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 4 – May 6, 1987 – April 22, 1988
Gary Hunt
Outpost of Freedom
March 15, 2016
Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing Part I” PDF file.
On May 6, 1987, David Johnson filed an internal memo {52-55} explain that he had received a call from Dwight Hammond, on April 27, and that Dwight said he was going to begin moving cattle the next morning, at 5:00 AM.. Johnson, because of 3 broken ribs, advised that he could monitor the trailing, but could not help. Dwight told him that if he was not going to help, he needn’t come. When Johnson and another employee arrived at 10:00 AM, the move had been completed and the Hammonds were on their way back to their ranch.
Johnson attempted to trace the route that the Hammonds had taken, and attached a map to show the route. His final statement in the Memo, “I did not see any significant resource damage as a result of this action.”
On January 18, 1988, Dwight Hammond sent a letter to De Bates {57-58}, which says, in part:
THE ONLY THING YOU PEOPLE HAVE DONE IS WRITE LETTERS TO THE EFFECT THAT THE PROBLEM NO LONGER EXISTS, AND THAT THE PROBLEM IS BEING WORKED OUT. NOTHING PHYSICAL, (WHICH IS THE REAL PROBLEM) HAS CHANGED.
WE WERE TOLD TO DISCUSS THIS WITH MR. CONSTANTINO. THAT HAS BEEN DONE SEVERAL TIMES. IN YOUR LETTER OF MARCH 19, 1987, YOU STATED THAT MR. SANDY WILBUR WAS TO CONTACT US; COME OVER AND LOOK AT THE PROBLEM, ON THE GROUND. HE HAS MADE SEVERAL TRIPS TO OUR AREA, AND HAS MADE NO ATTEMPT TO “LOOK” AT THE PROBLEM AND CONTACT US. MALHEUR NATIONAL WILDLIFE REFUGE OFFICE GIRLS DID CALL ONE FRIDAY AFTERNOON, APRIL 10, 1987, ASKING IF DWIGHT COULD MEET WITH MR. WILBUR THAT AFTERNOON. DWIGHT WAS NOT HOME AND MR. WILBUR COULD NOT BE HERE AFTER THAT DAY, ALTHOUGH WE BELIEVE HE HAD BEEN HERE FOR 2 OR 3 DAYS AT THAT TIME. THIS IS OUR VERY BUSIEST TIME OF YEAR; BUT, HAD WE HAD ANY ADVANCE NOTICE, WE WOULD HAVE MADE IT A POINT TO DROP EVERYTHING AND MEET WITH MR. WILBUR, WE WERE GIVEN NO NOTICE. MRS. HAMMOND RECEIVED A PASSIVE TELEPHONE CALL ON THE FOLLOWING MONDAY MORNING AND AFTER A VERY DISHEARTENING DISCUSSION, SHE TOLD MR. WILBUR THAT HE SHOULD BE TALKING TO MR. HAMMOND, NOT MRS. HAMMOND, AND HE HUNG UP – WE HAVE NOT HEARD FROM HIM SINCE.
WE ARE GREATLY DISAPPOINTED IN U.S.F.W.S.; STARTING WITH THE MAINTENANCE MAN THAT AGGRAVATED THIS PROBLEM UNTIL WE REFUSED TO LIVE WITH IT ANY LONGER; AND, HIS SUPERIORS’ REFUSAL TO ABIDE BY THEIR OWN FWS REGULATIONS, AND THEIR SUPERIOR’S TOTAL REFUSAL TO STRAIGHTEN THE MESS OUT. SO , IT IS TIME FOR US TO GO AHEAD WITH OUR PROMISE OF GOING ON UP THE CHAIN OF COMMAND UNTIL WE FIND SOMEONE WHO IS WILLING TO LOOK AT THE SITUATION AS TO WHY WE CANNOT LIVE WITH THIS PROBLEM.
IF YOU WILL PLEASE FORWARD THE NAME AND ADDRESS OF THIS PERSON WE WILL GET ON WITH IT.
On February 20, 1988, Dwight writes to Rolf Wollenstrom, Regional Director, U. S. Fish and Wildlife Services {60-63}. He CCs Constantino and Wilburn. [Referenced maps were not included.]Starting nearly from scratch, he explains the situation, giving historical perspective to the historical travel route.
