The Occupation Trial of the Malheur National Wildlife Refuge
Why was this the Trial of the Century ?
By Scott Michael Rohter
“To watch someone brave adversity is to know someone worthy of respect.” – Seneca (Roman philosopher)
Worthy of Respect
Notes from the courtroom for the week of October 3 through October 7, 2016
The national mainstream media doesn’t want to talk about this. Maybe it’s because they think it is just too dangerous to talk about. I’m not sure, but I do know this. The most important aspect of the occupation trial of the Malheur National Wildlife Refuge will never be discussed in the courtroom. It won’t be debated in the jury’s presence because the judge won’t allow them to hear anything about it.
Nevertheless the Ocupation Trial of the Malheur National Wildlife Refuge is really the trial of the century. It is a political trial that isn’t supposed to be a political trial. It is supposed to be a criminal trial, but all of the underlying issues which led to the occupation of the Refuge… they are all political in nature and they all began back in 1976 when Congress passed the Federal Land Policy Management Act and rewrote 200 years of American history and precedent.. This changed the way that Congress administers public land. The policy went from maintaining a temporary, custodial stewardship over the land until it could be disposed of to a permanent confiscation of all public land in the United States as a result of this one law.
The occupation of over seven hundred million acres of land in twelve Western States will not be discussed in the courtroom during the trial. That is the real occupation, not the one that occurred at the Malheur National Wildlife Refuge in Oregon… The amount of land occupied by the Federal Government consists of an area bigger than the size of most countries.. Only eight countries in the whole world are larger in size than the amount of land owned and controlled by two agencies of the Federal government, the Bureau of Land Management and the United States Forest Service. The federal government’s occupation of State land is completely unconstitutional, notwithstanding what the Federal Land Policy Management Act of 1976 says.
The seven defendants in this trial are accused of a conspiracy to impede federal officers from doing their job through the use of threats and intimidation. The defendants are: Ammon Bundy, Ryan Bundy, Shawna Cox, Kenneth Medenbach, Jeff Banta, Neil Wampler and David Fry. There are seven other defendants who are also waiting trials on the same charges and they will be tried separately at a later date. Eleven other defendants have plead guilty in order to avoid harsh punishments which is just another way of saying that the Justice Department extracted a plea of guilty from them while they were under duress. Those guilty pleas were not freely given therefore they are not an admission of guilt. They were only offered in order to avoid stiffer penalties, but who cares about the truth anyway in a court of law? Certainly not the government…They just want to win.
The Occupation Trial of the Malheur National Wildlife Refuge may be the most intensively managed trial that Americans have ever seen. It is certainly the most intensively managed trial that I have ever seen. Every aspect of it is tightly controlled by the judge from the moment that the jury enters the courtroom to the moment that they leave. The judge acts more like an explosives expert than a referee between the prosecutors and the defense attorneys. She handles this trial like it is some kind of a ticking time bomb or a lighted stick of dynamite. Sometimes she puts her hands on her face and rolls her eyes and acts like she is exasperated. I know I am exasperated by what I see going on in the courtroom. It’s frustrating to see so much corroborating evidence being excluded from the jury’s consideration.
All of the video evidence submitted by defense attorneys is scrutinized right down to the last nano second and most of it is tossed out by the judge so jurors will not be allowed to see it or get comfortable with the soft going, gentle nature of the man who is at the center of this trial.. Ammon Bundy, and his older brother, Ryan. These two men are modern American heroes who have been locked up by the government without bail since their arrest in January of 2016 for organizing and participating in a protest designed to cast light on the federal governments unconstitutional occupation of State land. The protest only began after all other avenues for a redress of grievances had been exhausted, Ammon Bundy testified in court.
The Constitution only allows Congress to manage public lands for a limited period of time until they are ultimately disposed of, but Congress has decided not to dispose of any more public land. That has been the position of Congress ever since 1976 when the Federal Land Policy Management Act was passed. The problem is that Congress wants to hold on to these lands forever instead of disposing of them as required in the Constitution.
In order to eliminate a lot of what Judge Anna Brown calls cumulative evidence, but what many observers believe to be corroborating evidence, she has consistently sustained almost four thousand objections raised by federal prosecutors since the trial began. They want to keep as much exculpatory evidence from the jury’s ears as they can. Every time Mr. Mumford opens his mouth to offer proof of the defendant’s innocence another government prosecutor gets back on his feet and raises another objection. Perhaps he should just keep standing. Much of the time in court is spent in stating and restating the following words: “objection… cumulative… sustained… The objection is sustained Mr. Mumford. Now move on please”. This happens so many times that you just want to scream.
