Outpost of Freedom blog

The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 2 – June 28, 1994 – February 20, 1997

 

Gary Hunt
Outpost of Freedom
April 11, 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 Part II” PDF file.

After the appeal was denied, Dwight chose to pull out the big guns.  His attorney, on June 28, 1994, filed Notice of Appeal with the Department of the Interior, Office of Hearings and Appeal {20-24}, in Arlington, Virginia.

On July 18, The Solicitor’s Office of the Department of the Interior, Northwest Region (Portland) filed a Motion and Memorandum to Dismiss the appeal {25-48}.

On July 15, 1994, the Office of Hearings and Appeals docketed the Appeal {50-51}.

On July 19, the Office of Hearings and Appeals acknowledged the receipt of the Motion to Dismiss and set August 5 as the date for Hammond to respond to that Motion {52}.

On July 21, Hammond’s attorney responds, citing the information contained in the Notice of Appeal as authority for the Office of Hearings and Appeals to hear the appeal {53-54}.

During this process, chronologically, another factor comes in to play.  Though the entire case is included with the documents, the Order for Summary Judgment {56-73} is included.  It appears that the Hammonds had filed against the Water Resource Department of Oregon and the Water Resources Commission, State of Oregon.  The action was to restore historical water rights at the “Bird Waterhole”.

A brief summary of some of the actions that led to the decision are as follows:

On September 28, 1987, the Burns District of the BLM filed an application to construct (it was in actuality a pre-existing pond) Bird Waterholes Reservoir.  The Oregon Water Resource Department (WRD) “R-69366” as a case number.

A technical review by the WRD determined that the Waterhole was land owned by the United States Government, and that “the use continued to be for wildlife and livestock“.

On November 14, 1994, the BLM was notified that the approval was only deficient a “CWRE (Certified Water Rights Examiner) approval” stamp.

A letter dated November 22nd, 1994, was sent to the Defendant Water Resources Department from John Doebel of the Portland Office of the Fish and Wildlife Service advising the Water Resources Department that the pre-existing pond known as Bird Waterhole was upon lands subject to the jurisdiction of the United States Fish and Wildlife Service as a part of the Malheur National Wildlife Refuge. Mr. Doebel asserted that the Service was entitled to hold all water rights on the said Refuge and requested withdrawal of Application No. R-69366.

On November 22, 1994, the Fish and Wildlife Service (Portland) requested withdrawal of the application No. R-69366.  The FWS claimed jurisdiction based upon a September 24, 1957, by Public Land Order 1511 (this will be mentioned, later).  It claimed that the public land on which the Waterhole was situated was incorporated into the Malheur National Wildlife Refuge by that PLO.  Apparently, the parent organization, the BLM, wasn’t aware that the Waterhole was on Refuge Land, or, they were bound by Oregon statutes with regard to water usage.  In either circumstance, it appears more likely that they could not get a Certified Water Rights Examiner to certify away the Hammond’s rights to the water, so they sought another way of contravening those rights.

On December 10, 1994, Dwight Hammond obtained an “Assignment” of application “R-69366” and provided a “Declaration and Recommendation of the Watermaster, District #10, William H. Beal” {61-62}, to wit:

I have personal knowledge of the existence of the Bird Waterhole, the subject File R 69366, and had such knowledge for many years prior to the date of the application.  Until August 3, 1994 the Bird Waterhole was accessible for the stock watering of domestic livestock grazing the adjacent lands to the north and east. During that time the boundary fence of the Malheur National Wildlife Refuge was in place west of the Bird Waterhole.

“Although unfenced, the legal boundary of the Malheur National Wildlife Refuge is approximately 1070 feet north of the fence constructed on August 3, 1994 by the claimed authority of the Malheur National Wildlife Refuge Administration and is approximately 1240 feet north of the Bird Waterhole.

