Bundyland (Now With a Timeline)

THE BASIC TIMELINE AS I UNDERSTAND IT AND MY OPINIONS OF THE BUNDY MATTER:

1. Prior to 1993, Cliven Bundy held an ephemeral grazing permit (for land that does not consistently contain enough forage to sustain livestock) to graze his cattle on public land owned by the U.S. Government, near his private Bunkerville Nevada area ranch.  

2.  Permission to graze cattle on public land is a privilege, not a right, which may be revoked at the discretion of the government. Light v. United States, 220 U.S. 523, 535 (U.S. Supreme Court 1911).  This is an important point worth spending some time on.  Many people who support Bundy's lawless refusal to abide by public agency determinations and Court Orders with respect to the disposition of public land where his cattle have been trespassing have insisted that some "right" was being violated.  However, Bundy's personal political policy preferences, and those of his supporters, do not rise to the level of Constitutional rights.  I wanted a different outcome in the last election, but I had only a "right" to vote and to campaign, not to win.  As Dallin Oaks has explained: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates." 

http://www.mormonnewsroom.org/article/fundamentals-of-our-constitutions-elder-dallin-h-oaks

3.  The publicly owned land where Mr. Bundy previously held grazing permits has been held by the U.S. Government since 1848, when it was ceded to the United States Federal Government by Mexico, pursuant to the Treaty of Guadalupe Hidalgo.  

4.  This federally owned land is administered by the Department of the Interior through the Bureau of Land Management and the National Park Service, pursuant to Congressional legislation granting these agencies the power to do so. 

5.  Mr. Bundy declined to sign a new permit in 1993, because he objected to the landowner’s permit terms, which would have reduced his allotment to 150 head of cattle, due to environmental concerns, including allegations of possible harm to the desert tortoise, which is listed as an endangered species.  Notwithstanding his failure to have any permit for the grazing of any cattle after 1993, Mr. Bundy’s cattle remained on the property without permit, but as trespassing cattle, and he then also ceased paying any grazing fees.  In social media postings, one of Mr. Bundy’s daughters has described Mr. Bundy’s decision to not sign the new 1993 permit as a decision by him to “fire” the BLM as his manager, according to which rather fanciful theory the BLM was somehow Mr. Bundy's hired manager, rather than the entity appointed by congressional legislation to manage the land for the property owner, namely the U.S. Government.    

6.  Mr. Bundy was ordered in 1998, and, again, in 1999, by the U.S. District Court for the District of Nevada (whose powers derive from Article 3 of the U.S. Constitution) to remove his trespassing livestock from the property where he had previously held a permit. Mr. Bundy did not obey these orders.  

7.  Beginning in the year 2000, Bundy began allowing his cattle to graze on land for which he had never held any permit (described in later court filings as “New Trespass Lands.”)

8.  In 2013, Mr. Bundy was again ordered by a U.S. District Court to remove his trespassing cattle from federally owned property.

9.  Mr. Bundy admits he has never obeyed any of these three Orders and he also admits having disobeyed orders requiring him to pay fines and penalties as a result of this disobedience. However, he excuses his conduct because he states that he does not recognize the United States Government as even existing (a statement he has made in media interviews), and on the basis of other legal arguments of a similar nature which he has raised in Court filings and which have been repeatedly rejected. For example, Mr. Bundy claims the jurisdiction of the U.S. Courts is a self-created fiction, and that the sovereign State of Nevada actually owns the land on which his cattle have been trespassing.  

10. These assertions regarding the non-existence of the U.S. Government and the fictional nature of its Courts' jurisdiction and Nevada’s status as its own sovereign State are not mainstream legitimate legal arguments.  Rather, they derive from and reflect the ideology of the "sovereign citizens" movement (albeit with some customization unique to Mr. Bundy's purposes).  For example, according to Court filings, Mr. Bundy has made threats to "sue" federal employees he has encountered on the federal property where his cows were trespassing, which he claimed in his encounters to be his land. These types of threats to bring suits against government employees are a common practice among members of the sovereign citizens movement.

