Why LaVoy Finicum spurned the government

By Phil Taylor | 02/05/2016 01:03 PM EST

Before he renounced his grazing fees and helped lead an illegal occupation of the Malheur National Wildlife Refuge, the late LaVoy Finicum was an upstanding rancher in the eyes of the Bureau of Land Management. The turning point came when Finicum decided that he — not the American taxpayer — owned the northern Arizona grass that fed his cows.

Before he renounced his grazing fees and helped lead an illegal occupation of Malheur National Wildlife Refuge, LaVoy Finicum was an upstanding rancher in the eyes of the Bureau of Land Management.

The turning point came when Finicum decided that he — not the American taxpayer — owned the northern Arizona grass that fed his cows.

Finicum’s decision last August to turn his cattle onto federal pastures north of the Grand Canyon two months too early and to refuse to pay for the forage was the first time he had ever been "crosswise" with the BLM, he said. It came more than a year after he joined rancher Cliven Bundy’s standoff against the BLM in Nevada.


"To this day, I do not have a speeding ticket," Finicum said last August in a video he shot of himself in a grassy pasture on his "Tuckup" grazing allotment south of his home in Cane Beds, Ariz. "So it’s not in my nature to go out and poke my finger in people’s eyes."

Finicum was shot and killed by Oregon State Police on Jan. 26 during a traffic stop north of Burns, Ore., as police sought to arrest Ammon and Ryan Bundy, the ringleaders of the Malheur occupation, and a few of their alleged co-conspirators.

Finicum, who is being hailed as a martyr among hard-line anti-federal-lands activists, will be honored in a memorial service today in Kanab, Utah. The father of 11, a devout Mormon who enjoyed teaching children to ride horses and brand cattle, died a day before turning 55.

But what drove a man whom friends described as gentle and law-abiding to defy BLM and join an armed takeover of a federal building?

Finicum’s motivations appear rooted in both a practical concern over the BLM grazing restrictions and a belief that the public resources belong to him.

It’s a school of thought also embraced by the Bundy family and others in the militant wing of the movement to transfer federal lands to local control. In contrast, other transfer proponents are looking to the courts and Congress — largely focusing on the legislation that established each state — to achieve the same ends.

‘Natural’ law

First, the grass.

Finicum, who was allowed to run roughly 150 cattle on his allotment, complained last August that his BLM permit only allowed him to graze cows between October and May. "My cows need some pasture," said Finicum, who panned the video camera across a sea of grass that he argued was ready to be grazed.

According to David Johnson, 74, a rancher from Moccasin, Ariz., who is a family friend, Finicum had no problems with his local BLM range regulator. But when Finicum proposed a compromise to BLM under which he could run fewer cattle, but year-round, he was turned down, Johnson said.

"I think that’s the straw that broke the camel’s back," Johnson said. "He decided he’d just fire [BLM] and run it like he needed to."

Lavoy Finicum
Finicum, shown last August on his “Tuckup” allotment, announces that he will no longer comply with federal grazing laws. | Photo courtesy of YouTube.

But Finicum went further by insisting that the grass on the Tuckup allotment was his property. That view is also embraced by some other area ranchers, including Johnson, who are considering following Finicum’s lead in refusing to pay their fees.

That stand is wrong, according to BLM, a handful of Supreme Court rulings and most legal scholars.

"I sent a letter to the BLM saying, ‘Thank you so much for your help in managing my ranch,’" Finicum said in his YouTube video, referring to an Aug. 10 letter. "’I shall no longer need your help. I shall manage it myself.’"

In early August, after spotting Finicum’s cows on the range before they were permitted to be there, BLM contacted him by phone and sent a notice of trespass Aug. 24 asking him to remove them. On Oct. 22, BLM sent him a "notice of proposed decision" saying he was in "willful trespass."

He racked up $12,000 in trespass fees, and at last count there were 48 cattle on the allotment, BLM said. His previous year’s grazing tab was $1,126, which he paid.

