Additional jail time for ranchers’ range fires?

Western Livestock Journal – by Theodora Johnson

—Resentencing delayed to October

An eastern Oregon family with a long history in ranching is fighting to keep its cow/calf operation afloat against an onslaught of blows from the federal government. Two members of the Hammond family have been charged under the Antiterrorism and Effective Death Penalty Act of 1996 for starting two range fires that ended up on federal land.

One of the fires, set in 2001, was a prescribed burn on Hammond’s private property; a routine rangeimprovement practice. The other fire, set on Hammond’s private property in 2006, was a back-burn intended to protect the ranch’s winter pasture from a lightening fire on adjacent federal land. Combined, the two fires burned about 140 acres of federal land. Now, although two Hammond family members have already done time in federal prison for setting these fires, they are facing a resentencing—now scheduled for late October—that could land them back in prison.  

The Hammonds hold grazing rights on Bureau of Land Management (BLM) land and own private grazing acres intermingled with BLM land in the Steens Mountains. For 45 years, the Hammonds have used their BLM grazing rights and private property to run a successful operation. But now, their operation is being threatened not only by criminal and civil charges brought by the federal government, but with the loss of their grazing permits, as well. The BLM has refused to renew their grazing permits for two years running.

Although the family has refrained from making a public splash, the story is slowly getting out. Court documents are beginning to circulate. Those documents paint a picture of a family that serves on the local school board, volunteers in community clubs and counsels, and donates time, money and meat each year to local youth organizations and senior groups. District Court Judge Michael Hogan, the federal judge who first saw their case, went on record calling the Hammonds “the salt of their community.”

The fires

Why did Hammonds start the fires? According to court documents, the 2001 “Hardie-Hammond” fire was set under a long-standing plan between Hammonds and their BLM range conservationist to burn off invasive species on that section. They had called the BLM at noon that day to see if burning was permitted. After being told there was no burn ban in effect, the Hammonds told the BLM that they would be setting a fire on that section.

The fire later spread to approximately 139 acres of public land, land that happened to be one of Hammond’s grazing allotments. The Hammonds presented evidence that the spread onto public land was not intentional. However, back in 1999, a similar scenario had occurred (a prescribed burn on their land spread to public land), and the Hammonds had been warned that they would face serious consequences should it happen again. As an aside, according to the BLM itself, the 2001 Hardie-Hammond fire had, in fact, “improved range conditions” on the public lands.

The 2006 “Krumbo Butte” fire was started by lightening on public land adjacent to Hammond’s private land, where they grow their winter feed. Hammonds set a backfire that successfully kept the Krumbo Butte fire from burning a large portion of their private land. Their backfire burned about one acre of federal land.

Years later, BLM pressed charges for the above-mentioned fires, citing endangerment of human lives and damage to federal property. However, the district court found that no one had been endangered by the fires, and that the fires had caused minimal damage. In fact, the court found, the fire had arguably increased the value of the land for grazing.

Original jail sentence

Dwight and Steven Hammond (father and son operators of the family ranch) admitted to having started the above fires. In determining the Hammonds’ sentences, Judge Hogan had decided that applying the “mandatory minimum” of five years cited in the Antiterrorism and Effective Death Penalty Act would “shock the conscience…” He referenced the Eighth Amendment of the Constitution, which states, “Excessive bail shall not be required…nor cruel and unusual punishments inflicted.”

To call for five years’ imprisonment, he said, “would result in a sentence which is grossly disproportionate to the severity of the offenses here…” He said that Hammonds’ actions “could not have been conduct intended under [the Antiterrorism and Effective Death Penalty Act]…” Judge Hogan used his discretion under the Eighth Amendment to sentence Dwight (now 74) to three months in prison, followed by three years’ “supervised release.” Dwight’s son Steven (45), father of three, was sentenced to one year and one day in prison—also to be followed by three years’ “supervised release.” The men served their sentences starting in 2013.

Their firearms were taken, as was Dwight’s pilot’s license.

Back to prison?

Not satisfied by Judge Hogan’s reasoning or sentencing decisions, the federal government is now coming back for more: It wants the men to serve at least five years’ time. The government appealed the judge’s decision to the Ninth Circuit Court of Appeals, and that court agreed that Judge Hogan’s ruling must be remanded back to another judge. The Hammonds appealed to the U.S. Supreme Court in hopes of overturning the Ninth Circuit decision, but their case was not taken up by the high court.

Thus, the case is now in the hands of Chief Judge of the District Court of Oregon, Judge Ann Aiken. She will decide whether to institute the five-year minimum or more. The resentencing hearing, once scheduled for July 9, has been delayed to late October 2015.

Meanwhile, on the civil side, a wholly separate civil case is being considered. The ranch is also paying $400,000 as part of a settlement agreement with BLM for the alleged costs of fighting fires for which BLM  claims the Hammonds are responsible. If the Ham monds have to sell part of their ranch to make the payment, BLM managed (as part of the settlement agreement) to get first option to buy.

Meanwhile, due to BLM’s refusal to renew the family’s grazing permits, the Hammonds have had to find alternative feed for their cattle for large parts of the year, all while working to come up with the $400,000 settlement sum. Hammonds own grazing preferences and hold an associated permit on the BLM land. What’s more, they own private property intermingled with the BLM land. This two-year denial of their grazing permits has preventing them from using their grazing rights and private land.

After a “45-year record of exemplary stewardship” on Hammonds’ part, the family’s counsel wrote, BLM’s refusal of permits is an act of “zeal,” an effort to “make an example of” the family. The Hammonds are currently appealing to get their permits reinstated.

“The public has an interest in maintaining and stabilizing the livestock operations that are dependent upon the public lands,” said the Hammonds’ appeal. “However, contrary to this interest, the… BLM Decision destabilizes [Hammonds’] current livestock operation which is dependent upon the public lands…” Watch for updates on both the criminal and civil aspects of the Hammond family’s story in future editions. — Theodora Johnson, WLJ Correspondent

https://wlj.net/article-11781-additional-jail-time-for-ranchers%E2%80%99-range-fires.html