The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 3 – February 28, 1997 – May 21, 1997
The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 3 – February 28, 1997 – May 21, 1997
Gary Hunt
Outpost of Freedom
April 14, 2016
This series is not about the two fires and subsequent conviction of Dwight and Steven Hammond. It is about the abuse, by government agencies, in the two decades prior to the first fire.
Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing File Part II” pdf file.
So, now that R. S. 2477 has been brought to their attention, FWS Portland has to deal with this significant disruption to their plans. On February 28, 1997, a cover sheet and draft opinion {97-102} directed to Forrest Cameron at Malheur. The draft was prepared by “Chief, Division of Realty”, in Portland. It has notations, apparently made by those at Malheur. I think that the entire “draft opinion” is worthy of our attention.
Memorandum
To: Refuge Manager, Malheur NWR
Through: Refuge Supervisor, OR/WA/ID
From: Chief, Division of Realty
Subject: Malheur NWR Realty Opinion No. 2 Hammond Ranch Stock Driveway: A Revised Statute (RS.) 2477 Claim ?
You asked for an opinion whether Hammond Ranch (Ranch) has a right to move livestock (cattle) over Refuge lands based on an R.S. 2477 claim or assertion. The “Hammond cattle trailing route” is a Stock Driveway by definition and is shown on FWS Map, “MALHEUR NATIONAL WILDLIFE REFUGE, Blitzen Valley Below Krumbo Creek, Harney County, Oregon, 8/96,” Exhibit 1. The Ranch has been moving cattle over this route. We have challenged them and declaring that they have no right to using Refuge land. We asked them to stop, or at least we want to have control over the livestock and people movement. Hammond Ranch says it’s their right to use the route based on historic use and R.S. 2477.
The issue is, is there an R.S. 2477 claim, underlying the Stock Driveway, which guarantees Hammond Ranch and others a right of passage for livestock and other things?
As a lead in to answering your questions, we offer an abbreviated history of R.S. 2477. Revised Statute 2477 is an 1866 Act (Federal law) “granting” highway rights of way over federal public lands stated in deceptively simple language:
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted”
This “grant” was originally found in Chapter 262, Section 8 of the Act of July 26, 1866 (14 Stat. 353), a mining law act. This act was later codified as Revised Statute (R.S.) 2477 and later recodified as 43 U.S.C. 932. It remained on the books until it was repealed by Section 706(a) of the Federal Land Policy and Management Act (FLPMA) of October 21, 1976, Public Law 94 576, 90 Stat. 2743, 43 U.S.C. 1701, et seq, the Bureau of Land Management’s (Bureau or BLM) so called “Organic Act.” Because of the repeal, we are only concerned about “claims” of grants of right of ways “perfected” after 1866 and before October 21, 1976, or until the land underlying a claimed R.S. 2477 went into “reserve” status or was deeded out of Federal ownership.
R.S. 2477 has been the subject of inconsistent state statutes and court decisions, and a handful of inconsistent federal court decisions, during its 110 year existence. Almost all of the reported state court decisions involved competing rights of third parties, the United States was not a party to them. An important point is that the legislative history is silent as to the meaning of this section of the 1866 Act. When we cannot easily determine what a law means from its language, we often look at the Congressional record of hearings and discussions on it. The records usually provide actual recorded commentary among members of Congress as to what the law is about and why it is to be enacted.
We know that for the longest time not much was made of or done with this provision of law. In fact it didn’t elicit much reaction until after its repeal in 1976. It wasn’t “important” until the large public lands set-asides of the 70’s and later, particularly Wilderness Act withdrawals and other withdrawals, came. The states found or “rediscovered” this wording, and asserted their claims for highways in existence or to be built. The states, in many cases, were counting on the R.S. 2477 claim(s) to block pending wilderness designations. (One of the criteria for land to be wilderness under the law is that it must be roadless.) Furthermore, State, counties and individuals have “found” this law to be prospectively useful for gaining “free” access across federal lands.
