Bethany Towne

—

Ranchers are not terrorists. This statement may seem obvious—but is it? The use of public lands in the American west is wrought with tension between generations of ranching families and the federal government.[1] Tensions are greatest in the western states where a higher percentage of the land is owned and managed by the federal government.[2] Currently, “46.4% of the 11 coterminous western states” are federally owned and managed.[3] This amount of governmental ownership is sharply contrasted in the rest of the country, where only 4.2% of the land is federally owned.[4]

Known as the Sagebrush Rebellion,[5] the fight against federal control of open lands in the west “has roots that go back to the early 1900s, when the federal government first started reserving public lands and developing water.”[6] The Rebellion spiked in the 1970s in response to increased federal land use regulations,[7] and states further fueled the fires of frustration by asserting additional authority over public lands.[8]

A father-son duo, who operate a cattle ranch in Oregon, are central to recent turbulence.[9] Dwight and Steven Hammond were convicted in federal court of arson on federal land.[10] The charges arose from two fires that started on Hammond Ranch land and spilled onto federally managed public land.[11] The Hammonds were found guilty of arson and convicted under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).[12]

After the Ninth Circuit Court of Appeals denied a light sentence imposed by the Trial Court,[13] the Hammonds received five-year sentences—the minimum under the AEDPA.[14] The use of an antiterrorism act against ranchers who burned a small section of federal land is concerning. It sends the message that ranchers can and will be tried as terrorists. The Hammonds broke the law, but does their criminal conduct rise to the level of terrorism?

This Note discusses use of the AEDPA to prosecute domestic ranchers. Part I more fully tells the story of an Oregon ranch family now central to this inquiry and provides background on the creation of the AEDPA. Part II investigates previous applications of the AEDPA and definitions of terrorism applicable to the statute. Part III first discusses prosecutorial discretion before making the argument that the District Court, by finding the AEDPA minimum sentencing structure disproportionate to the crime, was correct in its analysis of the Act. Section IV provides recommendations to avoid facing this question in the future by relying on pre-existing public land management laws.

[1]David H. Leroy & Roy L. Eiguren, State of Takeover of Federal Lands —“The Sagebrush Rebellion”, 2 Rangelands 229 (1980).

[2]Carol Hardy Vincent, Laura A. Hanson & Carla N. Argueta, Cong. Research Serv., R42346, Federal Land Ownership: Overview and Data 1 (2017).

[3]Id.

[4]Id.

[5]PBS, Sagebrush Rebellion, pbs.org (May 13, 2016), http://www.pbs.org/wnet/religionandethics/2016/05/13/sagebrush-rebellion/30487/.

[6]Tay Wiles, Malheur Occupation, Explained, High Country News (Jan. 4, 2016), https://www.hcn.org/articles/oregon-occupation-at-wildlife-refuge.

[7]Sagebrush Rebellion, supra note 5.

[8]Leroy & Eiguren, supra note 1.

[9]Press Release, U.S. Dep’t of Justice, Eastern Oregon Ranchers Convicted of Arson Resentenced to Five Years in Prison (Oct. 7, 2015), https://www.justice.gov/usao-or/pr/eastern-oregon-ranchers-convicted-arson-resentenced-five-years-prison.

[10]Id.

[11]Id.

[12]Id.

[13]Id.

[14]Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214., https://www.gpo.gov/fdsys/pkg/PLAW-104publ132/html/PLAW-104publ132.htm.