Contrasted with shallow and uninformed media portrayals and government hyperbole,... Ammon is not an “extremist” and is not a member of any militia, patriot group, or political land protest organization.
With this motion, the hyperbole stops now. Mr. Bundy is not a militia member or a so-called “sovereign citizen,” and he does not hold anti-government views. Ammon is a well-established and well-respected family man, entrepreneur, and politically active United States citizen who identifies as a federalist, and as pertaining to the Constitution of the United States, he is an originalist.
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. This topic is a red-hot issue, especially in the western United States.
Like the central issues highlighted by this case, it is increasingly poignant, particularly to those citizens whose lives and livelihoods are directly and regularly effected by the unapologetic hubris and illicit disdain from now militarized and intolerant federal employees of, inter alia, the BLM, the USFWS, and the FBI.
However, instead of arguing the issue in a civil courtroom through an ejectment proceeding – where such a debate belongs – Mr. Bundy finds himself before a federal criminal court as a prisoner. Ammon and the Citizens for Constitutional Freedom may not have prevailed in their adverse possession claim. But, that was for a civil court to decide. If the government would have acted with a remote degree of competence, it would have challenged the adverse possession, with an ejectment or eviction claim. Then Ammon would have responded – in court, and the court would have heard our defense based upon, inter alia, 43 U.S. Code § 1068 - "Lands held in adverse possession"; and other relevant federal law, which taken together, unquestionably provides legitimacy to the protester's attempt.
The western states are not treated equally by the federal government. Washington D.C. controls approximately 50% of the land in the 11 coterminous western states. The management of the land is not only out of step with the priorities and economies of the local state and municipal governments -- it is also out of line with the letter and spirit of the Constitution.
The legality of this position is a matter for open debate because it has never properly been challenged in a court of law. While it may seem absurd that such a gaping constitutional question remains in 2016, consider that it is an issue primarily concerning the people of the western states, and specifically those living in remote and lightly populated areas. It has simply taken a very long time for those marginalized people who are adversely affected by the unconstitutional policies to mount a viable opposition.
The State of Utah, where the federal government controls 61.7% of the land, found that mounting a legal challenge to the currently federal land policy would cost more than $13 million -- a price tag beyond the reach of the citizens most aggrieved.
Ammon Bundy, who has personal experience with the federal government’s aggressive and forceful enforcement of their unconstitutional land management policy, deliberately and thoughtfully intervened where there was growing and disorganized unrest regarding the unusual and aggressive prosecution of the Hammond family in Oregon. His solution was to stage a lawful and coordinated adverse occupation of the Malheur Wildlife Refuge.
Ammon’s intent with the occupation was to force the issue into a civil court where he could properly challenge the constitutionality of the government's position. However, the government’s response was to ambush the leaders with overwhelming force and in the process killed LaVoy Finicum.
Ammon Bundy argues that the criminal charges against Ammon Bundy and the other protesters should be dropped on the basis that the federal government does not have clear Constitutional rights to land where the occupation was held. Moreover, it is time to address the disparity of the federal land policy between the eastern and western states, and to resolve the long unanswered question of whether the federal government has the Constitutional right to own and manage the majority of land within any single state.
The United States government disproportionately claims ownership of approximately 50% of all the land in the 11 coterminous western States, as well as more than 60 percent of Alaska, while claiming only 4% of the land in all the rest of the country and 39 States combined. Most relevant to this case, the United States claims permanent ownership of 81.1% of the land inside the boundaries of Nevada, 66.5% inside Utah, 61.7% inside Idaho and 53% inside Oregon.
Does the Constitution of the United States, via the “Property Clause” of Article IV, Section 3, permit the federal government’s permanent ownership and exclusive jurisdiction over public lands? If not, it also prevents the government from exercising jurisdiction here, and this case must be dismissed.