At the time of the application the land east of the Bird Waterhole was public land within the jurisdiction of the applicant, the Bureau of Land Management and the Fish and Wildlife Service. The public land was exclusively grazed by livestock belonging to Hammond Ranches, Inc. (see attached Grazing Permits). During the pendency of this application public land was conveyed by the United States of America to Hammond Ranches, Inc., with all appurtenances [emphasis. supplied] (See attached patent.). In the spring of 1994 conversations occurred between representatives of the Oregon Water Resources Department and the Malheur National Wildlife Refuge pertaining to the current validity of water rights within the Refuge (see attached letter). At that time the Harney County Judge and I examined status of the Bird Waterhole and concluded that acess and use was an appurtenance of the lands conveyed to and now owned by Hammond Ranches, Inc. (see attached letter).

I recommend that the Assignment of the Application, which is the subject of File R 7937, to Hammond Ranches, Inc. should be allowed.”

Hammond Ranches, Inc. obtained Land Patent from the United States of America, signed September 22, 1989 {62}.  A portion of the Land Patent:

A conveyance of the following property in Section 23, T. 30 S., R. 31 E., in which Bird Waterhole is located: “W1/2 of the NE1/4, SE1/4 of the NE1/4, NW1/4 and E1/2 of the SW1/4 and SE1/4”. The Bird Waterhole is located just inside the East line of the W1/2 of the S/W1/4 of Section 23. Plaintiff Hammond Ranches thus acquired from the United States government the quarter section to the North of Bird Waterhole and the East one-half of the quarter section within a few feet to the East of the West quarter section on which the Bird Waterhole is located.

A December 6, 1994 letter {63} from FWS to WRD regarding the application (R-69366) states:

The application was made by the Bureau of Land Management (BLM) on September 27, 1987. The BLM conveyed to Hammond Ranches, Inc. certain lands on September 22, 1989, by a patent of that date which is enclosed. Lands conveyed by this patent were served by the Bird Waterhole which is the subject of this application and, therefore, any rights, title, and interest in this facility and application, if any, has been conveyed to Hammond Ranches, Inc., which is now the real party in interest.

We can see that the ineptness of the BLM and FWS, in an effort to deny the Hammonds their lawful, as well as granted by the government, water rights, resulted in the Circuit Court awarding the Hammonds the rights to the use of the Bird Waterhole.  We can also conclude that the government was not happy losing this case, even though they were not a party, but the Court held, on December 7, 1995, against the Oregon water boards by sustaining the Hammond’s rights {56-73}.

A series of handwritten notes, dated July 30, 1996 {74-75}, September 2, 1996 {76-81}, and September 3, 1996 {82-86}, seem to indicate both strategy and deception.  For instance, a road grader was left parked where it should not have been, so it is suggested that it be said that it “broke down”.

A handwritten note dated December 7, 1996 {82}, discussing trying to get approval to sue (apparently the Hammonds), however, recognizing that they have to get Washington to approve the suit.  It also discusses what has to be done to set up the case against the Hammonds.

In what appears to be a circular letter, dated January 22, 1987 {88-90}, from the Secretary of the Interior, Bruce Babbitt, to Assistant Secretary; Fish and Wildlife and Parks; Assistant Secretary; Land and Minerals Management; Assistant Secretary Indian Affairs; Assistant Secretary, Water and Science, a document titled “Interim Departmental Policy on Revised Statute 2477 Grant of Right-for Public Highways; Revocation of December 7, 1988 Policy”, we find the following:

Revised Statute 2477, which provided that “title right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted,” was repealed on October 21, 1976, by the Federal Land Policy and Management Act (FLPMA). 43 U.S.C. § 1701 et seq. FLPMA did not terminate valid rights-of-way established under R. S. 2477 prior to its repeal.  The existence and extent of valid rights-of-way previously established pursuant to R.S. 2477 remains an issue in some places.

States or local governments asserting that R.S. 2477 rights-of-way exist on federal lands can in appropriate situations file a lawsuit in federal court seeking to establish the validity of that assertion. In the alternative or in advance of filing such a lawsuit, the Department of the Interior may also be asked to give its views on such assertions.

