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 I – Decade of the Eighties
Scene 5 – May 2, 1988 – May 9, 1988

hammond-family all

Gary Hunt
Outpost of Freedom
March 23, 2016

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing Part I” PDF file.

In a letter from Fish and Wildlife Services, dated May 22, 1988, on letterhead, though, apparently never sent {107-109}.  It is a response to Dwight’s plight, after his meeting with Shallenberger, and references that meeting. There is no indication of who edited the document. The strike outs (light and by pencil) in that draft that are quite telling:

I am writing in response to your formal appeal regarding actions taken by the Service to regulate Your cattle trailing operation at Malheur National Wildlife Refuge. I have reviewed the correspondence surrounding this issue and have discussed the topic at length with staff from the refuge and Regional Office. I have also discussed it with Rob Shallenberger following his visit to your ranch. I’d like to express my appreciation for the courtesy you showed Rob and the information you shared with him. I’m sorry that I did not have the time available in my schedule to make the trip to Malheur myself.

After thorough review of this situation, it appears that there are some points on which we agree and others on which we do not. The Service acknowledges that the trailing route around the lower (west) end of Bridge Creek has been used historically, dating back well before you acquired the adjacent BLM allotment. We also agree that the movement of the boundary fence to the legal boundary has made your trailing operation more difficult and more costly. I will also agree that the Service took action to construct the new fence without full consultation with you and in conflict with what you believed was appropriate. I will also agree with you that the recent cooperative reseeding program with the State has the appearance of being initiated to bolster arguments in favor of maintaining the boundary fence.

The points on which we disagree make it difficult to resolve this issue in a mutually satisfactory manner. The Service does not believe that the historic use of the Bridge Creek trailing route confers on you a legal right to continue this activity, but it is Service policy not to take action that would jeopardize this use for landowners or permittees on adjacent parcels. We also don’t agree regarding the potential wildlife or recreational value of the habitat now protected from unrestricted grazing by the boundary fence. It is entirely consistent with Service policy for refuge managers to systematically identify, protect, and take steps to enhance wildlife habitat within refuge boundaries. How quickly we accomplish objectives is dependent upon resource priorities, funding, and the participation of cooperating agencies.

You have expressed concern that the actions taken at Malheur are in conflict with the Refuge Manual direction regarding fencing. I believe the problem lies more in ambiguous wording and differences of interpretation. The construction of the new boundary fence, in my opinion, satisfied the objectives of protecting wildlife and habitat and facilitating refuge management.

While I understand your perception of unfair treatment, I can find no evidence that you have been singled out in this issue. There have been other confrontations with the Service, on the trailing issue and on other unrelated activities.  But the actions taken by the refuge to correct problems with the trailing at Bridge Creek were consistent with Service policy and within the authority of the refuge manager. He opted to use the refuge permit process only as a last resort when negotiation with you failed to bring the deviations from agreed-upon trailing procedures under control. I’m certain he would have done the same with any- other rancher if confronted with a similar situation. I should point out that it is also Service policy, outlined in the Refuge Manual [(6 RM 9.10C(3)1, that all trailing activities on a refuge will be conducted under permit. We have chosen to not implement that policy at Malheur because of the well established historic trailing activities and the fine record of cooperation between the ranching community and the refuge on this point.

You have suggested that Your “right” to trail cattle on the Bridge Creek route be legally established by conferring on you a right-of-way easement. I don’t see this as a reasonable option. Your continued opportunity to use the route is not in jeopardy so the easement is unnecessary. You would also be subject by regulation to considerable additional expense, including fair market value for the easement, application fees, and reimbursement for Service administration. Finally, the easement would include formal “terms and conditions” similar to those now in place to minimize the adverse impacts of the trailing operation.

Let me conclude by stating what we will do for you to reduce your problems. First, we will continue our policy of not issuing permits at Malheur for historically established trailing operations, including yours. This assumes that all livestock managers will move their stock through the refuge with as little impact on the land and forage as is possible, and will show respect for other refuge and permittee operations in the trailing areas. Only in the case of serious deviations from the “honor system” the refuge manager recommend to his supervisors any change in this policy.

Second, if you would like to consider specific modifications that would facilitate your trailing operations and minimize the problems with cow-calf separation you have experienced in the past, I will ask the refuge manager to work with you to plan and develop these improvements. These might include additional gates in the boundary fence, a holding corral for overnight use, and/or a temporary watering facility.