So, we have this 1866 law, renumbered in 1873, codified in 1938, and finally repealed in 1976. During this time no changes were made to the act, and the only understanding of it came from inconsistent case law. But we have a problem. States, counties, and others want to apply it, and have asserted/claimed it as a basis for right of way across federal land. There were no regulations or specific guidance for application, so on October 7, 1988, Secretary of the Interior Hodel issued “Secretarial Guidance” as “Departmental Policy on Section 8 of the Act of July 26, 1866, Revised Statute 2477 (Repealed), Grant of Right of Way for Public Highways (RS 2477) (Exhibit 2).” With this mouth filling subject, the Secretary set out to help us field folks make the act work.
The Bureau was (and still is) tasked with processing the claims and determining them valid. Some have been “approved.” The Interior Department and its Solicitor says “deciding validity” is adjudication, which the Bureau has no authority to do so. Anyway, sorting it all out, cataloging them, and notifying other federal agencies of their existence is a daunting task at best. In 1992, Congress, after hearing from constituents and agencies about the problems of “figuring out” these rights, ordered the Bureau to research the issues, canvas the public and other federal agencies; and to write, publish and institute (proposed) regulations (The regulations were supposed to create a regular process by which these claims of valid existing rights can be identified and evaluated. The regulations were also to define key statutory words – “construction,” “highways,” “unreserved public lands” – to establish standards against which to measure the claims.) BLM released its report on June 1, 1993, and was promptly shot down by just about everyone. The results are no regulations to date, more court battles, and no “final” resolution. So, here comes the Ranch, with a possible claim of/assertion of their rights to a RS 2477 right of way.
Furthermore, before discussing the case at hand it is important to understand certain Definitions/Terms which I will try to define:
public lands: As used in this report, the term means Federal lands managed by any of the Executive Branch agencies and owned by the people or the United States. However, this term usually means the public domain (PD) lands managed by the BLM for United States. Technically, once land is reserved, withdrawn or otherwise “permanently” used or deeded away, it is no longer PD land. In general use, public lands means land owned by any government, Federal, State, and County/Borough.
claim/assertion: A person, persons, state, or county “emphatically” say(s) they have a right of passage across federal lands by virtue of RS 2477. They assert that they have met the intent and satisfied the provisions of the act, and are entitled the right, rather the right is already granted to them.
perfected: ripen to usefulness.” Completing the steps required by law that lead to the full benefits of the particular law.
reserve/reserved: (federal) land set aside for some existing or future use or purpose, by Congress or the Executive Branch, e.g. a national wildlife refuge (existing), or a ditches and canals provision in a land patent for the conveyance of water, if needed (future).
third parties: a person/persons/entity not directly involved in an issue/dispute between two parties, e.g., the State vs. the Federal Government (2 parties), the third party being the Hammonds, for example.
Federal land patents or Patents: a Quickclaim Deed (QCD) from the United States to a grantee, giving all the US’s right, title and interest away, EXCEPT those rights held back by the US for some existing or prospective purpose. Usual reservations are minerals, oil and gas, geothermal, and certain kinds of right of ways, but not RS 2477’s. The rights held back can be any that are already granted to someone else. However, we usually try to extinguish those rights or have the jurisdiction over them transferred to the new land owner. Homesteading, or the agricultural settlement of certain federal land, frequently led to a Homestead Patent.
RS 2477 contains 3 Key Concepts for the claim or assertion to be accepted or acceptable, therefore legal or legitimate, all must be present (See Secretary Hodel memo, Exhibit 2):
1. The lands involved (under the claim) must have been public lands, not reserved for public uses, at the time of acceptance;
2. Some form of construction of the highway must have occurred; and,
3. The highway so constructed must be considered a public highway.
Note that Exhibit 1 lays all this out and explains what each provision means. Remember, under this claim the United States has no duty or authority to adjudicate an assertion or application, but as a practical matter MUST be able to “recognize” with some certainty the existence, or lack thereof, of public highway grants obtained under RS 2477. We would mostly rely on the States and counties to show the existence of the RS 2477. I say “mostly” because we, the Federal government, have from time to time taken issue with state claims and the basis for them, and have gone to court.