THIS ACCESS WAS NOT A CONTROVERSY, THAT WE KNOW OF, WHEN THE U. S. FISH AND WILDLIFE SERVICE PURCHASED THE BLITZEN VALLEY, OR LATER, BECAUSE OF THE LOCATION OR THE REFUGE’S ORIGINAL FENCE, BUILT IN THE 1930′S LEAVING THE MAIN NORTH-SOUTH ROAD ON THE OUTSIDE OF THE MAIN VALLEY FLOOR. THIS ROAD WAS THE ONLY ESTABLISHED ROUTE (SEE ATTACHED MAP (1877) #1) FROM NORTH TO SOUTH IN THE AREA AT ONE TIME, THE ROAD IS STILL CUT DOWN IN SPOTS, 2 FEET INTO HARD PAN AND BEDROCK FROM THE HEAVY USE OF WAGONS AND SHEEP AND CATTLE TRAILING OVER THE LAST 100+ YEARS. THE STATE HIGHWAY IS NOW LOCATED ON THE WEST SIDE OF THE VALLEY, AND THE MAIN TRAFFIC GOES THAT WAY; BUT, OUR RANCHES AND THEIR PREDECESSORS HAVE USED THIS “WAGON ROAD” CONTINUALLY AND EVERY YEAR, AS IT IS NOT POSSIBLE FOR US TO CHANGE, AS IT IS VIRTUALLY THE ONLY POSSIBLE GEOGRAPHIC ROUTE TO THE SOUTHERN HALF OF OUR RANCH, OUR RANCH IS GEOGRAPHICALLY COMPARED TO AN HOUR-GLASS, THE MID POINT BEING A CROSSING ON A PORTION OF THIS ORIGINAL ROAD, WHERE THE FENCE HAS BEEN RE-CONSTRUCTED. IN YEARS PAST, THE EARLY 1970‘S, AS ENVIRONMENTAL ISSUES BECAME A FACTOR, IT WAS AGREED BY ALL PARTIES USING THIS AREA, THAT THERE WERE SOME PROBLEMS IN THE BRIDGE CREEK RIPARIAN AREAS. IT WAS ALSO AGREED, IN 1975, THAT SOME OF THESE PROBLEMS COULD BE HELPED BY THE EXCLUSION OF CATTLE IN BRIDGE CREEK. AT THAT TIME, THE USFWS, HAMMOND RANCHES, THE BLY AND OREGON DEPT. OF FISH AND WILDLIFE MET, ON THE GROUND, ANN CAME TO AN INTER-AGENCY AGREEMENT FOR FENCING, INCLUDING WATER GAPS FOR CATTLE WATERING ACCESS TO BRIDGE CREEK. THE MAIN PURPOSE OF THIS AGREEMENT WAS TO ELIMINATE CATTLE GRAZING IN THE BRIDGE CREEK RIPARIAN AREA. EVERYONE AT THIS MEETING, INCLUDING A REPRESENTATIVE OF THE USFWS LOCALLY, AGREED TO DRAW UP A PLAN TO PROTECT THIS AREA, AN INTER-AGENCY AGREEMENT AND MAP, AS AGREED, WAS DRAWN UP AND SIGNED AT THAT TIME, BY EVERYONE CONCERNED, EXCEPT THE USFWS. WE DON’T KNOW WHY, AFTER THE TOTAL AGREEMENT, ON THE GROUND, THE USFWS DID NOT LIVE UP TO THEIR PORTION OF THE AGREEMENT. THE PROJECT WAS STARTED AND PARTIALLY COMPLETED AND SUDDENLY, THERE WERE DIFFERENT FENCES BEING BUILT, THAT WERE NOT AGREED UPON, WHEN WE WERE AWARE OF A PROBLEM, AND ASKED ABOUT THE DIFFERENT FENCES, WE WERE TOLD THAT THE COMMUNICATION BETWEEN THE REFUGE AND THE BUREAU OF LAND MANAGEMENT HAD DETERIORATED OVER OTHER ISSUES AND THAT THEY WERE BUILDING THE FENCE, ON THE BOUNDARY, WITH NO COORDINATION, AND ALL CONCERNED COULD JUST “LIVE WITH IT”. HOWEVER, THE PART OF THE AGREEMENT, THE BUILDING OF THE FENCE ON BRIDGE CREEK, BETWEEN THE BLM AND US, AS USERS, WAS ALREADY IN PLACE AND THIS PART OF THE AGREEMENT HAS BEEN HONORED BY HAMMOND RANCHES AND THE BLM SINCE. ALL THIS HAS BEEN VERY CRITICAL IN OUR USE, AS COMPARED TO THE HISTORIC USE, OF THE AREA; HOWEVER, WE HAVE HONORED THIS FENCE UNTIL THE TIME THAT GEORGE CONSTANTINO ADVISED US THAT WE COULD NO LONGER TRAIL CATTLE ACROSS BRIDGE CREEK, MAKING OUR RANCH TOTALLY INOPERABLE.
WE ARE UNFAMILIAR WITH THE PROPER PROCEDURES, BUT WE ARE DOING THE BEST THAT WE CAN, AS WE FEEL WE HAVE BEEN GROSSLY WRONGED, AND WILL TRY TO EXPLAIN WHY IN THIS LETTER, BUT AGAIN, IT IS VERY DIFFICULT WITHOUT SOME ON THE GROUND OBSERVATION, AS TO THE DIFFICULT TERRAIN AND UNIQUE SITUATION WE ARE DEALING WITH. WE FEEL WE HAVE EXHAUSTED OUR EFFORTS WITH GEORGE CONSTANTINO AND HAVE TRIED TO TALK TO SANDY WILBUR AND LARRY DE BATES, WHO HAVE NOT LOOKED AT THE PROBLEM, ONLY STEADFASTLY BACKING GEORGE’S DECISION.