On December 7, 1988, Secretary Hodel signed a memorandum that discussed his policy for making determinations whether the Department would recognize claims for rights-of-way under R.S. 2477. That policy was not promulgated according to rulemaking procedures and is not a rule. In fact, because the Department has not been making such determinations in recent years, that policy has not been carried out for several years. The purpose of this memo is to revoke the 1988 policy and establish a revised policy for carrying out any determinations the Department might be called upon to make regarding R.S. 2477.

Background

At the request of Congress, the Department submitted a Report to Congress on R.S. 2477 in June 1993. In accordance with that Report’s recommendations, the Department determined that regulations should be written for R.S. 2477, and a Notice of Proposed Rulemaking was published in 1994, 59 Fed. Reg. 39,216 (August 1, 1994). Thereafter, Congress attached a provision to the Department’s appropriation for fiscal year 1996 that prohibited using funds appropriated by that statute for “developing, promulgating, and thereafter implementing a rule concerning rights-of-way under section 2477 of the Revised Statutes.” Pub. L. 10 4-134, § 110, 110 Stat. 1321-177 (1996). The Department’s appropriation for fiscal year 1997 permits the publication of final regulations but says they shall not take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.” Pub. L. 104-208, § 108, 110 Star. 3009 (1996).

I addressed the issue of whether the Department should continue to make determinations regarding R.S. 2477 claims in my May 25, 1993, letter to Congress transmitting the Department’s Report: “Until final rules are effective, I have instructed the Bureau of Land Management to defer any processing of R.S. 2477 assertions except in cases where there is a demonstrated, compelling, and immediate need to make such determinations.” This instruction is still in effect.

Revised Policy on R.S. 2477 Rights-of-way Determinations

Those making claims of the existence of valid R.S. 2477 rights-of-way continue to have the option of seeking to establish the validity of their claims in court. Nevertheless, it is possible that the Department may be asked, in advance of final rules taking effect, to make such determinations on the basis that such a demonstrated, compelling, and immediate need is claimed to exist. If so, until final rules are published and take effect, determinations regarding R.S. 2477 rights-of-way will be made by the Secretary of the Interior, in consultation with the appropriate Interior agency, according to the following policy:

1. Claims. An entity wishing the Secretary or any agencies of the Department of the Interior to make a determination whether an R.S. 2477 right-of-way exists shall file a written request with the Interior agency having jurisdiction over the lands underlying the asserted right-of-way, along with an explanation of why there is a compelling and immediate need for such a determination. The request should be accompanied by documents and maps that the entity wishes the agency to consider in making its recommendation to the Secretary. If, based on the information provided, the agency does not believe a compelling and immediate need for the determination exists, it should without further examination recommend the Secretary defer processing until final rules are effective.
2.  Withdrawals and Reservations. The agency shall consult the public land records maintained by the Bureau of Land Management to determine the status of the lands over which the claimed right-of-way passes. If such lands were withdrawn, reserved, or otherwise unavailable pursuant to R.S. 2477 at the time that the highway giving rise to the claim of an R.S. 2477 right-of-way was allegedly constructed and remained unavailable through October 21, 1976, the agency will recommend the Secretary deny the claim.
3. Construction. If the lands were not withdrawn, reserved, or otherwise unavailable pursuant to R.S. 2477, the agency shall examine all available documents and maps and perform an on-site examination to determine whether construction on the alleged right-of-way had occurred prior to the repeal of R.S. 2477 on October 21, 1976. If the agency determines that construction did not occur. the agency will recommend the Secretary deny the claim.
4. Highway. The agency shall evaluate whether the alleged right-of-way constitutes a highway. A highway is a thoroughfare used prior to October 21, 1976, by the public for the passage of vehicles carrying people or goods from place to place. If the agency determines that the alleged right-of-way does not constitute a highway, the agency will recommend the Secretary deny the claim.
5. Role of State Law. In making its recommendations, the agency shall apply state law in effect on October 21, 1976, to the extent that it is consistent with federal law. The agency will in no case recommend approval of claims that do not comply with the requirements of applicable state law.
6. Secretary’s Determination. The agency will make recommendations on the above described issues to the Secretary. The Secretary will approve or disapprove those recommendations.