Ammon Bundy is aware of the many federal court decisions and modern public discussions on this issue – and the core purpose of the Malheur protest was to raise, within that discussion, the primary legal question at hand - based upon a significant distinction. The issue is presented here is not whether Congress has the plenary power to manage and regulate public lands, or decide to sell some or withhold others from sale. There is no question, within the constraints of the Constitution, Congress has plenary power to manage and regulate the property it lawfully owns. This power was established and the legal question settled long ago. What the Supreme Court has never addressed however, is whether Congress can forever retain the majority of the land within a State, and in this case specifically, whether the Constitution permits the federal government’s purported ownership of and jurisdiction over the land and property occupied by Mr. Bundy and the Citizens for Constitutional Freedom, beginning on January 2, 2016.
In analyzing the Enclave and Property Clauses, prior courts have erroneously begun with the premise that, because the lands were assumed to be public land, then the Property
Clause provided broad authority to the Federal Government to regulate it. Defendants urge this
Court to begin with a different premise — that these lands were unconstitutionally acquired and/or unconstitutionally maintained by the Federal Government, and are not therefore simply “public lands” without question. The Property Clause rules that the Government is empowered to make are only those that are “needful,” and the only land upon which those rules can be made are lands Constitutionally acquired, owned, and maintained under Article I. Although courts have presumed that the Property Clause allows the Federal Government to retain land, that position is simply untenable in light of the history and structure of the relevant Constitutional provisions.
Raising this question – and reaching the point of this motion - has been no small challenge for Mr. Bundy and his colleagues. In 2015, the legislature for the State of Utah commissioned a legal analysis to investigate and report on the plausibility of contesting the federal government’s continued assertion of ownership and title to western lands. Significantly, after concluding that there was a legitimate legal basis for challenging the constitutionality of
federal land ownership, the study also concluded that bringing it to federal court would require an estimated budget of $13,819,000.00. Clearly, with this price tag, individual citizens like the Hammonds and Mr. Bundy could never realistically bring the challenge, despite their undisputed right to petition their government for redress.
At the height of the Hammond controversy, Ammon Bundy identified an alternative way to raise the legal challenge.
Out of the spontaneous protest milieu in Harney County, Oregon, on January 2, 2016, Ammon arranged a meeting that would transform the circumstances from a random, worrisome
and obviously volatile group of dissenters, into an organized, purposeful, and lawful protest aimed at visibly and more effectively petitioning the government for redress. At this impromptu meeting, and in the presence of local law enforcement, Ammon openly advocated a specific plan to organize and “continue the protest.” Ryan Bundy verbally offered a “second” to the proposed plan, and LaVoy Finicum spoke in support of it. Neither of these men had previously heard of, let alone participated in the formation of Ammon’s plan. Prior to this, Ammon was not the leader of any group related to the Hammond protests.
Following the meeting, Ammon and his just organized Citizens for Constitutional Freedom embarked upon this newly organized protest, an earnest effort to set-up and maintain a
lawful adverse possession claim – on purportedly federal lands. The lands and property had been generally known as the Malheur National Wildlife Refuge and were directly related to the Hammond controversy, and that evening, the Citizens for Constitutional Freedom began the process of carrying out the ubiquitous requirements for a lawful adverse possession claim.
After notifying the local Sheriff's office, they secured their claim; including land, property and vacant buildings and openly took control and management of the same. Consistent with the purpose of the protest, they notoriously renamed the area, “The Harney County Resource Center.” They contacted the utility company to take over responsibility for utilities and services, and began working the property, and maintaining the perimeter, controlling ingress and egress. Ammon and his fellow protesters then invited the public to visit their claim. They carried out cleaning, upkeep and maintenance, and they welcomed over a thousand visitors including elected officials, and prominent political leaders. Further, USFWS staff was granted access, and no one from the federal government ever made direct contact demanding that the attempted adverse possession end.