THE CHAIN OF EVENTS, AS WE UNDERSTAND THEM, ARE LISTED BELOW:
THE USFWS‘S FAILURE TO HONOR THE 1975 AGREEMENT. (ENCLOSED #2) A FENCE WAS BUILT BETWEEN MUD CREEK AND BRIDGE CREEK ON THE USFWS’S BOUNDARY (INDICATED IN GREEN ON #3). AGAIN, IN AN HOUR-GLASS SITUATION, A FENCE WAS BUILT, AT THAT NARROW CENTER POINT, WHERE IT WAS VIRTUALLY IMPOSSIBLE FOR OUR OPERATION TO OPERATE, WITHOUT GOING BETWEEN BRIDGE CREEK AND MUD CREEK WITH CATTLE AND, OR THE NEEDED VEHICLE MAINTENANCE OF THE SAME. THE USFWS BUILT A FENCE, WE LIVED WITH IT AND AT AN ECONOMIC LOSS FROM THE INCONVENIENCE AND ALSO FROM THE LOSS OF CATTLE EACH YEAR SINCE.
A FENCE WAS CONSTRUCTED AROUND KNOX SPRING (INDICATED IN RED ON #3), CONNECTING TO THE PRIOR 1975 FENCE THAT WAS THE OLD ESTABLISHED OUTSIDE BOUNDARY FENCE OF THE REFUGE, THOUGH NOT ON THE ACTUAL BOUNDARY (INDICATED IN BLUE ON #3), AND IT WAS A FEED AND WATER LOSS TO OUR GRAZING ON BLM MANAGED LAND, AND MORE INCONVENIENCE – – PUT, WE LIVED WITH IT.
THE REFUGE BUILT A FENCE BETWEEN BRIDGE CREEK AND KNOX SPRINGS, ON THE ACTUAL BOUNDARY, MAKING IT QUITE DIFFICULT FOR OUR OPERATION TO ADJUST, EVEN FURTHER, AND AGAIN VIRTUALLY IMPOSSIBLE, WITHOUT OUR GOING ACROSS THE SECOND, NEWLY ESTABLISHED “REFUGE JURISDICTION” INSTEAD OF THE PRIOR BLM MANAGEMENT GROUND, (BROWN ON #3)
WE WOULD POINT OUT, ON THE GROUND, WHY THERE IS A SITUATION CF CONTINUING ECONOMIC LOSS EACH YEAR, DUE TO CATTLE LOSS. IN OUR ANNUAL CATTLE MOVEMENTS, THERE IS A SITUATION THAT, IF COWS AND BABY CALVES SHOULD BECOME SEPARATED IN THE TRAILING, DUE TO THE FENCES, THAT YOU ADAMANTLY DEFEND, THE COWS AND BABY CALVES CAN, AND DO, END UP LOOKING AT EACH OTHER, BAWLING ACROSS APPROXIMATELY 50′; HOWEVER, TO GET TOGETHER AGAIN, THEY MUST GO THROUGH AN OBSTACLE COURSE AND 3 FENCES, AND ACROSS 5 MILES TO ACTUALLY BE PHYSICALLY TOGETHER. THIS DOES NOT, AND WILL NOT HAPPEN NATURALLY. WE HAVE LIVED WITH THIS SITUATION, ALTHOUGH MOST OF THE ADVERSE FEELINGS AND VOLUMES OF ADVERSE PAPER-WORK THAT HAS SEEN PRODUCED IN THE LAST 10 YEARS, ON OUR BEHALF, STEMS FROM THESE FENCES; BUT, WE DID LIVE WITH THEM, UNTIL THE TIME THAT GEORGE WANTED TO PUT OUR TOTAL OPERATION, BY CONTROL OF A “PERMIT SYSTEM”, UNDER HIS JURISDICTION. IT IS OBVIOUS, FROM A FREE ENTERPRISE POINT OF VIEW, THAT ANY CONTROL, BY “GMC”, AFTER THE EXAMPLES HE HAS SET ON THE 1150,000+ ACRES, THAT WE OBSERVE DAILY, AND NE “MANAGES”, WOULD BE CERTAIN DEATH AND TOTALLY UNACCEPTABLE.
WE FEEL THAT TO LEAVE THE FENCES AS IS, IS IN TOTAL, VERY CLEAR VIOLATION OF THE USFWS’S “REFUGE MANUAL’S” POLICY (ATTACHED #4)„ AND JEOPARDIZES OUR TOTAL OPERATION. WE FEEL THAT THE ONLY SOLUTION, AT THIS TIME, WOULD BE REMOVAL OF THE FENCE BETWEEN MUD CREEK AND BRIDGE CREEK, AND BRIDGE CREEK AND KNOX SPRINGS, AND WE STILL CONCEDE THAT POSSIBLY YOU WOULD FEEL THAT THERE IS SOME RIPARIAN ENHANCEMENT TO THE KNOX SPRING AREA, BUT, THAT IS ONE OF THE THINGS THAT WE WOULD LIKE EXPLAINED ON THE GROUND. ALSO, WE STILL RECOGNIZE THE NEED FOR THE RIPARIAN ENHANCEMENT BY THE RESTRICTION OF CATTLE USE ON BRIDGE CREEK, AS OUR 1975 AGREEMENT STATED.
