Land Justice 

Will Cliven Bundy get the DeChristopher treatment for his activism?

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To protest the management of federal lands in Utah and the West, armed vigilantes, cattle ranchers and even an elected official committed calculated acts of lawlessness in April.

No charges have been filed in these events, one involving Nevada rancher Cliven Bundy’s refusal to pay federal grazing fees, the other a motorized ride organized by a San Juan County commissioner through a pristine and archaeologically sensitive canyon.

Both incidents, spokeswomen for the Department of Justice in Utah and Nevada say, are under investigation by the Bureau of Land Management; as a result, they cannot comment. BLM officials, who police and regulate federal land, have said they’ll pursue punishment through the courts.

But the degree to which these two acts of lawbreaking are punished will be a test, some say, of just how blind justice is on the public lands debate, particularly in terms of whether justice falls with equal weight upon the right side of the political spectrum as the left.

The criminal prosecution these cases will be measured against is that of Tim DeChristopher, a climate activist who bid on and won $1.8 million of oil & gas leases at a 2008 BLM auction. The auction DeChristopher sought to undermine was itself later invalidated by the Obama administration, which found that the BLM had failed to conduct sufficient environmental review prior to putting the land parcels on the auction block. Nevertheless, DeChristopher was charged and convicted of two felonies, which earned him two years in a federal penitentiary. He served 21 months before being released into a halfway house.

“I’m suggesting that we have a new standard now—the Tim DeChristopher standard,” says Dan McCool, a University of Utah political-science professor who is also the director of the school’s environmental and sustainability studies program.

Because DeChristopher went to jail for an act of public service, as McCool puts it, so too should anyone else whose motives are fueled by a spirit of protest. “The only thing that matters is if you broke the law, and if you broke the law, you go to prison,” he says.

But Rep. Mike Noel, R-Kanab, says he sees little similarity between the actions of Bundy, San Juan County Commissioner Phil Lyman or any of the other recent protesters and DeChristopher.

Noel, who took part in a 2009 ATV protest ride through the protected Paria Canyon wilderness study area in the Grand Staircase Escalante National Monument, says he, Lyman and Bundy are frustrated with the way federal agents are administering the land, and are willing to protest to see change.

That’s what DeChristopher’s attorneys and supporters say he was doing as well. But, Noel says, DeChristopher’s protest was “not right.”

Where the difference lies, he says, is that DeChristopher “took money away from the people and the schoolchildren of the state of Utah.” The income he cites relates to potential mineral and oil royalties that might have flowed to the state had the 22,000 acres of land DeChristopher bid on gone to oil companies.

Bundy’s long-simmering land battle with the federal government dates back to 1993, when the BLM began restricting cattle-grazing rights to safeguard the habitat of the endangered desert tortoise. For more than two decades, Bundy has resisted the government’s efforts to limit his cattle’s grazing. Along the way, he’s racked up around $1 million in unpaid grazing fees. When federal agents acting on a court order moved to confiscate his cattle April 12, they were met by a posse of gun-wielding states’-rights activists.

Reached by phone, Bundy says his situation, and whether or not he’ll be punished for taking his stand, will boil down to who has jurisdiction over him and his cattle: the state of Nevada, or the federal government.

“My debate is all about sovereignty: the state of Nevada or the federal government,” Bundy says. “Who’s trespassing on Nevada state land—is it Cliven Bundy or is it the federal government?”

Shortly after Bundy’s standoff with federal officials, Lyman organized an all-terrain vehicle ride into Recapture Canyon near Blanding. The ride was to protest the closure of a portion of the canyon that BLM officials say is home to Native American burial grounds and other archaeologically sensitive artifacts.

Lyman says he urged the protesters to be respectful of the closed area of the canyon, but many of the protesters—including some of Bundy’s relatives and supporters—pressed on regardless.

“I didn’t want to get down into the controversial area of the canyon,” Lyman says. “But I don’t disrespect those that did. I think they’re earnest and legitimate in their feelings.”

Lyman says he isn’t a “gun toter,” and doesn’t even own an ATV. Still, he is the latest Utah politician to become the poster child for the Beehive State’s anti-federal sentiment. But some fear that in the cases of Recapture Canyon and Bundy and the heavily armed supporters of these causes, this fever of anti-federal rhetoric is reaching dangerous levels.

“Frankly, I think that some of the proponents of defiance have the misconceptions that these kinds of demonstrations are patriotic and will result in change,” says attorney Patrick Shea, who defended DeChristopher against the federal charges and is also a former national director of the BLM. “In my judgment, all it does is chill other people’s First Amendment rights.”

Lyman says he didn’t do anything illegal and that the BLM illegally closed Recapture Canyon, which he says was a right-of-way for cattle ranchers and others for more than 100 years.

The closure stemmed in part from the 2005 actions of two Blanding men who used picks, shovels and other tools to construct an ATV trail into the canyon. The men pleaded guilty to federal charges in 2011.

Lyman says he’s repeatedly asked BLM officials to accompany him into the canyon and show him the sensitive archeological sites. In early May, he says, they took him up on it. But Lyman says all he saw were “soil stains” that could have been from a Boy Scout camp, a cowboy camp or maybe an Indian camp.

What he saw, he says, “does not rise to the level [of requiring protection]. If they think it’s that important, let’s put it on the national register.”

Though Lyman didn’t venture into the depths of the canyon with other protesters, he did go into an area closed by the BLM along what he calls a “county-maintained road.” As far as legal consequences for his actions, he speculates that he could be issued a trespassing ticket.

“That’s one of the chances you can take,” he says. “I guess you can say that’s breaking the law, but it’s in the form of a protest.”

But some precedent exists to suggest that charges might not be filed against the ATV rides.

BLM spokeswoman Megan Crandell says the agency forwarded evidence relating to the Paria Canyon protest ride to the U.S. Attorney’s Office “for potential criminal action.” She referred questions regarding the case, in which no charges were filed, to the U.S Attorney.

Melodie Rydalch, spokeswoman for the U.S. Attorney’s Office, declined to go into details about why charges weren’t brought.

With the level of animosity rising, McCool says, the next step forward in the public-lands debate should be toward starting a peaceful dialogue.

“Everyone needs a better understanding of their fellow Utahns’ attitudes toward these things,” McCool says. “We’re not enemies; we’re all Utahns. We need to be talking, not waving guns and breaking laws.”

Twitter: @ColbyFrazierLP

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