Blog No. 35. The Strange Case of Cliven Bundy and the Mojave Desert Tortoise.

Readers who have been focusing on weightier matters, perhaps the maneuvering of Vladimir Putin in Ukraine, may not have followed closely the saga of Cliven Bundy. But in the issues involved, and the responses it has produced from left and right, Mr. Bundy’s story promises to become something of a fable for our times. As many will be aware, Mr. Bundy is a rancher in Clark County Nevada who has been in a dispute with the Bureau of Land Management for two decades.  The dispute concerns Bundy’s grazing of cattle on land that is owned by the federal government. In the course of the dispute, Bundy has brought and lost suits against the government and failed to pay fees and fines that the BLM calculates to be over $1Million and Bundy estimates at $300,000.

Matters came to a head when well-armed representatives of the BLM sought to seize several hundred head of Bundy’s cattle pursuant to a court order.  The BLM, however found itself confronted by hundreds  of Bundy supporters, many of whom were on horseback and many of whom were also well-armed.  One of Bundy’s supporters, a former Deputy Sheriff of Clark County, Richard Mack, told Fox News that, “We were actually strategizing to put all the women up at the front. If they are going to start shooting, it’s going to be women that are going to be televised all across the world getting shot by these rogue federal officers.” In the course of a standoff over several days, Bundy’s son was tasered after kicking a police dog. More serious injuries, however, were avoided when the BLM agreed on April 12 to withdraw without the cattle and departed to ponder its next move.

From the perspective of the left, the matter was open and shut and the actions of Bundy and his supporters an outrage. Senator Reid described the Bundy supporters with the extravagant term “domestic terrorists” and vowed that the issue was not closed. In a column in The New York Times, Timothy Egan, asserted that Bundy was no different from “a vendor on the National Mall, selling burgers and dogs, who hasn’t paid his rent in 20 years” and saw the Bundy protesters as “thugs.” It was, however, not quite that simple. Egan failed to mention the source of the controversy: the Mojave Desert Tortoise. It seems that the dispute between Bundy and the BLM began in 1993, when the BLM restricted Bundy from grazing his cattle land where it was believed to threaten the well-being of the tortoise, an object of protection under the Endangered Species Act.The Desert Tortoise, like many denizens of the Endangered (or, in this case, Threatened) Species List, is not long on charm. While their life span is 50 to 80 years, they are inactive during most of the year, and spend most of their time sleeping in burrows and rock shelters.

Cliven Bundy’s resistance to the BLM included a refusal to pay grazing fees (or, “rent”) as he had in the past, and the amount the BLM now seeks includes not only such fees but also fines for trespassing on restricted land. Bundy insists that he has nothing against the desert tortoise and, indeed, that the tortoise and his cattle can happily coexist, “The tortoises eat the cow manure, too. It’s filled with protein.” However that may be, the BLM regulations have taken their toll on ranchers.

John Hinderaker of the Powerline blog, summarized the history of the BLM’s war on ranchers in an influential essay “Why You Should Be Sympathetic Toward Cliven Bundy.” As he reported:

Over the last two or three decades, the Bureau has squeezed the ranchers in southern Nevada by limiting the acres on which their cattle can graze, reducing the number of cattle that can be on federal land, and charging grazing fees for the ever-diminishing privilege. The effect of these restrictions has been to drive the ranchers out of business. Formerly, there were dozens of ranches in the area where Bundy operates. Now, his ranch is the only one.

At the same time, the BLM has been criticized by environmental groups who have threatened to sue the agency for not being sufficiently vigorous in its efforts to prevent unauthorized grazing.

The subplot of the Desert Tortoise is further complicated by the fact that the tortoises are also threatened by a massive solar energy project located 32 miles west of Bundy’s ranch. The government has developed an elaborate and very costly mitigation strategy for the project, and it appears to contemplate the transportation of tortoises from the project site to the Golden Butte area – precisely where Bundy’s cattle graze illegally.  Indeed, the mitigation plan noted that flaws of Golden Butte as a mitigation site included “trespass livestock grazing” (along with off-road vehicle use, illegal dumping, wildfire, and weed infestation). The reference to trespass grazing led many to conclude that Bundy’s cattle were being sacrificed to the interest of not only the tortoise but to that of solar power development. At the same time, several environmental groups have attacked the mitigation plan as inadequate.

The connection with solar power spawned an even more colorful narrative which became sufficiently widespread on Facebook and the internet that it drew the attention of the redoubtable policeman of the internet, snopes.com. In summary, the narrative claimed that “Senator Harry Reid and a Chinese company building a solar plant are behind a standoff between federal agents and a Nevada rancher.” Snopes, however, labeled the claim as false, pointing out that, while Reid or his son had once been interested in a Chinese-backed solar project in Clark county, that project had posed no apparent conflict with Bundy’s ranch and had been abandoned.

Most critics of the BLM have acknowledged that Bundy has no legal basis for his position. As Hinderaker put it, “First, it must be admitted that legally, Bundy doesn’t have a leg to stand on.” Bundy’s litigation in federal courts has been carried out bereft of legal assistance and has been marked by imaginative but untenable claims. While Bundy’s family may have been ranching in the area since the 1870’s as he claims, it cannot be seriously disputed that the federal government owns the land in question (just as it does more than 80% of the land in Nevada), and that it has the right to control its use.

