Ammon Bundy, the leader of the 41-day armed occupation of the Malheur National Wildlife Refuge who was arrested on federal conspiracy charges on January 26th, is planning a courtroom defense that hinges on a bizarre and implausible legal argument that the U.S. government does not have authority over the public lands it manages.
A motion filed by Bundy’s lawyers explains that they will argue that the federal government does not have jurisdiction over the Malheur National Wildlife Refuge in Oregon and therefore cannot prosecute him or the other occupants under laws governing federal property.
Bundy is currently being held at the Multnomah County Jail in Portland, Oregon and faces at least nine federal charges, including conspiring to impede federal officers and possession of firearms in a federal facility.
“The motion … will challenge the Federal Government’s authority to assert ownership over the land that is now known as the Malheur National Wildlife Refuge. It is [the] Defendant’s position that this authority is critical to the Federal Government’s authority to have federal employees work on that land,” writes Bundy’s lawyer Lissa Casey in the motion. “[The] defendant further intends to argue that once statehood occurred for Oregon, Congress lost the right to own the land inside the state.”
The Crackpot Alternative Legal System That Threatens To Escalate The Oregon StandoffJustice by CREDIT: AP Photo/Rick Bowmer Events in Harney County, Oregon, seem to be taking a turn toward escalation…thinkprogress.orgLegal experts say that Bundy does not have the law on his side.
Not only does the property clause of the U.S. Constitution give Congress authority over federal property, the Supreme Court has ruled multiple times that the U.S. government has authority over public lands “without limitation.” Additionally, a 1935 case directly addresses the ownership of the Malheur Wildlife Refuge, finding that the refuge indisputably belongs under federal control.
“The unmistakable legal reality is that a series of solid, indisputable U.S. Supreme Court cases establishes that the federal government is constitutionally empowered to own land, [and] control that land through federal statutes and regulations as it sees fit,” wrote Susan Smith, a law professor at Willamette University, in a legal analysis published during the Malheur occupation in January.
The legally unfounded argument that national parks, forests, wildlife refuges, and other public lands should be “given back” to the states is not unique to Ammon Bundy. It has been pervasive among radical and anti-government groups, including the Constitutional Sheriffs and Peace Officers Association, which insists that county sheriffs are the only valid legal authority in the United States. Bundy, whose defense rests largely on an unconventional interpretation of the Constitution, is also known to carry a pocket copy of the Constitution annotated by communist conspiracy theorist Cleon Skousen.
Ammon Bundy and his lawyers are advertising their legal strategy as part of a pitch to raise money. Bundy’s defense team’s website is crowd-funding money to help pay for his legal defense, even offering copies of the constitution signed by Ammon Bundy as a reward for donors. The law firm has already faced numerous state bar complaints for using social media to exploit public records laws for the case.
Despite the lack of legal precedent for the federal government giving public lands “back” to the states during the refuge occupation and in the legal battle now, Bundy’s views on public lands are shared by several members of Congress who are part of what the Center for American Progress has labeled an “anti-parks caucus.”
The Federal Land Action Group (FLAG), which is composed of Members of Congress whose stated goal is to “develop a legislative framework for transferring public lands to local ownership and control” is meeting this week to discuss a proposal to dispose of national forests and other public lands in the state of Nevada.
The bill, called the “Honor the Nevada Enabling Act of 1864 Act” is unlikely to pass given the strong opposition of sportsmen, conservationists, and western leaders to the concept of seizing and selling public lands. Opponents of this bill also point to a clause in the Nevada Enabling Act — the law establishing Nevada as a state — which specifies that the state “disclaims right and title to unappropriated public lands lying within said territory.”
“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,” said Jen Rokala, Executive Director of the Center for Western Priorities, in a statement.Jenny Rowland is the Research and Advocacy Associate for the Public Lands Project at Center for American Progress. You can follow her on Twitter @jennyhrowland