Cliven Bundy's Justifiable Defiance: Part I

by EDWARD CLINE April 21, 2014

On a morning In April, 1775, the British army, based in Boston, Massachusetts, set out to seize and/or destroy caches of arms and powder stockpiled by colonists in anticipation of trouble with the Crown. Along the way, this "search and destroy" army, between 600 and 700 strong, encountered a tiny band of armed American colonists, about 40 in number, on Lexington Green. There was a confrontation. The commanding officer ordered the colonists, the "damned rebels" - who weren't even blocking the path of the army - to lay down their arms. The colonists refused.

A shot was fired - from which side? That's always been a subject of speculation, and it hardly matters. A "violent" confrontation was bound to happen, later if not sooner, and if not on Lexington Green, then elsewhere, as the Crown arrogantly pushed its weight around in an attempt to subdue resistance by the colonists to Crown rule and regulations.

The British fired a volley into the colonists. Some colonists returned fire before dispersing in the face of the superior force. The survivors of the volley faded into the woods.

The pattern was repeated on a far greater scale on Bunker or Breed's Hill in June.

In April, 2014, in Nevada, the U.S. Bureau of Land Management (BLM), together with the U.S. Park Service, sent in about 200 officers prepared for war against other Americans to seize the cattle of Cliven Bundy, a recalcitrant rancher who refused to pay "grazing fees" on federal land. This force was augmented with military-style communications, tasers, attack dogs, snipers in the hills, and the best weaponry money could buy.  In response, hundreds of Americans, many of them armed and ready to defend Bundy, his family, and his ranch, arrived on the scene. On Saturday, April 12th, the BLM "backed off" from what promised to be a clash of arms between its hired guns and the impromptu American militia. Some cattle it had collected were released. It promised to pursue Bundy "administratively and judicially" in court.

The rapidity with which events unfolded in Nevada caused no little amount of confusion, two or three baker's dozens of rumors and allegations, and muddled coverage of what Cliven Bundy did or didn't do, what actually happened on April 12th, and what may happen next. This column is an attempt to sort the calves from the heifers.

But, first, back to April 1775 and Lexington Green. When the French & Indian War was concluded in 1763, King George III issued a Proclamation, which, among other things, stated that British subjects in North America could no longer flee Crown taxation and regulation by going over the transmontane, that is, the mountain range separating the "wild west" from the colonies that lined the eastern seaboard. They would be stopped by British troops, and if they managed to slip through, these unpatriotic citizens would be at the mercy of the Indians and no British troops would go to their rescue. The Stamp Act of 1765 was intended to partly offset the cost of maintaining a standing British army in North America.

It was the Proclamation which seeded colonial resentment against the Crown. It climaxed, first, during the Boston Massacre in March, 1770, and finally on Lexington Green in April, 1775. The colonists did not perceive His Majesty's Proclamation as an expression of gratitude for their having helped the British evict the French from North America, or, at least, helping to put a stop to the French and Indians who had been raiding the colonies that lay below Canada.

Similarly, in parallel, the BLM has assumed complete control of a swath of land out West, forbidding any and all from stepping foot on it without BLM permission. It sent troops to enforce a court order to Bundy to pay what the BLM claimed he owed, and also to collect what one can only guess it treated as collateral, Bundy's cattle. The BLM, along with the Park Service and the Environmental Protection Agency, had banded together to put 52 other ranches out of business in that area. Bundy is the "last man standing."

Laron Fred Woods, a resident of Utah, supplied this brief history of the land under dispute:

When Nevada became a state in 1864, the state had control of its land because of its sovereignty. The federal government started taking control back in the 1930's. Until then, the General Land Office managed public lands. Even though the GLO was a national agency, it was administered locally. After the Taylor Grazing act of 1934, passed under Franklin D. Roosevelt, a "U.S. Grazing Service" office was created. The "U.S. Grazing Service" office was merged with the General Land Office in 1946 (under Harry S. Truman) and the BLM (Bureau Of Land Management) was created. They then assumed control of all "public" lands and took over management from the state. Cliven Bundy's Grandfather purchased grazing rights from the General Land Office in the 1880's. Note: He PURCHASED those rights. Not the land, just the grazing rights.

