Friday, April 11, 2014

Why I Don't Support Cliven Bundy and Neither Should You (Updated)

Updates: 4/12/2014, 4/15/2014, 4/16/2014, and 4/22/2014

There has been a lot of attention in the conservative media about Cliven Bundy and the BLM seizing his cattle. The story is being touted as an issue of liberty and abuse of government authority, with the "awful" BLM coming in and bullying this "noble" rancher who's trying to put food on his table. Some pundits are even comparing this to Waco or Ruby Ridge. The problem is that this is nothing like the Waco or Ruby Ridge incidences. This isn't even an issue having to do with liberty. Rather, this is the story of a rancher that is trying to steal public land--land that belongs, in a certain sense, to you and me and all your neighbors.

The basic facts and issues are described by the Los Angeles Times:
For two decades, Bundy has waged a one-man range war with federal officials over his cattle's grazing on 150 square miles of scrub desert overseen by the BLM. Since 1993, he's refused to pay BLM grazing fees, arguing in court filings that his Mormon ancestors worked the land long before the BLM was formed, giving him rights that predate federal involvement. 
Bundy also likes to say he "fired the BLM," vowing not to give one dime to an agency that he says is plotting his demise. The back fees exceed $300,000, he said. 
The father of 14 insists that generations of his family have ranched and worked this unforgiving landscape along the Virgin River since the 1880s. He says government overregulation has already driven scores of fellow ranchers out of business in sprawling Clark County, leaving him as the last man standing. 
For years the rancher has insisted that his cattle aren't going anywhere. He acknowledges that he keeps firearms at his ranch and has vowed to do "whatever it takes" to defend his animals from seizure. 
"I've got to protect my property," he told The Times last year. "If people come to monkey with what's mine, I'll call the county sheriff. If that don't work, I'll gather my friends and kids and we'll try to stop it. I abide by all state laws. But I abide by almost zero federal laws." 
In 1998, a federal judge issued a permanent injunction against the white-haired rancher, ordering his cattle off the land and setting off a long series of legal filings.
Kirsten Cannon, spokeswoman for the Nevada BLM office in Reno, said the federal government means business this time.
“His cattle have been illegally trespassing on federal land for two decades and it’s just unfair for those who ranch in compliance,” she said. “We made repeated attempts to resolve this. The courts have ordered him to move his cattle. Now we’ve reached the last resort, which is impoundment.”
That is, Bundy owns 160 acres, but is essentially arguing that he has a right to ranch on 600,000 acres of public land. AgWeek reports:
Federal authorities sent in helicopters and wranglers on horseback, starting on Saturday, to seize the estimated 1,000-strong herd, in a battle rancher Cliven Bundy and his allies have likened to a range war with a remote government seeking to suppress the independent spirit of the U.S. West. 
“It’s a freedom issue that we’re really fighting here, and it’s bigger than our cows and bigger than the tortoises. It’s about the federal government wanting control to do whatever it wants to do,” the rancher’s wife, Carol Bundy, said in an interview. 
The showdown is emblematic of a broader conflict between a dwindling number of ranchers, who have traditionally grazed cattle on public lands and held sway over land-use decisions, and environmentalists and land managers facing competing demands on lands opened to oil and gas development, recreation and other uses. 
The Nevada roundup follows a decades-long conflict between Cliven Bundy and U.S. land managers over a grazing allotment that spans nearly 600,000 acres of federal range and park lands in the southern Nevada desert. 
Bundy stopped paying grazing fees of about $1.35 a month per cow-calf pair in 1993, ignored the government’s cancellation of his leases and defied federal court orders to remove his cattle, according to the U.S. Bureau of Land Management. But it took more than 20 years for the government to forcefully intervene. 
Bundy is not the only rancher who violated federal grazing regulations, although his case is among the most severe, BLM officials said. Most violations are resolved by the next grazing season and tied to lesser issues such as failing to leave grazing lands by a specified seasonal date.
The situation has become confrontational, and various "militias" claim to be coming to support Bundy even if it leads to bloodshed.(See also here).

The problem, I believe, is that this story has become so emotionally charged that people are no longer thinking rationally about it. After all, it has the Government bringing in armed Rangers and helicopters (although, many large ranching operations use helicopters) to round up some defenseless guy's cattle. On top of that, there are a bunch of smelly environmentalists involved, and who in their right mind likes environmentalists. So, let me provide an analogy that might bring this discussion back to earth.

Imagine that a long time ago, a few people owned (or at least claimed to own) a large tract of land. For sake of convenience, we'll call these land owners Mexico and England. For one reason or another, Mexico and England decide to sell or transfer the land to your uncle. We'll call him Uncle Sam, or "Sam" for short. Now at the time Sam bought the land, there were a few people that owned small lots here and there within the large tract of land, but for the most part, no one lived there. Sam is sort of a land developer, and wants to develop the land, but no one really wants to live there. To get business moving, Sam begins to sell parcels of land for real cheap--even giving some lots away. Well, in some areas of Sam's property, lots of people buy up lots, but a few other areas don't do so well and Sam doesn't sell very many lots.