Finally, we all recognize that harsh words and misunderstandings in the past have eroded your working relationship with the Malheur Refuge staff. Because “people are people,” there is always the danger that relationships will not heal and might be less open and cooperative than with other refuge neighbors and permitees. I have respect for George Constantino and his co-workers and do not expect that to be the case. Nevertheless, because of the strong emotions generated by his issue, I intend to keep in closer touch with the situation than I would normally. I hope that there will be no need for any further intervention on my part.

Sincerely,

Regional Director

Some of the strike-outs are in direct conflict with other statements, previously made, and included in Shallenberger’s Memo.

What is interesting to note is the following, which was stricken out of the letter draft:

After thorough review of this situation, it appears that there are some points on which we agree and others on which we do not. The Service acknowledges that the trailing route around the lower (west) end of Bridge Creek has been used historically, dating back well before you acquired the adjacent BLM allotment. We also agree that the movement of the boundary fence to the legal boundary has made your trailing operation more difficult and more costly. I will also agree that the Service took action to construct the new fence without full consultation with you and in conflict with what you believed was appropriate. I will also agree with you that the recent cooperative reseeding program with the State has the appearance of being initiated to bolster arguments in favor of maintaining the boundary fence.

The points on which we disagree make it difficult to resolve this issue in a mutually satisfactory manner. The Service does not believe that the historic use of the Bridge Creek trailing route confers on you a legal right to continue this activity, but it is Service policy not to take action that would jeopardize this use for landowners or permittees on adjacent parcels. We also don’t agree regarding the potential wildlife or recreational value of the habitat now protected from unrestricted grazing by the boundary fence. It is entirely consistent with Service policy for refuge managers to systematically identify, protect, and take steps to enhance wildlife habitat within refuge boundaries. How quickly we accomplish objectives is dependent upon resource priorities, funding, and the participation of cooperating agencies.

This pretty much says it all, the fundamental complaint by Dwight Hammond, regarding his historical rights, is, substantially, confirmed. But, someone just plain didn’t want that to be said.

Additional edits are suggested in other notes in the file {117-127}.  However, the final letter is condensed from the original 3 pages to just 2 pages, dated May 9 {128-129}, and signed by Rolf Wallenstrom, Regional Director.

The Service recognizes that the trailing route around the lower (west) end of Bridge Creek has been used historically. While this historic use does not give rise to a legal right, it is the policy of the Service not to take action that would jeopardize such use by landowners or permittees on adjacent parcels. As your continued opportunity to use this route is not threatened, the suggestion to confer on You a right-of-way easement would not be appropriate. In addition, the easement option would burden you with considerable expense, including the fair market value for the easement. application fees, and reimbursement for Service administrative costs. Finally. the easement would include formal “terms and conditions” similar to those now in place to minimize the adverse impacts of the trailing operation.

I agree that the decision to move the boundary fence to the legally established boundary of the refuge has made your trailing operations more difficult and reduced the land available for grazing. I’m also aware that our efforts to recover and enhance this land as wildlife habitat has been slower than we had hoped. Finally. I will agree that the fencing policy in the Refuge Manual is confusing at first reading. However, I’m sure that you will understand when I say that the Service’s primary consideration in any action is the need to protect wildlife and to facilitate the management of refuge lands. Based upon a review of the actions taken, it is my conclusion that the construction of the new boundary fence and the recent habitat enhancement program with the State were appropriate.

While I understand Your perception of unfair treatment, I can find no evidence that you have been singled out in this issue. The actions taken by the refuge to correct problems with the trailing at Bridge Creek were consistent with Service policy and within the authority of the refuge manager. He opted to use the refuge permit process only as a last resort when negotiation with you failed to bring the deviations from agreed-upon trailing procedures under control. I’m certain he would have done the same with any other rancher if confronted with a similar situation.

I should point out that it is also Service policy, outlined in the Refuge Manual [(6 RM 9.10C(3)], that all trailing activities on a refuge will be conducted under permit. We have chosen to not implement that policy at Malheur because of the well established historic trailing activities and the fine record of cooperation between the ranching community and the refuge on this point.

Let me conclude by indicating what we will do in order to reduce your problems. First, we will continue our policy of not issuing permits at Malheur for historically established trailing operations, including yours. This assumes that all livestock managers will move their stock through the refuge with as little impact on the land and forage as is possible, and will show respect for other refuge and permittee operations in the trailing areas. Only in the case of serious deviations from the “honor system” will the refuge manager recommend to his supervisors any change in this policy.

