January 5, 2016 8:56AM

A Western Film Noir

The more I read about the case of Dwight and Steven Hammond, the more convinced I am that their prison sentences are a gross miscarriage of justice. After conducting prescribed fires on their own land that crossed onto a few acres of federal grasslands, they were convicted of arson on federal lands, which under a 1996 anti-terrorism law carries a five-year mandatory minimum sentence.

The law says, "Whoever maliciously damages or destroys . . . by means of fire or an explosive, any . . . real property in whole or in part owned or possessed by, or leased to, the United States . . . shall be imprisoned for not less than 5 years." The key word is "maliciously": there is nothing malicious about starting a prescribed fire, something that is regularly practiced by thousands of landowners as well as the government itself.

In its opinion on the case, the Ninth Circuit concluded that a 2001 fire (which the Hammonds started on their own land but which escaped to federal land) was malicious because Dwight Hammond's grandson and Steven's nephew, who was a 13 years old in 2001, "testified that Steven had instructed him to drop lit matches on the ground so as to 'light up the whole country on fire.'" This betrays a divide between urban and rural cultures. To urbanites such as the judges on the Ninth Circuit, "the whole country" means the entire United States.

This obviously makes no sense; no one would think that a teenager with a few matches could light the whole nation on fire. This is probably why some press accounts reported that Steven told the teenager to "light the whole county on fire," but even that makes little sense: Harney County, in which the Hammonds live, is the largest county in Oregon and bigger than the entire state of New Jersey.

Ruralites use the word "country" to mean something other than "United States." Instead, it means what urbanites would call "land" or "countryside" (another word used in some press accounts). Steven Hammond's instruction to the teenager probably was intended to mean, "burn this entire field."

The court also noted that the fire "took the acreage out of production for two growing seasons." Again, this indicates urbanite ignorance of rural processes. Fire is a natural component of many ecosystems, and burning can produce long-run increases in ecosystem productivity that justify short-term losses. In any case, grazing rights on the land in question were leased by the Hammonds, so they, more than anyone else, would pay for any declines in productivity.

Prescribed fire has been controversial within federal agencies for decades. As described in Ashley Schiff's classic bureaucratic study, Fire and Water, the Forest Service long opposed prescribed burnings. During the 1920s and 1930s, it included such fires in their annual counts of total acres burned by wildfire, which greatly inflated those numbers. It wasn't until the 1950s that the agency begrudgingly accepted the use of prescribed fire, though it still resisted its use on its own lands in the West until very recently. I remember in the 1980s hearing an agency official calling people who burned their own lands "vandals."

The Hammonds have apparently been at odds with the Bureau of Land Management (BLM) over fire before, as a 1999 fire that they lit on their own land crossed over to BLM land, which led the BLM to warn the Hammonds not to do so again without a permit. They failed to get a permit for the 2001 fire, which burned 139 acres of federal land and probably improved its long-term productivity. The fire cost the federal government nothing as the Hammonds themselves put it out.

Nor did they get a permit for the 2006 fire, which was set to defend against a wildfire on BLM lands near their ranch. Such a backfire is standard procedure, but--probably because there wasn't time--the Hammonds didn't get either a permit or a waiver of a fire ban that was then in effect due to dry conditions. The fire burned just one acre of federal land, and the Hammonds paid $400,000 of federal fire suppression costs, though I suspect most of that money had been used fighting the wildfire, not the Hammond's back fire.

The Hammond precedent could severely inhibit prescribed burning anywhere near federal land, which means practically anywhere in the West. While such burning should theoretically be okay so long as people get the appropriate permits, if they fail to follow every single rule to the letter, they could be imprisoned for five years for a "terrorist" act. Even a lightning-caused that starts on private land could be labeled "malicious" if the landowner does not make every possible effort to insure that the fire does not cross over onto federal land.

In chapter 23 of Roughing It, Samuel Clemons tells how, in the early 1860s, he lit a campfire near Lake Tahoe. When he "went back to the boat to get a frying pan. . . , I heard a shout from Johnny, and looking up I saw that my fire was galloping all over the premises!" They got in their boat for safety, and "Within half an hour all before us was a tossing, blinding tempest of flame!" Clemons could get away with this because there was no one other than his party for miles around. Today, the world is different, something that the Hammonds apparently failed to recognize.

Defense attorneys for the Hammonds submitted character references arguing they "have done wonderful things for their community." But the defense brief to the Supreme Court also indicates that they have alienated numerous people.

  • A private hunting guide who testified against the Hammonds about the 2001 fire "had a great deal of animosity to the Hammonds," probably due to conflicts between cattle and wildlife;
  • The teenager who said Steven told him to "burn the whole country" was estranged from his uncle because Steven had taken sandpaper to the boys skin to remove a self-applied tattoo;
  • One BLM official claimed that Steven had threatened to expose the official's own careless prescribed fires to get him to change his testimony (an accusation for which the court concluded there was insufficient evidence);
  • In addition, in a classic Western conflict, the BLM and Fish & Wildlife Service were apparently upset that Hammonds had legally obtained water rights for their land and unsuccessfully challenged those rights in court.

Like a Western film noir, it seems that the Hammond's real crimes are that they live in the past, may be somewhat hot-headed, and have made too many enemies. They've more than paid for those crimes with (in Steven's case) a year in jail and a $400,000 fine. President Obama should grant their plea for clemency.

Unfortunately, their "friends" the Bundys have probably made it politically impossible for Obama to do so. It would be one thing if the Bundys and their friends had conducted an unarmed sit-in, saying they wouldn't leave a federal office until the Hammonds were freed. Instead, they took up arms and have threatened to shoot anyone who tries to remove them, adding that they've invited other people to come and live on and take over the wildlife refuge. Though they clearly have a completely different axe to grind, politicians will be wary that helping the Hammonds would appear to also support the Bundys.