After the BLM took over management, they [the BLM] no longer recognized as legitimate those actions of purchasing grazing rights. Right or wrong, they still refuse to recognize the purchased grazing rights from the Bundy's.

Two BLM sites carry the same official history.

The "roundup" of Bundy's cattle by the feds, given the context in which Bundy is acting, is simply a naked seizure of his property, under the guise of protecting the habitat of the desert tortoise. But even that pretext was exploded when it was learned that the BLM was actually euthanizing these tortoises. Watch Stefan Molyneux's YouTube observations on this subject, and also listen to Mark Levin's comments on Family Security Matters.

Unfortunately, Cliven Bundy's rationale for his resistance and defiance lacks any rational cohesion. It is basically an action taken on an emotional reaction to the overbearing and authoritarian behavior of the BLM and other federal agencies. His strongest suit is the fact that his ancestors purchased the "grazing rights" to the land in dispute, as described by Laron Fred Woods, rights which are no longer recognized by the BLM. Cliven Bundy isn't an intellectual; he deserves the support of those who claim to be.

Of course, if the government needn't recognize the right to property secured over a century ago, never mind property secured within the last half century, the last decade, the last year. Private property rights of any kind, whether prescriptive or outright or common law, have been drowned in an avalanche of fiat law and legalized theft under the rubric of the "public" or "common good" or the "public interest."

Freedom Outpost's Ben Swann reveals the cluelessness of the BLM in his April 16th article, "BLM: We Were Worried Cliven Bundy Might Have Prescriptive Rights and He Might Use that Defense in Court." He asks:

Why this year, spend nearly $1,000,000 of taxpayer money to round up 400 cattle that ultimately have to be returned? Why didn't the BLM just place a lien on the cattle rather than attempting to take them by force and then auction them off? The Bureau of Land Management has suffered a huge black eye this week because of their response to the Bundy situation. Perhaps though, there is a reason the BLM chose force over the courts.

Swann contacted Montana cattleman Todd Devlin, who is also County Commissioner in Prairie County, Montana. Devlin made his own enquiries about the BLM's ham-fisted, Gestapo-like behavior towards Bundy.

Among the questions Devlin asked of the BLM, "Is it possible that this guy (Cliven Bundy) has prescriptive rights?" The response from top officials at the BLM, "We are worried that he might, and he might use that defense."

So what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A's land to get to your land; a prescriptive easement is allowed which gives the user the right to get to his land through A's property.

Swann explained that if no one, even a government agency, challenges a prescriptive right in five years, then the right is secured and trespass cannot be legally claimed.

Granted, there have been court actions over the years. In 1998, a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the "trespass cattle" remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock. 

Bundy as been in between a rock and a hard place when it comes to dealing with bureaucracies.

Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn't recognize federal authority over the land. Bundy has said that in the past that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle. "The actual number is probably around $200,000. The $1.1 million claimed by the BLM is probably mostly interest and penalties for trespass cattle." says Devlin.... (Italics mine)

Swann concludes his article:

Finally, Devlin says instead of allowing the situation with Bundy's cattle to grow completely out of control, the BLM could have simply placed a lien on the cattle in the first place. Of course, that lien might have been rejected in court if Bundy were able to demonstrate those prescriptive rights. Then again, the courts so far have sided with the government; therefore, it is even more baffling why the lien wasn't placed on the livestock. (Italics mine)

Days after the BLM has claimed they will stand down, they are now reportedly considering a lien on the cattle, "I asked why you didn't put a lien against the cattle?" Devlin asked the BLM. "They hadn't thought about that, but they are considering it now."

DUH!!!! But then, those with a congenital, larcenous state of mind and method of doing things, don't usually, as a matter of habit, think ahead, do they? Their first impulse is to initiate force.

The BLM, like the National Park Service, wields a lot of clout on land in the U.S., especially in the West. In December 2013, Freedom Outpost published a map of the continental U.S., including Alaska. Beginning half-way through Colorado, moving west, it looks like a bucket of red paint had been dumped on every state: the red is federally owned and controlled land. The Appalachian Range is federal and the largest chunk in the east. Half of California is federal. But virtually all of Nevada is federal; the little white dot in the furthest southeast corner of the state is the Las Vegas Metro area.

