Exclusive: Does Cliven Bundy Have Something Called “Prescriptive Rights”, Why The BLM May Be Afraid To Go To Court
So this is probably the sanest take on the Cliven Bundy/BLM conflict that I’ve seen so far. From the article:
what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A’s land to get to your land, a prescriptive easement is allowed which gives the user the right to get to his land through A’s property.
In most states, if a trespass or use of land occurs regularly for at least 5 years without the “owner” of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993 but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.
Granted, there have been court actions over the years. In 1998 a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the “trespass cattle” remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock.
Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn’t recognize federal authority over the land. Bundy has said that in the past, that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle.
I haven’t seen the court documents, so I can’t make any definitive conclusions about Bundy’s legal position. But if I was to judge based on this summary of the facts alone, I think that legally speaking, Cliven is boned. I don’t see how a claim for a prescriptive easement would defeat a permanent injunction. Since it was permanent, that means he continued to stand in violation of it in August 2013, when the court issued a new order for Bundy to vacate his cattle from the land. Walter Olson, a conservative lawyer who runs Overlawyered, seems to agree:
It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.
John Hinderaker, who is sympathetic to Bundy, nonetheless makes a similar point:
[I]t must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.
Cliven Bundy is in criminal contempt of multiple court orders. That means that even if he pursues a claim for a prescriptive easement, he’d probably lose due to unclean hands.
Another issue is that, as Ben Swann notes above, Bundy’s claim isn’t that he doesn’t owe the grazing fees, but simply that he doesn’t owe them to the federal government. He’ll pay to the county, but not the BLM. Swann suggests that this might be a reasonable resolution:
When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle.
“Why don’t you just let him pay them there (Clarke County)? I got a call back from the liaison saying ‘Yes, pursue it.’”Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.
But there’s a couple problems with this. First, the fact that Bundy thinks he owes money to the county rather than the federal government places him in a tough legal position. In court, this would function as an admission that he wasn’t the true owner of the land, which would then mean that only issue for the court to decide is whom Bundy’s grazing fees were owed to. Since the Ninth Circuit has already decided against Bundy twice, I imagine a new court would also resolve this decision in favor of the BLM.
Second, it seems unlikely that Bundy would even agree to this arrangement if he knew the County was simply acting as a middle man for the BLM. Bundy’s claim is that the federal government doesn’t own the land, and hence the BLM has no jurisdiction. If he knew the county was just funneling his grazing fees to the BLM, that would seem to defeat the purpose of Bundy’s resistance to paying grazing fees to the BLM.
With all that being said, it seems like the BLM really wants to avoid an armed conflict with Bundy and his supporters. Swann notes that the BLM is now considering placing a lien on the cattle. This probably wouldn’t do anything to change Bundy’s position in the near term, but it would make BLM a creditor of Bundy’s estate when he dies, meaning that they could ask a Nevada probate court to order the unpaid fees to be paid out of Bundy’s probate estate. That would probably be the most peaceful resolution to this issue, since Bundy’s primary concern seems to be with immediate possession of the land, and the BLM simply wants to obtain its grazing fees.