The Occupation Trial of the Malheur National Wildlife Refuge

Why is it 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

The national mainstream media doesn’t really want to talk about it.  Maybe it’s because they think it is 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 won’t be discussed in the courtroom during the trial, and it isn’t going to be debated in the jury’s presence. That is because the judge won’t allow it to be discussed or debated in the courtroom. You can be sure of that.

Nevertheless this occupation trial of the Malheur National Wildlife Refuge is really the trial of the century. It is the political trial that isn’t supposed to be a political trial. It is purported to be a criminal trial… but all of the underlying issues which led to the occupation of the Refuge are all political and they all began back in 1976 when Congress rewrote 200 years of American history and precedent by passing the Federal Land Policy Management Act. This changed the way that Congress administers public land. It’s policy went from maintaining a temporary, custodial type of stewardship to a permanent confiscation of all public land as a result of this law.

The occupation of over seven hundred million acres of land in twelve Western States will not be discussed in court during the trial. This is the real occupation, not the one that occurred at the Malheur National Wildlife Refuge… The amount of land occupied by the Federal Government is an area bigger than the size of most countries.. Only eight countries in the whole world are bigger 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 government’s occupation of this land in twelve Western States is completely unconstitutional, notwithstanding what the Federal Land Policy Management Act of 1976 says.

The seven defendants in this trial are accused of conspiracy to impede federal officers by 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 awaiting trials at a later date sometime in mid February and there are eleven defendants who have plead guilty in order to avoid harsher punishments which is just the same thing as saying that the Justice Department extracted an admission of guilt from them while under duress. Those guilty pleas are not necessarily the truth, but they were 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.

This may be the most intensively managed trial that America has ever seen. It is certainly the most intensively managed trial that I have ever seen. Every aspect of it is tightly controlled and regulated by the judge from the moment that the jury enters the courtroom to the moment they leave. The judge acts more like an explosives expert than a referee between the prosecutors and the defense attorneys. She is handling this trial like it is some kind of a ticking time bomb or a lighted stick of dynamite. She puts her hands on her face and rolls her eyes and acts like she is exasperated half of the time. I know I am exasperated by what I see going on in her court most of the time. Its totally frustrating to see so much corroborating evidence excluded from the jury’s consideration.

All of the video evidence submitted by defense attorneys is highly managed right down to the very last nano second so jurors will not be allowed to get too comfortable with the soft going, easy nature of the man who is at the center of this trial.. the mild mannered, gentle Ammon Bundy, and his  amazing brother, Ryan. These are modern American heroes who have been locked up by the government without bail ever since their arrest in January of 2016 for organizing and participating in a protest designed to get Congress to re-examine the issue of America’s public lands. The protest was arranged only after all avenues for a redress of grievances had been exhausted as Ammon Bundy testified in court many times.

The Constitution allows Congress to manage our public lands only for a certain period of time until they are ultimately disposed of, but Congress has decided not to dispose of them as required… certainly not in a timely manner. This has been the position of Congress since 1976. That is the problem. Congress wants to hold on to these lands forever instead of disposing of them as required by the Constitution.

In order to eliminate a lot of what Judge Anna Brown likes to call cumulative evidence, but what many observers, including myself consider to be corroborating evidence, she has sustained almost four thousand objections raised by federal prosecutors who want to keep as much exculpatory evidence as possible out of this trial.  Every time defense attorneys open their mouth to speak, another government prosecutor is back up on his feet again raising another objection.  Perhaps he should just keep standing up. Much of the time is spent stating and restating the following words:  “Objection…  cumulative… sustained. The objection is sustained Mr. Mumford, now move on please”. This goes on over and over again till you just want to scream.

The government is not trying to win their argument by presenting a clear and convincing case against the defendants, but rather by preventing their attorneys from making a clear and convincing case on their behalf. That is my impression at least, and I don’t think it is justice. It isn’t even fair.

Neither the defense attorneys nor the prosecutors want to talk to each other so the judge acts like a reluctant intermediary between the two 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? 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 these damages to all of the defendants collectively. The government alleges that the defendants trashed the place, 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. 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 trial that the BLM district manager for Harney County closed the Malheur National Wildlife Refuge on or about the same time that the BLM obtained a first right of refusal to purchase the Hammond Ranch indicating that the reason the Refuge was closed had nothing to do at all to do with the defendants, but was more about fear of repercussions from something that they had done.. The BLM also filed a civil lawsuit against the Hammonds to cancel their grazing rights so they could never use public land again.

