Fact-Checking the Case Behind the Oregon Standoff

When nearly 150 militants moved into the Malheur National Wildlife Refuge and began an armed occupation of federal land and buildings, they justified their actions by citing the case of Dwight and Steven Hammond. The two ranchers had been resentenced by a federal judge for their 2012 convictions for burning public lands that they leased for cattle grazing in 2001 and 2006.

The armed militia, however, perceive the case as an example of federal overreach -- claiming, as conservative media has been alleging for months, that the ranchers had been over-zealously prosecuted as terrorists for prescribed burns and protective backfires that actually improved the land -- and call for the new longer sentences to be vacated.

With a tense armed standoff in Oregon, it is worth examining these claims to test their validity. Indeed, an analysis of court records and the laws in question paint a very different picture from the one espoused by the militants and conservative media.

Claim 1: This issue is only about two fires
While the Hammonds' supporters acknowledge that the criminal case is part of a wider dispute with federal officials over land, court records reveal that the Hammonds extended that dispute to fellow private citizens. Steven was convicted in 2000 for interfering with a lawful hunt and of unsworn falsification in 2011 for forging a landowner's preference hunting form.

Moreover, this dispute included more than the two fires. Indeed, Dwight's defense attorney admitted to the court that after a 1999 fire set on their private land escaped onto public land, the Hammonds "had received a stern warning from the BLM that [if it happened again] there would be legal consequences, so they were warned."

The nine-count superseding indictment charged the Hammonds with a series of arsons -- mainly during a burn ban in 2006 while lightning-sparked wildfires burned. The following two sections analyze the fires the Hammonds were convicted of starting.

Claim 2: The 2001 fire was a controlled burn that had received prior permission
Why would federal prosecutors try ranchers for a prescribed burn that had been given prior authorization? According to witnesses and experts at trial, the phone call requesting permission came hours after the fire had been started. But at the heart of the issue is why the fires were started in the first place: to cover up evidence of poaching. "At trial, jurors heard from a hunting guide, a hunter and the hunter's father, who saw the Hammonds illegally slaughter a herd of deer on public land," a statement from the U.S. Attorney's Office in Oregon reads. "At least seven deer were shot with others limping or running from the scene." These details are noticeably absent from supporters' accounts of the fire.

Claim 3: The 2006 fire(s) were backfires that saved the ranch and its winter feed
First, it is true that fire is a tool used to naturally renew grazing land. In fact, a BLM officer testified at trial that the land burned as a result of the 2001 fire was improved, and not damaged, by it. Moreover, backfires are often used by firefighters to contain wildfires.

However, the 2006 series of fires the Hammonds were accused of starting were done during a burn ban while firefighters were already engaging wildfires nearby. The fires, some of which were started at night, complicated those efforts and in one case even forced firefighters to relocate when their position was compromised by a fire started below them. No permission for the fires was sought, and no notification was given. The Hammonds were acquitted of some of those fires, but Steven was convicted for starting the Krumbo Butte fire. The prosecution dropped the remaining charges in an agreement where the Hammonds would accept the verdicts already decided.

Claim 4: The Hammonds were prosecuted as terrorists
This final claim appears to have incensed the Hammonds' supporters the most: that they had been labelled as terrorists under the Antiterrorism Act of 1996. This appears to stem from a fundamental misunderstanding of the way laws work. That is, Acts of Congress that become law are not themselves laws that one is charged with violating. Rather, they amend the United States legal code. For instance, the Hammonds were convicted under Title 18 U.S. Code § 844(f)(1), which was, in fact, amended by the Antiterrorism Act of 1996. That Act rewrote the statute to add mandatory minimums and to create harsher penalties in circumstances where people are injured or killed.

Moreover, the Act excluded federal jurisdiction for offenses where the target only receives federal assistance (see U.S. v. Davis, involving an arson at a Virginia Housing Development Authority complex - where the Fourth Circuit reluctantly upheld federal jurisdiction on appeal the previous year). These amendments do not explicitly reference terrorism, but may be designated as a "federal crime of terrorism" if the offense is "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct," but 844(f)(1) is noticeably not included because no one is injured or killed. Therefore, the Hammonds simply cannot be legally designated as terrorists under the statute.

Nor was that ever the issue. "The jury was neither asked if the Hammonds were terrorists, nor were defendants ever charged with or accused of terrorism," the U.S. Attorney's Office stated. "Suggesting otherwise is simply flat-out wrong."

Conclusion
Certainly, the major claims made by the Hammonds' supporters about their case deserve scrutiny. But as the law and court records show, these assumptions are simply not supported by the facts and additional details regarding the Hammonds' motives and actions are omitted. Even more disconcerting is that these misunderstandings and misrepresentations are driving an extreme narrative that is increasingly angry and militant.

Unfortunately, this will only diminish the chances that the national dialogue will include the very real and important issues faced by ranchers regarding the federal ownership and management of land. Focusing on establishing an effective dialogue, rather than initiating an armed standoff based on widely-disseminated but highly inaccurate narratives, may be better at resolving these issues.