United States of America v. Bundy

Filing 35

ORDER Granting 18 Motion for Summary Judgment. Denying as moot 28 Motion to Dismiss. Signed by Judge Lloyd D. George on 7/9/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Case No. 2:12-cv-0804-LDG-GWF

Plaintiff,

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v.

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CLIVEN BUNDY,

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Defendant.

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This matter comes before the court on the plaintiff United States’ Motion for

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Summary Judgment (#18, Opposition #28, Reply #30) and defendant Cliven Bundy’s Motion

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to Dismiss (#28, Opposition #30).

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I. BACKGROUND
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The United States filed a complaint on May 14, 2012, for injunctive relief to prevent
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Bundy’s alleged unauthorized and unlawful grazing of livestock on property owned by the
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United States and administered by the Secretary of the Interior, Bureau of Land Management
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and National Park Service, and for trespass damages.
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In an order dated November 3, 1998, this court permanently enjoined Bundy from
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grazing his livestock within a different area, the Bunkerville Allotment, and ordered Bundy
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to remove his livestock from the Allotment before November 30, 1998. U.S. v. Bundy, No. CV25
S-98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998). The court also ordered that the United States was
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entitled to trespass damages from Bundy for livestock left on the Bunkerville Allotment after

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such date.

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In its complaint, the United States alleges that, not only has Bundy failed to comply with

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the court’s orders that he remove his cattle from the Bunkerville Allotment and pay the financial

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penalties, but that Bundy’s cattle have moved beyond the boundaries of the Bunkerville

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Allotment and are now trespassing on a broad swath of additional federal land (the “New

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Trespass Lands”), including public lands within the Gold Butte area that are administered by

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the BLM, and National Park System land within the Overton Arm and Gold Butte areas of the

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Lake Mead National Recreation Area. The United States seeks an order enjoining Bundy’s

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unauthorized grazing on the New Trespass Lands.

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II. SUMMARY JUDGMENT
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Summary judgment may be granted when, viewed in the light most favorable to the
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non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
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Intel Corp. v. Hartford Acc. And Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991), “the
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pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, show that there is not genuine issue as to any material facts and that the
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moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v
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Catrett, 477 U.S. 317, 323 (1986). Summary judgment should be entered “against a party
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who fails to make a showing sufficient to establish the existence of an element to that party’s
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case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
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Summary judgment should not be granted if a reasonable jury could return a verdict for the
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non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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The moving party bears the initial burden of showing the absence of a genuine issue
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of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to
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set forth specific facts demonstrating a genuine factual issue for trial. Matsushita, 475 U.S. at
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588-87; Fed. R. Civ. P. 56(e). The non-moving party may not rest upon the mere allegations

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or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or

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other evidentiary materials provided by Rule 56(e), showing there is a genuine issue for

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trial. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e). The evidence of the non-moving party

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is to be believed, and all justifiable inferences are to be drawn in the non-moving party’s

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favor. Anderson, 477 U.S. at 255; Fed. R. Civ. P. 56(e).

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Bundy principally opposes the United States’ motion for summary judgment on the

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ground that this court lacks jurisdiction because the United States does not own the public

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lands in question. As this court previously ruled in United States v. Bundy, Case No. CV-S-

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98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998), “the public lands in Nevada are the property of the

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United States because the United States has held title to those public lands since 1848, when

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Mexico ceded the land to the United States.” CV-S-98-531 at 8 (citing United States v. Gardner,

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107 F.3d 1314, 1318 (9th Cir. 1997)). Moreover, Bundy is incorrect in claiming that the

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Disclaimer Clause of the Nevada Constitution carries no legal force, see Gardner, 107 F.3d at

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1320; that the Property Clause of the United States Constitution applies only to federal lands

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outside the borders of states, see id. at 1320; that the United States‘ exercise of ownership

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over federal lands violates the Equal Footing Doctrine, see id. at 1319; that the United States

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is basing its authority to sanction Bundy for his unauthorized use of federal lands on the

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Endangered Species Act as opposed to trespass, see Compl. at ¶¶ 1,3, 26-39; and that

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Nevada’s “Open Range” statute excuses Bundy’s trespass. See e.g., Gardner, 107 F.3d at 1320

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(under Supremacy Clause state statute in conflict with federal law requiring permit to graze

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would be trumped).

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Nor is there a legitimate dispute that Bundy has grazed his cattle on the New

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Trespass Lands without federal authorization. The United States has submitted Bundy’s

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deposition excerpts indicating that Bundy has grazed livestock on the New Trespass Lands

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and further evidence of the trespass of Bundy’s cattle in those areas. Notwithstanding

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Bundy’s contentions that the observed cattle bearing his brand may not in fact be his own,

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such a denial does not controvert Nevada law regarding prima facie evidence of ownership

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of branded cattle. In sum, in this most recent effort to oppose the United States’ legal

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process, Bundy has produced no valid law or specific facts raising a genuine issue of fact

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regarding federal ownership or management of public lands in Nevada, or that his cattle

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have not trespassed on the New Trespass Lands.

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III. INJUNCTIVE RELIEF
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The United States has established irreparable harm not only through the continuing
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nature of Bundy’s trespass, City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 12
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(1898); Newfound Mgmt. Corp. v. Lewis, 131 F.3d 108, 115 (3rd Cir. 1997), but because
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Bundy’s cattle have caused and continue to cause damage to natural and cultural resources
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and pose a threat to public safety. The United States has also demonstrated that the equities
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and the public interest strongly favor an injunction. The public interest is best served by
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having the federal lands managed without the presence of trespassing cattle on lands that
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are closed to grazing. The public interest is also best served by removal of trespassing cattle
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that cause harm to natural and cultural resources or pose a threat to the health and safety of
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members of the public who use the federal lands for recreation. The court finds that the
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public interest is negatively affected by Bundy’s continuing trespass.
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Moreover, the United States is entitled to injunctive relief as a matter of law once
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trespass on federal lands is proven. See United States v. Noguiera, 403 F.2d 816, 825 (9th Cir.
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1968). The same result followed in Gardner where this court held that the United States was
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entitled to injunctive relief to prevent a continuing trespass. 107 F.3d at 1403. Finally, the
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public interest is served by the enforcement of Congress’ mandate for management of the
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public rangelands, and by having federal laws and regulations applied to all citizens equally.
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IV. CONCLUSION
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IT IS HEREBY ORDERED that the United States’ Motion for Summary Judgment (#18)
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is GRANTED.
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IT IS FURTHER ORDERED that defendant Cliven Bundy’s Motion to Dismiss (#28) is
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DENIED as moot.
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IT IS FURTHER ORDERED that Bundy is permanently enjoined from trespassing on
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the New Trespass Lands.
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IT IS FURTHER ORDERED that the United States is entitled to protect the New
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Trespass Lands against this trespass, and all future trespasses by Bundy.
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IT IS FURTHER ORDERED that Bundy shall remove his livestock from the New
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Trespass Lands within 45 days of the date hereof, and that the United States is entitled to
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seize and remove to impound any of Bundy’s cattle that remain in trespass after 45 days of
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the date hereof.
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IT IS FURTHER ORDERED that the United States is entitled to seize and remove to
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impound any of Bundy’s cattle for any future trespasses, provided the United States has
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provided notice to Bundy under the governing regulations of the United States Department
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of the Interior.
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DATED this ____ day of July, 2013.
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________________________
Lloyd D. George
United States District Judge

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