On Tuesday afternoon, according to news reports, a group of Oregon protesters was stopped by state police as the protesters headed toward a town near the Malheur National Wildlife Refuge to speak at a meeting of residents.
In an interview shortly before the takedown, LaVoy Finicum of Arizona, one of the protest leaders, had expressed concern that law enforcement seemed to be planning “kinetic action” against them.
The denouement was a traffic stop on Tuesday, as the group drove north on highway 395 toward the town of John Day. Shots were reportedly fired, although every account of the event says it’s not clear who shot first (or at this point, in fact, that the protesters fired at all. It’s not improbable that they did fire at some point, but no law enforcement officers were injured).
LaVoy Finicum was killed in the gunfire. Ryan Bundy – a son of Cliven Bundy and resident of Bunkerville, NV – received a gunshot wound, but is expected to recover.
Four other protesters were arrested in the traffic stop, including Ammon Bundy, Ryan’s brother and the main leader of the protest. They were charged with conspiracy to impede federal officers (a felony).
In a separate action in Burns, OR, state police arrested protester Joseph O’Shaughnessy, of Cottonwood, AZ, and Peter Santilli, of Cincinnati, an independent broadcaster who has been livestreaming and posting videos of the protest “occupation” at the wildlife refuge.
An eighth protester, Jon Ritzheimer, was taken into custody in Arizona on Tuesday. He turned himself in after a warrant was issued for him on the conspiracy charge.
A post at the Oath Keepers site provides this update from Tuesday evening:
1811L: Blaine Cooper has reportedly assumed leadership at the Refuge and has been told to leave immediately. During a phone call with Pete Santilli, Pete can be overheard saying, “Blaine, please don’t do this.” Blaine is reportedly wanting to make a stand. Women and children are still at the Refuge.
The full outcome isn’t known yet (it’s now after midnight on Wednesday, 27 January). But I can only feel a sense of profound sadness about this whole episode, from what led to it – the mistreatment of an Oregon ranching family (the Hammonds) by the federal government* – to the death of LaVoy Finicum and the unpleasant fate the other protesters will now face.
I don’t actually think this was a well-chosen battle on the protesters’ part. By “occupying” a federal compound, the protesters put themselves in the wrong. Active civil disobedience wasn’t the best approach here.
Of course, their civil disobedience – during which only they were at risk – isn’t a patch on the criminal violence shown by “protesters” in Ferguson, MO and Baltimore. Nor does it approach in any way the disruptiveness and damage to property done by the Occupy mobs that trashed the streets and parks of major cities for months on end.
So it’s amazing to see how many people have a psychotic, vituperative hatred for the Oregon protesters: a hatred completely irrational and inexplicable. (Twitter has been full of examples tonight, none of which can even be posted here, as they’re replete with foul language. If you want to satisfy yourself on this point, check out the feed at #oregonstandoff.) Such burning malice arises from a place outside common sense – especially when it is not felt, by the same observers, for lawbreakers who do actual damage to the interests of thousands of people.
I agree, moreover, that in harassing ranchers off their lands, the U.S. government is doing a great wrong on false premises. It’s a misuse of the name of the American people. It’s being done contrary to the rule of law, and too many of the people themselves don’t care to understand that. Far too many Americans accept rule by bureaucratic fiat as if it is “settled law,” when it isn’t law made by due process at all.**
These concerns are central to the rule of law, and to whether Americans will be able to continue to live in freedom, with our liberties and our rights respected, and government circumscribed. People who don’t understand that cannot legitimately regard themselves as self-governing. They’re more like high school students who get to vote for student councils, and squabble over petty things, while the school authorities make all the real decisions.
To think that the land-rights protesters of the West are just a bunch of hooligans is to have no sense for the responsibility of self-government, and the meaning and historical development of law itself. The very concept of the “rule of law” has as an essential meaning – one among several – that some aspects of the relationship between man and the state aren’t subject to change whenever new majorities find them inconvenient. That’s the basic premise of the Bill of Rights. Majorities won’t always be happy about your religion, your speech, your right to your property or a fair trial – but nevertheless, you cannot be denied them.
The same principle applies to what constitutes a binding law, incumbent on the people. If the BLM and the EPA can coerce ranchers through bureaucratic orders, requiring them to do things Congress never explicitly empowered them to do – and if you’re OK with that – then you have already signed off on Obama using his pen and his phone to override all of your rights. You’ve sold out that principle.
The fight of the West’s ranchers against overweening federal agencies is America’s fight. But it is regrettable that the fight the protesters chose in Oregon was on the wrong terrain, and – so to speak – in an improperly prepared battle space. It’s deeply sad that LaVoy Finicum gave his life in a battle that was lost before it started.
Unlike the Bundy case, there was no basis here for making a stand on anyone’s private property. But occupying a federal compound created a pretext for criminal charges, and was bound to discourage political support even from sympathizers.
Helping the Hammonds might better be done by, well, helping the Hammonds. It seems to me that the most achievable outcome in the short run is for them to be able to keep their land in southern Oregon and continue to ranch there, weathering the storm and outlasting the mistreatment they’re being subjected to. There are bound to be ways to help them do that.
All that said, the future is wide open today, and he is a fool who says there’s no way America will wake up to the danger of living by complacent fallacies about what law is and what it ought to be. I don’t think anyone can confidently predict, at this point, what America won’t wake up to. Maybe there’s a Revolutionary War analogy for the losing battle the Oregon protesters have just fought; maybe there’s not. But I don’t think the battle – tactically untethered as it may have been – was in vain.
* There are a number of blog threads and online articles covering the history of the Hammond family’s run-ins with federal agencies (mainly the Bureau of Land Management (BLM)). Without necessarily endorsing all the statements and conclusions at each outlet, I suggest checking out the posts here, here, here, here, here, here, here, and here for useful background.
** If you don’t understand why Cliven Bundy was never arrested, and why no lien was slapped on his property for the grazing he did after the Bureau of Land Management terminated his grazing permit, then you don’t understand this issue. Bundy couldn’t be arrested, and no lien was imposed on his property, because there is no basis in law for either of those things. It’s not clear that the federal government would win in court – including all appeals, which is key – if it pursued punishing him for declining to comply with a bureaucratic order about a grazing permit.
Grazing is the subject of rights that were codified in acts long preceding the environmental regulations of the 1970s. It’s not actually “settled law” that federal agencies are empowered to withdraw those rights with bureaucratic orders. The agencies have behaved as if they have that power. But that doesn’t mean the courts would say they do. The agencies have preferred to force ranchers out, through regulatory harassment, fines, and coerced sale, rather than try to win this point in court.
And that’s not because the U.S. federal government is underfunded for litigation in comparison with a handful of stubborn ranchers. It’s because the ranchers have won – albeit at colossal expense to themselves – some key water-rights cases in court. (The Hammonds in Oregon won such a case in the early 1990s, in fact. The most famous case is the Hage case in Nevada.)
The courts have tended to uphold preexisting rights over the powers of bureaucracies. Congress’s formal intention to protect property-holders’ rights, in legislation from the 19th and early 20th centuries, has never been rescinded by the letter of environmental law, and the courts have made their rulings on that basis.
Ranchers have been an easy target of extra-legal methods, because they are, literally, few and far between. They’re not a concentrated mass either physically, economically, or politically. Forcing them out one by one has been a path of least resistance for the federal agencies, in almost every case easier than trying to press a weak federal case in court. The Bundys are among a very few ranching families that haven’t succumbed to being forced out, and are still trying to exercise preexisting rights that Congress has never rescinded, and no court process has ever ruled definitively they no longer have.