In this ongoing story surrounding cattle rancher Cliven Bundy, there are a series of questions media has ignored. For instance, in the 20 years Bundy hasn't been paying his fees, why hasn't he been taken to court? Why this year, spend nearly $1,000,000 of taxpayer money to round up 400 cattle that ultimately have to be returned? Why didn't the BLM just place a lien on the cattle rather than attempting to take them by force and then auction them off? The Bureau of Land Management has suffered a huge black eye this week because of their response to the Bundy situation. Perhaps though, there is a reason the BLM chose force over the courts.
In an exclusive interview with Benswann.com, Montana cattle rancher Todd Devlin says the BLM is now considering new ways of dealing with the Cliven Bundy situation. Devlin is not just a Montana cattle rancher, but is also a County Commissioner in Prairie County Montana. He has also worked with the Department of Interior, having taught workshops for the agency in the past. Monday, Devlin reached out to his contacts in the Department of the Interior to find out why the Bureau of Land Management has refused to work with Bundy rather than simply attempting to run over him.Among the questions Devlin asked of the BLM, "Is it possible that this guy (Cliven Bundy) has prescriptive rights?" The response from top officials at the BLM, "We are worried that he might, and he might use that defense."
So what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A's land to get to your land; a prescriptive easement is allowed which gives the user the right to get to his land through A's property.
In most states, if a trespass or use of land occurs regularly for at least 5 years without the "owner" of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993, but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.Granted, there have been court actions over the years. In 1998, a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the "trespass cattle" remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock.
Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn't recognize federal authority over the land. Bundy has said that in the past that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle."The actual number is probably around $200,000. The $1.1 million claimed by the BLM is probably mostly interest and penalties for trespass cattle." says Devlin, who goes on to say that it is unlikely that Clarke County would be able to collect those penalties.
When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle."Why don't you just let him pay them there (Clarke County)? I got a call back from the liaison saying 'Yes, pursue it.'" Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.
Finally, Devlin says instead of allowing the situation with Bundy's cattle to grow completely out of control, the BLM could have simply placed a lien on the cattle in the first place. Of course, that lien might have been rejected in court if Bundy were able to demonstrate those prescriptive rights. Then again, the courts so far have sided with the government; therefore, it is even more baffling why the lien wasn't placed on the livestock.Days after the BLM has claimed they will stand down, they are now reportedly considering a lien on the cattle,
"I asked why you didn't put a lien against the cattle?" Devlin asked the BLM. "They hadn't thought about that, but they are considering it now."Source: Freedom Outpost, April 16, 2014 http://freedomoutpost.com/2014/04/blm-worried-cliven-bundy-might-prescriptive-rights-might-use-defense-court/
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