Many witnesses testified that they never felt threatened or intimidated by any of the defendants who were 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, a 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 recall ever hearing about any threats made to Federal employees by the defendants. He said he did feel that he had been given an ultimatum though at one point by the defendant Ammon Bundy, but he failed to show any evidence of that under cross examination.

The judge ruled that no one could discuss the Constitution in her court because only a lawyer is qualified to properly understand and explain it and since she wasn’t about to do it therefore it wasn’t going to be done… To be sure she wasn’t going to allow the defendant Ammon Bundy to do it period, After all he isn’t a lawyer… end of story. The prosecutors objected to the Constitution being read in court, and the Bible being quoted, and the Book of Mormon entered into evidence. God was ruled inadmissible at some point during the day which he created, but someone did find a way to bring the devil into the discussion. That was one hell of a day.. and there is one more thing that is Verboten in court… No one can ever talk about the murder… (excuse me, I mean the death) of Lavoy Finicum. That is absolutely forbidden… along with any discussion of how 700 million acres of land in twelve western states has become occupied by the Federal Government and controlled by Congress through two federal agencies … the Bureau of Land Management and the United States Forest Service. This trial is so restricted as to what the defense is and is not allowed to talk about that it is getting quite ridiculous already.

Out of nearly four thousand objections raised by the prosecutors about 99% of them were sustained.

Hammond Family, Burns, Oregon.

There was a brief discussion in court about whether or not prosecuting the Hammonds under the Anti-Terrorist and Effective Death Penalty Act (AEDPA) is the same thing as calling them terrorists… The judge said it wasn’t.. but Ammon basically said it was a difference without a distinction. Judge Anna Brown then stated 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 on two counts. On February 5, 2014 the Ninth Circuit Court of Appeals overturned the lower court sentences. Upon further appeal the Hammond’s claim for relief was not heard by the U.S. Supreme Court and subsequent to that they were resentenced to spend the remainder of a five year mandatory minimum sentence in jail under AEDPA. 

Ammon Bundy took the witness stand this week in his own behalf and his testimony lasted for most of the week. It was interrupted from time to time by other witnesses who had come for the express purpose of testifying, but they had to leave by a certain time. I was at the trial all week and I can tell you this. No one was a better witness for the defense than Ammon Bundy. I don’t think anybody could make a better witness except for Jesus Christ himself, but you could see Jesus Christ in the way that Ammon Bundy conducted himself on the witness stand and in everything that he said and did.

Ammon described all of the efforts that he went through in his attempt to have the concerns regarding the Hammond family and the problems they were experiencing with the BLM and the Justice Department addressed. He appealed to local, state and federal authorities at various levels and at numerous times 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. 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 and 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 simply convene an evidentiary hearing board to look into the matters concerning the Hammonds. “They did not respond. No one ever got back to me”… Later he found out that those authorities were specifically told not to get back to him by people higher up in the Federal government.

He rejected the idea that the petition he drafted and mailed to authorities regarding the Hammonds represented any kind of a threat. I was just exercising my rights and going through all of the proper legal channels. I promised myself that I would pursue every available legal means to help the Hammonds.  When he was asked under oath about the reason for his proposal to form a Committee of Safety in Harney County he explained, “That is what the Founding Fathers did when the British government didn’t address their 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 Judge Anna Brown prohibited him from reading it. I wonder who she is taking orders from… I’m just curious.

Ammon testified under oath that he made a personal promise to God not to take any action on behalf of the Hammonds until he first exhausted every available legal means with the proper authorities.  Furthermore he testified that his brother Ryan was not involved in any of his decisions or activities on behalf of the Hammonds before the day of the occupation of the Refuge so there was not a conspiracy of any kind.  Neither had Lavoy Finicum or Shawna Cox or any of the other defendants on trial for conspiracy been a part of any advance plan to take over the Refuge. He said it was his own idea and he kept it to himself until the last minute just prior to the rally that 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 better understanding of your own importance in the big scheme of things. I have learned how unimportant I am by watching courage and the resolve of Ammon Bundy.

