Critical mass in southern Utah
Photo: makelessnoise / CC BY 2.0

Radical Utah financier Bert Smith, of Smith and Edwards fame, has been involved in almost every facet of the LDS theological, John Birch Society constitutional, anti-public lands racket for 40 years, from the Sagebrush Rebellion in the 1970s to the by W. Cleon Skousen Constitutions that were in the militants’ pockets at the takeover of Malheur National Wildlife Refuge in 2016.

Smith’s influence in inciting these western anti-public lands and rancher revolts, particularly in Utah, cannot overstated. He is the primary benefactor to what is usually thought of as a mostly Koch-funded American Lands Council. He funds several radical constitutional organizations associated with the John Birch Society like Freedom 21, the National Center for Constitutional Studies, and the current Storm Over Rangelands Workshop tour.

Utah Attorney Todd MacFarlane actively supported ranching scofflaws Cliven Bundy, Wayne Hage, Mary Bulloch, and LaVoy Finicum. He now represents the Finicum family and, working with Smith, is engaged in a dangerous game of recruiting ranchers, miners, and other federal “permittees” to sign a pledge document to boycott paying their fees. LaVoy Finicum pitched the same cowboy revolt in November 2015, one that included the provision that when the federal government takes action, ranchers were offered a variety of militant services that would come to protect them during their own future standoff

MacFarlane and Smith hatched the workshops on Jan. 16 at the Eagle Forum, a Utah theo-constitutional Republican group funded by Smith that also involves a number of influential state and federal legislators. This coordination meeting was one week after MacFarlane met with Finicum in Malheur on Jan. 8 and only three days after Finicum traveled to Cedar City on Jan 13, gave a radio interview, and met with Iron County Commissioner David Miller. To date, it is unknown if the FBI had contacted Commissioner Miller to ask who attended his meeting with Finicum. Was Todd MacFarlane in attendance?

The first workshop was held on Jan. 23 in Cedar City. Deemed a “dress rehearsal,” it was set up like any marketing endeavor, complete with books to take or buy, thanks to Bert and his money, and pleas from an unpublished, untenured pseudo-academic and his legally untested dissertation that asserts he knew the property rights of ranchers in the west. With images of Finicum and the Bundys at Malheur, MacFarlane consistently returned to the term “critical mass,” a well-known proverb of community organizing.

What is critical mass? An excerpt from “Critical Mass Theory” by Pamela Oliver explains.

“The term ‘critical mass’ originates in nuclear physics, as the smallest amount of fissile material needed to sustain a nuclear chain reaction. As analogy or metaphor the term has diffused into popular culture and social science and is widely used to refer to any context in which things change after a certain number of people get together or enter a setting. … Social movement activists and scholars often use ‘critical mass’ in a loose metaphorical way to refer to an initial group of protesters or actors that is big enough to accomplish social change.”

For MacFarlane — and, at the time, Finicum — critical mass for Malheur meant a certain number of federal permittees who sign pledges to boycott paying for their permits. The exact number of ranchers to reach that mass is something they can determine.

Eight ranchers came out of the Cedar City Workshop having signed the pledge with two from other states announced the same day in a Malheur press-signing ceremony. On Jan. 24, LaVoy Finicum called these pledges “Emancipation Proclamations” and seemed quite encouraged by the news while indicating that the FBI was becoming more hawkish regarding their occupation.

On Jan. 25, Sen. Ron Wyden of Oregon said he had met with FBI Director James Comey, stating that the “virus was spreading.” This virus and increased presence very well could have been a result of this long-term strategy of continual untenable rancher standoffs being planned for and executed by Finicum, MacFarlane, Smith, and others.

On Jan. 26, the standoff at Malheur effectively ended, with the arrest of the command and the death of Finicum. A total of 25 people as of the time of this writing have been indicted for their involvement in either or both the 2014 Bunkerville and 2016 Malheur standoffs, and sources say there are current, sealed federal indictments that were filed Jan. 26 in Salt Lake City.