Nevertheless, Bundy continues to argue that the United States has “seized Nevada’s sovereignty” and that he does not accept its authority over the land. The irrepressible Rand Paul, joining his father in support of Bundy, has purported to see “a legitimate constitutional question here about whether the state should be in charge of endangered species or whether the federal government should be.” There may well be legitimate issues of policy as to how the BLM operates, the wisdom of how the Endangered Species Act is applied, and the costs (environmental and financial) of supporting solar energy wherever it is proposed. Moreover, if Bundy had retained counsel, he or she might have discovered a viable legal issue somewhere in the bureaucratic underbrush. But if there is a lurking constitutional issue, it is one that no one other than Bundy and Senator Paul has been able to discern.

Paul did raise one interesting point. He questioned the armed force assembled by the BLM and claimed that 47 federal agencies have such forces at their disposal. John Fund, writing in National Review Online, elaborated on the point.

Regardless of how people feel about Nevada rancher Cliven Bundy’s standoff with the federal Bureau of Land Management over his cattle’s grazing rights, a lot of Americans were surprised to see TV images of an armed-to-the-teeth paramilitary wing of the BLM deployed around Bundy’s ranch.

They shouldn’t have been. Dozens of federal agencies now have Special Weapons and Tactics (SWAT) teams to further an expanding definition of their missions. It’s not controversial that the Secret Service and the Bureau of Prisons have them. But what about the Department of Agriculture, the Railroad Retirement Board, the Tennessee Valley Authority, the Office of Personnel Management, the Consumer Product Safety Commission, and the U.S. Fish and Wildlife Service? All of these have their own SWAT units and are part of a worrying trend towards the militarization of federal agencies — not to mention local police forces.

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The proliferation of paramilitary federal SWAT teams inevitably brings abuses that have nothing to do with either drugs or terrorism. Many of the raids they conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations

In this instance, the deployment of an armed force by the BLM seems understandable (although perhaps, in hindsight, unwise), and the BLM’s SWAT team appears to have been well disciplined and to have performed impeccably. Nevertheless, the availability of such forces to a wide range of government agencies does seem to raise questions worth considering.

Despite the weakness of Bundy’s legal position, he has attracted a number of supporters on the right. The controversy has been widely covered on Fox News and in an interview with Bundy, Sean Hannity gave many the impression that he was trying to encourage an even more aggressive posture on the part of Bundy’s supporters. Hinderaker’s sympathetic essay has been echoed and expanded upon by several writers at National Review Online. Such supporters have remarkably attempted to cast Bundy in the proud tradition of civil disobedience, standing for principle. He has been compared, rather bizarrely it may seem, to Mahatma Gandhi, Henry David Thoreau, George Washington and Abraham Lincoln. Yet it is not clear exactly what principles Bundy’s fans believe are at stake here. They clearly hold a romantic affection for ranchers, and the Western culture and tradition they represent (and not so much for the Desert Tortoise), but what else is there?

Hinderaker saw corruption in the attempt to favor supporters of solar energy (who are frequently donors to the Democratic Party) and hostility to ranchers (who are not). This thought was echoed by Andrew McCarthy in the NRO, arguing, in effect, that arbitrary actions of the government have so debased the rule of law that it no longer applied:

As a matter of law, Cliven Bundy is in the wrong. He is nevertheless a sympathetic figure, and the concerns raised by the standoff in Nevada transcend the illegality of his conduct.

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When law becomes a politicized weapon rather than a reflection of society’s shared principles, one can no longer expect it to be revered in a manner befitting “political religion.” And when the officials trusted to execute law faithfully violate laws regularly, they lose their presumption of legitimacy. Much of the public is not going to see the Feds versus Bundy as the Law versus the Outlaw; we are more apt to see it as the Bully versus the Small Fry.

But if the rule of law needs repair, surely it must be effected – in all but the most extreme case – through courts and legislatures and the ballot box. However genuine Bundy’s sense of grievance may be, his is simply not such a case.

Kevin D. Williamson, also writing in the NRO (“The Case for a Little Sedition”) expressed his concern with attitudes in Washington by the ominous suggestion that “if I were a wagering sort, my money would be on Mr. Bundy ending up dead or in prison, with a slight bias in the odds toward death.” Williamson was upset that the federal government owns so much land in Nevada and other Western states and suggested “legislation that would oblige the federal government to divest itself of 1 percent of its land and other real estate each year for the foreseeable future through an open auction process.” An interesting – if wholly impractical – idea, but hardly the cause of a Gandhi or Thoreau.

Mercifully, Bundy has thus far attracted little support from the national Tea Party or, with the exception of Senator Paul, Congressional Republicans. One may hope that will continue. It may be that Harry Reid and observers on the left have obscured claims of genuine merit that lie beneath the surface of the dispute, but whatever the case, there is no justification for the tactics of Bundy and his self-appointed militia. On the contrary, despite the passions of the Bundy sympathizers, any such claims have been indelibly tarnished by the embattled rancher and his self-appointed militia.

Now the federal government is left with the messy dilemma of just how to uphold the rule of law and do so without bloodshed. No one wants to see another Waco or Ruby Ridge.  RINOcracy.com, alas, has no advice to give on this point, and while the situation presents a diplomatic challenge worthy of a former Secretary of State, neither Hillary Clinton nor Condi Rice are likely to offer their services as mediator.