Oregon standoff latest protest in long-running controversy over Western lands, Stanford experts say
Stanford law professors say the armed protestors in Oregon reflect a misreading of constitutional law and the history of federal land management in the West.
The standoff in Oregon reflects a simmering controversy over who manages land in the West as well as a misunderstanding of constitutional law, Stanford scholars say.
On Jan. 2, dozens of armed people seized a federal wildlife refuge center in remote southeast Oregon. They say they are upset about a mandatory minimum sentence two local ranchers received for an arson conviction, and demand that the surrounding federal lands be ceded to local control.
David J. Hayes, a distinguished visiting lecturer at Stanford Law School, said the Oregon situation is a “dangerous one, given the ‘call to arms’ issued by the armed militants and their strong rhetoric.”
Prior to teaching at Stanford, Hayes was the second-highest ranking official at the Department of the Interior, serving as the deputy secretary and chief operating officer from 1999 to 2001 and 2009 to 2013, respectively. He had direct involvement in many Western land disputes, he said.
Hayes suggests that once the armed protestors leave the complex, they must be prosecuted firmly and without delay for their illegal actions. “Armed takeovers cannot be tolerated in our country. Respect for the rule of law is, and must continue to be, a central tenet of our democracy.”
The Bureau of Land Management leases many millions of acres of public lands to ranchers for cattle grazing, in accordance with historic practices. Ranchers pay fees for the privilege of having their livestock graze on America’s public lands and, as lessees, they must adhere to good stewardship practices, Hayes said.
Grazing fees on public lands have been maintained at very low levels for many years, he added, noting that typically these fees are lower than fees charged by private and state landowners.
Still, Hayes said, some people – apparently including the ranchers at the center of the controversy – philosophically object to federal ownership of land and federal oversight of these lands.
Dwight Hammond Jr., 74, and his son, Steven Hammond, 46, were convicted three years ago of setting fires in the Malheur National Wildlife Refuge, which is managed by the U.S. Bureau of Land Management. They had grazing rights leased to them for their cattle operations in the area.
Prosecutors charged the Hammonds under the Antiterrorism and Effective Death Penalty Act (AEDPA), which was passed by Congress after the first World Trade Center bombing and the bombing of the federal courthouse in Oklahoma City. The court ruled that the defendants’ actions triggered the section of this law that makes it illegal for anyone to destroy U.S. property.
The Hammonds are being resentenced because the court did not apply the mandatory minimum sentence required by that statute. When that became widely known, the armed protestors began showing up at the Malheur National Wildlife Refuge. Interestingly, the Hammonds and the Oregon Cattlemen’s Association have disavowed the protest occupation.
Public lands dispute
The federal government owns and manages a considerable portion of the land throughout the West, notes Michael Wara, an associate professor at Stanford Law School.
“The protesters might argue that the federal government has the power to own land within states just like any other private land owner, but that the Congress does not have the power to make laws that supersede state and local laws governing how the land is used. Federal grazing rules on Bureau of Land Management lands do this – sort of,” Wara said.
At the root of the issue is how to interpret the Constitution’s property clause, he said. The question is whether it grants Congress broad authority to regulate activities on federal land, or whether it merely grants the federal government the right to own land within states, subject to state and local land use and real property law.
“The Supreme Court answered this question very clearly in 1976 in a case called Kleppe v. New Mexico, when it ruled in favor of the broad interpretation. This gave Congress both the power of an owner and a legislature over the public domain,” Wara said.
He said the Kleppe case was about whether it was constitutional for Congress to impose federal criminal penalties for shooting wild horses on federal lands. “The court said it was, and strongly emphasized this principle – that on federal land, the federal law applies.”
Wara added, “The protesters either disagree with this Supreme Court decision or want Congress to limit itself to acting as an owner rather than an owner and government with respect to federal land holdings. And the latter is not going to happen.”
He said that such a perspective also ignores the history of land acquisition in the West by the federal government and a history of homesteading that ended with the Federal Land Policy and Management Act of 1976. Historically, governments used homesteading to help populate remote or less-desired areas.