The government is not trying to win this case by presenting clear and convincing evidence against the defendants. They are trying to win this case by preventing defense attorneys from presenting clear and convincing evidence on behalf of their clients. This isn’t justice. It isn’t even fair.
Neither the defense attorneys nor the prosecutors want to talk to each other so the judge reluctantly tries to act like an intermediary between both sides. Several times she has expressed her frustration over having to do this. The Occupation Trial of the Malheur National Wildlife Refuge is a trial is like no other and the conspiracy that Ammon Bundy and the others are accused of committing is a conspiracy like no other.
Normally you can’t have a lawsuit unless you can show damages, so where are these damages I ask myself? Well, the FBI and the Department of Justice have compiled a list of so called damages which they created after most of the defendants had been arrested and removed from the Refuge. They are attributing the so called damages to all of the defendants collectively. The government alleges that these defendants trashed the Refuge, but numerous eye witnesses who were there during the occupation have stated under oath that they always saw it neat and tidy and never saw any damages to the place. If there are no damages, there is no basis for a lawsuit. That is the usual rule, but there has been nothing usual about this trial, so we will just have to wait and see what the jury decides…
Federal arms charges were dismissed against Shawna Cox this week. It also came out during the trial that the Fish and Wildlife district manager for Harney County actually closed the Malheur National Wildlife Refuge on or about the same time it became known that the government had obtained a first right of refusal on the Hammond Ranch. This indicates that the reason the Refuge was closed actually had nothing to do with the defendants. It was more about the fear of repercussions over something that the government itself had done.. The BLM also filed a civil lawsuit against the Hammonds to cancel their grazing rights so they could never graze their cattle on public land again.
Many witnesses testified that they never felt threatened or intimidated by any of the defendants at the Refuge. That included Pat Harlacher, a seven year resident of Burns who visited the Refuge six different times while the defendants were there, another man from Las Vegas named Brand Thornton who supported the occupation, a local rancher named Travis Williams, another local rancher named Melody Rae Molt, and Sheriff David Ward. The sheriff also said that he didn’t ever recall hearing about any threats made to Federal employees by the defendants. He did say though that he felt like he had been given an ultimatum at one point by Ammon Bundy, but he failed to show any evidence of that under cross examination.
Judge Brown ruled that no one could discuss the Constitution in her courtroom unless they were a lawyer because only a lawyer was qualified to properly understand and explain it… Since she wasn’t about to do that, it isn’t going to get done… and to be sure she isn’t going to let any of the defendants especially Ammon Bundy read it in the courtroom, After all he isn’t a lawyer…
Not only did Federal prosecutors object to the Constitution being read in the courtroom… they also objected to the Bible being read in the courtroom, and they objected when the defendants tried to read from the Book of Mormon. God was ruled to be inadmissible in court, but the judge did allow someone to mention the devil in their testimony. She allowed that. It wouldn’t be incorrect to say that it was one hell of a trial.. but there is one more thing that is Verboten Judge Anna Brown’s courtroom… No one can ever talk about the death or murder of Lavoy Finicum. That is absolutely and totally forbidden… along with any discussion of how 700 million acres of land in twelve western states has come to be occupied by the Federal Government and controlled by Congress. This trial is so restricted as to what the defense can and cannot say that it is becoming a theatre of the absurd.
Out of nearly four thousand objections raised by the prosecutors during the course of the trial about 99% of them have been sustained.
There was a brief discussion in court about whether or not prosecuting the Hammonds under the Anti-Terrorism and Effective Death Penalty Act of 1976 (AEDPA) was actually the same thing as calling them terrorists… The judge said that it wasn’t.. but Ammon basically said it was a difference without a distinction. Judge Anna Brown then stated for the record…the official court record pertaining to the Hammonds as follows…
On June 21 2012 Dwight and Stephen Hammond were convicted of arson. Dwight was sentenced to three months in jail on one count, while Stephen was sentenced to twelve months in jail on two counts. On February 5, 2014 the Ninth Circuit Court of Appeals overturned the lower court sentences. Upon further appeal the United States Supreme Court refused to hear their claim for relief and subsequently they were returned to jail to spend the remainder of a five year mandatory minimum prison sentence under the Anti-Terrorism and Effective Death Penalty Act.
You decide whether the government considers the Hammond’s to be terrorists or not. It is perfectly obvious to me that it does.
