By DR. LARRY MOSES
No one asked me but… Cliven Bundy and his sons have been arrested in Oregon. They are facing some very serious charges stemming from their resistance to the illegal round up of their cattle by the BLM in 2014.
In April of 2014, I wrote a number of columns on this issue. What you read below is from one of those columns. The issue remains the same. However, the government has been successful in painting the Bundy’s as hillbilly bumpkins who oppose the benevolent, fatherly federal government. This effort is not to praise the efforts of the Bundy’s it is a call for the federal government to abide by its own laws. This effort has caused me to turn to the Nevada Revised Statutes to see what laws Mr. Bundy has violated, if any.
(This begins the column I wrote in April 2014, and is still appropriate for today.) Why turn to state law to deal with the federal government on federal land? Because in the 1930’s, the federal government turned over to the various western states the responsibility of “protecting, improving, and developing public lands fit for grazing of livestock” within their borders. The state of Nevada, which was dominated by ranchers and miners in the 1930’s, took that responsibility to heart and this effort resulted in the state passing The Taylor Grazing Act in 1934. This act, codified in NRS 568, was recognized as federal law by the United States Government and is in effect today.
According to NRS 568.010, it is “An act to stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range…” NRS. 568 which includes 568.355 which defines the term “open range” as “all unenclosed land outside of cities and towns upon which cattle, sheep or other domestic animals by custom, license, lease or permit are grazed or permitted to roam.”
I am not about to tell you how these statutes should be interrupted. However, it seems that if one is to debate the issue, one should take the time to read the law. Apparently, the law can be read in more ways than one. Mr. Bundy and the federal judges certainly see it differently.
NRS 568.230 states: “… It is unlawful … (to) restrict or interfere with the customary use of the land for grazing livestock by any person who, by himself or herself or the person’s grantors or predecessors, has become established, either exclusively or in common with others, in the grazing use of the land by operation of law or under and in accordance with the customs of the graziers of the region involved.”
That brings into question what does customary means under the law? NRS 568.240 states: “Customary or established use… to include the continuous, open, notorious, peaceable and public use of such range seasonally for a period of 5 years or longer immediately before March 30, 1931, by the person or the person’s grantors or predecessors in interest, …Any change in customary use so established must not be made after March 30, 1931, so as to prevent, restrict or interfere with the customary or established use of any other person or persons.
NRS 568.230 to 568.290, “…does not prohibit any such established user from continuing his or her grazing use, as established by operation of law or in accordance with such customs.”
NRS 568.290 states: “Nothing in NRS 568.230 to 568.290, inclusive, amends or repeals existing law regarding the grazing use of the public lands or of water for the purpose of watering livestock, or modifies or compromises any valid rights or priorities which exist therein on March 30, 1931.”
Since the federal government closed much of the contested area to grazing, they surely cannot charge Bundy for not paying grazing fees. They have charged Mr. Bundy’s cattle with trespass. However, the state trespass law states it is the responsibility of the landowner to fence out cattle, not the rancher’s responsibility to fence them in. According to state law, there can be no damages collected for trespass unless the cattle have breached a “legal fence.” NRS 569.431 states: “a legal fence means a fence with not less than four horizontal barriers, consisting of wires, boards, poles or other fence material in common use in the neighborhood, with posts set not more than 20 feet apart. The lower barrier must be not more than 12 inches from the ground and the space between any two barriers must be not more than 12 inches and the height of top barrier must be at least 48 inches above the ground. Every post must be so set as to withstand a horizontal strain of 250 pounds at a point 4 feet from the ground, and each barrier must be capable of withstanding a horizontal strain of 250 pounds at any point midway between the posts.”
The federal government has even to this day not fenced the boundaries of Mr. Bundy’s ranch.
It should be noted that federal courts don’t give a rip about Nevada State Law. They have ruled against Mr. Bundy and have ordered him to remove his cattle. It should not come as a surprise that the federal government would ignore state law. This same government sued the State of Arizona to stop their enforcement of federal immigration laws. It refuses to enforce federal drug laws in states like Colorado. By imperial decree, the federal government today is selecting which law it will or will not enforce.
All of that being said, Mr. Bundy and his sons are going to jail. They will surely join an Oregon rancher and his son whose great crime was burning 127 acres of federal grassland. If that is worth 5 years of a man’s life, the Bundy’s may never see the light of day again.
I am not as upset about the plight of the Bundy’s as I am the plight of American justice. If the federal government doesn’t have to obey the law, why do the citizens?
People like to say, we are a nation of laws. If that is true and if our national government refuses to follow the law, what can the citizens depend on?
Thought for the week…“When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.”
-Nelson Mandela
