The BLM/Bundy situation is interesting not because of the sensationalistic and misleading reporting of it by Fox News, CNN et al, but because of what Harry Reid is doing with the BLM land in Nevada. Reid needed Bundy off the land in order to get the Gold Butte area designated as a solar energy zone. He’s trying to become the solar energy king of Nevada because I’m sure the interests he represents, like BrightSource Energy, have somehow cut him in on the largesse. I have a feeling there’s big Federal money still available for solar energy projects.
The ONLY reason I took an interest in this situation was because of Harry Reid’s “domestic terrorist” comments. But, as it turns out, BLM/Bundy the fight was a sideshow that was methodically planted as the main stage show while the real action was happening in Reno and DC with Harry Reid and his maneuverings to control the BLM.
I wanted to revisit some issues that are still being discussed in the media and the blogosphere. As I showed yesterday, the Government has committed attempted theft when it moved to sell the cattle it had impounded. The impounding was legit, the attempted sale was not. In the process of trying to get Bundy’s cattle off the land, the BLM not only committed an attempted theft but it negligently omitted any claim to unpaid fees, the right for which has now been forfeited. Any lawyer worth the paper his degree was printed on would have at least asked monetary damage. That the BLM lawyers did not tells us that unpaid money due was not the motivation for suing Bundy.
However, many interested people are still asking about whether or not Bundy still owes unpaid fees and whether or not the Government is entitled to those fees. As it turns out, the answers are “no” and “no.”
I enlisted my attorney colleague. Here’s the short explanation: “The transaction here was trespass. The feds litigated that and could have obtained damages, but didn’t ask for them. Now it’s too late. The fed’s failure to plead correctly will operate as a waiver.”
My colleague dug up the original complaint, which you can read here: U.S. v. Cliven Bundy
Here’s his explanation as to why the only right the Government had was to remove the cattle from grazing on the BLM land:
Now I now believe, having read the complaint, that the BLM doesn’t have—and never had—the right to collect grazing fees, which were voluntary: in exchange for paying fees, cattlemen received a grazing permit. See para. 21.
When Bundy refused to apply for a permit in 1993, his cattle became trespassing chattels. That means the BLM’s only remedy against Bundy was an action for trespass. The BLM exercised that right by filing a 2-count suit in court, one count for trespass and another for a judicial declaration that Bundy’s cattle are trespassing in violation of law.
But a trespass action has never—not in 800 years of property jurisprudence—included any remedy that would grant a plaintiff any rights of dominion over the trespasser. There are but two remedies available to a plaintiff complaining of trespass. One is damages, the legal remedy. The other is an injunction, an equitable remedy. The BLM was only awarded the latter; it never even sought damages in its complaint
There was never any colorable legal justification for selling the cattle. The only cause of action available to the BLM was at all times since 1993 a trespass action, which did not, does not, and cannot transfer title.
Moreover, the fact that Bundy refused to pay the grazing fees does not mean that he owes back fees. He most certainly does not. Rather, it means that he voluntarily elected to became (via his cattle) a trespasser. The BLM filed suit for exactly this reason.
Interestingly, the BLM’s complaint does not seek any monetary damages. Thus, not only does Bundy not owe the BLM any money for the unpaid fees, Bundy doesn’t owe any damages to the BLM because the BLM simply failed to ask for any damages.
In short, the BLM’s act of attempting to sell the cattle, by entering into a $1 million contract for that purpose with a party in Utah, was a willful and wanton criminal act, as there was never any legal avenue that would have granted the BLM that right. The BLM and its lawyers had to have known that they were committing serious felonies.
What happens from here is anyone’s guess. In the current posture of this case, Bundy must keep his cattle off of federal land (Gold Butte, etc.). But he doesn’t owe the BLM and money and the cattle are still his and always were.
It is crystal clear once we learn the real facts of the BLM/Bundy dispute that the Government was NOT motivated to go after Bundy on behalf of the Taxpayer for unpaid cattle grazing fees. It also tells us that the only reason the BLM went after Bundy was to remove his cattle from BLM land, something for which I’m sure the average Taxpayer could care less. It stands to reason, therefore, that the sole motivation of the BLM actions against Bundy were taken on behalf of Harry Reid and his political and monetary interests.