Land Status Research/Facts: I looked at the following maps of the area over which the Stock Driveway is routed: Bureau Master Title Plats (MTP’s) and Historical Indexes (HI’s), a USGS quad of the area, a Fish and Wildlife Service Land Status Map, and a “Map of French Glenn Live Stock Co. Property, Harney Co., Oregon, dated 11/27, 1908;” and, the “Executive Orders” file, which contains the history of the Refuge so far as reservations, withdrawals and transfers are concerned. I was looking for “unreserved public land” on which a public stock driveway (highway) existed between 1866 and 1976, and evidence of construction of the public stock driveways or highways. I was looking for public, constructed routes, which are the same ones Hammond Ranch is using and claiming a right to under RS 2477.
I found grants to the State of Oregon (State Grants) as far back as 1859 (the earliest State grant), though most occurred in the 1880’s and early 1890’s. I also found 1880’s, 1890’s Homestead Patents. Homestead Patents deed the land out of Federal ownership. I found that Malheur National Wildlife Refuge was first set aside or reserved in the area of the Stock Driveway by Executive Order 7106, 7/16/1935, “Establishing The Malheur Migratory Bird Refuge, Oregon.” According to our Malheur Refuge Manager, the French Glenn Livestock Company was probably begun in 1872 by Peter French buying land from the State of Oregon, settling some himself, and buying out neighbors. The deeded and reserved lands were/are not yet available for an RS 2477 claim. However, there is a series of windows between 1866 and 1884 (The earliest recorded Patent); and later (from other Patents and State Grants) for an RS 2477 claim.
I did not find evidence of construction of a public highway for stock driving or other purposes. However, the “French Glenn Map” shows a wagon road” that roughly corresponds to the one Hammond Ranch is using. I don’t know if this is a constructed road, and if so, when construction took place. Perhaps Harney County provide can evidence of a constructed highway corresponding to the Hammond Stock Driveway that existed during the “windows.” I did not look at Patents for a reservation of an RS 2477 right of way or stock driveway or highway right-of-way that could be an RS 2477 claim. Additionally, I have not researched the administrative and court decisions on RS 2477’s to see if a stock driveway is a highway for RS 2477 purposes. It is possible that a stockway is a highway by way of the definition of a highway: “a route of travel, trade and commerce.” Live stock are items of trade and/or commerce, and they can travel or be moved.
In conclusion I found there were a number of narrow windows between 1866 and 1892, during which there was unreserved Federal public land available for an 2477 claim. If construction of a stock driveway equals “construction of highways” cited in RS 2477, if the stockways was constructed at the proper time, if they are accepted as public highways, then predecessors of the Hammond Ranch and the Ranch could claim the cattle driveways under RS 2477. I think the ultimate decision rests with Harney County, if all else is true. Did they accept/acknowledge the stock driveway during any or all of the windows?
Back in July, 1994, I asked the BLM Oregon State Office if RS 2477 assertions are still allowed? The Office said yes, but the processing of RS 2477 assertions is on nation-wide hold pending the issuance of regulations. The national BLM Director can do an “emergency” processing. The assertion would be processed and “accepted” using the 1988 Hodel guidelines. I believe this is still the case.
BOTTOMLINE – AN RS 2477 CLAIM IS POSSIBLE.
What control does the Service/Refuge have over RS 2477 R/W’s? What rights does Hammond Ranch have on them? We feel the Service has some control over these R/W’s because we own the land. We do not believe that RS 2477 grants a right of way in fee, which takes the land out of our ownership. We have the same rights as other land owners with a road easement over them. As a landowner and conservation agency responsible by Federal law for our Refuge, we can respond to unnecessary degradation of the land. We can use the RS 2477 R/W’s for Refuge purposes, and the public can use them on the Refuge and on other federal lands. Since the RS 2477 is likely a highway for trade, travel and commerce, it can be used commercially, publicly, and certainly by the Hammond Ranch. I don’t think we could charge any kind of fees for the RS 2477 claim, since to have one requires it to pre-date our use. An existing RS 2477 highway would be a reservation to the State, county, or individual against our ownership.
The Malheur recommendations show in the pdf file. There were many subtle changes, often having the effect of changing the intent of the context, as presented by the author. Most significantly was the recommendation to strike the entire final paragraph.
It won’t be until May 22 that this matter is revisited. The Exhibits referred to were not included in the obtained document.
