The news of Dwight and Steven Hammond’s resentencing is an open platform for change in federal handling policies, but the fear incited by Ammon Bundy’s voluntary militia of protesters is clouding evidence that backs claims of federal government mismanagement. Protesters are against the Hammonds’ re sentencing and believe they were convicted unfairly under laws intended for acts of terror for which they’ve been given excessive sentences but are not explicitly calling upon the issue at hand, a reduction of the Hammonds’ sentences.

While much of the news coverage related to the Hammond family has broadcasted Ammon Bundy’s armed militia protest, the legal issue at its core is beginning to come into focus. Bundy and his supporters have set up camp on federal land, demanding that control over the asserted public land be remanded to its local people such as the Hammond ranching family. As the American Bar Assocation Journal suggests, the Hammonds became a cause celebre among anti-government activists in part because of mandatory minimum sentencing regarding disputed use of land with the federal government. Both Dwight and Steven Hammond had served their initially imposed sentences when the government successfully appealed to the San Francisco-based 9^th U.S. Circuit Court of Appeals. Under said appeal, the Hammonds were re-sentenced to the five-year mandatory minimum, re-trying the pair as if they were terrorists though initially sentenced for arson.

While Bundy’s actions are drawing attention to private land conflicts with federal government land rights, they are slowly distracting from the application of said protest: the plight of the Hammonds. At the center of this standoff are a pair of Oregon ranchers who were denied the chance to make their claim to the U.S. Supreme Court. The re-sentencing of the Hammonds turned them quickly from arsonists to terrorists, despite original claims that sentencing the two to the minimum mandatory sentence of five years was acknowledged by a federal district judge as “grossly disproportionate” and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. A 2014 ruling by a panel of the court acknowledged that the Supreme Court has upheld longer sentences for comparable or less serious crimes. In March of 2015, the Supreme court rejected the Hammonds’ petitions for certiorari.

 

 

If you don’t know the Hammond family of Harney County, Oregon, you will soon. As the Hammond protest builds momentum backed by a voluntary militia, Dwight Hammond, 73, and his son, Steven Hammond, 46, are making headlines again. Three years ago, the pair made headlines when convicted in Federal Court of arson for fires lit on the Hammond Ranch in 2001 and 2006 to reduce the growth of invasive plants and protect their property from wildfires. Convicted under an anti-terrorism act, Dwight Hammond served three months’ time for the conviction while his son Steven served a full year.

As the Federal Judge suspended the minimum sentence under the guidelines as “shock[ing] the conscience,” the U.S. Attorney appealed the sentence to the Ninth Circuit who ruled that both are due to return to prison to serve the federal prison terms of five years. Private landowners often find themselves at the mercy of the federal government as large parts of the West Coast are in government hands, the story of the Hammond’s conviction and resentencing may be all too familiar to private ranchers in the area who have already felt the pressures of forced sales.

Though the Hammonds have planned to report to prison today, January 4, 2016, as ordered, riled up liberty supporters from surrounding states have a different disposition. Ammon Bundy, son of Nevada rancher Cliven Bundy whom was involved in a standoff with the government and Bureau of Land Management (BLM) in 2014 over grazing rights, has joined with a growing band of armed militiamen acting as organized sympathizers to the Hammonds. Though the Hammonds have no direct involvement with the militia, Bundy and others valiantly stake support claims that the Hammonds should not be tried as terrorists and have rights to the tried actions per purchase rights and federal grazing allotments. The Hammonds have and will continue respecting the rule of law and follow court orders without incident or violation. Click here to view their statement.

The Hammond family’s farm has been eyed by US Fish and Wildlife Service (FWS) and BLM since the 1970s when ranches adjacent to the Hammonds and others were sold and added to the Malheur National Wildlife Refuge. Though approached by FWS and BLM many times, the Hammonds (as well as other ranchers) refused to sell. While many ranchers in the area were forced to leave, another 32 out of 53 permits were revoked, and grazing fees were raised significantly for those who remained in the area. By the 1990s, the Hammonds were one of very few ranchers that were still private owners of property adjacent to the Malheur National Wildlife Refuge. The four year resentencing request for Dwight and Steven Hammond comes from an appeal filed by the BLM Field Manager and Refuge Manager for the Malheur Refuge.

The Hammonds attorneys report that “the Hammonds will continue their legal efforts to renew their grazing permits. They will also pursue Executive Clemency. We hope that President Obama will agree with us and with the veteran judge who presided over the trial that the mandatory five-year minimum sentence is far too long for these ranchers.”

To sign the Petition in support of a reduction in sentencing and Executive Clemency go to: https://petitions.whitehouse.gov/petition/commute-sentences-dwight-lincoln-hammond-jr-and-steven-dwight-hammond-both-harney-county-oregon.