To Finicum, the administrative steps were irrelevant.

He claimed that he acquired his grazing rights under "common" or "natural" law that operates independent of the U.S. Constitution.

Essentially, whoever first used a resource like grass, trees or minerals gets to own it as long as it’s being beneficially used. That’s similar to how Western states grant rights to water under a doctrine known as "prior appropriation."

"We all know this naturally because, for example, we know about lines," Finicum said in the video. "When you’re the first one in line, everyone can see that."

Finicum said he inherited century-old rights when he bought his ranch.

"The point is, [BLM claims] this is theirs," he said. "And I claim that the forage right, the grass, is mine."

That claim is buoyed by Finicum’s unorthodox reading of the Constitution — shared by the Bundys — that said the federal government is only allowed to own lands for narrow purposes such as national defense. He, like other land transfer proponents, believed the federal government was obligated to give lands to states when they were established.

Those views would render moot the current laws Congress passed to govern grazing on federal lands.

Grazing cut by half

In the 1800s, when the Western range was essentially open to all, speculators took advantage of what appeared to be an endless supply of forage that could be utilized with minimal cost. Livestock herds grew from 9 million cows and sheep in 1870 to five times that number at the turn of the century, according to BLM.

With the range severely crowded and depleted — and ranchers needing assurances that their forage would be protected — Congress in 1934 passed the Taylor Grazing Act.

The act was intended "to stop injury to the public grazing lands by preventing overgrazing and soil deterioration" and "provide for their orderly use, improvement, and development."

It tasked the Interior Department with creating grazing districts on unclaimed public lands and issuing grazing permits and collecting fees. It said issuance of a grazing permit is a "privilege" that shall be "safeguarded" but "shall not create any right, title, interest, or estate in or to the lands."

In 1976, the Federal Land Policy and Management Act required BLM to manage the lands for more uses, including conservation, and laws such as the National Environmental Policy Act and Endangered Species Act placed grazing decisions under more scrutiny.

As a result, BLM has reduced the level of authorized grazing by more than half over the past 60 years.

"Livestock grazing, as a legitimate use of public lands, is increasingly competing with other legitimate uses of public lands, such as recreation, wildlife habitat, riparian management, endangered species management, mining, hunting, cultural resource protection, wilderness, and a wide variety of other uses," BLM says on its website. "There are increased expectations from the public to reverse unacceptable livestock impacts on public lands."

That angers ranchers like Finicum and Cliven Bundy. Bundy, incidentally, was asked by BLM decades ago to remove some of his cows to protect the federally threatened desert tortoise but refused.

"I’ve met with ranchers after ranchers that are being oppressed, cut back, threatened," Finicum said.

But contrary to Finicum’s claims, there’s no credibility to the argument that ranchers can own public resources like grass, legal scholars said.

"None, zilch, nada," said John Leshy, who served as Interior’s top lawyer during the Clinton administration. "The Congress, the courts and the executive branch have all rejected such claims going back over a century and continuing right to the present."

David Hayes, who was Interior’s deputy secretary under the Clinton and Obama administrations, said there’s no legal question over whether the United States can own lands and decide how they are used for private profit.

In addition, "there is no legal ‘prior appropriation’ concept applied to land ownership in the West," he said. "American Indian tribes will readily — and sadly — confirm that."

The federal government first gained title to lands in the West through treaties with foreign powers, including the Louisiana Purchase, the Oregon Compromise and the Treaty of Guadalupe Hidalgo — before the creation of Western states.

On at least half a dozen occasions dating back to the 1890s, the Supreme Court has ruled that the government’s authority to regulate public lands, as well as wildlife and activities on them, is "without limits," said Robert Keiter, a professor at the University of Utah’s S.J. Quinney College of Law who has written extensively on the issue.

It’s unclear whether the arguments of Finicum, the Bundys and other self-described constitutionalists are catching on among ranchers and others who may support transferring federal lands. Also unclear is whether more will mimic their decisions to violate federal laws.