This posting has been updated with comment from the U.S. Attorney's Office
Two eastern Oregon men got off too lightly for setting fires on their ranch that spread to government lands and should be re-sentenced, a federal appeals panel said in an opinion issued Friday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals determined that retired U.S. District Judge Michael Hogan illegally sentenced the father and son of the prominent Hammond ranching family in Harney County to terms below the five-year minimum.
“A minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard,” Judge Stephen J. Murphy III wrote in the opinion. The panel found that the case should be sent back to the district court for another sentence.
Both Dwight Hammond Jr., 72, and his son, Steven D. Hammond, 44, were found guilty in 2012 of intentionally and maliciously setting fires in September 2001 near Steens Mountain, where they leased public land for livestock grazing. The fire consumed 139 acres of public land, taking it out of production for two growing seasons, the court said in its decision.
In addition, Steven Hammond was found guilty of setting fires on Krumbo Butte in August 2006 on the boundary of the Hammonds’ land. Despite a burn ban, the court noted, he said he set them to counteract fires sparked by lightning nearby. The fire consumed one acre of public land, according to the decision.
Prosecutors sought the five-year mandatory minimum prison term for both men, but Hogan sentenced the father to three months in prison and the son to one year and a day. Both have completed their terms, a lawyer for the family said.
According to a transcript from the October 2012 hearing, Hogan said imposing the five-year term would violate Eighth Amendment protections.
The Hammond sentencings were Hogan's last before his retirement the following day after 39 years as a federal judge. “I will impose a sentence that I believe is defensible under the law, but also one that is defensible to my conscience,” he said at the hearing.
He said he didn't believe Congress intended for the five-year minimum to apply to fires set in the wilderness. “It just would not be – would not meet any idea I have of justice, proportionality,” he said according to the transcript.
But the appeals panel disagreed.
“Even a fire in a 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 in the opinion. He noted that a teenage relative of the Hammonds was nearly burned by the fire and pointed out the damage to grazing land as well.
“Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense,” the opinion states, in sending their cases back to the district court.
Kelly Zusman, the appellate chief for the U.S. Attorney's Office, applauded the decision. "The Hammonds' actions in setting all of those fires and endangering their teen relative and BLM firefighters fell squarely within the type of conduct Congress wanted to see punished with a five-year sentence," she said. "It's important that the public know that setting fires to public lands -- regardless of whether it's a building in a city or sagebrush in Eastern Oregon -- will result in federal jail time."
One of the attorneys for the Hammonds, Larry Matasar, said he is "very disappointed" by the opinion. He said he expects the Hammonds will ask the full 9th Circuit bench to reconsider the panel’s decision.
-- Helen Jung