One day, a lot owner comes to Sam (we'll call the lot owner, "Bundy") and says: "Sam. I have a small lot, but I breed dogs (pitbulls and rottweilers that I sell to my friends down in the 'hood), and the dogs need a lot of room to run around. So I was wondering if I could let the dogs run around on that big tract of land you have that nobody is using." Sam responds: "Well, how about you buy the extra land from me, Bundy?" But Bundy demurs--he doesn't want to pay all that money just for land as a dog run. Sam finally agrees to let Bundy use the land, but reminds Bundy, "I still own this land, even though I'm letting you use it." Bundy says, "Sure, no problem. It's your land. I just want somewhere to let my dogs roam."

Several years go by and Sam hasn't been able to sell hardly any lots. But other people that have bought lots from him are all using his big tract of land. Some people just picnic there once in a while. But others are using the land for lots of different things, and Sam begins to get worried that it is getting out of control. Plus, he isn't selling lots, and figures he knows a way to make some money off the land that no one will buy. So he decides he is going to charge people to use his land. He goes to Bundy and tells him that if Bundy wants to continue to use Sam's land for his dogs, Bundy is going to have pay Sam--basically rent the land. Bundy agrees, and begins to pay Sam to use Sam's land. In exchange, Sam gives Bundy the exclusive right to let his dogs run on that land. That is, no one else can let their dogs onto the land that Bundy is using.

Well, 15 or 20 years go by during which Bundy uses Sam's land. In fact, Bundy is pretty much the only person using the land, and as the years go by, he begins to think of Sam's land as his own. One day, Bundy decides he has rented Sam's property for so long that it really is his (Bundy's) land! Bundy stops paying Sam. Sam reminds Bundy that he agreed to pay rent, but Bundy just laughs at him and continues to let his dogs run around on Sam's land. Sam tells Bundy to either pay rent or keep his dogs off Sam's property. Bundy thumbs his nose at Sam and calls him a bunch of names. Sam finally sues Bundy. Bundy won't pay his back rent, and refuses to get his dogs off Sam's land. In the meantime, Sam has decided he does't really like Bundy's dogs running around on his land, pooping and digging holes. In fact, having become a recent convert to Confucianism, Sam decides he wants to use some of the land to build a giant zen rock garden. Adamant that Bundy get his smelly dogs off the land, Sam tells Bundy to get the dogs off the property or Sam will call the Sheriff out to remove the dogs. Bundy makes an obscene finger gesture towards Sam, and lets his dogs out of his kennels so they can run all over Sam's land. Sam calls out the Sheriff, and the Sheriff starts to round up Bundy's dogs....

Now, who in this story is the bad guy? Sam, who owns the land, or Bundy, who thinks he owns the land just because Sam has let him use the land for a long time?

There is a saying that a bad argument is worse than making no argument at all. Supporting Bundy is a bad argument for freedom loving people. You see, Bundy's story is not about "liberty" or "freedom," but about property rights. And, specifically, about a rancher trying to steal the public's property. We can disagree about whether the Feds are using appropriate force (although, how much would you use to eject a trespasser from your property?), or whether a protected area for desert tortoises is necessary or even desirable. But libertarians and conservatives who value the sanctity of property should not be supporting someone that wants to subvert property rights for his own gain.

There are plenty of examples of government abuse and corruption that are worth our attention and worth protests, but this is not one of them.

Update (4/12/2014):

I see reports indicating that Bundy has won his "range war" with the BLM, including this one from ABC, which reports that
... today the BLM said it would not enforce a court order to remove the cattle and was pulling out of the area.

"Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public," BLM Director Neil Kornze said.

"We ask that all parties in the area remain peaceful and law-abiding as the Bureau of Land Management and National Park Service work to end the operation in an orderly manner," he said.
Bundy's victory reminds me of the seizing of the commons by wealthy landowners in England in the 17th through 19th centuries via the process of enclosure. (See also this article). That is, Bundy has taken what essentially was common or waste land, and enclosed it. George Orwell wrote the following about the process:
In his zeal to defend private property, my correspondent does not stop to consider how the so-called owners of the land got hold of it. They simply seized it by force, afterwards hiring lawyers to provide them with title-deeds. In the case of the enclosure of the common lands, which was going on from about 1600 to 1850, the land-grabbers did not even have the excuse of being foreign conquerors; they were quite frankly taking the heritage of their own countrymen, upon no sort of pretext except that they had the power to do so.
In the England of yore, the Parlement and the Courts approved the enclosure of the commons. Today, Bundy has done so using public opinion and the threat of violence.

I'll want to make it abundantly clear that I do not support the stealing of public land for any purpose. I don't care if it is the wealthy rancher (like Bundy) who wants possession of large swaths of public land to run cattle, or environmentalists who want to create the modern equivalent of royal forests.