Ammon Bundy took the witness stand this week in his own behalf and his testimony lasted for the better part of the week. It was interrupted from time to time by other defense witnesses who had come to Portland to testify, but had to leave at a certain time. I can tell you this. No one was a better witness for the defense than Ammon Bundy himself. I don’t think anybody could have made a better witness. You could almost see Jesus in the way that Ammon conducted himself on the stand.
Ammon described all of the efforts he went through in an attempt to have his concerns about the Hammond family regarding the problems they were having with the BLM and the Justice Department addressed. He appealed to local, state and federal authorities at various levels and in numerous ways before he finally felt led to take what he called a “hard stand”. They were just not listening to me. “No one was responding”, he said. “Nothing ever changes unless someone is willing to take a hard stand so that’s what we did. That is what Martin Luther King did. He took a hard stand against injustice.”
Ammon explained that he mailed an Official Notice for a redress of grievances containing the signatures of thousands of individuals which was supported by many organizations to Oregon Governor Kate Brown, Attorney General Eleanor Rosenblum, and the Harney County Commissioners. The Petition for a Redress of Grievances asked the authorities to convene an Evidentiary Hearing Board to look into the matter concerning the Hammonds. “They did not respond. No one ever got back to me”… he said. Later he found out that those authorities were specifically told by officials in the Federal government not to get back to him.
Ammon rejected the idea that the petition he drafted and mailed to the local authorities regarding the Hammonds represented any kind of a threat. I was just exercising my rights as a citizen and going through all of the proper legal channels. “I promised myself that I would not take any action on behalf of the Hammonds until I first exhausted every available legal avenue to help them. When he was asked under oath about the reason for his proposal to form a Committee of Safety he explained, “That is what the Founding Fathers did when the British government refused to address their legitimate grievances.” In his explanation of why he thought it was necessary to form a Committee of Safety he asked if he could read from the Declaration of Independence, but of course Judge Anna Brown prohibited him from doing so.
Ammon testified under oath that his brother Ryan was not involved in any of his decisions or activities on behalf of the Hammonds before the exact day of the occupation of the Refuge so there was no conspiracy of any kind. Neither had Lavoy Finicum or Shawna Cox or any of the other defendants known anything about his plan to take over the Refuge until that very day. He said it was his own idea and he kept it to himself until the very last minute just prior to the rally which was held in Burns on January 2, 2016.
There is nothing like meeting someone who is braver than you are, and kinder than you are, and more dedicated than you are to give you a good understanding of just how insignificant and unimportant you really are in the world. I have learned just how unimportant I am by watching the courage, and the kindness, and the determination of Ammon Bundy.
Concerning the rally on January 2, Ammon said that he tried to hold it in the parking lot at the fairgrounds, but Judge Steve Grasty of the County wouldn’t give him permission to hold it there so he decided to hold it instead in a parking lot across the street from the Safeway. A parade was supposed to start there after the rally was over and proceed down the street to the County Courthouse where they were going to toss pennies on the sidewalk. Ammon is clearly heard in a video clip describing both the rally and the parade as a peaceful protest.
During over three hours of testimony on the witness stand Ammon Bundy wanted to read from the Constitution on more than one occasion. Each time he tried government attorneys objected and the judge sustained their objections. She specifically prohibited Ammon from reading from Article 1 Section 8 Clause 17 where it places limits on the federal government’s ability to own and control land within the United States. He was only allowed to give a brief discussion about property rights, how they can be sold, gifted, or transferred through a legal process called adverse possession. He described how this process works and said that he was trying to do that by occupying the Refuge.. He said he was laying the foundation for an adverse possession claim. That is why we performed work at the Refuge to improve the place. That is why we changed the name on the sign at the entrance to the Refuge. That is why we tried to get the utility bills transferred to our name. They were following the legal procedure to file a claim for adverse possession. It was all for the purpose of starting the process by which he hoped to transfer the title of the Malheur National Wildlife Refuge back to the people of Harney County.
He said he expected the federal government to serve him with trespass papers or an eviction notice, and he welcomed either one for the opportunity it would provide to try to resolve this matter in court. He never expected the occupation of the Refuge would end the way that it did in an ambush, with the fatal shooting of his friend, Lavoy Finicum and with everyone who was at the Refuge being arrested on conspiracy charges. He assumed that the government would follow the law just like they expected everyone else to follow the law, but of course the government doesn’t follow the law… It just makes the law.
The legal recourse to a claim of adverse possession is a Notice of Trespass issued by the proper court. “I was never given a Notice of Trespass”, Ammon Bundy stated under oath.