GEORGE’S DECISION MADE US VERY MUCH AWARE THAT WE CANNOT TOLERATE THIS SITUATION ANY MORE, AS THESE FENCES HAVE SLOWLY COME INTO PLACE, OVER A NUMBER OF YEARS, AND WE CAN SEE THE WRITING ON THE WALL; THAT, UNLESS WE MAKE A STAND AND FIGHT, IT WILL BE DISASTROUS TO OUR CHILDREN, OR WHOEVER MAY HAVE THIS RANCH IN THE FUTURE, AND THE AMERICAN HERITAGE CONCEPT. TO NOT LEAVE THESE FENCES IN PLACE, FOR A SITUATION TO DEVELOP AGAIN, IN THE FUTURE, LIKE HAMMOND RANCHES ALLOWED IT TO DEVELOP( IN THE PAST, BY NOT OBJECTING, WHEN THE FIRST FENCE WAS BUILT, IS A MATTER OF SELF PRESERVATION. WITH THESE FENCES IN PLACE, OUR RANCH IS NOT AN ECONOMIC ENTITY.
WE HAVE TRIED TO EXPLAIN, TO THE BEST OF OUR ABILITY, OUR SITUATION, TO GEORGE CONSTANTINO, AND AGAIN, LET US STRESS THE IMPORTANCE OF AN “ON THE GROUND” LOOK. HE HAS NEVER COME TO THE PROBLEM AREA AND “LOOKED” AT THE PROBLEM. HOWEVER, HE HAS TRIED, AND PRETTY MUCH SET IN PLACE, THE INNOCENT (?) INVOLVEMENT OF THE OREGON FISH AND WILDLIFE DEPARTMENT, OREGON TROUT, AND LORD KNOWS WHO ELSE, TO ENHANCE AND CREATE “HABITAT” THROUGH THE NEWLY PLANTED “COVER SEEDING WITHIN THE BRIDGE CREEK FIELD” (#7). PLEASE NOTE #4 AND #5 ON PAGE 3; ALTERNATIVE “A” PAGE 7, AND ALSO PAGE 10 “COMPATIBLE”???? NOT SIGNIFICANTLY AFFECTING THE QUALITY OF HUMAN ENVIRONMENT????” THIS IS CONSISTENT WITH ALL THE “BACK DOOR” APPROACHES TO ANY WORK OR “IMPROVEMENTS” THAT HAVE BEEN DONE IN THIS AREA IN THE LAST 10 YEARS AND NO ONE HAS EVER CONTACTED US REGARDING ANY OF THIS. THIS SAME “HHABITAT”-WAS SO SPECIAL THAT OUR CATTLE WERE NOT ALLOWED TO GRAZE THE AREA FOR THE LAST 10 YEARS, AS THEY HAD HISTORICALLY. THE SUGGESTION, BY GEORGE TO USE HIS PROPOSED ROUTE (MAP AND LETTER #5) CAN ONLY DRAMATIZE THE TOTAL AND COMPLETE LACK OF KNOWLEDGE OF ON THE GROUNDS WORKABILITY, AND THE ECONOMICS NECESSARY IN FREE ENTERPRISE, PLUS MOTHER NATURE’S NATURAL INSTINCTS, OUT OF THE “CLASSROOM”. THE “GOOD NEIGHBOR POLICY” THAT IS REITERATED AT ALL THE LOCAL CIVIC GATHERINGS LOOSES IT’S SIGNIFICANCE.
WE REALIZE WE ARE APPEARING NARROW MINDED AND AS RADICAL, BUT IF YOU LOOK AT THE LAST 10 YEARS, FROM OUR STANDPOINT, WE WOULD NO LONGER BE IN BUSINESS, AS A VIABLE OPERATION, AS THE “WHIMPS” HAVE FADED FROM EXISTENCE VERY RAPIDLY. MAYBE WE ARE WRONG, AND WILL HAVE THIS ISSUE FARTHER CRAMMED DOWN OUR THROAT, BUT WE ARE A LONG WAY FROM BEING SUBDUED.
PARTIAL REASONING FOR OUR ADAMANCY IN THIS SITUATION COMES FROM TRYING TO OBTAIN INFORMATION ON PAST HISTORY FROM THE REFUGE FILES. WE HAVE BEEN INFORMED THAT THEY DIDN’T KEEP FILES PAST 7 YEARS, THAT THEY WERE DESTROYED, WE FEEL THIS WOULD BE FINE, IF YOU ONLY PLANNED ON A 7-YEAR LIFE; BUT, WE HAVE BEEN ON THESE RANCHES FOR APPROXIMATELY 25 YEARS AND WE KNOW FROM PAST EXPERIENCES, AND PRIVATE RECORD KEEPING, THE IMPORTANCE OF ACCESSIBILITY; THIS BEING DOCUMENTED BY THE ENCLOSED AFFIDAVIT (#6), VERIFYING THE LAST ATTEMPTED “TAKE-OVER” BY THE USFWS OF THE MAIN ACCESS TO THIS RANCH IN 1973, BEFORE OUR TENANCY. IS THIS CURRENT ACCESS BLOCKAGE ATTEMPT ANY DIFFERENT??
