Resentencing ordered of Harney County ranchers

By Dylan J. Darling The Bulletin Published Feb 26, 2014 at 12:01AM

A panel of federal appeals court judges has ordered a district court to resentence a pair of Harney County ranchers for intentionally starting grass fires.

Steven Hammond, 45, and his father, Dwight Hammond Jr., 72, have already served time for fires set on their ranch that spread to public land near Steens Mountain, but the panel from the 9th U.S. Circuit Court of Appeals says it wasn’t enough. The panel vacated their sentences earlier this month and remanded them for resentencing.

“The panel held that the district court illegally sentenced the defendants to terms of imprisonment less than the statutory minimum,” acting appellate judge Stephen Murphy wrote in the panel’s opinion. Federal law requires a minimum sentence of five years for anyone who damages or destroys public property with fire.

The Hammonds responded Friday by asking for a new hearing before all 11 judges in the court, arguing the panel overlooked crucial facts. The Hammonds’ attorneys say the government didn’t fight for stiffer sentences during sentencing and that the government waived its right to appeal in reaching a plea agreement.

“Imposing the five-year term on either defendant will result in gross injustice,” their attorneys wrote in the request. They wrote that Congress added the five-year minimum to an existing arson crime as part of an effort to combat terrorists.

“I was disappointed” in the appeal panel opinion, Lawrence Matasar, attorney for Steven Hammond, said Tuesday afternoon.

Each year the Ninth Circuit Court of Appeals receives upwards of 5,000 requests for a new hearing before all the court’s judges, said Kelly Zusman, appellate chief for the U.S. attorney’s office in Oregon.

The judges only hear about 1 percent of those requests.

“They grant very, very few,” she said.

The Hammonds also have the option to appeal to the U.S. Supreme Court, Zusman said.

Steven Hammond was convicted of two counts of maliciously damaging federal property with fire and Dwight Hammond of one count of the same charge, according to the opinion.

Although the convictions have minimum five-year sentences, District Judge Michael Hogan ordered shorter sentences after citing Eighth Amendment concerns. The amendment bars the federal government from imposing excessive punishment. He sentenced Steven Hammond to a year and a day in prison and Dwight Hammond to three months.

The Hammonds’ ranch, Hammond Ranches Inc., started up in 1964, and attorneys for the family argue the men are of the “highest caliber, not only hard-working and fair in their dealings, but generous to others.”

The Hammonds lease land from the Bureau of Land Management and were warned in 1999 that they were not allowed to burn without approval from the agency. The warning came after a fire Steven Hammond started escaped onto public land, according to the opinion. Despite the warning, the Hammonds set a fire in 2001 on their land that spread to public land, burning 139 acres.

In August 2006 a lightning storm started several fires close to where the Hammonds grew winter feed, according to the opinion. Steven Hammond lit back burns near the boundary of the land despite a burn ban. The fires he set went on to burn an acre of public land.

The U.S. attorney’s office filed suit for the 2001 and 2006 fires in June 2010 and Judge Hogan sentenced the Hammonds on Oct. 30, 2012, according to court records. Along with expressing concerns about the Eighth Amendment, Hogan explained he deviated from the minimum sentences because Congress probably didn’t intend for the sentences to cover fires in the wilderness.

The appeals panel disagreed.

“Even a fire in remote area has the potential to spread to more populated areas, threaten local property and residents, or endanger the firefighters called to battle the blaze,” Murphy wrote. “…Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense.”

— Reporter: 541-617-7812, ddarling@bendbulletin.com