87,988 acres in Oregon alone. Also in Oregon during the same year, wild fires burned 1,010,952 acres on federal and state land.
Rose, said in a January, 2018, interview with Tri-State Livestock News, that the BLM, as an agency, uses fire extensively to manage the range.
"When we do prescribed burning, the plant communities respond favorably. A lot of perennials improve, like flowers and grasses. That's one of the reasons we used to do that a lot in the late 90s and early 2000s, and we still do it in some spots. It's also to control juniper. The prescribed burning allows forage for wildlife and livestock, which is one of the goals for the projects," said Rose.
The BLM is not able to conduct prescribed burns on the 170,000-acre Wilderness Designation on the Steens Mountain because fire management is nearly impossible due to the requirement that no motorized vehicles be used on Wilderness Areas.
"When the juniper comes in, it depletes the understory," said Rose. "In areas where they (the BLM) can do prescribed burns, they are making a positive difference."
Rose said that the area has received adequate moisture in the past year and that even on the segment of Wilderness (which borders the Hammond allotment) that is grazed, grass is healthy and "in good condition."
Rose was unable to comment on the condition of the Hammonds' allotment because of ongoing mitigation over the grazing permit denial. He was also unable to comment on the permit denial itself.
A state of Oregon report reveals that in 2006, a total of 493,420 acres were burned by wildfire across the state's federally-managed land, costing over $90 million to battle.
Judge Hogan, who presided over the first case, said the Hammond-lit fires resulted in about $100 of damage. A range specialist testified under oath that the condition of the rangeland improved following the fires.
Cain said grass improved on the acreage the Hammonds burned.
"The 2001 fire may have added livestock forage on public lands the Hammonds grazed for profit, but it also endangered people in the area and violated BLM grazing permit regulations," he said.
"Dwight told Mr. Ward that, for years, he had wanted to burn the area where the 2001 fire had burned and that while BLM had promised him that it would be burned with a prescribed fire, it had not. Instead of coordinating with BLM, the Hammonds took matters into their own hands," reported Cain.
The Hammonds did utilize fire as a management tool, in much the same way that the BLM did and continues to do.
Neighbors of the Hammonds' grazing allotment say that because they have been denied the ability to graze for nearly four years now, the overgrowth has become a serious fire hazard.
"To me, as a grass man, there is more being destroyed right now on their allotments, by sitting there for four years or more, than the Hammonds ever did with fire. They didn't destroy any buildings, they just burned grass. They were not found guilty of harming anyone or threatening anyone," said Travis Williams, a neighbor.
Williams said the ungrazed grass presents potential for thousands and thousands of acres to burn needlessly and uncontrollably.
"It is just like kindling waiting for a match," said Maupin. "There would be nothing stopping a 500,000 acre fire if it got going."
Just as the Hammonds used backburning to protect their home in 2006, Maupin recalls the BLM using the same technique to try to stop that very same blaze, known as the Krumbo Butte fire when several fires merged.
"BLM was lighting backfires all over the mountain. They had drip-torches attempting to light backfires for miles trying to keep the fire from jumping across the Steens Loop Road," she recalls.
Maupin's husband was working with the BLM, trying to keep their cattle out of the fire's path.
Using backburns to slow fire and protect forage and cattle is a good strategy, said Maupin. "We were in favor of the BLM's backburns."
Minutes from a 2006 Steens Mountain Advisory Committee meeting reveal that Susie Hammond had requested cooperation from the BLM on burning that year.
"As private landowner they have tried for years to address the liability and the responsibility for fire management. She said it doesn't happen, and she doesn't know why. It seems to her it is a pulling back of the agency and not wanting to address the liability. Every landowner has their own reasons for allowing or not allowing fire but she thinks there is an agreement that could be made. She would like to see the BLM produce some kind of proposed agreement for the next SMAC meeting," say the December 2006 meeting minutes, summarizing Susie's comments.
Meeting minutes from March of 2006 reveal that Susie commented on the Oregon Natural Desert Association's (an anti-grazing group) "inventory," saying that their inventory was not credible and that much of it was made by trespassing on private property including that of the Hammonds.'
According to Angus McIntosh, the Executive Director of the Range Allotment Owners Association, permittees or "allottees" are exempt from prosecution for burning brush, trees or grass on their own allotments. The language of the law, 18 U.S. Code 1855 Timber set afire is as follows:
Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States, or under contract for purchase or for the acquisition of which condemnation proceedings have been instituted, or upon any Indian reservation or lands belonging to or occupied by any tribe or group of Indians under authority of the United States, or upon any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined under this title or imprisoned not more than five years, or both.
This section shall not apply in the case of a fire set by an allottee in the reasonable exercise of his proprietary rights in the allotment.It is the final sentence that McIntosh believes would give the Hammonds and other federal lands allottees the freedom to perform prescribed burns on their own allotments.
The attorney for the Hammonds said it is obvious that federal prosecutors sought significant sentences for Dwight and Steven.
The federal government had other options for punishment against the Hammonds, including the Taylor Grazing Act, 43 U.S.C. § 315a (see also 43 C.F.R. § 4170.2-1), the Federal Land Policy and Management Act, 43 U.S.C. § 1733(a) (see also 43 C.F.R. § 4170.2-2), or the certain Public Land fire related criminal provisions, 18 U.S.C. §§ 1855, 1856. However, these statutes did not have mandatory jail time. The Antiterrorism and Effective Death Penalty Act of 1996, called for mandatory time.
Maupin said neighbors quietly support the Hammonds. "People think it's a complete travesty." But some are afraid to speak out. "I think people are worried about retribution from the government. Lots of people have refuge permits. They are hesitant to speak out for fear that they will draw attention to themselves and could lose that forage."
Dwight, who turned 76 in January is scheduled to be released in January of 2020. Steven turns 50 in February and will be released in late June of 2019.
Petitions for Clemency filed by each man are still pending.
A request for additional information to the Department of Interior Board of Appeals was not answered.