Ammon Bundy’s lawyers intend to argue that the federal government doesn’t have the authority to prosecute protesters who took over the Malheur National Wildlife Refuge, claiming that the federal government lacks control of the land.
The U.S. Constitution granted “very limited powers” to the federal government, and that once Oregon became a state, the federal government lost a right to own land inside the state’s borders, his attorney Lissa Casey wrote in a court motion filed late Friday.
Similar arguments have been made by other defendants in federal court in the past, without much success. Most recently, a Bundy co-defendant Kenneth Medenbach attempted to make that same argument in U.S. District Court in Eugene, but federal Judge Michael J. McShane dismissed it as lacking merit.
Ammon Bundy is one of 27 defendants facing federal indictment stemming from an armed takeover of the federal wildlife refuge outside of Burns in Harney County. He’s pleaded not guilty to conspiring to impede federal officers at the refuge through intimidation, threats or force, possession of firearms or dangerous weapons in a federal facility and using and carrying a firearm.
Bundy has said that the occupation of the refuge was done to protest the return to prison of Harney County ranchers Dwight Hammond Jr. and Steven Hammond, convicted of setting fire to federal land, and to demonstrate against the federal control of public land.
Bundy’s lawyers on Friday filed an emergency motion in U.S. District Court in Portland, seeking more time to argue to dismiss the indictments for lack of jurisdiction.
“Defendant Ammon Bundy intends to provide evidence to the Court to prove lack of jurisdiction over the refuge property due to issues with title which are in conflict with the United States Constitution. Given the complexities of the evidence involved, it is not a simple legal argument that can be briefed and expedited for the Court,” Casey wrote. “Evidence must be taken, and witnesses will likely need to be called.
In response to the Bundy motion, Jennifer Rokala, executive director of theCenter for Western Priorities, said the federal prosecution will help remind everyone of a 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.
“We look forward to Ammon Bundy’s attempt to re-litigate 200 years of jurisprudence regarding the property clause, and the 1935 Supreme Court case that specifically established the American people’s ownership of the Malheur National Wildlife Refuge,” Rokala said in a prepared statement.
“At a time when groups like the American Lands Council are encouraging states to ignore centuries of property law, the Bundy case is the perfect opportunity to remind anyone who would try to take land from the American people that such efforts are wildly unpopular, unwise, and unlikely to succeed.”
She points to a ruling by the nation’s highest court in 1935, which 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.
United States v. Oregon was the original suit brought by the United States against the State of Oregon to quiet title to 81,786 acres of unsurveyed lands in Harney County. By an executive order on Aug. 18, 1908, all of the land claimed by the United States in this suit was set apart as a bird reserve, known as the Lake Malheur Reservation, and administered as such by the United States Bureau of Biological Survey, under the direction of the Department of Agriculture.
In 1935, the U.S. Supreme Court ruled 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.”
The decision rested on whether the waters of the Malheur refuge were “navigable” at the time Oregon became a state. That’s because, under the acts of Congress that admitted new states to the union, ownership of navigable waterways was automatically conveyed to the state.
Hundreds of people testified and numerous water and land measurement records were examined before the court concluded that, no, boats had never routinely plied the waters of the refuge for commerce, or any other purpose.
But Bundy’s lawyers plan to challenge the ruling.
Fellow Bundy attorney Mike Arnold said it’s “the protestors’ position that these cases were wrongly decided,” which will be fully argued in court.
“Ammon respects the authority of the federal government and the power of an Article 3 court and Article 3 judge. He also knows they can be restrained by precedent, which is why the Founders set up a system to appeal and overrule previous decisions,” Arnold said. “He intends to make the courts do exactly that.”
In Casey’s motion, she wrote “..the land that is now the Malheur National Wildlife Refuge was not always ‘federal land.’ The federal government relinquished that land when it was previously deeded and homesteaded, thus relinquishing jurisdiction. It was mainly through property acquisition from the original deed holders that created this vast area now considered the wildlife refuge.”
She asked the court for more time to prepare a formal motion to dismiss the indictments based on lack of federal jurisdiction.
“Given the age of some of the documents and chain of title over the years, Defendant intends to call witnesses, as was needed in United States v. Oregon, 295 U.S. 1 (1935),” Casey wrote.
Bundy, who was transferred to federal custody in Nevada on April 13 to make his first court appearances there in connection with a separate federal indictment, is due back in Oregon early this week, possibly Monday. He’s also indicted on charges of federal conspiracy to impede officers, weapons, extortion and other offenses stemming from the 2014 standoff with federal officers outside his father Cliven Bundy’s ranch near Bunkerville, Nevada.
Co-defendant Pete Santilli, also facing federal indictment in both Oregon and Nevada, has asked the court to allow him to remain in custody in Nevada until early May, before his transfer back to Oregon to face the Malheur takeover case.
— Maxine Bernstein