Update (4/15/2014)The Powerline Blog weighs in, noting that the Bundy's don't have a leg to stand on from a legal point of view, while still arguing they deserve our sympathy. Rather than the histrionics of most pieces I've seen on the issue, the Powerline Blog's piece is more thoughtful and worth the read no matter which side you take.

Conversely, there is this piece from The Atlantic which describing how inconsistent and illogical are some of Bundy's beliefs. From the Bundy quotes in the Atlantic article, it sounds as though Bundy is a "Constitutionalist"--a fairly wide-spread movement in the West. My experience with Constitutionalists has been decidedly negative--they tend to be anti-government when it benefits them (i.e., not having to pay taxes, obtain driver's licenses, hiring illegal aliens, etc.), but have no problem with government subsidies and benefits when it does benefit them.

A lot of people seem to be making a lot of Bundy's improvements to the BLM land. However, it has been the law for centuries (remember the common law?) that improvements to leased property must be removed or they revert to the landowner at the conclusion of the lease.

Update (4/16/2014): I've had a couple people, including my brother, point out to me that this issue is not as black and white as I portrayed it in my original post. First, if you hadn't read the comments, Prairie Patriot notes this article from the Dana Show discussing the connection between Harry Reid, one of his top donors, Harvey Whittemore, and the Bundy property.

My brother pointed me to this article at Liberty & Lead discussing why other farmers and ranchers that have paid their grazing fees support Bundy even though he has not. It further explains the permitting system and water rights issues from the perspective of a fellow Nevadan rancher.

Thank you both for sharing these articles. I welcome reasoned discourse. Having worked with property management companies, I have a certain sympathy toward the landlords when it comes to troublesome tenants. (Although, having rented, I've also had my fair (unfair?) share of troublesome landlords). However, there is more to this than what the initial reports indicated, and I'm particularly concerned if the motives are to divest ranchers of their water rights without compensation.

Update (4/22/2014): The Daily Caller reports:
[T]he Bundy standoff is really the culmination of a long battle with environmentalists who want to keep federal lands off limits to economic activity. The primary vehicle used by government officials and environmentalists to advance this goal has been the desert tortoise, which was listed as “threatened” under the Endangered Species Act in 1990. 
... A screenshot of the deleted page from the BLM’s website shows that environmental groups were some of the main forces aligned against Bundy’s trespass cattle. Environmentalists were pushing for the disputed federal lands to be used as “offsite mitigation” for the impact of solar development. Solar development in the area is heavily supported by Nevada environmental groups. 
“Non-Governmental Organizations have expressed concern that the regional mitigation strategy for the Dry Lake Solar Energy Zone utilizes Gold Butte as the location for offsite mitigation for impacts from solar development, and that those restoration activities are not durable with the presence of trespass cattle,” the BLM page says. 
Those groups included the Center for Biological Diversity (CBD) and Western Watersheds Project (WWP), which the article notes have been pushing for higher grazing fees or closing off areas of public land entirely.

I often refer to this strategy as the modern equivalent of the King's forest, effectively open to the enjoyment or use of royalty, but excluding commoners. While I see nothing admirable in Bundy not paying his grazing fees, I don't want to see the land stolen by environmentalists either. If the CBD or WWP want the land, make them lease it, with the same possibility that another person or group may outbid them when their lease expires.

I've seen at least one incident where the Feds resorted to creating bombing ranges to close off areas to the public after environmental concerns raised strong public opposition. (Most of those who will protest the Sierra Club wanting to close down desert don't have the same issues with the military doing so, I guess). I don't know the area Bundy lives in, so perhaps it is not practicable, but I'm surprised that they have not done so in this case.


  1. I'm finding out through other news outlets that there was maybeore to it than met the initial reporting. Food for thought.

    1. Water rights are a completely different issue because in most western states, water rights are independent of the ownership of the land. And, under current federal law, the feds are subject to state water laws. Thus, it doesn't matter if the BLM owns the land the river runs through--they can't use the water without a water right. However, at least where I live (another western state with little water and lots of BLM land), water rights can be forfeited if they are not used for a certain number of years. If the feds are trying to get the water rights by forcing Bundy to forfeit them by driving him out of business, that does cast a different light on the situation. Even when a city obtains water rights by eminent domain, they still have to pay the farmer or rancher market value. If the feds want to get the water rights, then they need to comply with the requirements of the takings clause of the Constitution.

  2. I am still trying to figure out my view on this, as it more or less happened while I was in Mexico (using limes that may have been cartel limes?). I think the government is generally overbearing but in this case they seem to be somewhat in the right, until you figure that someone is pushing the issue for their gain (we have it here too...) The flip side is Bundy seems to be a scofflaw. Thank you for addressing this in a more balanced fashion than most of the media outlets I looked at.

    1. Thanks for the comment. I find the rhetoric on both sides disturbing, but especially Reid's reference to the protesters as "terrorists". He is trying to escalate the tensions.


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