It appears that there were criminal charges (case no 94-257) filed against Dwight and Steven Hammond, that there is no copy of the charges in the obtained document. However, on March 4, 1997, AUSA (Assistant United States Attorney) Robert G. Thomson sent a letter to the Hammond’s attorney {103}, referring to a letter from Hammond’s attorney, though there is no copy in the obtained documents. The letter suggest that the Hammond’s will trail their cattle without obtaining a permit. It also suggest that the criminal charges will be dismissed, if the Hammonds agree to some discussed conditions.
On March 6, 1997, a letter is sent to AUSA Thomson, by Cameron, addressing changes that need to be made in the conditions that had been discussed, if the criminal charges are to be dismissed {105-106}. The content of that draft is as follows:
On February 20, 1997, the Fish and Wildlife Service first became aware that apparently you have reached tentative agreement with Dwight and Stephen Hammond’s attorney, Lawrence Matasar regarding four conditions in return for dismissal of the criminal cases against them. Mr. Matasar described those conditions in a November 19, 1996 letter to you. Apparently those conditions were transmitted to the U. S. District Court on November 25, 1996. This letter is to advise you that as written by Mr. Matasar the conditions are not adequate and may be misleading.
First, under condition #2, the Hammonds agree only not to file a false arrest or other civil action against Refuge personnel for any conduct at Bird Waterhole on August 3, 1994. Since the arrest was by Fish and Wildlife Service Special Agents who are not Refuge personnel, the Hammonds need to agree not to file an action against U. S. Fish and Wildlife Service personnel.
Second, under condition #4, the Hammonds agree to notify the Refuge when they intend to trail their cattle in the spring of 1997, “as long as the government agrees that this is merely a one time notice…” The Fish and Wildlife Service intends for the Hammonds to trail cattle across the Refuge only under a Special Use Permit and to give notice every time. Condition #4 needs to be revised by either 1) deleting the phrase reading “as long as the government agrees that this is merely a one time notice”, or 2) by adding at the end of the sentence “including the Fish and Wildlife Service’s position that trailing must occur under authority of a Special Use Permit and that one condition under the permit is that the Refuge receive reasonable notice prior to each trailing event”, and by deleting the word “merely”. These changes are essential so that condition #4 is not mistakenly read to mean that the Government will not require advance notice other than in the spring of 1997, and that there is a full understanding that the Fish and Wildlife Service does require a permit for trailing.
We request that you provide these corrected conditions to the Hammond’s attorney as soon as possible and to the U. S. District Court. ???(It is the Fish and Wildlife Service’s position that without these changes it would be preferable to dismiss the charges outright without condition.) ??? If you have any questions or wish to discuss these matters please contact Refuge Manager Forrest Cameron.
Now, is dropping criminal charges and an agreement not to prosecute “Fish and Wildlife personnel” a bit of an admission that the arrest was not legally performed? If they need immunity, then they must feel that defense of the personnel might not achieve acquittal.
Next, they are trying to worm back in a “Special Use Permit”. We just went through this, and R. S. 2477 would preclude the requirement for a permit. Even recent history, until the eighties, no “Special Use Permit” was required. What changed? Every indication is that the “right of passage” had been clearly established, until such time as the FWS began moving fences and demanding permits be required.
On May 19, 1997, Hammond’s attorney notifies Malheur, by letter {158} that the Hammonds will begin trailing cattle along the old established route, beginning May 26, 1997.
On May 21, 1997, Cameron, from Malheur, by letter, informs Dwight Hammond that he has attached a “Special Use Permit” allowing the Hammonds to trail their cattle along the established route {159-160}.
To be continued
The Harassment of the Hammonds – Act I – Scene 1 – Introduction
The Harassment of the Hammonds – Act I – Scene 2 – October 24 1986 – March 20 1987
The Harassment of the Hammonds – Act I – Scene 3 – April 2, 1987 – April 15, 1987
The Harassment of the Hammonds – Act I – Scene 4 – May 6, 1987 – April 22, 1988
The Harassment of the Hammonds – Act I – Decade of the Eighties- Scene 5 – May 2, 1988 – May 9, 1988
The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 4 – May 22, 1997