Now concerning the rally on January 2, Ammon said that he tried to hold it in the parking lot at the fairgrounds, but the County wouldn’t give him permission so he decided to hold it instead in a parking lot across from the Safeway  where a parade was supposed to start after the rally was over. He is clearly heard in a video clip describing this 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 more than once. Each time he tried to do that the 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 in the United States. He was only allowed to give a brief discussion about property rights, how they can be sold, gifted, or transferred to another through a legal process called adverse possession. He described how this process works and said that was what he was trying to do by occupying the Refuge.. He was laying the legal basis for an adverse possession claim. That is why they were performing work at the Refuge improving the place. That is why they changed the name on the sign at the entrance. That is why they tried to get the utility bills transferred to their name.  They were following the correct legal procedure to make a claim of adverse possession. It was all for the purpose of starting the legal process by which he hoped to transfer the title of the Malheur National Wildlife Refuge back to the people of Harney County, Oregon. He said he expected the federal government would serve him with trespass papers and an eviction notice, and he welcomed both for the opportunity it would provide to litigate the matter in court. He never expected the occupation of the Refuge to end the way it did in an ambush, and the fatal shooting of his friend, and with everyone who was at the Refuge arrested on conspiracy charges. He assumed that the government would follow the laws just like they expect everyone else to follow the laws. (But of course the government doesn’t follow the laws… It only makes them.)

The legal recourse to a claim of adverse possession is a Notice of Trespass issued by a court. “I was never given a Notice of Trespass”,Ammon said under oath.

At one point Mr. Mumford asked Mr. Bundy if there was any other case where someone had initiated a claim of adverse possession against the Federal government. The prosecutors objected to the question. Their objection was sustained by the judge as usual, 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 Hammonds”, Ammon testified in court and on what we were doing at the Refuge to help them. We didn’t do anything in secret.  Everything we did was out in the open, in pubic meetings in front of  many people. It was covered by media from all over the world. The whole world knew what they were doing. There was never any secrecy or conspiracy.

About thirty people showed up at the January 2nd meeting where Ammon first proposed his idea of staking a claim to the Refuge through a legal process of adverse possession. 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 time Ammon said he kept his idea of occupying the Refuge all to himself. No one knew anything about it but him. After he made his proposal known at the rally on January 2 the people at the meeting were about evenly divided. Some of the people who supported his idea drove out to the Refuge to take a look at the place while Ammon remained behind at the Rally. Where everybody else went who disagreed with the plan, I don’t know. 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 anyone was at the Refuge there were no plans to intimidate or threaten any BLM employees who were there, but no one was there. “Those people are not the problem”, he said. The problem is people at a much higher level.

Precisely because the Refuge was unoccupied it was decided to go ahead with the occupation. It has been established in court that the BLM district manager had already decided to close down the Refuge on or about the same time that it became known that the government had obtained a first right of refusal to purchase the Hammond Ranch.

Instead of arguing whether or not any of the defendants impeded a federal officer from doing their job which is clearly not the case because it is perfectly obvious that the government itself closed down the Refuge before the defendants ever got there, and the government itself told federal employees to say home precisely because it feared the community’s reaction after local residents learned that the government had obtained the first right of refusal to buy the Hammond Ranch WHAT WE REALLY SHOULD BE ARGUING ABOUT IN COURT IS WHETHER OR NOT THE FEDERAL GOVERNMENT HAS THE CONSTITUTIONAL AUTHORITY TO OWN 700 MILLION ACRES OF LAND IN TWELVE WESTERN STATES FOREVER. That is why this trial is so important… both for what is being discussed inside of the courtroom and even more important for what is not being discussed inside of 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 direct testimony to his 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  when I heard him make that statement, and I actually had tears in my eyes. I never stop being amazed by the personal integrity of the man who is at the center of this trial… the man that the government calls a conspirator and has placed on a terrorist watch list. The people who put the Hammonds in jail and who are now prosecuting Ammon Bundy, his father, and all of his brothers and everyone else who was at the Refuge are not worthy to polish his boots. That’s just my opinion.

This is what I learned after spending a week observing this trial. You cant read from the Declaration of Independence in Anna Brown’s courtroom. You can’t read from the United States Constitution. You can’t discuss either of those documents because only a lawyer is qualified to understand them.. Everybody else is incapable. You can’t read from the Bible. You certainly cant quote from the Book of Mormon. You cant mention God, but she actually did let a witness mention the Devil… A lawmaker from the State of Nevada, Michelle Fiore who is actually a member of the Nevada Legislature was not permitted to speak about the law.

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 regarding all the turmoil that was going on in his district. In that speech he sided with the Hammonds. Under oath Mr. Bundy stated that his speech on the floor of the House of Representatives encouraged him to remain on 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 refusing to allow 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 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 he will probably die in jail. His wife is living in a small house in Burns and a hired hand runs the ranch which is located about sixty miles away. Many of their cattle have been sold since the government began its campaign 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 the Hammond Ranch. Please contact your Senators and Representatives and ask them to push hard for a full and complete pardon for the Hammonds both now and also after the election.

Originally published by Scott Rohter on his Less Government is the Best blog, on October 7, 2016.