New Mexico Federal Lands Council News

NEW MEXICO FEDERAL LANDS NEWS

by Frank Dubois

The Ninth Circuit recently affirmed the mistrial in the Bundy case

Bundy Boondoggle

The saga of Cliven Bundy and his battles with the feds over livestock grazing go back many years. From a strictly administrative/legal basis, here is a quick summary:

In 1993, BLM sent Bundy a notice of trespass and an order to remove his cattle In 1998 a federal district court permanently enjoined Bundy from grazing livestock within the Bunkerville allotment. Bundy filed an appeal and in 1999 the Ninth Circuit Court of Appeals denied his appeal and affirmed the lower court’s order.

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Ї In 2011, BLM sent Bundy a notice of intent to roundup his cattle.

In 2013 a federal district court ordered Bundy to remove his cattle within 45 days and authorized the feds to impound any cattle that were not removed. Bundy appealed and lost.

Ї In March of 2014, BLM issued a notice of intent to impound Bundy’s cattle, and on April 5, 2014 the roundup began.

This was a large operation for the feds, as the court recently summarized:

BLM made extensive preparations for “Operation Gold Butte Impound.” Coordinating with agents from the National Park Service and Federal Bureau of Investigation, BLM anticipated resistance from Bundy and his supporters. It planned to escort the contractors in and out of the area each day. BLM established a Listening Post/Observation Post (LP/OP) “strategically placed at elevated positions around the Bundy residence each evening” where agents were outfitted with binoculars, spotting scopes, night-vision goggles, and thermal-imaging devices. The LP/OP personnel were to have “agency-issued rifles with them at all times.” BLM also established a Tactical Operations Center (TOC), Forward Operating Base (FOB), a media site, and a “free speech area.”

I and many others have written about what transpired during the so-called standoff and there is no need to repeat it here, as our interest today is in the court case. Suffice it to say the feds backed down and left, handing a major victory to Bundy and his supporters. I vividly remember both the surprise and joy I personally experienced at this outcome.

However, in March of 2016 a federal grand jury indicted nineteen individuals, including Cliven Bundy and his two sons, Ammon and Ryan, for a slate of federal crimes, including impeding federal officers, threatening federal officers, and extortion, as well as conspiracy to commit those

crimes. Trial began on October 30, 2017, and that is when the government’s transgressions and abuses started coming to light.

During the trial a bombshell memo from a BLM law enforcement officer to the Dept. of Justice was made public. In the memo, BLM Special Agent Larry C. Wooten stated, “I routinely observed, and the investigation revealed a widespread pattern of bad judgement, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical and legal violations among senior and supervisory staff at the BLM’s Office of Law Enforcement and Security.”

Wooten further stated these issues, “… made a mockery of our position of special trust and confidence, portrayed extreme unprofessional bias, adversely affected our agency’s mission and likely the trial regarding Cliven Bundy…” and “put our agency and specific law enforcement supervisors in potential legal, civil and administrative jeopardy.”

Some of the actions taken by certain BLM officers are simply too crude to include in this publication. However, Wooten did report:

Conduct that was, “discriminatory, harassing and showed clear prejudice against the defendants, their supporters and Mormons.”

Uncovered comments where BLM agents “bragged about roughing up Dave Bundy” and “grinding his face into the ground.”

That BLM employees, “didn’t properly turn in the required discovery material (likely exculpatory evidence)”

That one BLM Supervisor, “instigated the unprofessional monitoring of jail calls between defendants and their wives, without prosecutor or FBI consent.”

That former BLM Special Agent-InCharge Dan Love purposely ignored federal and state recommendations, “in order to command the most intrusive, oppressive, large scale and militaristic trespass cattle impound possible.”

BLM Agent Wooten also say his investigation found, “excessive use of force, civil rights and policy violations.” Further, Wooten says, “there was an improper cover-up in virtually every matter that a particular BLM SAC participated in, or oversaw.”

It also became apparent that important evidence had been withheld by the feds. The presiding judge held a series of hearings in November of 2017. Based upon those hearings the judge found the follow-

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Ї Records about surveillance at the Bundy ranch

Records about the presence of government snipers

FBI logs about activity at the ranch in the days leading up to the standoff

Ї Law enforcement assessments dating

Ї Internal affairs reports about misconduct by BLM agents

In total, it came to 3,300 pages of evidence withheld. As a result the judge said this represented “outrageous” abuses and “flagrant misconduct” by the prosecutors. The judge declared “a universal sense of justice has been violated” and dismissed all charges against the Bundys “with prejudice”,

meaning those charges cannot be brought again.

Unbelievably, President Trump’s Justice Department appealed this decision to the Ninth Circuit Court of Appeals, the most liberal circuit in the nation.

On August 6 of this year the Ninth Circuit rendered their decision and I’m pleased to report the government’s CYA appeal was not successful.

The court affirmed the prosecution was guilty of “flagrant misconduct”, with such a finding necessary for charges to be dismissed “with prejudice.”

The court affirmed that the withholding of information about the surveillance camera “was willful rather than merely inadvertent.” The court also stated, “Rather than looking into the request and locating the documents before trial began, the government chose to fight rather than respond to the request.”

On the withholding of evidence concerning the government’s use of snipers, the court stated: “Of particular concern is the government’s handling of evidence related to the presence of snipers. This was a hot-button issue… The government said the Bundys’ claim of “snipers” was “false” and “deceitful,” yet the government’s own documents referred to its agents as “snipers.”…”In short, the government had to know the import that any evidence regarding snipers, or agents who looked and functioned like snipers, would have in this case. Nevertheless, it withheld a slate of information…” The court also found the government’s position this evidence was irrelevant to be “preposterous and reckless.”

With respect to the threat assessments, the court said, “…the government failed to turn over beneficial information speaking to Bundy’s potential for violence. These documents could have helped bolster the defense’s claim that the government had engaged in an overmilitarized impound operation that the Bundys claim fueled their fears of being surrounded by snipers. But irrespective of the theory defendants were to put forward, these documents should have been released. They, at the very least, provided impeachment evidence because some of their findings contrasted with the 2014 threat assessment used as the basis for planning the impound operation, and they undermined the prosecution’s opening statement.”

There is more, but in all instances the appeals court affirmed the lower court’s decision.

There are still many questions concerning the design, implementation and costs of this government boondoggle. Shamefully, neither political party has seen fit to conduct a complete investigation and report on this operation. That failure increases the odds that similar abuses will occur in the future.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation ▫