The New Energy News site, which is pro-"renewable," features a map of where the BLM and the federal government plan to implement solar, wind, and geothermal power projects. It also has a link to a map of the all the states with the percentage of federally-owned land in each state, published by the General Services Administration under the title, "Who Owns the West?" About 86% of Nevada is federal land.

Aside from the government's ongoing campaign to "green" America, there is a class of corrupt politicians who wish to collect another kind of "green" - money. U.S. Senator Harry Reid, one of the most notorious corrupt politicians in Congress,  may have had a hand in the BLM fiasco. He and his son, Rory Reid, may have instigated the offense against Cliven Bundy in an exercise of vendetta. "Crony capitalism" is the vehicle.

James Simpson, in his April 16th WND article, "Clinton/Obama/Cronies Behind Bundy Showdown," noted:

A BLM document unearthed last week discusses mitigation strategies for the Dry Lake Solar Energy Zone, just southwest of the Bundy ranch. The "mitigation strategy" proposed to use the grazing lands near the Bundy ranch as a kind of sanctuary for the desert tortoise, because the entire region is slated for a large number of solar, wind and geothermal energy generation facilities. The solar projects will obliterate most of the turtle's natural habitat.

Bloggers quickly made a connection between the effort to remove Bundy's cattle and a solar energy project in Southern Nevada financed by the communist Chinese energy firm ENN. It was to be the largest solar farm in the U.S.

Reid had lobbied heavily for the company's business, even traveling to China. Reid's son, Rory Reid, formerly a Clark County commissioner, became a lobbyist for ENN, and the Senate majority leader's former senior adviser, Neil Kornze, now leads the BLM.

But the solar energy complex financed by the communist Chinese was not at the heart of the Bundy Ranch fiasco after all. The project died last year.

The federal government has plans for the country, and especially for the west. If you ever wondered why the Keystone oil project has been denied approval, this is why:

However, the BLM's library of renewable energy projects revealed it was only one of more than 50 solar, wind and geothermal projects planned for Nevada, California, Arizona and other Western states. Reid was focused on at least one, and maybe more, of the projects, much closer to the Bundy ranch.

Simpson concludes:

But that is not all. A company called First Solar is listed on a BLM renewable energy project map of southern Nevada, one of 11 sited in Clark County. Additionally, the map shows six wind projects in Clark County and also lists the K Road Moapa project under "transmission projects." In other words, there is a lot more going on than media have reported.

First Solar investors comprise a who's who of Democratic insiders, including major Obama campaign bundlers, billionaire investor Paul Tudor Jones, Al Gore, Ted Turner and Goldman Sachs. First Solar's CEO is Michael Ahearn, former fundraiser for both Obama and Harry Reid. First Solar has at least three other solar projects in California. So it becomes apparent why the BLM, Reid and many other interested parties have such an intense interest in the desert tortoise.

Yet, Harry Reid piously pronounced Bundy's supporters as terrorists. Laura Myers of the Las Vegas Review-Journal reported on April 17th:

U.S. Sen. Harry Reid on Thursday called supporters of Bunkerville rancher Cliven Bundy "domestic terrorists" because they defended him against a Bureau of Land Management cattle roundup with guns and put their children in harm's way.

"Those people who hold themselves out to be patriots are not. They're nothing more than domestic terrorists," Reid said during an appearance at a Las Vegas Review-Journal "Hashtags & Headlines" event at the Paris. "... I repeat: what went on up there was domestic terrorism."

You really have to hand a pound of brass to Reid. Men rallying to help someone protect his property from thieves are "terrorists," not the thieves. He cited the "rule of law" as above all else, when he is a first-class lawbreaker.

Reid accused Bundy backers of bringing their children to protest the BLM so that federal authorities might harm them, which would prompt negative headlines around the world and hurt the government's case against the rancher.

"There were hundreds - hundreds of people from around the country - that came there," Reid said. "They had sniper rifles on the freeway. They had assault weapons. They had automatic weapons."

According to Reid, some protesters said they had "children and women lined up because if anyone got hurt we wanted to make sure they got hurt first, because we want the federal government hurting women and children. ... What if others tried the same thing?"

