Ammon Bundy had intended refuge occupation to end up in civil court, lawyers say

Oregon Live – by Maxine Bernstein

Ammon Bundy led the occupation of the Malheur National Wildlife Refuge intending to force a civil court to take up the constitutionality of federal land management policy, his lawyers contend in new court papers filed Monday.

He had expected the government to issue an eviction or ejection claim instead of arresting and indicting the occupiers on federal charges in criminal court.  

But as he now sits in a Multnomah County jail facing conspiracy and weapons allegations, he’s asking the court to dismiss the indictments, arguing that the federal government lacks jurisdiction over the land that includes the wildlife sanctuary in eastern Oregon’s Harney County.

“The Malheur protest was aimed at raising this issue,” his lawyers Mike Arnold and Lissa Casey wrote in the court documents. “Defendant Ammon Bundy organized his fellow citizens in protest of the expansive and unsupported interpretation of the Constitution that purports to allow the federal government to own and control more territory, and exercise jurisdiction over more land in the Western States, than the States themselves.”

Bundy, 40, is one of 27 people facing federal indictment stemming from the 41-day occupation of the refuge outside Burns. He’s pleaded not guilty to charges of conspiring to impede federal officers from doing work at the refuge through intimidation, threats or force, possession of a firearm or dangerous weapon at a federal facility and using and carrying a firearm in the course of a violent crime.

His lawyers assert that Bundy isn’t a member of any militia, isn’t an extremist and doesn’t hold anti-government views — underlining each contention in bold type in their 33-page motion and memorandum filled with lengthy footnotes.

They characterize Bundy as a constitutional originalist who adheres to similar philosophies as U.S. Supreme Court Justice Clarence Thomas, the late Supreme Court Justice Antonin Scalia and Supreme Court nominee Robert Bork. They contend Bundy didn’t lead an armed takeover of the refuge, but organized an “act of civil disobedience” to lay claim to the land.

“It is from Ammon’s understanding of federalism and his genuine belief in originalism, coupled with his own personal life experiences, that he, like a growing body of significant thinkers across the United States, has challenged the federal government’s overreach, speaking out against its attendant injustices, and rallying attention to the core question of federal land ownership and related abuses,” they wrote.

They contend that it wasn’t until an impromptu meeting after a Jan. 2 rally in Burns in support of two Harney County ranchers that Bundy, his brother, Ryan Bundy, Robert “LaVoy” Finicum and others formed the Citizens for Constitutional Freedom group and planned to take over the refuge in a “lawful adverse possession claim.”

Federal prosecutors previously have argued that Ammon Bundy’s actions at Malheur weren’t “born out of impulse” but were “deliberate and designed to undermine authority at every stage.”  They’ve alleged that Ammon Bundy and co-defendant Ryan Payne visited Harney County Sheriff Dave Ward last fall and urged the sheriff to protect Burns area ranchers Dwight Hammond Jr. and his son, Steven Hammond, from returning to prison on federal arson charges.

Payne and Bundy told the sheriff that if the Hammonds spent one more day in jail, there would be “extreme civil unrest,” a federal complaint said. By mid-December, a video titled “Time for some camping” was posted on a Facebook community page called “Harney County Liberty News.” It showed a man announcing that he was doing some “tactical camping” in Harney County and posing outside a “Hammond Ranch Rd.” sign, the complaint says. They allege Bundy and his followers participated in an armed takeover of the refuge and refused government demands to leave the property.

According to Ammon Bundy’s new legal filings, the occupiers notified the Harney County Sheriff’s Office shortly before they secured the refuge property and buildings and renamed it “The Harney County Resource Center.” They contacted a utility company seeking to take over the electric and other services and maintained the perimeter to control those who entered and left.

The “visible display of armed and organized militia” at the refuge was for “lawful protection and political speech,” his lawyers wrote in a footnote. The occupiers didn’t intend to close off the refuge property, but formed a welcome committee to invite the public to visit and drew elected officials, his lawyers wrote.

They argue that the government’s bias and “hyperbole,” as well as the media’s “shallow and uninformed” portrayals of their client, have tainted Bundy’s actions and those of his followers.

“Rather than seek legal expulsion, ejectment or eviction, government employees instead went first to the media, and sought to silence and discredit the protest, disingenuously labeling Mr. Bundy and other protestors, extremists and dangerous,” his attorneys wrote.

While federal agents took action to “forcefully end” the Malheur occupation, “it did not end the protest,” his lawyers wrote.

Federal agents and state police arrested Bundy and other leaders of the occupation on Jan. 26 as they were driving from the refuge to a community meeting in John Day. Occupation spokesman Robert “LaVoy” Finicum was fatally shot by police after he tried to evade officers, swerved into a snowbank at a police roadblock. He jumped from his truck with his hands up, but then reached at least twice into his jacket and was shot, according to the FBI. State police feared he was reaching for a handgun, according to police reports. He was found with a 9mm Ruger semi-automatic handgun in his left jacket pocket, investigators said.

“The use of force cannot answer the present question, nor stop the national debate about federal government overreach and the treatment of rural America under the thumb of the BLM (Bureau of Land Management) and USFWS (U.S. Fish & Wildlife Service),” the motion states.

In footnotes, Bundy’s lawyers wrote that their client believes two prior U.S. Supreme Court cases that addressed this issue “were wrongly decided and should be overruled.”

A ruling by the nation’s highest court in 1935 found that the federal government has an incontrovertible claim to the refuge’s wetlands and lakebeds, dating back to the 1840s, when Oregon was still a territory. “Before Oregon was admitted to statehood, the United States is shown to have acquired title which it has never in terms conveyed away,” Justice Harlan Stone wrote in 1935.

The Supreme Court found then that the laws of the United States alone control the disposition of title to its lands. The states are powerless to place “any limitation or restriction on that control.”

Ammon Bundy contends that Article 1, Sec. 8 of the U.S. Constitution limits the federal government’s powers to acquire and own property and that no prior federal court has answered the question of whether the federal government can hold the “majority of the land within a state.”

Jennifer Rokala, executive director of the Center for Western Priorities, said in a statement issued last month that the federal prosecution of Bundy and his supporters will help remind everyone of the 1935 U.S. Supreme Court case that left no doubt the eastern Oregon bird sanctuary is under federal control. The Center for Western Priorities is a nonpartisan conservation advocacy group.

Aaron Weiss, a spokesman for the Center for Western Priorities, also cited U.S. Code that allows for a government civil or military force to remove or destroy “any unlawful inclosure of public lands” when someone asserts their right to a public land without title.

The Bundy motion is among a number of legal motions in the pending federal conspiracy case that are set be argued in court later this month, starting May 23.

— Maxine Bernstein

http://www.oregonlive.com/oregon-standoff/2016/05/ammon_bundy_had_intended_refug.html