Ammon and the Citizens for Constitutional Freedom may not have prevailed in their adverse possession claim. But, that was for a civil court to decide. If the government would have acted with a remote degree of competence, it would have challenged the adverse possession, with an ejectment or eviction claim. Then Ammon would have responded -- in court, and the court would have heard our defense based upon, inter alia, 43 U.S. Code § 1068 - "Lands held in adverse possession"; and other relevant federal law, which taken together, unquestionably provides legitimacy to the protester's attempt.
But that was not the government’s response.
Despite no overt acts of force or violence by Mr. Bundy or the Malheur occupation 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, LaVoy Finicum. 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.
By virtue of their attempted adverse possession of purportedly federal property, Mr. Bundy and the Citizens of Constitutional Freedom now have secured the legal standing they sought, to raise this issue in federal court. They did not have $13M to buy their place in court today, but they did pay a significant price. 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 patriot of the United States.
For 150 years, the federal government maintained a policy of disposing of public lands. The result was that State governments had complete jurisdiction over nearly all the territory
within their borders, giving those States that same opportunity for settlement, development, preservation and conservation of parks and recreation areas, and the promotion of culture and
commerce that the original States received. But, west of the 104°W Merdian circumstances changed. The federal government has treated States west of that line unequally. It has allowed those States dominion over only a small percentage of the land within their borders and under an even more expansive modern view of federal land ownership, Western States cannot fully advance commerce. They cannot develop the tax base necessary to fund schools, build roads, finance higher education. They cannot build transit and communications systems common in eastern States because privately owned lands are broken up by intervening federal lands that States cannot condemn for such public improvements. A Western State like Oregon cannot control its own destiny.
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. The discrete question raised has not been ruled upon by the Ninth Circuit or the United States Supreme Court.
Ammon Bundy is asking this Court to rule on this issue now.
An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable.” Bond v. United States, 564 U.S. 211, 221-22, 131 S. Ct. 2355, 2364 (2011). 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. The discrete question raised has not been ruled upon by the Ninth Circuit or the United States Supreme Court.
The presumptions based upon the expansive application of the Property Clause are unjustified by the text of the Constitution, unsupported by the history and related Founding era understanding, and directly destructive to the principles of federalism. The Hammonds are a classic case where federal bureaucracies won the day, and the Hammonds have been to prison – twice. During the Malheur protest and occupation, U.S. Representative Greg Walden addressed this exact consequence on the floor of Congress, when on January 5, 2016, he explained that even he had sponsored and passed key legislation to limit the BLM, and despite the legislation passing, the bureaucrats simply refuse to be governed. Commenting on his floor speech Congressman Walden said, “I got up there and 17 years of working with farmers and ranchers and folks in eastern Oregon just poured out […] it was an artesian well of emotion." What else could be the response, when federalism is allowed to fail under unproven claims of federal land ownership that increasingly amounts to tyranny. This is what Justice Roberts warned about when he cited James Madison in Federalist No. 45. “The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.” The Federalist No. 45, at 293.
Defendant finally brings this motion as the culminating act of civic activism. , not just his – but all of those thousands of individual citizens who protested, visited and supported the attempted adverse possession and related work at the “Harney County Resource Center.” Sometimes civic activity in a free society can be uncomfortable for the government – it is usually then that institutions like this Court should pay special attention. There is no other way that federalism can ultimately preserve liberty, allowing “those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” Bond, supra, at 221-22.
The current claims by the federal government, to the ownership and exclusive jurisdiction over public lands within the States – including the specific land at issue here – are plainly prohibited by the Constitution of the United States. The court should therefore dismiss this action for lack of subject matter jurisdiction and thereby ensure that federalism still “protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.” Id.
While the protesters in this case are charged with crimes in Oregon, and there is undoubtedly a federal district of Oregon, the ownership of this land is critical to determining whether the protesters can even be charged with committing federal crimes. Defendants assert this case should be dismissed and reserves the right to supplement this record as well as argue at an appropriate time for evidence and jury instructions consistent with the lack of lawful duties alleged in the Indictment.
Read full motion here: http://snip.ly/motion-to-dismiss
Guardian Article: http://snip.ly/dismissal