Bungling of the Bundys: A Postmortem Analysis of Government Incompetence
By Andy Kerr, former Executive Director and Conservation Director of Oregon Wild
[Note: The Bundy band represents both an existential threat and an existential opportunity for America’s public lands. This is the first of four Public Lands Blog posts that examine the government mishandling of the Bundys, the Bundys’ legal troubles, the Bundys’ legal troublemaking, and the opportunities for the conservation community to apply political jujitsu on the Bundy gang to advance the conservation of America’s public lands.]
The bands of bozos that joined Cliven Bundy and his four sons in legally questionable escapades on federal public lands have mostly gotten away with it. In 2014, the first band of Bundy-inspired bozos gathered to stave off a government roundup of livestock that had long been grazing without a permit on federal public lands in what is now Gold Butte National Monument in Nevada. Another band of Bundy-loving bozos assembled in 2016 to occupy the Malheur National Wildlife Refuge in Oregon. While a few minor members of the Bundy gang have been convicted of at least some crimes, those whose last name is Bundy have escaped justice so far—and perhaps will forever.
In the case of the Oregon debacle, in the first trial a jury of twelve found that the government had failed to make a case against the seven defendants. My following of the crimes and the case made me think otherwise, but I must honor the system where twelve good people and true heard both sides and came to unanimous agreement. Individual juries can be wrong, but the judicial process must be respected.
In the case of the Nevada debacle, federal District Court Judge Gloria Navarro dismissed the case “with prejudice” (meaning the case cannot be brought again) after finding prosecutors violated the constitutional rights of the defendants by withholding from the defendants at least six key pieces of evidence that could have been favorable to the defense. The US Constitution works even for defendants who believe the US Government is illegitimate. Better the guilty never receive justice than receive injustice.
How did this bungling of the Bundys happen? Several different factors have been at play.
Both racial prejudice and cowboy worship played roles here. What if African Americans, Native Americans, and/or Latino Americans had flouted the law by long occupying government buildings or long refusing to pay government fees or taxes? The system would not long tolerate it and would certainly not let them off scot-free or with mere wrist slaps. Compounding the injustice was that the white guys wore cowboy hats. American society generally exalts people who wear cowboy hats, cowboy boots, large belt buckles, and shirts with snap fasteners and pointy-tipped pockets. Perhaps any dissident should always wear a cowboy hat.
BLM Incompetence in the Nevada Debacle
There were two teams of clowns on the field during the Nevada standoff: the Bundy bozos and the BLM bozos.
The timidity and incompetence of the Bureau of Land Management (BLM) in the face of the illegal livestock trespass in Nevada is remarkable. Most of the delay from the time the Bundy cattle first squatted on public lands in 1993 was due to the BLM’s acquiescing to Bundy bluster. It feared violence against its employees or the public by Bundy and his band. When the BLM finally did act to round up the illegal livestock, the agency treated it as a paramilitary event, sending in more than a hundred law enforcement officers, many dressed in camo and carrying rifles. (Just before the standoff the BLM shredded papers, later pointed to by a Bundy defense lawyer as destroying evidence.) But the agency underestimated its foe and his allies, and eventually the officers retreated at gunpoint. The BLM law enforcement agent in charge, Dan Love, was a clown later fired for unrelated misconduct.
The BLM’s special agent in charge of the 2014 impoundment case, Larry “Clint” Wooten, submitted to the federal government a whistleblower complaint that is an appalling read (and I don’t consider myself easily appalled by the conduct of government officials). In it he states, “I routinely observed and the investigation revealed a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism, and misconduct, as well as likely policy, legal, and ethical violations among senior and supervisory staff at the BLM’s Office of Law Enforcement and Security.”
Robert Abbey—who worked for the BLM for thirty years, including eight as state director for Nevada (during all of which Bundy livestock were in trespass) and later national director of the agency—has recently criticized the BLM for its bungled handling of the affair, saying the paramilitary approach was unwise. The reality is that the BLM law enforcement arm was ill equipped for the operation, lacking both adequate armament and professionalism. After the second (well, the first, actually) court order, the BLM should have requested that the judge in the case order the US Marshall Service to provide security to BLM personnel involved in the roundup.
Bundy’s trespass cattle defiled not only Bureau of Land Management holdings but also the National Park Service’s Lake Mead National Recreation Area. Source: Bureau of Land Management.
FBI Incompetence in the Oregon Debacle
The occupation of the Malheur National Wildlife Refuge went on far longer than it should have because the federal agency in charge, the Federal Bureau of Investigation (FBI), mishandled the event. In the depths of winter, had the FBI ordered that electricity to the refuge be cut off and imposed a blockade, the cold would soon have resulted in surrender by the occupiers. However, this was not done, as it would also have cut power to some nearby ranches. The FBI apparently did not know it could rent portable diesel-powered generators to supply the innocent bystanders with power.
Compounding the folly, an FBI agent failed to report firing his weapon during an incident when one Malheur occupier was killed resisting arrest, and some of his colleagues aided in a cover-up.
Prosecutorial Incompetence in the Oregon Debacle
During the first Oregon criminal trial, the federal prosecutors charged the defendants only with felonies. They could have simultaneously charged them with related misdemeanors, giving the jury the choice to convict on lesser charges if it felt the government had failed to make the case on the larger ones. It is a felony to engage in a conspiracy to violate the law, even though the actual crimes committed may only be misdemeanors. Convicted felons necessarily lose the right to own guns, which the prosecutors very much wanted and bet their legal strategy on, while convicted misdemeanants do not necessarily lose their guns.
In the second Oregon criminal trial, focused on different defendants who were minor players in the occupation, the federal prosecutors did also bring lesser charges, as well as hiring a jury consultant, which couldn’t have hurt in the first trial. Two of the four defendants were found guilty of conspiracy, while the other two were acquitted on that charge but found guilty of lesser charges.
The federal prosecutors have another chance to not screw up, as trial has been set for the two other Bundy sons, who weren’t (mis)tried in the first case. Don’t hold your breath.
While galling, the tactical victories of these fringe-dwelling anti–public lands zealots are inconsequential in the strategic defense of federal public lands for the benefit of this and future generations. The Bundyites contend that constitutionally the federal government cannot own federal public lands, but they are wrong. And now the conservation community has a chance to make sweet, sweet lemonade out of the Bundy lemons.
If you'd like to read more by Andy Kerr, check out his Public Lands Blog.