IF THIS SITUATION IS ALLOWED, AND DOES CONTINUE, THE MARXIST THEORY WILL. HAVE TAKEN ANOTHER STEP IN CONQUERING DEMOCRACY. CAN THIS POSSIBLY BE THE CONCEPT THAT AMERICA WAS BUILT ON?? OBVIOUSLY WE HAVE TRIED AND TRIED AND TRIED TO RESOLVE THIS SITUATION, AND STAY IN BUSINESS. WE STILL HAVE THE HOPES THAT OUR PLIGHT CAN BE RE- SOLVED AT THIS LEVEL, COEXISTENTLY.
THIS IS THE ISSUE, AND THE FACTS AS WE SEE THEM AT THIS TIME. THANK YOU. WE WILL BE AWAITING YOUR REPLY.
On that same date (February 20), Dwight sends a shorter letter, also to Rolf Wollenstrom {66}. He pleads for someone with an understanding of agriculture and cattle, as well as the government “programs and guidelines” to review the problem on the ground.
Based upon Dwight’s request for someone that is not a “yes man” to get involved, Wally Siouzko, Acting Regional Director, Fish and Wildlife Services, on March 23, 1988, replies assigning Dr. Robert Shallenberger, Deputy Assistant Regional Director, to act in the capacity {68}. It sets a meeting date of April 16, 1988.
On April 22, 1988, Robert J. Shallenberger, in an internal Memo, “Subject: Review of Dwight Hammond Appeal – Malheur NWR” {69-70}, reports that he visited the Refuge on April 16. During that visit, he met with George Constantino, both before and after his visit with the Hammonds. With regard to a resolution he states:
If this was a simple issue, it would have been resolved long ago. It has been complicated by a series of unrelated confrontations between the Hammonds and the refuge that have soured personal relationships, have created serious mutual distrust, and have made the possibilities for a negotiated resolution at the field level virtually impossible.
He continues with his evaluation of the problem, including fairly objective criticism of both sides, primarily of the Refuge personnel.
It’s clear to me that the Service folks involved in this from the beginning have always had the best interest of the resource at heart. Yet, I believe that we’ve done some things along the way that contributed to the problem.
- We’ve referred to the Hammonds’ trailing activity in correspondence and discussions as both a right and a privilege subject to our control. In strictly legal terms, it can’t be both.
- We made and implemented a decision to construct a boundary fence that Involved a significant change in management direction without consultation with cooperators. We have the right to do this but it is rarely good business.
- We’ve written a refuge manual that lacks clarity in its discussion of fencing policy.
- We’ve implemented, in the apparent absence of a long term plan, a series of actions that have the appearance of unfairly singling out the Hammonds.
- We delayed action on the enhancement of habitat within the area under contention until things were already hot, giving the appearance of a Last minute effort to bolster our case. Here again, we failed to consult with the Hammonds.
On the other side of the ledger, the Service has, quite frankly, put up with a lot more problems in dealing with this permittee than any others at Malheur NWR. It was not until things got out of hand that we even Invoked the permit issue, and we have since backed off that stance during the appeal process. We’ve also proposed numerous accommodations to facilitate the trailing process.
Recommendations:
I’ve posed six basic options, with some small variations, for your consideration (attachment B). I suspect we will come up with even more in discussion. I favor option 4a. By this option, you would send a letter (Attachment C) which acknowledges the historic use of the Bridge Creek trailing route and demonstrates your intention to see that this practice continues. You would also commit to the Hammonds that any future attempts to restrict or modify the trailing activity by the refuge manager would require the Regional Director’s approval and would only occur if there was a blatant disregard of agreed-upon procedures (duration of trailing, etc.). You would acknowledge the difficulties inherent in the trailing route and offer to explore and implement (at his expense) appropriate compromises, such as holding corrals, additional gates, temporary watering facilities.
Implementation of this option may not prevent this from heading to court or the local Congressman’s office, however I believe it will demonstrate our willingness to take steps to mitigate the problem and deal reasonably without abdicating our responsibility to manage the refuge effectively.
The following is Shallenberger’s synopsis of what Dwight Hammond’s arguments are. It appears to be objective, and demonstrates a clear lack of professionalism on the part of those empowered with authority at the Refuge. Contradictory statements and decisions permeate the arguments {71-74}.
