United States v. Bundy

• Decision Date: 09 July 2013
• Docket Number: Case No. 2:12-cv-0804-LDG-GWF
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. CLIVEN BUNDY, Defendant.
• Court: U.S. District Court — District of Nevada

UNITED STATES OF AMERICA, Plaintiff,

v.CLIVEN BUNDY, Defendant.

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

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: July 9, 2013

This matter comes before the court on the plaintiff United States' Motion for Summary Judgment (#18, Opposition #28, Reply #30) and defendant Cliven Bundy's Motion to Dismiss (#28, Opposition #30).

I. BACKGROUND

The United States filed a complaint on May 14, 2012, for injunctive relief to prevent Bundy's alleged unauthorized and unlawful grazing of livestock on property owned by the United States and administered by the Secretary of the Interior, Bureau of Land Management and National Park Service, and for trespass damages.

In an order dated November 3, 1998, this court permanently enjoined Bundy from grazing his livestock within a different area, the Bunkerville Allotment, and ordered Bundy to remove his livestock from the Allotment before November 30, 1998. U.S. v. Bundy, No. CV-S-98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998). The court also ordered that the United States wasentitled to trespass damages from Bundy for livestock left on the Bunkerville Allotment after such date.

In its complaint, the United States alleges that, not only has Bundy failed to comply with the court's orders that he remove his cattle from the Bunkerville Allotment and pay the financial penalties, but that Bundy's cattle have moved beyond the boundaries of the Bunkerville Allotment and are now trespassing on a broad swath of additional federal land (the "New Trespass Lands"), including public lands within the Gold Butte area that are administered by the BLM, and National Park System land within the Overton Arm and Gold Butte areas of the Lake Mead National Recreation Area. The United States seeks an order enjoining Bundy's unauthorized grazing on the New Trespass Lands.

II. SUMMARY JUDGMENT

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

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to set forth specific facts demonstrating a genuine factual issue for trial. Matsushita, 475 U.S. at588-87; Fed. R. Civ. P. 56(e). The non-moving party may not rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials provided by Rule 56(e), showing there is a genuine issue for trial. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e). The evidence of the non-moving party is to be believed, and all justifiable inferences are to be drawn in the non-moving party's favor. Anderson, 477 U.S. at 255; Fed. R. Civ. P. 56(e).

Bundy principally opposes the United States' motion for summary judgment on the ground that this court lacks jurisdiction because the United States does not own the public lands in question. As this court previously ruled in United States v. Bundy, Case No. CV-S-98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998), "the public lands in Nevada are the property of the United States because the United States has held title to those public lands since 1848, when Mexico ceded the land to the United States." CV-S-98-531 at 8 (citing United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir. 1997)). Moreover, Bundy is incorrect in claiming that the Disclaimer Clause of the Nevada Constitution carries no legal force, see Gardner, 107 F.3d at 1320; that the Property Clause of the United States Constitution applies only to federal lands outside the borders of states, see id. at 1320; that the United States' exercise of ownership over federal lands violates the Equal Footing Doctrine, see id. at 1319; that the United States is basing its authority to sanction Bundy for his unauthorized use of federal lands on the Endangered Species Act as opposed to trespass, see Compl. at ¶¶ 1,3, 26-39; and that Nevada's "Open Range" statute excuses Bundy's trespass. See e.g., Gardner, 107 F.3d at 1320 (under Supremacy Clause state statute in conflict with federal law requiring permit to graze would be trumped).

Nor is there a legitimate dispute that Bundy has grazed his cattle on the New Trespass Lands without federal authorization. The United States has submitted Bundy's deposition excerpts indicating that Bundy has grazed livestock on the New Trespass Landsand further evidence of the trespass of Bundy's cattle in those areas. Notwithstanding Bundy's contentions that the observed cattle bearing his brand may not in fact be his own, such a denial does not controvert Nevada law regarding prima facie evidence of ownership of branded cattle. In sum, in this most recent effort to oppose the United States' legal process, Bundy has produced no valid law or specific facts raising a genuine...