At one point Mr. Mumford asked Ammon Bundy if he knew of any other case where someone had initiated a claim of adverse possession against the United States government. The prosecutors immediately objected to the question. Their objection was sustained by the judge, and the witness was directed not to answer the question.
“I wanted to get a massive amount of media attention on what had happened to the Hammond family”, Ammon testified. “and on what we were doing at the Refuge to help them.” We didn’t do anything in secret so there wasn’t any conspiracy. Everything we did was out in the open in pubic meetings and in front of many people.” It was covered by media from around the world. The whole world knew what we were doing. That’s what we wanted.
About thirty people showed up at the January 2nd meeting where Ammon Bundy proposed his idea of staking a claim to the Refuge through a process of adverse possession. He told people who came that he wanted to give the courts the opportunity to decide the matter. That was the first time his brother Ryan had ever heard anything about his plan or Lavoy Finicum as well… Up to that point Ammon had kept his idea all to himself. No one knew anything about it except him. After he made his proposal at the rally on January 2 “the people at the meeting were about evenly divided”, he said. Some of the people supported his idea and some didn’t. Those that did drove out to the Refuge to take a look at the place while Ammon remained behind at the rally to lead the parade. “I don’t know where everybody else went who disagreed with my plan. Maybe Sheriff Ward knows, but the people who drove out to the Refuge found the place to be unoccupied and deserted.” Ammon made it perfectly clear that if there was anyone at the Refuge they had no plans to intimidate or threaten anybody, but nobody was there. “They are not the problem”, he told others. The problem is government officials at a much higher level.
As the Refuge was unoccupied it was decided on the spot to go ahead with the plan. It had already been established in court that the BLM district manager had decided to close the Refuge on or about the same time that it became known that the federal government had obtained a first right of refusal to purchase the Hammond Ranch.
Instead of arguing whether or not the defendants actually prevented any federal officers from doing their job which is clearly not the case what they really should be arguing in court is whether or not the federal government has the constitutional authority to own 700 million acres of land in twelve western States. That is what this trial is really about… and it is not even being discussed in the courtroom.
While he was on the witness stand the government asked Ammon Bundy if he was the leader of the occupation. “You have been described as a leader Mr. Bundy. Are you the leader of this occupation ?” His answer was a testimony to his personal integrity, “Yes it was my idea, but I want to make it clear… I never tell anyone what to do. I believe in teaching correct principles and letting other people govern themselves.” I was sitting in the front row of the overflow courtroom in Portland, Oregon when I heard Ammon Bundy admit that occupying the Refuge was his idea. I had tears in my eyes. I never stop being amazed at the personal integrity of the man who is at the center of this government vendetta… the man the government calls a conspirator and has placed on a terrorist watch list.
So this is what I learned after spending a week observing this trial. You cant read from the Declaration of Independence in the courtroomo. You can’t read from the United States Constitution in the courtroom. You can’t discuss these documents because only a lawyer is qualified to understand them.. No one else is even remotely capable. You can’t read from the Bible, and you certainly cant quote from the Book of Mormon in court. You cant mention God’s name in the courtroom, but you are free to mention the Devil… and one more thing…. A lawmaker from the State of Nevada, Michelle Fiore who is actually a member of the Nevada State Legislature was not permitted to speak about the law either…
The judge stopped her too Perhaps she is not an attorney.
After Ammon and the others had established their presence at the Refuge, Congressman Greg Walden of Oregon made a speech on the floor of the U.S. House of Representatives about all of the turmoil that was going on in his district. In that speech he expressed sympathy for the Hammonds and anger over the way they had been treated. Under oath Mr. Bundy testified that Walden’s speech on the floor of the House of Representatives encouraged him to remain at the Refuge. He said, “It made me feel like what we were doing was working.”
Today Ammon and Ryan are in jail. They have been in jail since January 26, 2016. They have been denied the presumption of innocence. They have been denied bail. Ryan was beaten up and placed in solitary confinement by prison guards for not allowing the government to remove the bullet from his shoulder. Everyone who was at the Refuge is indicted on conspiracy charges, and Dwight Hammond and his son are both in a federal penitentiary in southern California serving out the remainder of a mandatory minimum five year jail sentence. He is an old man and his neighbors say he will probably die in jail. His wife is living in a small house in Burns and a hired hand runs their ranch, what’s left of it which is located about sixty miles away. Many of their cattle have been sold since the government began its campaign of intimidation to drive them off their land. Their ranching business is just barely hanging and it won’t be too long before the government gets their hands on their ranch. Please contact your Senators and Representatives and ask them to push hard for a full and complete pardon for the Dwight and Stephen Hammond both now and after the election.