Attachment A
Hammond Arguments
1.He has a historic right to trail cattle across the refuge
Hammond has produced a map, dated 1877, which illustrates a historic road passing between the marsh and the west end of Bridge Creek. He argues that this route has been used for over a century and by him for the last 23 years. Both the refuge and the Hammonds have checked at the County Courthouse, but have found no official record establishing this cattle trailing route. However, Hammond argues that several other existing “public” roads through the refuge also do not appear in official records as historic routes.
Service correspondence with the Hammonds regarding their “right” to trail cattle along this route is contradictory. The Service has acknowledged their historic “use” of the trail both in past letters and discussions with the Hammonds. De Bates’ March 19, 1987, letter to the Hammonds acknowledges their “need and right to trail cattle through the refuge over the historic route.” Yet, Constantino’s March 20, 1987, letter to the Hammonds refers to the trailing through the refuge as “a privilege that can be controlled and yes, stopped by the refuge.” The distinction may seem minor on the surface but, to the Hammonds, it is the fundamental issue.
2.Right of the refuge to control trailing activity by a Special Use Permit
As a result of incidents involving stray cattle, prolonged trailing, and disregard of the refuge’s authority to regulate trailing, Constantino told Hammond in 1986 that he would need a refuge permit to continue trailing along the established route. Hammond appealed this decision in a meeting with De Bates in February 1987. De Bates notified Hammond by letter of February 20, 1987, that he had advised Constantino to not require a permit for trailing in the upcoming year but indicated that a permit requirement would be reconsidered in the future if trailing was not completed within reasonable timeframes. Hammond regards the decision not to require a permit as virtually the same as putting him under a permit today. Simply stated, he does not feel the Service has the authority to regulate (or terminate) an activity which, he believes, is his historic “right.” Hammond feels that an arrangement which leaves the decision of whether or not he can trail on this route up to the “whine” of a refuge manager renders his ranch unmanageable and dramatically diminishes its resale value. Constantino notes that cooperating ranchers and farmers often successfully finance their operations from loan institutions when their tenure on a refuge is subject to short term special use permits.
3.Construction of the boundary fence was contrary to prior agreements
Prior to the early 1970’s, the refuge boundary fence was located along the canal bordering the east side of the marsh impoundments. Hammond grazed his cattle on refuge land east of this fence as part of a much larger BIM allotment. Hammond’s trailing activities between winter and summer range were virtually unrestricted. Hammond argues that refuge, State, and BIM representatives met on the ground in 1975 to explore options for protecting Knox Springs and Bridge Creek riparian areas from cattle damage. He has produced a map, signed by BLM representatives, illustrating a proposed fence along the north and south edges of the Bridge Creek drainage. He alleges that the refuge agreed to this plan, but then soon after proceeded to fence the actual refuge boundary, north and south of Bridge Creek. He refers to this as Mazzoni’s “spite fence.”
Bill Bright (BLM) indicates that he was as surprised as Hammond to see YACC [Young Adult Conservation Corp] kids installing the new boundary fence and had some words with Mazzoni about it. He acknowledges that the earlier allotment agreement signed by Mazzoni was revocable by either party but felt he had been led to believe that the allotment plan was working. Bright was particularly surprised by this action because the refuge had agreed to and shared in the cost of the earlier effort to seed the lands in question with crested wheatgrass.
Mazzoni argues that the refuge never agreed to the plan Hammond describes and that has efforts to fence the refuge boundary were a continuation of a process started before he arrived in the early 1970’s. His plan was to move the fence out to the actual boundary in order to reclaim this overgrazed area as wildlife habitat. He acknowledges that Bill expressed concern about the proposed shift in fence alignment so the refuge placed an interim fence around Knox Springs to protect it until BLM could adjust its own fences in the adjacent allotments. Soon after, the boundary fence was completed.
4.The new boundary fence significantly hampers the trailing operation
Hammond argues that the boundary fence in its present location hampers his trailing operation and impacts him financially. To move south, he must now gather his cattle north of Knox Springs, move them through three separate gates. The route is significantly longer than used prior to movement of the boundary fence and forces movement of the herd in the opposite direction from where they are destined to go. He argues that this makes the operation take significantly longer, requires more cowboys, and, most importantly, results in the separation of some cows from their calves. He estimates that he actually loses about 1 in 100 calves, or roughly 5 per drive (estimated cost is S2,500). Constantino suggests the actual loss may be closer to 1 calf per drive.
5.Quality of habitat protected by the fence doesn’t justify impact on his operation
Hammond argues that the shifted boundary fence now encloses an area that is of virtually no value to wildlife. He acknowledges that the Knox Spring area provides cover for upland game and, potentially, nesting waterfowl but argues that it could have been (and still could be) protected by the much smaller fence that surrounds it. He points out that the State and the Service agreed to and helped fund crested wheatgrass seeding plan for the lands in question several years ago and only recently have begun to reverse the process by seeding the slopes with sagebrush and other cover plants. He thinks the recent replanting effort is a “sham arranged by Constantino” to bolster the arguments against removing the fence. The Service has, in fact, used the cover seeding project as partial rationale for denying requests for fence removal in correspondence with Hammond.
