you have to register to read it so I'm reprinting it here:
Oregon Standoff Is Legally Untenable
OPINION: In order to preserve the rule of law, our government must
enforce it against those who flout it.
David J. Hayes
January 18, 2016 | 0 Comments
The Bundy story is remarkable, and disturbing. In the latest chapter,
Ammon Bundy and his followers have taken over the Malheur National
Wildlife Refuge in southeastern Oregon. Heavily armed men are patrolling
the now closed refuge, removing its welcome sign in favor of a new
banner proclaiming the establishment of the "Harney County Resource
Center." Some occupiers reportedly have been sifting through government
files looking for some sort of government malfeasance, while others have
been operating heavy government-owned equipment and ripping out fencing
that divides the refuge from neighboring private ranch land.
Bundy and his gang claim that they have the Constitution on their side.
They assert that the federal government has no legal right to own and
manage the refuge — or any other public lands. They are claiming a legal
justification for acting out the views of other sympathizers who would
like to see the federal government turn over the national parks,
national forests, national wildlife refuges, and Bureau of Land
Management range lands to states and private parties. With the feds out
of the way, they reason, such lands can then be sold off and freed of
any restrictions on their use.
Unfortunately, for Bundy and company, the law is not on their side. A
unanimous U.S. Supreme Court ruled in 1917 in Utah Power & Light Co. v.
United States that the U.S. Constitution's property clause — which
explicitly grants Congress the "Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States" — vests the United States with "full
power … to protect its lands, to control their use, and to prescribe in
what manner others may acquire rights in them."
THE MALHEUR IRONY
It is particularly ironic, and perhaps unfortunate for him, that Bundy
chose to make his stand in the Malheur National Wildlife Refuge.
President Teddy Roosevelt dedicated Malheur in 1908 to protect and help
sustain migratory bird populations from the millinery industry's thirst
for then-fashionable hat feathers.
It was in a similar context of protecting wildlife that the Supreme
Court in 1976 reinforced the federal government's authority to manage
public lands for the public good.
Specifically, in Kleppe v. New Mexico, the court noted that it has
"repeatedly observed that 'the power of the public land thus entrusted
to Congress is without limitations,' " concluding that the "complete
power" that "Congress has over public lands necessarily includes the
power to regulate the wildlife living there." It also does not help
Bundy and his ilk that Congress has reinforced, and codified into law,
the important role that our nation's 600-plus million acres of public
lands play for the benefit of all Americans. Congress explicitly
established the national wildlife refuge system, for example, "to
administer a national network of lands and waters for the conservation,
management and where appropriate, restoration of the fish wildlife, and
plant resources and their habitats … for the benefit of present and
future generations of Americans."
Consistent with this charge, the law requires that the United States
generously allow use of the refuge for purposes that are "compatible"
with its primary purposes, including hiking, bird watching and, where
appropriate, hunting and fishing. Even some grazing and haying can be
allowed where, as in Malheur, such activities provide accessible food
for the hundreds of thousand of migratory birds and other wildlife that
rely on the Refuge. Use and access decisions are subject to public
review and input through a comprehensive planning process that, for
Malheur, produced a new plan in 2013 that was broadly endorsed by local
community leaders who participated in the process.
The point is that the Constitution, our representative Congress and our
federal land managers are all operating within a system of laws that
seeks to manage our public lands for the benefit of all Americans. It's
our representative democracy at work.
When laws governing our public lands need to be retuned to ensure
fairness and accountability — as some are suggesting for the long,
mandatory prison sentences recently imposed on ranchers whose arson
damaged public lands — Congress can, and should, change the law. But
laws are not meant to be broken.
That's why the armed takeover of Malheur needs to end with prosecutions
for the perpetrators. The law here is clear. Americans are on notice
that trespassing and engaging in unauthorized activities on national
refuges can trigger civil and criminal penalties. Our laws also prohibit
the destruction of public property and the type of over-the-top stalking
and harassment of public officials that is happening in southeastern Oregon.
The Oregon situation also reminds us of the unfinished business in
Nevada, where Ammon's father, Cliven Bundy, continues to defy a 2013
court order telling him to stop running his cattle on sensitive public
lands without a permit. In that case, efforts to enforce the court order
and complete a roundup were abandoned when Cliven Bundy and armed
comrades confronted law enforcement officers.
The decision to disengage from a volatile physical confrontation in
Nevada may have been a prudent one, but there is no excuse for the long
delay in bringing a prosecution against Bundy for his blatant defiance
of a court order. In order to preserve the rule of law, we must not
hesitate to enforce it against those who refuse to abide by it —
particularly when they incite others to do the same.
David J. Hayes is a Distinguished Visiting Lecturer in Law at Stanford
Law School. He was the Deputy Secretary of the Interior from 1999-2001
and 2009-2013.
POST: Send email to boo@xxxxxxxxxxxxx
HELP: Contact boo-moderators@xxxxxxxxxxxxx