11.  The sovereign citizen movement has been identified by the FBI as an extremist organization, some of whose members may be considered to be domestic terrorists.  

http://www.fbi.gov/news/stories/2010/april/sovereigncitizens_041310

12.  The legal theories advanced by advocates of "sovereignty" theory, as a basis for refusing to comply with federal laws and court orders have been criticized by legal scholar Dallin H. Oaks, a former University of Chicago law professor, former Utah State Supreme Court Justice, former President of Brigham Young University, and current Apostle of the Church of Jesus Christ of Latter-day Saints (a religion to which Mr. Bundy happens to belong).  In 1994, Mr. Oaks, having thoroughly analyzed the various arguments made by earlier generations of "sovereignty" theorists, found them to be wholly without any legitimacy, and concluded as follows with respect to those who would rely on such theories as grounds for violating federal laws:  "I feel sad that persons can be so misled. The wise will beware of teachings on the Constitution that are based on peephole history and selective readings of historic documents. They should also beware of the related advice of persons who advocate private armies or the collection of heavy weapons or extraordinary quantities of private arms. Responsible citizenship has no shortcuts when the going gets tough--not draft avoidance, not tax evasion and not eccentric theories that purport to free us from the obligation to be subject to the constitutions and laws of our states and our nation."  Dallin H. Oaks "Some Responsibilities of Citizenship"  America's Freedom Festival, Provo Utah, July 3, 1994. [Emphasis added.]

13.  Throughout 2011, Mr. Bundy refused numerous offers to meet with BLM agents and other government officials to resolve the impasse between himself and the Federal Government.  In April 2012, Mr. Bundy declined an offer to resolve the matter by having him cooperate with an effort to impound his trespassing cattle by shipping them to a facility of his choice and provide him with the proceeds from the sale.

14.  Because of Mr. Bundy’s failures to comply with the lawful injunction orders for the removal of his cattle, the third of these U.S. District Court Orders authorized government agents to seize and remove and impound Mr. Bundy’s trespassing cattle, and further ordered that Mr. Bundy shall not physically interfere with any seizure or impoundment operation so authorized. This was not an action to “collect a bill” as some have characterized it, but to enforce an injunction for the removal of trespassing cattle from property where they had been grazing without a permit for over a decade, including from some property for which no permit had ever been held.   

15.  Mr. Bundy was provided prior notice, as required by the Court, of the government’s intention to undertake the operations authorized by this Order. Instead of utilizing the notice period to attempt to cure his trespass upon federally owned real property on which he has no recognized grazing permission, Mr. Bundy, according to news reports declared a “range war” and called upon State officials to come to his aid against the federal government’s operations.  

16.  Had Nevada state officials come to Mr. Bundy’s aid in his resistance against U.S. law and U.S. Court Orders, they would have been violating the Nevada Constitution which, having been written during the Civil War, was designed to ensure that the claims of would-be secessionists would not be recognized in this State, providing as follows: “[T]he Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State . . . to . . . perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any . . . people . . . attempt to . . . forcibly resist the execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority. 

17.  Mr. Bundy’s requests for a range war was consistent with earlier statements which Mr. Bundy had made, under oath, in the litigation leading to the last of the aforestated orders, in which Mr. Bundy had testified that he would do “whatever it takes” to physically resist any legal officers’ actions to remove his cattle from land he did not own, in an effort to physically stop such conduct and that he would call upon and solicit the assistance of neighbors, friends, family and other supporters to do so.

18.  Under the authority of the U.S. District Court's order, armed government agents therefore sought to carry out impoundment operations.  Mr. Bundy’s supporters resisted, and, as the matter received increasing media attention, supporters of Mr. Bundy’s cause, many of whom were armed and characterized themselves as “militia” members soon arrived.  It should be noted that a lawful Nevada militia must be “licensed by the Governor” as required by Nevada Revised Statutes 412.026. Otherwise, it is a crime in Nevada, under NRS 203.080, for any body of individuals who are not acting under proper statutory authority, to associate themselves together as a military company with arms without the consent of the Governor.  

19.  An expert on the fringe “sovereign citizens” movement, reporting for Forbes magazine, has reported that much of the rhetoric employed by those who arrived indicated their affiliation with this movement. 

  (www.forbes.com/sites/jjmacnab/2014/05/02/context-matters-the-cliven-bundy-standoff-part-2/) 

Although the FBI has indicated that certain members of the "Sovereign Citizens" movement may be considered to be domestic terrorists, I would not personally label any of Mr. Bundy's actions or those of his militia to be "terrorism" as they have not directed violence against civilians to spread fear.  However, their use of arms to essentially play chicken with and stand down the lawful agents of the Federal Government, seeking to enforce a U.S. District Court Order on U.S. owned land, certainly qualifies, in my opinion, as domestic criminality, and had shots been fired, the terrorist label may at some point have become appropriate.

20.  In order to avoid violence, the BLM eventually ceased its impoundment operations and released all of the cattle which it had impounded to date.  As of this writing, so-called “militia” members apparently remain on the ground in the Bunkerville area, to prevent any future efforts by the U.S. Government to enforce U.S. Court Orders on property owned by the U.S. Government, under the apparent, but facially absurd, theory that it would be invalid or wrongful for the U.S. Government to enforce U.S. District Court Orders on property owned by the U.S. Government.    

