By DR. LARRY MOSES
No one asked me but… One of the dangers of writing a weekly column is that some information may become outdated by the time of the publication. Last week I indicated that “Judge Gloria” did not find time to rule on whether or not the Bundy clan should be allowed out of prison while awaiting and during their trial. She did finally find time to rule and decided that Ryan Bundy could be moved to a half-way house but the others were much too dangerous to be allowed in public.
The long-awaited trial has begun. Some have estimated that it will last as long as four months.
Ryan Bundy, acting as his own attorney, opened by stating he would stand on his personal freedoms under the Constitution of the United States. This is a defense that “Judge Gloria” hates and denied the men who were tried earlier, and for the most part acquitted for their role in stopping the BLM rustling of cattle. She went so far as to not allow the Constitution to be viewed in the pockets of the defendants, in essence declaring the Constitution had no place in her courtroom; a fact which is probably true of the entire 9th Circuit.
Ryan further stated that his defense would also be based on state history and his family’s deep roots in the area. Once again, these were areas that “Judge Gloria” did not allow in the defense of earlier defendants. She, in fact, shut down testimony of one defendant when he attempted to explain why he took the actions he took. She ruled that causation was irrelevant to the act.
However, the prosecution opened the door to causation when the first witness for the prosecution stated that “Mr. Bundy was in continuous trespass on Bunkerville land.” That statement was erroneous in many ways. The cattle were not on Bunkerville land. The land is not even part of the State of Nevada. The land in question is owned by the federal government.
The second issue in error is that cattle trespass had even taken place. Under federal law codified in the Nevada Revised Statue, “cattle trespass” cannot take place on open range. NRS 568.355 defines 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 would contend that the Bundy’s cattle grazed “by custom” and, in fact, the federal government was out of line to even ask for grazing fees from the Bundy’s. NRS 568.24 states, “Customary or established use as grazers …shall be deemed 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…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.”
There is no question that the Bundy family, on both sides, have been grazing cattle in the area long before the 1931 restrictive date. The charging of a grazing fee is surely a change.
The issue of cattle trespass is clearly dealt with in NRS 569.440 “If any livestock break into any grounds enclosed by a legal fence, the owner or manager of the livestock is liable to the owner of the enclosed premises for all damages sustained by the trespass.” By law, there can be no cattle trespass if there is no legal fence for the cattle to break through. It is clearly the responsibility of the land owner to fence cattle out; it is not the rancher’s obligation to fence his cattle in.
NRS 569 defines a legal fence as “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 post 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.”
If the BLM wants cattle off their land, they, like private citizens, must fence the cattle out, or there can be no trespass. Unless they have recently removed the signs, the area has for generations been designated as open range by the BLM.
Once a land owner establishes the fence, this law clearly states” (b) If any owner or occupier of any grounds or crops trespassed upon by livestock entering upon or breaking into his or her grounds, whether enclosed by a legal fence or not, kills, maims or materially injures the livestock so trespassing, the owner or occupier of the grounds or crops is liable to the owner of the livestock for all damages, and for the costs accruing from a suit for such damages, when necessarily resorted to for their recovery.”
The BLM has admitted that some of the cattle were killed because they were too dangerous to round-up. It has also been alleged that some calves died from the stress of the round-up. The court should be awarding the Bundy family damages under this law.
The important issues in this case are not cattle trespass or whether or not a rancher owes the government money. The real issues are basic Constitutional issues. The right of freedom of speech, the right to peaceably assemble, and the right to petition the Government without going to jail. Does the fact that an American citizen carries a gun while protesting the government’s illegal action automatically mean that they are not peaceably assembled? Is no bail the same as excessive bail?
American citizens have far more to lose than the Bundys. Probably the most fundamental question is: Does the governmental have to obey the law of the land? Are laws only bounding on the citizen? What recourse does the citizen have when the government breaks the law and the courts have been politicized?
Thought of the week… “The Bill of rights wasn’t enacted to give us any rights. It was enacted so the Government could not take away from us any rights we already had.”
– Kenneth Eade