Mazzoni indicates it was his plan to identify key refuge lands outside existing fences, with potential for wildlife habitat restoration, and then to protect these areas with fencing. This area was fenced with this objective in mind. Constantino has pursued the same objective although admits that little actual restoration work has been initiated on this parcel before the State approached him with its cover seeding proposal approximately 2 years ago. The seeding project, costing the State over $20,000, is now nearly complete. In a letter dated February 3, 1988, Oregon SE Regional Supervisor Ron Bartels expressed his expectation that the habitat will greatly benefit mule deer (and deer hunters) and will also benefit small mammals, passerines, raptors, and upland game birds. Bartels recommended that cattle grazing on these lands be prevented at least until shrub habitat is reestablished.
6.Service actions conflict with our Refuge Manual
Hammond has pointed out, what he believes to be, serious conflicts between Service actions at Malheur and direction in the Refuge Manual. He notes that 9 RM 3.2 identified four objectives which must be met before fences are built, including one (9 RM 3.2B) which refers to protection of “the rights of adjacent (or included) landowners.” He also cites the statement that “existing fences not contributing to these objectives should be removed.”
The Service has argued, in correspondence and in conversations with Hammond, that it interprets the meaning of this section of the Refuge Manual differently. The Service has argued that it is not necessary to net all four objectives in 9 RM 3.2 in order to construct or retain a fence. The boundary fence on the lands in question serves to “protect wildlife or its habitat” (9 RM 3.2C) to attain refuge objectives (9 RM 3.2D).
It is worth noting that 6 RM 9 (Grazing and Haying Management), dated March 12, 1982, also Includes some relevant policy guidance which appears not to have surfaced in the interaction with the Hammonds. 6 RM 9.10C(3) indicates that “all persons wishing to trail livestock across refuge lands for any purpose, will be required to obtain a crossing permit. In cases where an established right is involved, no charge will be made.” To date, the Service has not put any ranchers at Malheur under trailing permits. 6 RM 9.18 addresses situations where adjustments in local grazing programs may be needed to bring them into conformance with policies in 6 RM 9. These changes “will be implemented in a manner that is fair and reasonable for existing permittees affected as is possible, and that minimizes economic impacts on existing permittees and local communities.” This section also notes that “a plan for bringing programs into conformance with approved policy will be prepared by the refuge manager for review and approval by the Regional Director.”
7.No reasonable alternatives to the existing trailing route
Hammond argues that there are no viable options to move his cattle between winter and summer range. Constantino proposed a route along the adjacent refuge dike to reduce conflicts. However, Hammond pointed out the difficulty in driving cattle along this more circuitous route and Constantino reconsidered. There are no other alternative routes east of the refuge boundary because of the steep terrain along Bridge Creek, at least as high as Bridge Creek Springs. As this location is above 6,500 feet, it is likely that the early season turnout could not be accomplished along this route.
Hammond could trail his cattle to the west along his access road and along the center patrol road to the south end of the refuge. This would nearly double the length of the route and complicate the drive considerably. Constantino points out, however, that some other ranchers who trail through refuge lands do so over routes which are considerably longer than Hammond’s. Constantino also notes that Hammond could truck his cattle, if necessary, but acknowledges that it would be more costly and time consuming.
8.Service has treated Hammond unfairly on this issue because of previous or ongoing conflicts
Clearly, this issue is not an isolated confrontation with the Hammonds. Several problems relating to grazing permits, trailing operations, land exchanges, and water rights have arisen in the past and/or are pending. Hammond feels that the sequence of events relating to the Bridge Creek trailing operation reflects an effort on the part of the refuge to single him out. His allegations regarding unfair treatment are based upon the following: (a) the long series of other confrontations with Mazzoni, Constantino, and others, (b) the Service’s decision to fence only the parcel in question when much of the refuge periphery is fenced inside the actual boundary, (C) the refuge’s decision to “renege” on prior agreements, (d) the proposal to put Hammond’s operation under permit (no other cattle trailing is under permit at Malheur), and (e) the joint decision by the State and Service to undertake the cover seeding project only on this site and only after the controversy over the trailing operation and refuge boundary fence had become so heated. Hammond also points out that he was never consulted regarding the Service’s Environmental Assessment on the cover seeding project (dated 8/31/87), although the EA identified no adverse socioeconomic effects nor significant controversy associated with the project. Constantino indicated that Hammond was not contacted because his views on the proposal were predictable.
Shallenberger then provides “Options for resolution to the problem {75-81}. His recommendation, as expressed in the cover Memo, is for 4a.
Attachment B
Options
1.Reaffirm earlier responses to appeal: identify trailing as a privilege, subject to revocation based on performance, retain existing fences
Pros: -Consistent with earlier responses
-Retains refuge control
-.Does not favor this permittee over others
Cons: -Likely to go to court/political offices
-Does not address trailing problems
1a. As in 1 above, but also offer measures to facilitate driving operation (i.e., Bridge Creek holding corral, possible gate on refuge north boundary fence–at Hammond’s expense).