The first charge is simply a lying smear, that the protesters put women and children in jeopardy. It can be dismissed as not worthy of comment. But, who first brought automatic weapons to the party? Who stationed snipers in the hills? Who showed up first in the "hundreds"? Who declared the whole area a "no-fly zone," thus preventing news agencies in their choppers from monitoring the cattle roundup? Who created a "First Amendment" cattle pen in which protesters were supposed to be contained, fruitlessly sequestered miles away from the scene of the crime?

Who committed the only acts of violence during the confrontation? It was BLM personnel tasering one of Bundy's sons and manhandling one of his sisters.  Children? These were adults and so someone's children. In all the videos I've seen of the confrontation and of the protesters, I saw not one person who could have been under the age of twenty. All the people in the video shown advancing on foot and on horseback on the armed, barricaded, bug-eyed sunglass-wearing BLM thugs were adults. No responsible adult would take his children to such a tinderbox of a protest.

The Las Vegas Review-Journal article featured an excerpt of the Nevada Constitution, only partly quoting from it, allowing Harry Reid to slip a mickey into his two-faced taqiyya.

Nevada's 1864 Constitution, however, cedes rights to the vast stretches of public land to the federal government.

"The people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States," the state Constitution says in the ordinance section. Reid noted many of the protesters care deeply about the Constitution, both state and federal.

"Nevada's Constitution sets out very clearly the situation," Reid said.

One reader of that article, named Hilda, went to the trouble in her comments to educate the writer and Nevadans by citing that part of the Nevada Constitution:

Reid says, "Nevada's 1864 Constitution, however, cedes rights to the vast stretches of public land to the federal government." Reid fails to mention that despite that, the Supreme Court has upheld the right of all western states to have all the land returned to them under the "equal footing" doctrine. Also, the US Constitution allows for the federal government to own property only for "Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." No other ownership of land is permitted by the government for a reason. The Founding Fathers wanted to ensure limits on the federal government precisely to prevent the abuse of federal power we are witnessing now.

Federally-owned land was never intended to be space for the government to experiment with its preferred "energy" projects, with the hands of corrupt politicians and companies doing the experimenting.

Fox News' Megyn Kelly , a lawyer, remains confused about Cliven Bundy's actions, citing his defiance of two court orders as serious offenses, but nevertheless struggles to grasp the larger picture and sympathizes with Bundy. Judge Andrew Napolitano, a Fox consultant, explained to Dana Loesch of The Blaze why the BLM and the feds bungled:

The problem here is that the federal government - as is typical when it wins its case - has overplayed its hand and has completely turned the dynamics in which it won, into a case in which it's probably going to lose, because of the manner in which it's enforcing its victory," he explained.

Napolitano described how the Nevada rancher, Cliven Bundy, has claimed the land on which he was grazing his cattle belonged to the state, not the federal government, and that's why he chose not to pay federal grazing fees.

"A federal court decided that it belonged to the federal government, and that position was upheld on appeal," Napolitano said. "Now, that is a decision that never should have been made by a federal court, for two reasons. The federal government should never be in a position in which it is deciding on the extent of its own power ... And secondly, when you have a dispute over real estate, there's a universal principle of law everywhere in the United States of America ... that real estate disputes are resolved by state courts."

Napolitano said that the Bureau of Land Management, which is "supposed to be a bunch of bureaucrats" preserving land for the "future enjoyment of all Americans" quickly became "a group of thugs dressed in military uniform with loaded M16s pointed at a rancher and his family." "By doing all of that, they have succeeded in snatching defeat out of the jaws of victory," Napolitano said.

The judge concluded: "With respect to Bundy, he's lost. But in the hearts and minds of Americans he's won, because he has resisted the uber-aggressive enforcement by the federal government of their victory in court."

The law was on the government's side. But, what kind of law is it? And how is it being enforced throughout the country? Those subjects will be addressed in Part II.

Edward Cline is the author of the Sparrowhawk novels set in England and Virginia in the pre-Revolutionary period, of several detective and suspense novels, and three collections of his commentaries and columns, all available on Amazon Books. His essays, book reviews, and other articles have appeared in The Wall Street Journal, the Journal of Information Ethics and other publications. He is a frequent contributor to Rule of Reason, Family Security Matters, Capitalism Magazine and other Web publications.     


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