The December 7, 1988 policy, including attachment 1, is hereby revoked.

So, the “FLPMA did not terminate valid rights-of-way established under R. S. 2477 prior to its repeal”, thought it is clearly a means to remove a right that had existed, especially in the Western lands, that had previously existed.  He says that state and local government can file suit, though there is no provision if the continued use by the public, absent a lawsuit brought by a government entity.  That would deny a use of right if enjoyed only by a few, unless they cajoled the government entity in spending the taxes of others for what could turn out to be an expensive and protracted effort to retain a right previously enjoyed.  This kind of does away with the concept of government being instituted among men to protect those rights.

Later, he requires “construction”, as opposed to maintenance.  So, that pretty much excludes the rights that will be addressed, later, when we look more closely at R. S. 2477.  Construction quite simply, is an improvement to a standard that did not exist 100 years ago, is now extremely expensive, and like the lawsuit, requires expenditure in government fighting government — a waste on both sides.  However, he does concede to state law — but, only if “it is consistent with federal law”.  What kind of double-speak is that?

Less than a month later, on February 20, 1997, Babbitt apparently realized that his policy was unclear, so he sent out a “Clarification to January 22, 1997, “Interim Departmental Policy on Revised Statute 2477 Grant of Right-of-Way for Public Highways” {93}.  He must have put some real effort into the policy, which had to be clarified, but not to substance, rather, simply to procedure.

Now, Babbitt’s policy is inconsistent with “Public Land Order 1511”, previously mentioned when the Fish and Wildlife Service (Portland) requested withdrawal of the application No. R-69366 (November 22, 1994).  The Order {94}:

Public Land Order 1511
Oregon

ENLARGING MALHEUR NATIONAL WILDLIFE REFUGE; REVOKING EXECUTIVE ORDER NO. 929 OF AUGUST 11, 1908, ESTABLISHING LAKE MALHEUR RESERVATION, AND EXECUTIVE ORDERS NO. 5891 OF JULY 16, 1932, AND NO. 6152 OF JUNE 1, 1933, WITHDRAWING LANDS FOR CLASSIFICATION; AND AMENDING EXECUTIVE ORDER NO. 7106 OF JULY 19, 1935

By virtue of the authority vested in the President, and pursuant to Executive Order No. 10355 of May 26, 1952, it is ordered as follows:

1. Executive Order No. 7106 of July 19, 1935, establishing the Malheur Migratory Bird Refuge which was redesignated the Malheur National Wildlife Refuge by Proclamation No. 2416 of July 25, 1940, is hereby amended by eliminating from the first paragraph thereof the words, “and in order to effectuate further the purposes of the Migratory Bird Conservation Act (45 Stat. 1222)”.

2. Subject to valid existing rights, the following-described public lands in Harney County, Oregon, are hereby withdrawn from all forms of appropriation under the public-land laws, including the mining but not the mineral leasing laws, and reserved under the jurisdiction of the Bureau of Sport Fisheries and Wildlife of the Department of the Interior as an addition to the ‘Malheur National Wildlife Refuge’:

[Then goes on to describe the lands include, which includes the land where the Bird Waterhole is located.]

Here we have “Subject to valid existing rights”, not subject to construction, lawsuit, or other divisive means of denial of those rights, simply subject to those “valid existing rights”.  Article I, § 9, clause 3 of the Constitution limits the authority of the Congress, and since they are the only constitutionally recognized legislative body, limits laws in that “No…  ex post facto Law shall be passed.”  Quite simply, that which is done cannot be undone.  It is often referred to as the grandfather provision, providing that if a law is enacted that prohibits something that was previously done, legally, then subject to certain limitations, that which was done prior to the enactment remains legal.

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 1 – Feb. 18, 1994 – June 9, 1994

 

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