Bundy invokes Scalia in argument against U.S. land ownership

By Phil Taylor | 05/10/2016 01:15 PM EDT

Ammon Bundy is neither a militia member nor a “sovereign citizen” but is rather part of a “growing body of significant thinkers” who believe the U.S. Constitution bars the federal government from owning lands, according to his attorneys.

Ammon Bundy is neither a militia member nor a "sovereign citizen" but is rather part of a "growing body of significant thinkers" who believe the U.S. Constitution bars the federal government from owning lands, according to his attorneys.

Bundy yesterday filed hundreds of pages of documents to the U.S. District Court for the District of Oregon arguing that the Malheur National Wildlife Refuge in southeast Oregon was never rightfully owned by the U.S. government and that he and 26 others who have been charged in connection with its occupation earlier this year violated no federal laws.

He called himself a constitutional "originalist," following in the footsteps of the late Supreme Court Justice Antonin Scalia and the late Yale Law School professor and Nixon-era acting Attorney General Robert Bork, as well as some liberals.


Bundy, 40, said his decision to occupy the Malheur bird refuge aimed, in part, to "force the federal government into court to address the constitutionality of its federal land management policy."

"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," Bundy’s attorneys wrote yesterday.

Echoing his many statements to news cameras during the 40-day occupation, Bundy argued that the Constitution’s "Enclave Clause" greatly limits the federal government’s authority to own lands. In his reading, the clause says the United States may only own lands it purchases with the consent of states for the purposes of "forts, magazines, arsenals, dockyards and other needful buildings."

The U.S. government owns about 640 million acres, mostly in the West, the vast majority of which do not serve those purposes.

Bundy’s arguments reject more than a century of case law surrounding the federal government’s ability to own lands, particularly its authority under the Constitution’s "Property Clause" that gives Congress the right to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

In 1976, the Supreme Court affirmed the federal government’s right to own and manage its lands, finding that the Property Clause gives Congress power over federal lands "without limitations."

The Property Clause, according to a 2007 report by the nonpartisan Congressional Research Service, "provides broad authority for Congress to govern the lands acquired by the federal government as it sees fit, and to exercise exclusive authority to decide on whether or not to dispose of those lands."

But Bundy’s attorneys argued that the Property Clause "does not address or grant the right to acquire nor the right to permanently own property."

"It only describes the ‘Power to dispose’ and to ‘make all needful Rules and Regulations,’" Bundy’s attorneys wrote. "Contrary to common presumption, the United States Supreme Court has never ruled if or how the Property Clause could permit the federal government to permanently own and/or maintain property outside the limited terms of the Enclave Clause."

Bundy also cited a report commissioned by the state of Utah and released late last year that concluded there are "legitimate legal theories" for the Beehive State to challenge the constitutionality of federal land ownership.

That report argued that the "Equal Sovereignty" principle and "Equal Footing Doctrine" of the Constitution guarantee Western states equal standing with Eastern states, where the vast majority of lands are privately owned. In the 11 Western states, the federal government owns close to half the lands, but in all other states except for Alaska, it owns 4 percent of the land.

By refusing to dispose of its Western lands, as it did in the East, the federal government is treating Western states "unequally," robbing them of the economic opportunities afforded Eastern states, Bundy said.

A judicial ruling on U.S. jurisdiction is important to citizens "whose lives and livelihoods are directly and regularly [affected] by the unapologetic hubris and illicit disdain from now militarized and intolerant federal employees of, inter alia, the BLM, the USFWS, and the FBI," Bundy’s attorneys wrote.

Bundy’s legal bid is a long shot, legal experts said.

Kenneth Medenbach, one of the 27 defendants in the Malheur occupation case, made a similar argument in a separate case before the district court that the United States lacks jurisdiction over federal lands, but Judge Michael McShane on April 7 said his argument "has no merit," The Oregonian reported.

Bundy, Medenbach and about two dozen others face six felony charges in connection with the 40-day Malheur occupation that ended in early February. They include conspiracy to impede federal employees through threats, intimidation or force; possession of a firearm in a federal facility; carrying a firearm in relation to a crime of violence; theft of government property; and depredation of government property.

Conservationists said Bundy’s latest argument has no merit.

"We expect these meritless arguments will be rejected by the courts, as they have been time and again for the last two hundred years," said Aaron Weiss, a spokesman for the Center for Western Priorities. "Ammon Bundy’s latest court filing confirms what the Center for Western Priorities has been saying since the refuge takeover began — the Bundy agenda is identical to the agenda of politicians who aim to take American lands from the American people."

Weiss also pointed to a January interview by KATU’s Steve Dunn, in which Bundy was asked whether the occupation was the work of a "militia."

"I proudly take that name," Bundy said in the interview prior to his arrest. "A militia is the people’s army."