MacFarlane adapted, and the Storm Over Rangelands tour went on as planned, adapting to the changing circumstances. There have been five workshops to date as of the time of this writing: Cedar City, (Jan. 23); Junction, Utah (Jan. 28); Boise, Idaho (Jan. 30); Kanab, Utah (Feb. 6); and Richfield, Utah (Feb. 18). A total of 10 ranchers are known to have signed the pledge. However, a source who attended Utah State Legislature’s “Rural Caucus” session on Feb. 12 was told there were more than 50.

Understand that the legal requirements of administrative due process for enforcement action against a federal permittee for trespassing or any other violation takes time. It entails a series of letters and accrued penalties, then legal action, and finally judicial decision. This process can take years, over 20 in the case of Cliven Bundy. Finicum himself had just begun the process, his family now facing over $12,000 in penalties and fees.

Because the administrative process for permit enforcement is a long one that must comply with the Administrative Procedures Act, land management and law enforcement agencies that have boycotting ranchers in their jurisdictions can expect to face years, perhaps decades, of individual Malheur/Bundy standoffs spread throughout the West — mostly in Utah, and it seems soon in Paiute County.

At the Rural Caucus event, Sheriff Marty Gleave of Piute County stated that he told the U.S. Forest Service he would use his deputies to drive cattle for a permittee to their allotment if they didn’t allow the rancher to do so. Additionally, the January Piute County Commission meeting minutes indicate that Gleave threatened USFS officials with arrest if they took action to impound the cattle of an out-of-permit-compliance rancher.

In a radio interview last August, Finicum described how he, Cliven, and Piute County rancher Stanton Gleave made a pact to come to each other’s aid. Appearing to make good, Gleave is one who signed MacFarlane’s pledge in Cedar City. As with Sheriff Gleave, Stanton was also a speaker at the Rural Caucus, waving a Skousen Pocket Constitution and saying, “They tell me there’s no law above that Sheriff of the County … so it’s very important we back the Sheriff. He can protect us and deputize every man and woman in the county if he has to.”

It is important to remember that the Malheur standoff leadership did not have a Constitutional Sheriffs and Peace Officers Association “constitutional” sheriff in Harney County and were confronted on their way to what they considered safe haven in neighboring Grant County, where CSPOA Sheriff Glen Palmer was considered a supporter. Sheriff Palmer is now facing official state complaints and may lose his law enforcement certification.

The Next Step

Theo-constitutionalism seems to have reached critical mass in southern Utah. This can be seen most directly with the Bundys and their standoffs and with sympathizing central and southern Utah ranchers. It can also be seen through the local, state, and federal politician rhetoric, legislation, and direct activism.

It appears that Todd MacFarlane and Bert Smith are coordinating a long-term strategy of continual untenable uprisings, primarily in their home state with the support of local elected leaders, including a few sheriffs to boot. An opportunist, it appears MacFarlane is executing a plan using a radical financier’s money to reach yet another level of critical mass, this time one with far-reaching and long-term implications.

There is very little hope that MacFarlane will be able to deliver both the legal and financial resources required to undertake such an endeavor for even a few dozen scofflaws. MacFarlane is peddling hope like Elmer Gantry to a susceptible lot who in the future will no doubt face serious legal and financial consequences that jeopardize the hereditary nature of their businesses. Serious consequences lie ahead for any pledge signatory.

Perhaps a more important immediate question for MacFarlane, Smith and Miller: Were they aiding and abetting in the Bundy/Finicum Malheur conspiracy?  At one point in the Malheur standoff, I criticized the federal government for not securing the perimeter of the refuge from the start. Militants were allowed free travel to recruit for and execute a long-term plan that had the potential for serious blowback. Surely, Finicum and his ability to travel to Utah had become a critical event. I have since come to the conclusion that allowing free travel was, perhaps, a good strategy only if the allowance was part of gathering intelligence for future conspiracy indictments.

The Utah Farm Bureau and Public Lands Office held a grazing conference in Richfield, Utah, on Feb. 18 whereby among presenters were both Assistant Attorney General Tony Rampton and MacFarlane. Rampton, who attended the November Finicum rancher recruitment session, reiterated his prior stance that if ranchers decide to accept MacFarlane’s snake oil without legal merit they should be prepared to accept the consequences, pleading, “You can believe whatever you want to believe… . Don’t rely on statements made by people who have no legal duty to you.”

MacFarlane scoffed and proceeded to hold yet another rancher recruitment session after the grazing conference ended.

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