Bungling by the Bundys: A Sordid History of Defiance of the Rule of Law

[Note: The Bundy band represents both an existential threat and an existential opportunity for America’s public lands. This is the second 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 Bundy et al. to advance the conservation of America’s public lands.]

The history of Cliven Bundy’s illegal livestock grazing in what is now Gold Butte National Monument is remarkable both for its duration and for the government foot-dragging and incompetence that has enabled it. The Center for Biological Diversity has published a detailed timeline of Bundy’s livestock lawlessness.

Listed under the Endangered Species Act in 1989, Agassiz’s desert tortoise (Gopherus agassizii) is an herbivore that grazes grasses, wildflowers, and other plants. Any plant material ingested by domestic livestock is not available for native wildlife. Too bad tortoises don’t wear cowboy hats. Source: Wikipedia.

Cliven Bundy owes the federal government more than $1 million in civil penalties related to livestock trespass. (Historically, when Bundy did pay his federal grazing fee, he was an expert on government subsidies, as federal grazing fees cost the federal government at least $6 for every $1 generated in revenues.) Despite two court orders that such grazing is trespass and therefore illegal, Bundy bovines still illegally graze on federal public lands that have long been declared an Area of Critical Environmental Concern and more recently proclaimed as Gold Butte National Monument. What, if anything, will the Interior Department and its Bureau of Land Management do now?

Timeline of Livestock Trespass

The Bundy clan first began grazing their livestock on federal public lands in 1954, were granted their first federal grazing permit in 1973, and paid their paltry federal grazing fee until 1993, when they ended the practice. For 1994, Bundy sent the amount of his federal grazing fee to Clark County, Nevada, because in his worldview, the only true sovereign government is the county, not the state nor the federal government. Clark County refused the payment for lack of jurisdiction.

Two federal judges (in 1998 and 2013, a span of fifteen years) enjoined Bundy from illegally grazing his livestock on federal public lands. The BLM finally attempted to round up the illegal livestock in 2014. A few days after the agency started its roundup effort, heavily armed wackos converged on the Bundy compound and forced BLM officials to release the cattle at gunpoint.

All along, Bundy has been selling cattle from his herd illegally grazing on federal public lands.

Adding Injury to Insult: The Bundy Cattle and Desert Tortoise Conservation

In 1989, the Fish and Wildlife Service (FWS) granted Endangered Species Act protection to the desert tortoise because of widespread destruction of its habitat due to livestock grazing, urbanization, and other factors.

In 1991, the FWS issued a draft Biological Opinion outlining guidelines to minimize grazing conflicts with desert tortoise conservation. At the request of the BLM, implementation was delayed until 1993, coincidentally the year Bundy stopped paying his grazing fee.

In 1998, a new BLM Resource Management Plan for the Las Vegas field office allowed for the closure of grazing allotments—including the infamous Bunkerville allotment, now illegally occupied by Bundy’s livestock—to aid desert tortoise conservation. Clark County, as part of mitigating the multiple habitat destruction sins of the urban blob of Las Vegas, paid several BLM federal grazing permittees to end their grazing. Bundy would have been eligible to receive a golden saddle payment from Clark County for his interest in the federal grazing allotment, but, alas, he had no permit, hence no interest.

The range of Agassiz’s desert tortoise in Nevada is mostly in Clark County. Source: Jennings and Berry, 2015.

What to Do Now about the Trespassing Livestock

The BLM was clearly intimidated in the past by the Bundy bunch, but a BLM spokesperson now assures us that the Interior Department is “confident that a new leaf has turned over and that all parties will go forward in a neighborly manner to rebuild the trust that the Department enjoys with ranchers and local communities.” In their dreams. So far, the Bundy gang has successfully resisted the federal government bureaucracy and beat them in court. I agree with Kierán Suckling, executive director of the Center for Biological Diversity, who noted in the wake of the recent mistrial that “the failure of this case will only embolden this violent and racist anti-government movement that wants to take over our public lands.”

Four public lands conservation organizations—the Center for Biological Diversity, Public Employees for Environmental Responsibility, the Western Watersheds Project, and WildEarth Guardians—have called upon Secretary of the Interior Ryan Zinke to do what his five predecessors (three Democrats and two Republicans) have not done: put an end to more than two decades of illegal grazing of federal public lands by Cliven Bundy’s cattle. Will Zinke do his job? In 2014, while running for Congress in Montana and just after the Nevada standoff, Zinke said, “Not only was the government wrong, the rancher was wrong, but he was wronged.”

It may be possible for conservation organizations individually to sue individual BLM employees for, in Suckling’s words, “aiding and abetting the trespass and theft of the public property.” In general, one can sue only an agency for illegality, not its individual employees, but being a government employee is not a shield against fraud.

Though it would not result in the removal of the illegal livestock, a suggestion made by Rocky Barker in the Idaho Statesman amuses me: that the BLM declare the more than $1 million in grazing penalties Bundy has been assessed to be uncollectible and send the IRS a 1099 form reporting the $1 million as income paid to Bundy by the BLM. (Hmmm, would it be a 1099-C Cancellation of Debt or a 1099-G Certain Government Payments? Better to be safe and go with a 1099-MISC Miscellaneous Income.)

In the end, it comes down to the rule of law.