Second, if you would like to consider specific modifications that would facilitate your trailing operations and minimize the problems with cow-calf separation you have experienced in the past. I will ask the refuge manager to work with you to plan and develop these improvements. These might include additional gates in the boundary fence, a holding corral for overnight use, and/or a temporary watering facility.

I have directed my staff to keep me advised of the steps being taken in an attempt to alleviate the present situation. It is my hope that through mutual cooperation we will be able to arrive at solutions which provide you with adequate access across the refuge while at the same time permit the Service to satisfy its objectives of protecting wildlife and habitat and facilitating refuge management.

Now, I find it interesting that Wallenstrom states, “Service’s primary consideration in any action is the need to protect wildlife and to facilitate the management of refuge lands“. So, if we want to understand the previously stated ambiguity in the wording, we can look back at the fencing policy:

9 RM 3.1 Policy. It is the policy of the Service to construct fences on national wildlife refuges only when essential to management and protection of wildlife and refuge lands; and to assure that such fences are constructed and maintained in a manner that minimizes conflict with adjacent land owners and refuge objectives. Fencing merely to denote ownership by the United States is not normally justified.

So, they fence the boundary, not only to denote the ownership, by ignoring the “and”, which states that they must “ assure that such fences are constructed and maintained in a manner that minimizes conflict with adjacent land owners and refuge objectives.” They have acknowledged, begrudgingly, that the historic right exists, but doesn’t exist, yet they are considered of the possibility of litigation. And, they opt to stick, rigidly, to the qualified fencing policy, apparently without any regard to any detrimental effect on “adjacent land owners“.

Though there is no request to be found in the file, there is a document showing recognition by both the Acting Secretaries of FWS  and Land and Mineral Management, to the Secretary of the Interior, of ” 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)” {131}. Thus includes a document titled ” RS 2477, Section 8 of the Act of July 26, 1866, Revised Statute 2477 (43 U.S.C. 932), Repealed October 21, 1976″ {132-134}

Though the “policy” was repealed, there is no indication that roads existing prior to the repeal, dated October 21, 1976, were no longer to be accepted as roads. They were “grandfathered”.

Section 8 of the Act of July 26, 1866, provided:

“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

That “grant”, then, continues, even after the “repeal. Once granted, the right is established. The repeal serves only to change the policy from the date of repeal, forward.

Referring back to an affidavit, dated in 1973, 3 years prior to the repeal {85-86}, where some members of the community, under oath, stated that the existing roads have been in continuous and uninterrupted use for no less than thirty years, being as far back as 1943.

Some of the specific wording from “RS 2477” document:

Land managing Bureaus of the Department should develop, as appropriate, internal procedures for administratively recognizing those highways meeting the following criteria and recording such recognized highways on the land status records for the area managed by that Bureau.

That would put the burden on FWS, after the transfer from BLM, to recognize the trail.

Construction is a physical act of readying the highway for use by the public according to the available or intended mode of transportation – foot, horse, vehicle, etc. Removing high vegetation, moving large rocks out of the way, or filling low spots, etc., may be sufficient as construction for a particular case.

* * *

A public highway is a definitive route or way that is freely open for all to use.  It need not be open to vehicular traffic, for a pedestrian or pack animal trail may qualify.

* * *

Reasonable activities within the highway R/W are within the jurisdiction of the holder. As such, the Department has no authority under RS 2477 to review and/or approve such reasonable activities. However, review and approval may or may not occur, depending upon the applicability, if any, of other federal, state, or local laws or general relevance to the use of a R/W.

There is no doubt that the trail that the Hammonds have used for decades falls within the grant policy explained above. Perhaps FWS believes that all highways are paved, curbed, have street lighting, and occasional rest areas, though the document even recognizes pedestrian or pack animal trails.

At this point in time, we begin an hiatus of six years, with no problems occurring, no permit required, no harassment, at least within these files and documents, until six years later. And, that will be the subject of Act II.

 

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 II – Decade of the Nineties – Scene 1 – Feb. 18, 1994 – June 9, 1994

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 2 – June 28, 1994 – Feb. 22, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 3 – Feb. 28, 1997 – May 21, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 4 – May 22, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 5 – June 30, 1997 – Aug. 4, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 6 – Feb. 25, 1998 – Jan. 12, 2004

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