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After the Bundy acquittal, some surprising lessons of the Malheur occupation

A jury found all seven defendants were 'not guilty' on charges of conspiring to interfere with the duties of federal agents. What does the acquittal say about the battle for control of Western lands?

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    Ammon Bundy addresses the media at the Malheur National Wildlife Refuge near Burns, Oregon, Jan. 5, 2016, two days after taking over the refuge.
    Jim Urquhart/Reuters/File
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Ammon Bundy spent 10 hours over three days explaining to an Oregon jury how and why he, his brother Ryan, and a band of Western compatriots bore arms to occupy the Malheur National Wildlife Refuge for over a month last winter.

"I want to be clear," he said. "I proposed to them we go into the refuge and basically take possession of it and take these lands back to the people."

His determined testimony, centered on a uniquely American struggle over land use in the remote Mountain West, may well have swayed the 12 white jurors, who acquitted the six men and one woman. Another factor, a juror subsequently wrote, was the prosecutor’s allegation that an armed protest necessarily amounted to a deeper anti-government conspiracy.

On Thursday, all seven defendants were found not guilty on charges of conspiring to interfere with the duties of federal agents. To be sure, 26 others have already pleaded guilty in the occupation, often in return for testimony. And had prosecutors lodged misdemeanor trespass charges against the seven, they may well have stuck.

Nevertheless, the verdict  shocked many participants in and close observers of the Western land debate. Some worry that anti-government groups will be emboldened, pointing to a fundamental conflict over the view of federal power in the American West.

"I think there are a lot of lessons that can be learned from both sides to avoid this kind of conflict," State Sen. Jennifer Fielder (R) of Trout Creek, Mont., told the Ravalli Republic. "There are problems with federal land management that are impacting people’s lives in a profound way.... If the government doesn’t resolve them, people will."

The trial took many back to the 41-day occupation of the Malheur that ended Jan. 26 after authorities captured the key players, including Ammon and Ryan Bundy, as they traveled to a meeting off the refuge. One man, LaVoy Finicum, was shot as he reached for a gun.

The occupation gripped the nation, as the FBI stayed away from the compound while occupiers documented their protest on social media and to reporters who freely walked about the grounds. The FBI was trying to avoid another Ruby Ridge, but while the wait-em-out gambit ultimately paid off, it also may have undermined the government’s central case – that the presence of guns, and calls for armed back-up, sufficed as a conspiracy.

The Bundy plan was premised on the belief, based on various interpretations of Constitutional law, that state and county officials should control Western grazing lands, not Washington. Bundy told jurors that occupiers armed themselves so they wouldn't be immediately arrested, and also so they could fire back if the government attacked them.

That a jury took what appeared to be a free admission of guilt as sign of the occupiers’ innocence has riled many. Interior Secretary Sally Jewell said she was disappointed in the verdict. She urged federal field employees to stay alert, as patriot groups, such as the Oath Keepers, have been on the rise, going from a few hundred in 2008 to more than 1,000 today.

But there may be more profound lessons than increased caution, given what played out around the Malheur, and in the Portland courtroom.

Indeed, a quiet countervailing trend in the West – despite the occasional flare-ups of the “Sagebrush Rebellion" over the past century – is the extent to which most Western communities willingly enter into management partnerships with the federal government. Federal investments are usually welcomed, and local land managers are often open to compromise and new ideas. In many remote places of America, individual federal rangers are not seen as occupiers but as critical community members.

Indeed, most people in eastern Oregon criticized the Bundys for what were widely seen as counterproductive, if not illegal, protests. Few responded to Bundy’s repeated calls for armed backup for his occupation.

The verdict also reflects shifts around the largely peaceful movement in the West to re-think the role of federal officials in how the West is grazed and mined. The government owns nearly half the land in the West, compared to only four percent of land in the rest of the US. The verdict in the Malheur case, at least to some, highlighted the legitimacy of that debate, especially after Bundy testified that while county officials treated him with respect, federal officials saw him as a criminal.

On land management, the federal government has strayed from "constitutional anchors of state sovereignty and equal footing," State Rep. Keven Stratton, an attorney who co-chairs the Utah Commission for the Stewardship of Public Lands, told the Salt Lake Tribune. He said that clashes like the one at Malheur could be avoided by restoring balance between state and federal authority in the West’s resource-rich backcountry.

"We are at a critical crossroads in our country right now," he said. "We call for sensible civil dialogue in this area."

Federal officials have a role to play when conflicts spiral out of hand, as they have occasionally over land rights, fees, and the imposition of new regulations. But the jury also suggested that the case should serve as a stern rebuke to federal prosecutors about their overreach in assuming that guns are proof positive of conspiracy.

"All 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions, or aspirations," one juror said in a lengthy email to the Oregonian.

Matthew Schindler, the attorney for one of the charged occupiers, says overconfident prosecutors rushed a flawed case through. "When all you do is shoot fish in a barrel you come to think you’re a great fisherman, and you’re not," he told BuzzFeed.

The Bundys may still have lessons of their own to learn about the wisdom of testing the bounds of American justice. They are hardly out of the woods, as they still face major prison time for charges stemming from the 2014 armed standoff in at Bunkerville, Nev., orchestrated by patriarch Cliven Bundy. Prosecutors remain confident that they’ll get a conviction at that trial early next year.

"One jury victory for anti-government protesters does not mean future cases will necessarily go their way," warned the editorial board of the Pittsburgh Post-Gazette. "This absurd verdict in Oregon may stand as an outlier."

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