Considerations in Protesting a Transfer Application

There are many things to consider, from both a practical and legal standpoint, before you begin protesting a transfer application for water rights that may be adverse to your interests.  The following briefly describes some of the situations that may provide a legal basis for your protest.  Schroeder Law Offices, P.C. offers a free initial consultation regarding any water related legal issues you may be facing.  Please call us to make and appointment to discuss the details of your particular situation.

Avenues by which to challenge the transfer:

1.      The Application is Incomplete or Deficient

a) The application does not properly identify necessary elements of the existing water right and proposed transfer. ORS 540.520(2)

b) The affidavit of non-use unsatisfactory because affiant did not have ownership for past 15 years or more years.  ORS 540.610.

2.      Notices were not given as required by statute

a) Notice must be published at least once a week for a three week period and include the date on which the last notice by publication will occur.  ORS 540.520(5).

b) For a transfer involving only a change in place of use or for a change in the point of diversion of less than one-fourth mile, the OWRD must include notice of such applications in the weekly notice published by the department. ORS § 540.520(5).

3.      Proposed Order Includes Reopener Conditions

a)      OWRD must make certain factual and legal determinations according to the statute and cannot “put them off” to a later time with a reopener condition.

4.      Lack of Perfection: The current appropriator failed to perfect the water right.

a)      The construction was not completed within the time set fourth in the permit. ORS 537.230, 410.

b)      The application of the water to beneficial use not completed within the time set fourth in the permit

c)      There was a lack of diligence.

5.      Abandonment: The current water right holder has abandoned the water right.

a)      Chosen and conscious neglect to develop demonstrates intent to abandon. ORS 540.631.

b)      Permanent, impermeable structures built over all or part of the place of use including buildings, roads, and ditches.

6.      Forfeiture: The current owner forfeited the water right.

a)      Lack of continuous use: No beneficial application on all or part of the place of use in any 5 year period looking back 20 years. ORS 540.610.

b)      Permanent, impermeable structures built over all or part of the place of use including buildings, roads, and ditches.

7.      Historical Use/Injury:  Only the amount of water historically used is available for a transfer.

a)      The proposed use exceeds the rate of historically diverted.

b)      Water users below the diversion point of the applicant had a right to rely on the applicant’s historical use and pattern of use (rotation) in developing their own use and would be injured by the change.

c)      Only the proven consumptive use should be transferred in order to avoid injury.

8.      New Application: The proposed transfer should be considered a new application.

a)      Since part or all of the water use was never perfected, or was abandoned or forfeited, the application is, to the extent of failure, a new application that must meet public interest criteria of a new application and given a priority date equal to the date of the transfer application.

9.      Use is Not Beneficial:  The proposed use is not a beneficial use of the water.

a)      There is already sufficient water supply providing for the requested use so that additional supplies would constitute waste

b)      There is no evidence in the existing record that the use as applied for would be beneficial.

10.  Interfere with Existing Rights: The proposed transfer would injure or interfere with the rights of other users, either senior or junior users.

a)      A transfer may not injure other water users.  ORS § 540.530(1).

b)      OAR 690-380-0100(3) requires the Commission to find an ‘injury to an existing water right’ where “a proposed transfer would result in another, existing water right not receiving previously available water to which it is legally entitled.”

11.  No Evidence of Ownership or Rights to Delivery

a)      Applicant has no proof that he has ownership, control or access to the existing or proposed point of diversion (POD) or place of use. ORS 537.140.

b)      Applicant has no evidence that he has an agreement with District, Ditch Company, or Bureau of Reclamation to obtain delivery. ORS 537.140(E).

12.  Applicant Does Not “own” the Water Right

a)      No title instrument was filed with the application

b)      Title search of appurtenant place of use evidences ownership of someone other than applicant

c)      Applicant did not retain ownership of appurtenant water rights on sale of real property

d)      Applicant did not properly document ownership and continue to use severed water rights

13.  Violates Existing Legal Agreement

a)      Delivery contract in place (Reclamation, Irrigation District)

b)      Proposed use is outside the boundaries of the irrigation district, outside the described contract area, outside the reservation.

c)      Rotation agreement

d)      Compact

e)      Reservation

f)        Treaty

14.  Violates Existing Water Right Adjudication/Decree

15.  Violations of State Statutes/Rules

a)      SB1010 Plan. SB1010 Plan, passed in 1993, set the goal of reducing water pollution from agricultural sources and improving watershed health by implementing watershed plans that identify problems and solutions in watersheds.

16.  Violations of Federal Act/Statutes or Code of Federal Regulations

a)      Endangered Species Act

b)      Act establishing Reclamation Project

c)      Act establishing Reservation or Colony

d)      Clean Water Act

For guidelines on writing a protest, see Four Steps to Writing a Water Transfer Protest.