In April, President Trump pardoned I. Lewis “Scooter” Libby Jr., top aide to former Vice President Dick Cheney, who was convicted in an abuse of prosecutorial discretion. Now the president should do the same thing for Dwight L. Hammond, Jr., 76, and his son Steven Dwight Hammond, 49, long-suffering ranchers in rural Oregon.
The Hammonds were charged with terrorism and sentenced in 2015 to five years in prison, despite the outraged protests of ranchers and other citizens.
The Oregonian, the state’s left-leaning newspaper, said in a January 2016 editorial: “The Hammonds broke the law and deserve to be punished” but said their sentence was excessive and that the president (then Barack Obama) “should consider” granting them clemency.
The Hammonds are the victims of one of the most egregious, indefensible and intolerable instances of prosecutorial misconduct in history. Their situation cries out for justice that can come only from President Trump.
The Hammonds’ crime? They set a legally permissible fire on their own property, which accidentally burned out of control onto neighboring federal land. Normally, that is an infraction covered by laws governing trespassing, and the guilty party is subject to paying for damages caused by the fire – if the neighboring land belongs to an ordinary citizen.
But not when a vindictive federal government is involved.
The Hammonds are cattle ranchers in southeastern Oregon’s Harney County, the state’s largest, but home to fewer than 8,000 people who eke out a living. The federal government owns 75 percent of the land in the county.
Congress passed the 1996 law in response to the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing to “deter terrorism.” Lawmakers did not have in mind a rancher’s efforts to eradicate noxious weeds or to prevent the spread of a lightning fire onto valuable crops.The Hammond Ranch is near the unincorporated community of Diamond, with fewer than 100 residents. Located on Steens Mountain since it was established in 1964, the ranch is made up of 12,872 acres of deeded private land. Dwight Hammond began running the ranch in his early 20s; for his son, it is the only life he knows.
Like most Western ranches in federally dominated counties, the Hammond Ranch holds grazing rights on nearby federal land. In this case, that is 26,421 acres managed by the Bureau of Land Management of the U.S. Department of the Interior.
In the “high desert” environment of Harney County – and throughout the West – federal, state and private landowners use controlled or prescribed burns for prairie restoration, forest management and to reduce the buildup of underbrush that could fuel much bigger fires.
But sometimes the controlled fires get out of control and sweep onto neighbors’ land. That is legally deemed a trespass, and the landowner who set the fire is liable for any damages.
Only the federal government has the power to cite the trespasser criminally for his or her actions. That is what happened to the Hammonds.
It did not happen in a vacuum. The U.S. Fish and Wildlife Service has long coveted the Hammond Ranch for inclusion in its surrounding Malheur Wildlife Refuge. The federal agency pressured members of the Hammond family for decades to follow all of their neighbors in selling their property to the federal government.
For their part, Bureau of Land Management officials, agents and armed rangers too often have had an adversarial and thorny relationship with ranchers and grazing permittees, which worsened during the Obama administration.
In 2001, after alerting the Bureau of Land Management, the Hammonds set a legal fire to eradicate noxious weeds. It spread onto 139 acres of vacant federal land. According to a government witness, the fire actually improved the federal land, as natural fires often do.
In 2006, Steven Hammond started another prescribed fire in response to several blazes ignited by a lightning storm near his family’s field of winter feed. The counter-blaze burned a single acre of federal land. According to Steven Hammond’s mother, “the backfire worked perfectly, it put out the fire, saved the range and possibly our home.”
“We thought we lived in America where you have one trial and you have one sentencing.” She said that federal officials “just keep playing political, legal mind games with people and people’s lives.”The Bureau of Land Management took a different view. It filed a report with Harney County officials alleging several violations of Oregon law. However, after a review of the evidence, the Harney County district attorney dropped all charges in 2006.
The Bureau of Land Management did not give up. In 2011, federal prosecutors – referencing both the 2001 and 2006 fires – charged the Hammonds with violating the ‘‘Antiterrorism and Effective Death Penalty Act of 1996,” which carries a mandatory minimum prison sentence of five years.
Mugshots of the father and his son accompanied headlines calling them “arsonists.” Their wife and mother said: “I would walk down the street or go in a store, people I had known for years would take extreme measures to avoid me.”
In 2012, the Hammonds went to trial. As the jury was deliberating, they agreed not to appeal the jury verdicts in exchange for the government dismissal of a slew of ancillary charges, including “conspiracy” to commit the offense.
The jury found both Hammonds guilty of the 2001 fire and Steven Hammond guilty of the 2006 blaze; he was acquitted on charges the 2006 fire did more than $1,000 in damages.
At sentencing, U.S. District Judge Michael Hogan concluded the fires did not endanger people or property. He declared that the law the Hammonds were convicted of violating was aimed at more serious conduct than their case involved.
Hogan added that the Hammonds had “tremendous” character, and stated that the Eighth Amendment to the Constitution – barring “cruel and unusual punishment” – justified a sentence below the statutory minimum sentence.
Consequently, Judge Hogan sentenced Dwight Hammond to three months in prison and his son to a year and a day. Both served their sentences and then returned home.
But the federal government was not finished. Federal prosecutors, contending the agreement did not bar them from further action, appealed to the Ninth U.S. Circuit Court of Appeals, which, without oral arguments, quickly issued a terse ruling reversing the Oregon federal district court.
“Given the seriousness of arson,” the appellate court ruled, “a five-year sentence is not grossly disproportionate to the offense.” The Hammonds are both still in prison today.
Congress passed the 1996 law under which the Hammonds were convicted in response to the 1993 World Trade Center bombing in New York City and the 1995 federal building bombing in Oklahoma City in order to “deter terrorism.” Lawmakers did not have in mind a rancher’s efforts to eradicate noxious weeds or to prevent the spread of a lightning fire onto valuable crops.
That apparently did not matter to the U.S. Attorney’s Office in Oregon, the Bureau of Land Management, the Fish and Wildlife Service and officials who are supposed to provide adult supervision to prevent personal animus, agency vendettas and prosecutorial abuse.
“We didn’t think it could happen,” said Susie Hammond, the family matriarch. She is still trying to hold onto the ranch, upon which four local families other than the Hammonds rely. “We thought we lived in America where you have one trial and you have one sentencing.” She said that federal officials “just keep playing political, legal mind games with people and people’s lives.”
Now it’s up to President Trump to deliver justice to the Hammonds – something the federal government has long denied them.
William Perry Pendley is president of Mountain States Legal Foundation in Denver and author of "Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today" (Regnery, 2013).