Pros: -As in 1 above
-Reduces calf loss problem somewhat
-Shows effort to accommodate needs
Cons: -Does not address basic issue of trailing right
-Still likely to wind up in court/congressional offices
(Note: these particular solutions have been proposed in discussions but not accepted because they create same problems of their own and don’t resolve the basic issue)
2.Remove boundary fence/rebuild old fence along canal. Manage lands as Bill allotments (as before).
Pros: -Would resolve principal Hammond concerns
Cons: -Would destroy State/Federal habitat enhancement project
-Would prevent habitat recovery
-Would be contrary to long-term refuge plans to fence off and effectively manage peripheral lands
2a. As in 2 above, but remove only north fence (Hammond counterproposal made 4/16/88).
Pros: -Would resolve principal Hammond concerns
Cons: -As in 2 above, although would retain ability to control grazing numbers in south allotment (would require additional fencing to protect south side of Bridge Creek crossing)
2b. As in 2a, but retain Service management of south allotment. Would address most, but not all of Hammond’s concerns.
Pros: -Would allow State/Federal habitat enhancement program to continue in south allotment (where it appears to have the best chance of success–for more existing thermal cover)
Cons: -As in 2 above, would require additional fence along swath side of Bridge Creek crossing
3.Fence the trailing corridor/retain existing boundary fence.
Pros: -Would confine and facilitate cattle drive and protect developing adjacent habitat
Cons: -Does not address any of Hammond’s concerns
-Not necessary
-Costly/not necessary if trailing done efficiently
4.Retain existing boundary fences but formally acknowledge right to trail. Do not require SUP at this time.
Pros: -Clear statement by RD of Service position (not subject to change by RM)
Cons: -No legal basis for formal acknowledgment of trailing right
-Conflicts with 6 RM 9.10C(3) – (trailing permit requirement)
(Note: we are already in conflict with this direction for all trailing ranchers at Malheur, as none is under permit.)
-Does not satisfy Hammond’s concern about legally binding right (i.e. ranch resale value, vulnerability to future change)
4a. Same as 4, but offer additional compromises (as in 1a.)
Pros: -Demonstrates basic agreement without new legally binding easement
-Attempts to facilitate cattle drive
-Retains control if terms are blatantly disregarded
Cons: -May not satisfy expectation of a legally binding easement
5.Put all trailing ranchers under refuge permits (as per 6 RM 9.10C)
Pros: -Would treat all the same
-Consistent with refuge manual
Cons: -Would provoke adverse response from others
-Cosmetic approach to problem with one rancher
-Would not address primary Hammond concerns (right to trail)
6.Issue Hammond legal right of way (easement for trailing cattle)
Pros: -Would address, but not fully resolve. Hammond’s concerns
(also subject to revocation for noncompliance with terms and conditions, but by RD, not RM)
Cons; -Would prevent refuge from future exclusion of all cattle from these fields (not currently contemplated)
-Could set difficult precedent regarding treatment of conflict (e.g. other trailing ranchers would request similar easements?)
-No apparent provision to waive application fee, reimbursement for Service monitoring activities or basic value of easement (fair market value)
Interestingly, this is the first bureaucrat that has shown the intelligence to not only identify, in a single document, the problems, and, more importantly, the possible solution. Previously, it appeared that only authority was used, and abused, in seeking a resolution. This led to the conflict (personal animosities) that has been so prevalent.
A number of Exhibits are included with Shallenberger’s Memo. They follow the above, though only a few will be noted.
An Affidavit by the Ash, Wetzel, and Miller, dated February 8, 1973 {85-86}, affirms that existing roads have been in continuous and uninterrupted use for no less than thirty years [1943]. This supports the historical rights often offered by Dwight Hammond.
Another Exhibit, as Dwight pointed out, is an “Environmental Assessment” {86-104}, that was “prepared” on August 31, 1987 well into the dispute. It does raise the question as to whether it was prepared in the normal course of management, or to support the position taken by the Refuge management. It is also worthy of note, on page 9 of the Assessment:
Section V: CONSULTATION AND COORDINATION WITH OTHERS
List below parties contacted during the planning process. Summarize results of consultation or coordination with these parties. If the EA was circulated for public comment, also provide a summary of any significant issues raised and how they were resolved.
US Fish and Wildlife Service
George Constantino – Malheur Refuge Manager
Oregon Department of Fish and Wildlife
Jim Lemos – District Wildlife Biologist
Jerry Farstvedt – Regional Habitat Biologist
Jim Cadwell – Range Enhancement Technician
All parties are in agreement on project design.
Oregon Department of Fish and Wildlife will provide the needed funding.
Lucile Housley, Director Malheur Field Station
Gary Sheeter, District Biologist, BLM
Note that it says, “If the EA was circulated for public comment…”, and that all of the contributors were government employees. Apparently, there was no intention of having any public input — behind closed doors.
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 – 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
[…] pointed out in a previous article (Act I – Scene 4), an Affidavit by the Ash, Wetzel, and Miller, was filed in February 1973, prior to the Repeal of […]