Searching for Cliven Bundy: The Constitution and Public Lands

On April 5th, 2014, BLM temporarily closed over 500,000 acres of public land in Clark and Lincoln Counties in order to impound cattle grazing there in violation of a federal district court order. These cattle belonged, principally, to Cliven Bundy and his family—ranchers from Bunkerville, Nevada—who had stopped paying BLM permitting fees in the early 1990s. In anticipation of the roundup, the Bundys put out a distress call to militia-like groups around the country, and seven days later, an armed crowd confronted federal and state officers in the desert near Gold Butte. Another week later, federal authorities backed down, citing “serious concern[s] about the safety of employees and members of the public.” Then, two years later, Cliven Bundy’s sons, Ammon and Ryan, led a 41-day occupation of the Malheur National Wildlife Refuge near Burns, Oregon. An Oregon jury refused to convict the Bundy brothers, and—citing “flagrant” prosecutorial misconduct—Judge Gloria Navarro dismissed with prejudice all charges stemming from the Nevada showdown.

To some, the Bundys are heroic republican farmers in the best Jeffersonian tradition—taking a principled stand against tyrannical federal overreach. To others, they are welfare cowboys—tragically exploiting subsidized common lands on a fabricated constitutional pretense. To many in law enforcement, they are simply outlaws—blowing a dog whistle for domestic terrorist groups like the Sovereign Citizens in a dangerous game of chicken with federal agents. According to friends, Cliven Bundy is a quiet, private man and sincerely believes in the righteousness of his cause, and in the legal case he thinks he can make. In truth, however, the logic of that argument is often difficult to make out, and courts and commentators alike have generally dismissed it out of hand. In this essay, I hope to piece Bundy’s legal position together as completely and plausibly as I can—to make the best case I can on his behalf—before turning a critical eye on his claims.

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Ian Bartrum teaches Constitutional Law, Constitutional Theory, and Law and Religion. He has taught previously at Drake Law School, Vermont Law School, and at Yale Law School as the Irving Ribicoff Fellow. His research interests are in constitutional history and theory, the Establishment Clause, and constitutional education. His theoretical work explores the practical norms that govern our constitutional interpretive practices, and the American Association of Law Schools recognized his article "The Constitutional Canon As Argumentative Metonymy" as the Steven Gey paper in Constitutional Law for 2010. He is a graduate of Hamilton College, Vermont Law School, and Yale Law School.

Ian Bartrum, Searching for Cliven Bundy: The Constitution and Public Lands, 2 Nev. L.J. Forum 67 (2018).

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