Why the Malheur verdict sets a dangerous example

Lawyers “aimed too high” for a conspiracy charge—and lost it all.


Imagine running a business — say a bank or gas station — and every now and then a band of disgruntled customers barges in with guns, takes over your office and spouts nonsense about how you have no right to exist in the first place. How could you continue to conduct your business? How could you recruit new employees? How could you ensure the safety of your customers?  

That is exactly the kinds of questions that leaders of our land management agencies — the folks who take care of our national parks, forests and wildlife refuges — now must face.

Because that is exactly what six men and one woman got away with at the Malheur National Wildlife Refuge in rural Oregon. Under the guidance of the Bundy family of Nevada, they took over the refuge headquarters last January, claiming that it was illegitimate, and causing havoc for employees and the local residents for 41 days. One militant was killed in a confrontation with police. After a tense, negotiated end to the standoff, seven militants were charged with federal conspiracy and weapons charges. 

Discarded camping equipment, trash and a car were among the litter and damage left at the Malheur National Wildlife Refuge headquarters after the occupiers left.
U.S. Fish & Wildlife Service

Now, 10 months later, an Oregon jury has acquitted them. By choosing the more difficult path of proving conspiracy rather than criminal trespass or some lesser charge, the government lawyers aimed too high and lost it all. The verdicts stunned even the defense attorneys.* 

Without second-guessing the jury, it’s clear that the repercussions of this case will play out for years to come. But I fear that the greatest and most lasting damage caused by the thugs who took over Malheur will prove to be the way they vandalized something essential to every functioning society: Trust. If America doesn’t get its act together, this verdict may prove to be the beginning of the end of one of our greatest experiments in democracy: our public lands.

Make no mistake. There are plenty of people who would like to shoot Smokey Bear, stuff him and relegate him to some mothballed museum. The Bundy brothers who spearheaded the Oregon standoff insist that the federal government is not allowed to control any land beyond Washington, D.C., and military bases. They simply hate the idea of Yellowstone National Park and consider any other national nature reserve unconstitutional.

The Bundys’ Oregon acquittal doesn’t make their absurd reading of the Constitution any more viable. But it does embolden those who share their misguided fervor in the political sphere. Don’t take my word for it; consider the words of elation uttered by those who supported the Bundys. Montana state Rep. Theresa Manzella, R-Darby, responded to the news with a Facebook post that read: “BEST NEWS IN A LONG TIME!!! Doin’ a happy dance! Didn’t expect the verdict today!!! Hurray!”

She elaborated to a newspaper reporter: “I think it will be very empowering. It indicates that American citizens are waking up and we don’t want to be kept under the thumb of the federal government.”

The mood at the Bundy family ranch in Nevada was also jubilant: “We are partying it up,” Arden Bundy told another reporter. “This is a big step, not just up there, but for the people down here in Nevada. Knowing that they let them go scot-free, it’s going to ... be a big influence on the people down here.”

The bullies who want to rule the playground just got a pat on the head by the principal and were sent back outside to play the same old game. Managing public lands is a messy, difficult and often thankless job. But in no way do these public servants deserve the kind of verbal abuse and physical intimidation reflected at Malheur. I am thankful for these hard-working people, and I marvel at how they remain true to their mission despite taking constant verbal jabs from all sides.

They deserve better. This issue reflects some larger illness in the American psyche. We have replaced civil discourse with kneejerk tribalism.

It’s much harder to restore trust than to lose it. But all of us who appreciate public lands — whether we want to log a particular place or preserve it, whether we want to hunt or watch birds, whether we enjoy riding motorcycles or horses or just walking around — need to be together on one thing. We can disagree on how we manage our lands, but we need to do so with respect. We all deserve to be heard, but we also need to listen. What happened at the Malheur National Wildlife Preserve wasn’t a revolution, it was mob rule, and it’s unfortunate for all of us that a jury failed to understand that. 

*This story was updated to correct an error about the possibility of appeal. It’s the prosecutors who might have wanted to appeal, not the defense. In federal cases, such as this, government prosecution cannot appeal. 

Ben Long is a contributor to Writers on the Range, the opinion service of High Country News. He writes in Montana.


Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at betsym@hcn.org.

Tiffy Squid
Tiffy Squid
Nov 01, 2016 12:35 PM
I have an idea: here in Central Oregon, and also in the Portland area, there is a crazy housing crisis going on. In and near towns where the jobs, services, and shops are, people cannot find housing and many are being kicked out of their longtime rentals as rental rates skyrocket. So we have a whole lot more homeless than we used to.

