Burning authorized, brief says, but fires spread

By MATEUSZ PERKOWSKI

Capital Press

Two ranchers accused of committing arson on public land in Eastern Oregon don't deny setting some of the fires, but claim they did it without malicious intent, according to a court document filed by their attorneys.

Dwight Lincoln Hammond Jr. and his son, Steven Dwight Hammond, also allege the most recent blazes they're accused of setting were actually started by federal employees or lightning and spread by wind.

The ranchers' attorneys, Lawrence Matasar and Marc Blackman, recently filed a court document that outlines their defense strategy for the upcoming criminal trial in Pendleton, Ore., on June 12.

The Hammonds have pleaded not guilty to a nine count indictment that claims they illegally set several fires between 1999 and 2006 on U.S. Bureau of Land Management property near their Diamond, Ore., ranch.

According to legal precedents, the government has to establish the Hammonds had malicious intent in committing the alleged offenses, the trial brief said.

Alleged arson committed by the Hammonds in 1999 and 2001 actually resulted from BLM-authorized fires on their private land that "escaped on to public land as a result of nothing worse than negligence," according to the trial brief.

The document said the Hammonds contacted BLM officials prior to lighting the fires on their property and were told there was no prohibition against burning in effect at that time.

The resulting fires spread onto BLM property but such "events are not uncommon in Eastern Oregon, where public and private lands often form a checkerboard configuration," the document said.

Agency officials originally deemed the 1999 and 2001 fires to be accidental but now characterize them as arson, the document said.

Any burning the defendants conducted during fires in 2005 and 2006 was "justified" because they were trying to prevent already-existing blazes from moving onto their property, the document said.

Evidence that their actions actually caused any fire on public land is also expected to be disputed, according to the trial brief.

As for other fires in 2006, the Hammonds expect to show the actual sources were natural events and "BLM employees using drip torches and other means," the document said.

The federal government also accuses Steven Dwight Hammond of illegally tampering with a witness by using "intimidation and threats" against a BLM employee.

According to the indictment, Hammond told the employee that "if I go down, I'm taking you with me. ... You lighted those fires, not me."

According to the defendants' trial brief, the alleged statements were not a "true threat" -- expressing the intent to harm or assault -- or an attempt to "corruptly persuade" the official -- for example, by rewarding silence.

"It was constitutionally protected speech in response to the false accusation that Steven Hammond and his father were responsible for the fire and that he would soon be arrested for arson," the document said.

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