By Maxine Bernstein
The Oregonian
January 16, 2018
Cliven Bundy and his two sons have repeatedly denounced the massive buildup of armed tactical officers, surreptitious surveillance and use of stun guns and police dogs near the family's Nevada ranch in the days leading up to the 2014 federal roundup of their cattle.
Now two retired high-level managers with the U.S. Bureau of Land Management are condemning their agency's militarized show of force during that operation.
Their criticism underscores deep divisions over how the government handled the case from the beginning all the way up to last week's remarkable dismissal of federal charges against the Bundys.
Two members of Congress have seized on the collapse of the prosecution, directing the Bureau of Land Management to respond to their concerns about "systemic issues" within the agency's law enforcement operations and its handling of the Bundy case by a Jan. 24 deadline.
The presence of more than 100 federal law enforcement officers was a highly unusual tactic to corral cattle. Many dressed in camouflage and carried rifles. Some took up sniper positions at observation posts near the Bundy ranch.
"It was a strategy that certainly was a poor one," said Robert Abbey, who served 30 years with the bureau, including eight years as its Nevada state director and then his final three years as national director through 2012. "In hindsight, the agency knew or should have known better."
Land resource managers or range conservationists traditionally run the roundups of trespassing cattle in eastern Oregon or Nevada with the help of local sheriff's deputies, said Abbey and Mike Ford, who retired in 1999 as the land bureau's Nevada deputy director.
"It was never a law enforcement action in the BLM I grew up in," said Ford, who worked in the agency for 25 years. "For whatever reason, the BLM elected to turn this Bundy situation into a 100 percent law enforcement operation. That in my opinion was a grievous error. This entire operation was handled poorly from the beginning."
Compounding the tension was the decision to have the bureau's special agent in charge of the Nevada and Utah region's law enforcement, lead the effort. Dan Love was considered a loose cannon, court and federal investigative records indicate, and escalated the confrontation. He has since been fired for unrelated misconduct.
Dennis McLane, former deputy chief of the bureau's law enforcement division, told The Oregonian/OregonLive that he was disturbed when he saw Love on media footage at the Bundy roundup wearing a civilian shirt, his ball cap on backwards and a rifle slung around his neck.
When bureau law enforcement officers -- who have the authority to make arrests and carry guns -- get called in to help the agency rangers, they typically aren't out front like that, said McLane, who retired in 2003 after having served as deputy chief since the mid-90s.
He described the approach as "an aberrant operation compared to the normal way the BLM did business," but he didn't denounce it outright.
The Bureau of Land Management brought in the FBI for back-up after then-Sheriff Doug Gillespie had the Las Vegas Metro Police Department pull out before early April 2014. The sheriff was concerned about the timing of the impound during the spring when cows were having calves and the failure of the BLM to heed his advice to wait.
Efforts to withhold documents outlining the extent of the law enforcement actions before trial ultimately dealt a death blow to the prosecution. On Monday, a judge in Las Vegas threw out the case against the Bundys and barred a new trial, citing flagrant evidence violations by prosecutors.
The Bundys had faced conspiracy and assault charges after rallying armed supporters and forcing officers to retreat. Buoyed by that success, Cliven Bundy's sons, Ammon and Ryan Bundy, traveled to Oregon a year and a half later and gathered some of the same followers with guns at their sides to take over the Malheur National Wildlife Refuge to protest federal authority.
"I have no sympathy for Cliven Bundy and his delusional view of what his rights are as they relate to public lands. He is no hero. He's been operating in defiance of the law," Ford said. "Having said that, there is culpability to be shared by the agency."
'NONE OF US WANTED TO GET ANYONE HURT'
The Nevada bureau office had interacted with Cliven Bundy for decades and handled a lot tougher characters than the 71-year-old rancher, Ford said.
"We've dealt with Cliven Bundy for 20, 30 plus years. Bundy himself was never violent, " he said. "He was bellicose and he was delusional, and he still is, but he never threatened any Bureau of Land Management officers."
The agency was more concerned about potential violence from his sons, Abbey said, and wanted to make sure it pursued every legal avenue to encourage Bundy to remove his cattle himself. As a result, the bureau delayed for many years enforcing its initial 1998 trespass order citing Cliven Bundy for grazing cattle without a permit on federal land.
"In the '90s, there were five or six trespassers on public lands in Nevada," Abbey said. "The agency prioritized these. Mr. Bundy was certainly one of them. We chose to put him on the end of our list. The primary reason for doing so was because of the potential threat of violence. None of us wanted to get anyone hurt."
When Abbey left as the Nevada bureau's state director in 2005, "Mr. Bundy was the last remaining trespasser," he said.
