Bundy Filing Shows Intent Behind Refuge Takeover

     PORTLAND, Ore. (CN) — The 41-day occupation of the Malheur National Wildlife Refuge got Ammon Bundy exactly what he wanted: a Federal Court forum in which to litigate his claim that the government has no constitutional right to own most land within a state, according to a motion filed by his lawyers Monday.
     Bundy filed a motion to dismiss for lack of jurisdiction, claiming that the federal government has no right to ownership of the Malheur National Wildlife Refuge and shouldn’t own the rest of the 47 percent of land in the 11 contiguous western states.
     The motion details Bundy’s attempt to prove his point using adverse possession, an arcane process that lets trespassers seize ownership of someone else’s land through physical occupation. The law doesn’t apply to land held by the federal government, except under certain narrow circumstances on land controlled by the Department of the Interior.
     Federal law requires someone seeking to seize land through adverse possession to live on the land continuously for 20 years, use it “openly and notoriously,” work it or improve it in some way, and fly a flag “so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest,” according to Bundy’s motion.
     Bundy says he occupied the refuge and intentionally fulfilled the requirements of adverse possession for one reason: to get the courts to rule on the legality of federal ownership of state property.
     While Bundy acknowledges that the federal government has the right to “manage, regulate, sell and dispose of” public lands it owns, he says the neither the Ninth Circuit Court of Appeals nor the U.S. Supreme Court have ever ruled on a more specific question: whether the federal government can forever own the majority of land within a state.
     Bundy cites Utah’s 2014 Transfer of Public Lands Act, which demanded the return of land held by the federal government that Utah believes the feds promised to return in the Utah Enabling Act of 1894. The Beehive State’s lawmakers determined when they passed the law that it would cost an individual citizen $13.8 million to litigate the question of whether the Constitution allows the federal government to own public land.
     Bundy says the occupation of the Malheur National Wildlife Refuge was an artful way of sidestepping that steep price tag.
     As the only occupier out of 26 co-defendants with private lawyers rather than a court-appointed public defender, Bundy is crowd-sourcing his legal fees. As of press time, he had raised $94,567 from 1,257 supporters.
     By occupying the refuge, Bundy says he and his co-defendants forced the government to address their constitutional question.
     “They did not have $13 million to buy their place in court today, like the state of Utah is contemplating, but they did pay a significant price with their ‘liberty, their livelihoods, and their reputations,’ to paraphrase the last sentence of the Declaration of Independence,” the motion states.
     “As the court is well aware, it has cost Mr. Bundy and approximately two dozen members of the Citizens for Constitutional Freedom more than 100 days of their liberty, under extremely harsh conditions, and most poignantly, it has cost the blood of a well-loved rancher, family man, and deeply principled supporter of the United States,” the motion continues, referring to the shooting death of Bundy cohort LaVoy Finicum by Oregon police.
     “These are American citizens who have each placed their lives, their families, and their honor — all on the line — to bring this question here before the court. A question that has not been directly addressed before through the constitutional framework set forth herein. Prior cases have either sidestepped this issue or have ruled on different grounds.”
     Aaron Weiss, media director for the public lands watchdog group Center for Western Priorities, said there is nothing novel about Bundy’s arguments.
     “All of those arguments have been completely dismissed by courts over the years,” Weiss told Courthouse News. “There’s 200 years of case law that says the Property Clause does in fact give the federal government the right to own land and that Congress can decide what to do with it.”
     Weiss pointed specifically to the 1997 case United States v. Gardner, where the Ninth Circuit ruled that a Nevada couple could not use their claim that the federal government had no right to own the majority of land in the state to fight charges that they illegally grazed their cattle on public land.
     “The Ninth Circuit has already litigated these issues,” Weiss said.
     During the occupation, Bundy outlined his claim that the federal government can’t legally own land during an interview with Courthouse News.
     “Originally, we were structured where individuals own land and the government protects that ownership,” Bundy said. “The people never gave authority to the federal government to own property.”
     Bundy said the Constitution guarantees that the federal government will only hold land under very narrow circumstances.
     “If the federal government wants to control land within a state, they have to get permission or purchase it. And they can only use it for forts, magazines, arsenals and dock yards,” Bundy said at the refuge. “All this land was mostly acquired unconstitutionally.”
     Bundy claims in his motion that civil court would be the proper place to raise that constitutional question. But as he is fond of saying, the government “overreach” forced him to make his arguments in a criminal court instead.
     “Despite no overt acts of force or violence by Mr. Bundy or the Malheur protest itself, the federal government ambushed and used overwhelming force to arrest Mr. Bundy, and in the process killed his friend and fellow activist and protestor, Robert ‘LaVoy’ Finicum,” the motion states. “Thus, while the executive branch of the federal government has used its unmatched muscle and might to forcefully end the Malheur occupation, it did not end the protest. 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 Bureau of Land Management and the U.S. Fish & Wildlife Service.”

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