Far-right “constitutionalist” theories—the kind claiming that the U.S. Constitution’s text places severe limits on the power of the federal government, handing supreme power to local authorities—have been around for decades, but their multifarious claims and arguments have never been acknowledged by any American court, nor has their legitimacy ever been recognized by any federal or state authority. Until now.
The Trump administration has been quietly empowering far-right extremist ideology on public lands in the West, two recent investigative reports inform us. Under a policy declared last November by Bureau of Land Management acting chief William Perry Pendley, the BLM now defers enforcing the law to local “constitutionalist” sheriffs, creating widespread chaos and environmental destruction.
Christopher Ketcham’s recent profile of Pendley in The New Republic laid bare the open hostility the man in charge of America’s largest portfolio of public lands has toward their very existence. The resulting policy, as another report from Type Investigations and Politico lays bare, has led the BLM to repeatedly ignore its own regulations, leading to “a culture of lawlessness” in the West.
Trump himself sent a clear signal fairly early on in his presidential tenure that he was sympathetic to “constitutionalist” claims when he issued a pardon for two Oregon ranchers, Dwight and Steven Hammond. The two men’s ongoing battle with the BLM had long been a focus of antigovernment groups’ recruitment efforts, culminating with the early 2016 standoff between federal authorities and a group of “constitutionalists” who led an armed takeover of the Malheur National Wildlife Refuge.
A number of observers, including Rep. Raul Grijalva, worried at the time that the pardon would signal an open season on federal lands managers by far-right extremists, “writing a blank check to a dangerous ideology.” As these more recent reports make clear, Pendley’s appointment as BLM chief has ensured that those fears are becoming manifest.
Pendley, who for years has overseen former Reagan Interior Secretary James Watt’s old organization, the Coors-funded Mountain States Legal Foundation, ascended to the directorship of the BLM in July and August 2019. In the ensuing years, the MSLF has become even more extreme in its positions. At various times, Pendley has argued that the federal government has no right to own public lands, mirroring “constitutionalist” beliefs. He also has attacked the Endangered Species Act, claiming it seeks “to kill or prevent anybody from making a living on federal land.”
As Ketcham’s profile explores, Pendley’s appointment has not been approved by Congress (he is still officially the BLM’s acting director) and faces legal challenges from environmental groups, who see his tenure as “akin to naming a notorious arsonist as chief of the local fire department.”
Conceding the claims of “constitutionalist” sheriffs, as Ketcham explores, is extraordinarily worrisome in a very real sense:
“That stuff Pendley said about being subservient to sheriffs is downright dangerous,” John Freemuth, the Cecil Andrus endowed chair of Environment and Public Lands at Boise State University, told me. “When you’re a BLM ranger out there in the middle of nowhere, and you run into these crazy public lands people, like the followers of the Bundys, I wonder what’s going to happen when they say, ‘Your boss says you’re subservient, and I’m going to do whatever I want, and you’re not going to stop me.’ It’s one of the most irresponsible things I’ve seen in public lands management.”
The nexus of the law enforcement problem is the Constitutionalist Sheriffs and Peace Officers Association, a far-right group that has been steadily recruiting sheriffs, deputies, and other police officers into their “constitutionalist” belief system. The CSPOA contends, like all such “radical localism” ideologues, that the county sheriff, and not any federal agency, is the highest law-enforcement authority in the land.
These beliefs, as the Southern Poverty Law Center’s disturbing investigation of the CSPOA’s reach explained, originated with the Posse Comitatus, a profoundly racist and anti-Semitic organization of the 1970s and ‘80s whose ideas had a kind of underground currency in rural America for awhile. The Posse’s leaders preached that the Constitution limited the federal government’s powers to raising a military and conducting foreign policy. The intent, as always, was to restrict if not nullify the government’s ability to enforce civil rights laws, as well as gun control laws, land use, and a host of other policies. In the end, the Posse was urging its followers to ready themselves for acts of terrorism and guerrilla warfare.
Later “Patriot” movement ideologues—notably far-right LDS Church figure W. Cleon Skousen, as well as such 1990s militia figures as the Militia of Montana and the Montana Freemen—sold a regurgitated form of Posse ideology that largely whitewashed away the underlying racism and anti-Semitism. It was this version of “constitutionalism” that CSPOA leader and founder Richard Mack, who led efforts to form “citizen militias” in the 1990s as a gun-control-resistance measure, adopted and sells to his followers and supporters including Cliven Bundy and former Fox News figure David Clarke.
Ketcham quotes Dennis McLane, a retired deputy chief of law enforcement at BLM, who explained that county sheriffs allied with the CSPOA would “serve as the local vanguard” for this national campaign to gut federal lands law enforcement. “In many western counties,” McLane said, “the sheriffs would use their newfound authority to just ignore the enforcement of federal resource laws.”
As Kethcam notes, this means “it would be a free-for-all of extractive interests engaging in lawless behavior for maximum profits—the vision of James Watt and the MSLF.”
The Politico/Type Investigations story explores how this reality is creating chaos on the ground in places like rural Nevada, where lithium and other mining projects are proceeding apace with full BLM approval despite multiple clear violation of federal regulations. It focused on a whistleblower in a Nevada BLM office who filed a complaint charging that “the laws of the United States are being disregarded for the professional expediency of his superiors and the benefit of private parties, and that a culture of lawlessness has been engendered.”
The centerpiece of the investigation is a lithium mine project that has become embroiled in multiple lawsuits by environmentalists frustrated by the BLM’s deliberate refusal to enforce federal laws. “This is the Wild West out here,” the whistleblower told reporter Adam Federman. “You can kind of do what you want. And these guys are doing it.”
“In this administration, we have seen the doors to our public lands be thrown wide open to industry by the BLM avoiding and subverting any environmental protections we have on the books,” an attorney for one of the environmental groups said. “Sometimes that is through sweeping secretarial orders upending management of public lands but sometimes it’s just guys at their job trying to make the boss happy.”
Published with permission from Daily Kos.