Mary Jo Rugwell, the bureau's district manager for southern Nevada from April 2008 through August 2012, said she was briefed about Bundy's "continuous trespass" when she arrived at the office. But the agency still had taken no action against his cattle to avoid a physical confrontation, she testified at the trial before it was halted.
She tried to reach out to Cliven Bundy multiple times, she said, and had the sheriff try to seek a settlement to no avail. In 2012, she chose to impound the cattle as "a last resort" based on the 1998 court order, she said.
But the U.S. Justice Department recommended waiting to get an updated order, Abbey said. That happened in 2013. Confiscating the cattle was set for the next year.
'IT'S A NEW DAY'
Ford and Abbey both said the Bureau of Land Management should continue to document Bundy cattle grazing on federal land, pursue trespass orders and "begin the whole process all over again."
"Nobody should lose sight of what the core issue is here," Ford said. "We're a nation of laws, and frankly Cliven Bundy chose not to follow them and still doesn't."
Bundy, who owns a 160-acre ranch about 75 miles northeast of Las Vegas, didn't renew his grazing permit in 1993 when the bureau sought to put seasonal restrictions on his cattle grazing to protect the endangered desert tortoise. He has refused to move his cattle or pay grazing fees, and maintains that control of the land rests with the state, not the federal government.
If the bureau moves in again to impound the cattle, local authorities must play an active role from the start -- but as support, not leaders, Ford said. That should include the county sheriff, the state of Nevada, the Nevada Cattlemen's Association and perhaps county commissioners and local government "that Bundy purports to recognize," he said.
"I would think their spirits are pretty high right now and they feel like they're vindicated right now," Abbey said of the Bundys. "But I don't think that's the reality. They need to face repercussions if they're still breaking the law. It's a new day, and the agency needs to focus on what it controls."
Rudy Everson, a spokesman for the Nevada land bureau, declined comment on the case. Megan Crandall, a spokeswoman from the national office, said, "The BLM is not responding to trial or Bundy-related questions at this time."
Heather Swift, press secretary for the U.S. Department of Interior, also declined to answer questions about the agency's next move or the bureau law enforcement response in 2014.
'VINDICATING BAD BEHAVIOR'
Three environmental advocacy groups sent a letter to Interior Department Secretary Ryan Zinke, urging the BLM to remove Bundy's cattle. The Center for Biological Diversity, Western Watersheds Project and WildEarth Guardians signed it.
"Now that the court has dismissed charges against the Bundy's, there is no further cause for delay for BLM enforcing the law and rounding up the trespass cattle," the letter read. "Mr. Bundy's cattle are trespassing on public land, and BLM is failing to follow the law unless it acts to remove them.
"We urge Interior not to leave this business unfinished. Time is of the essence. Interior must round up these cattle, to ensure that a pattern of lawlessness backed up by violence does not perpetuate itself across the public lands of the Western U.S."
At the same time, U.S. Reps. Rob Bishop, R-Utah, chair of the House Committee on Natural Resources, and Bruce Westerman, R-Arkansas, chair of its oversight and investigations subcommittee, are seeking a congressional review of the BLM's actions in the Bundy case.
"The failure of prosecutors to achieve a conviction in the Bundy case raises questions about the conduct of BLM law enforcement, and their ability to carry out effective, fair and professional law enforcement investigations," they said in a letter to the agency.
The U.S. Department of Justice's Office of Professional Responsibility also is investigating the prosecutors' evidence violations and whether discipline is warranted. Attorney General Jeff Sessions has sent an expert to the U.S. Attorney's Office in Nevada office to do a policy review and suggest what steps to take next to make sure prosecutors know the law requiring them to share evidence that may be favorable to the defense.
The prosecution's abuses are hard to understand because the Justice Department went through a vigorous review in the wake of the derailed prosecution of former Alaska U.S. Sen. Ted Stevens of Alaska over similar evidence violations, said former Oregon U.S. Attorney Dwight Holton. In that case, a federal judge in April 2009 excoriated prosecutors for improperly withholding evidence and making false representations in Stevens' alleged corruption case, and dismissed an ethics conviction against Stevens.
The review was to ensure evidence guidelines were more thorough and rigorous for federal prosecutors, Holton said.
Andrew Goldsmith, the Justice Department's discovery evidence expert, worked to design post-Ted Stevens compliance training. Defense lawyers in the Bundy case noticed Goldsmith in the Nevada courtroom in the final days of the case.
"Missing the mark on a case like this can have the unfortunate effect of vindicating bad behavior," Holton said. "The message to Cliven Bundy is you can defy federal law and frankly steal from other taxpayers without any consequences, which is both disappointing and dangerous."
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