21.  Everyone can make up their own mind regarding the foregoing.  As for me, whatever sympathy I may have had for Mr. Bundy’s position in 1993, when the BLM restricted his grazing permit, is now irrelevant, given the conduct which Bundy has engaged in for the past 20 years, since that date, and the fringe ideology and extremist movement he has supported to justify his conduct.  Armed resistance to the activities of executive branch officers of the U.S. Government who derive their executive authority from acts of Congress and are acting to enforce Orders of a United States District Court, authorized to issue those Orders under Article III of the United States Constitution, seems to me to be inherently anti-American, anti-Constitutional conduct.  I support the Constitution of the United States and I oppose those who do not.  


22.  Nor are any issues of human rights involved in this matter which might justify civil disobedience to legal authorities.  This is a question of the government’s use of government owned land, not an issue of extreme religious or ethnic discrimination.  As was stated by Dallin H. Oaks: “At a clear and extreme level, violations of inalienable rights by a government might excuse citizens from the performance of some obligations of citizenship. But . . . any such exceptions would have to be . . . extreme . . . .  As long as a government provides aggrieved persons an opportunity to work to enlarge their freedoms and relieve their oppressions by legal and peaceful means, a Latter-day Saint citizen's duty is to forego revolution and disobedience of law. Our doctrine commits us to work from within. Even an oppressive government is preferable to a state of lawlessness and anarchy in which the only ruling principle is force and every individual has a thousand oppressors. . . . We remain committed to uphold our governments and to obey their laws. One of the most important of the great fundamentals of our inspired Constitution is the principle that the sovereign power is in the people . . . .  However, it does not follow from this principle that each citizen is free to determine which laws he will obey or that one or more citizens are free to redefine the concept of sovereignty. That would result in anarchy, a system in which the only source of power is the sword. In that system, no person is free.”


COMMENTARY: 

So what exactly are we supposed to call the territory which is now under the de facto control of Cliven Bundy and his private militia, who have successfully ousted therefrom the agents of that Federal Government which still claims political jurisdiction over the territory’s citizens and ownership of much of its real property? Bundyland? That seems a proper fit. Since Cliven Bundy is not required to recognize or abide by any federal laws or any federal court orders or to even recognize the existence of the United States government, it is a very safe bet that he, and he alone, will be the only law in Bundyland. So it should probably be named after him.

More importantly, what are the boundaries of Bundyland? A certain perimeter around the Bundy home? The entirety of the Bunkerville grazing allotment which was cancelled when Cliven didn't renew his permit, but on which his cattle have continued to graze, without license from the property’s owner, and without paying any fees, for 20 years? Or are the boundaries flexible, tied to his chattel, and moving wherever his sacred freedom cows move?

This is an important point. If we are going to become Somalia, where the national government holds power over our territory in name only, but where local warlords and their private armies are actually in control on the ground, then we are all going to need to know the basics of which warlords are controlling which areas, so we can bring appropriate amounts of tribute money, or whatever else they take as payment, if we want to travel and need to pass through their borders. (I’ve heard that in Somalia, children are usually accepted.) Will the Bundylandian militia be setting up a toll booth to collect on the I-15? Or will they use pirates in Mad Max cars? I’m sure they’ll want to be paid. They need to eat after all, and they can’t leave Bundyland or the Feds might pull an Abraham Lincoln and try to take it over again. And who wants a big giant Obama statue in our nation’s capitol, sitting next to Abe? Are you kidding me? So, it’s only right that we should pay them. They are, after all, protecting our freedoms. Or so they keep ensuring us.

I’d like to thank George Washington and John Adams and Alexander Hamilton and James Madison et al., for having bequeathed unto us a government of laws and not of men. It was great while it lasted guys, it really, really was. But apparently we’ve decided to forego all that now and pursue a more dynamic and, um, libertarian, direction. Because, you know, there are important rights involved here. I’m not sure what they are. The right to point guns at government employees and call it free speech? Or the right to use government owned land for free? I can’t seem to find anyone who will tell me the specifics, but they are apparently very, very, important. Real MLK natural higher law type stuff if you know what I mean. And people seem to be really, really, happy about it, and to be rallying around this Bundy guy and his little desert oasis of freedom like he’s the greatest thing since sliced bread. And when has something like that ever gone wrong?  So I’m sure it’s going to turn out just swell. But thanks for the memories. It looks like Bundy’s followers are going to keep your vintage flag (although I’m not sure I understand the logic there), so hopefully the other warlords will follow suit. It will be nice to enjoy that nostalgia.

Chris Albright
April 18, 2014