The homeless should gather together, paint some placards, and take over some Federal buildings—not to provide themselves with much-needed shelter from the elements, of course. (This is still America, right? We don't like "handouts" to people who are having a tough time.) No, it would be merely to protest the unfair occupation by the Federal government of land and buildings that *should* belong to all the people, all the time, with no management whatsoever. And hey, they'd get a roof over their heads for a few months, then get off Scot-free.

For this plan to work, the homeless should ideally be white and in possession of firearms. A few cowboy hats couldn't hurt, either.
Steven Towers
Steven Towers Subscriber
Nov 01, 2016 04:57 PM
The central irony is that to some degree the federal prosecutors proved the Militia wing-nuts right: The feds are incompetent. It's a bigger feather in your cap, career-wise, if you get a conspiracy conviction if you're a federal prosecutor. Clearly, that's more important than simply putting the Gomers and Goobers who occupied Malheur NWR in prison. Now they'll be thinking the verdict vindicates their actions.
Bob Macgregor
Bob Macgregor Subscriber
Nov 02, 2016 09:41 AM
I understand that the prohibition on double jeopardy prevents them from being re-tried on conspiracy charges, but couldn't they still be charged with trespassing, mischief, property damage, etc.? Remember, Al Capone got jailed for tax evasion, not any of the many other crimes he committed/abetted.
Steven Towers
Steven Towers Subscriber
Nov 02, 2016 10:22 AM
Already, the implications of the acquittal are being felt here on the West Coast.

David W Hamilton
David W Hamilton Subscriber
Nov 06, 2016 05:22 PM
We need to consider that we have more than "Federal government incompetence" at work here.
As we have been seeing played out pretty clearly, the FBI is ,itself, compromised by its own politicization ....just as it was under the fully ideological mismanagement of J.Edgar Hoover. It is a very conservative white male institution
(some call it Trumpland!) populate by BYU Mormons and Blackstone Evangelicals (there must be some interesting intramural dynamics there!). It has been my assumption that this fact has played a role in the FBI treatment of the Bundy Bunch ...as well as the "Sagebrush Rebellion" as a whole!
We also have a judiciary system infiltrated by recruits of the Federalist Institute and various Evangelical law schools with strong ideological cants.
Finally....the bureaus and agencies involved in Public Lands management are themselves populated with many "old school" managers committed to the extractive industries and the interests of the local Plutocrats!
The situation if replete with enough cross-current and riptides to keep any observer busy....and we are not even privy to the behind-the-scenes workings of the real movers and shakers in all areas.
Cherith Merson
Cherith Merson Subscriber
Nov 08, 2016 02:51 PM
And the mood nowadays is absolutely uncivil everywhere. A shoutout at a Trump rally tells the tale. The words were: "Assassinate the bitch!" These white turkeys get away with the most egregious acts: like the guy who pointed a loaded firearm at federal agents at the Bundy fiasco in Arizona. Those bandits were stopping citizens on the roads there while "open carrying" and "directing" traffic. Remember the black guy murdered by the police in Walmart, shot in the back while talking on the phone and leaning on a toy gun. Yet the Malheur fans claim Finnicum was murdered just because he told police they would never take him alive and he pulled out a gun at a traffic stop rather than lying down as directed. What is wrong with these people? What has happened to law and order?
Griffin Hagle
Griffin Hagle
Nov 13, 2016 09:35 PM
It sounds like the career-minded hubris of the prosecutors screwed up an opportunity to make an example of these bullies--and emboldened their fans everywhere. I can think of another more recent political outcome that fits this pattern.
Thomas Arvensis
Thomas Arvensis
Nov 14, 2016 09:04 AM
"We all deserve to be heard, but we also need to listen. "

It seems that there are a lot of people NOT listening now. Thoughts and opinions are meaningless at this point. A JURY made a determination based on all the evidence. Perhaps that jury was provided a greater story and more information than that which was presented to the media?

But...everybody just wants to be pissed off at these guys because they took an actual stand against injustice, they had guns, and they are white.

There were some serious wackos that participated, but not those tried.
Carolyn Chase
Carolyn Chase Subscriber
Nov 28, 2016 02:52 PM
Pardon my ignorance, but was destruction of public property part of the trial at all?