As the occupation of the Malheur National Wildlife Refuge stretches into its third week, it’s becoming clear the armed occupants don’t have a legal leg to stand on.
Ammon Bundy and his allies are challenging federal management of 640 million acres of public lands, saying it violates the Constitution. They are calling for the lands to be turned over to states and private citizens.
There appears to be virtually nothing in any law, the Constitution or Supreme Court jurisprudence that supports Bundy’s constitutional claims, legal experts said.
On at least half a dozen occasions dating back to the 1890s, the Supreme Court has ruled that the government’s authority to regulate public lands, as well as wildlife and activities on them, is "without limits," said Robert Keiter, a professor at the University of Utah’s S.J. Quinney College of Law who has written extensively on the issue.
"That’s as broad a statement as I’ve ever seen from the Supreme Court on the scope of congressional power," Keiter said.
The fundamental flaw in Bundy’s contention lies in the Constitution itself, the experts said. Its property clause states that Congress has the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
That authority to regulate has been repeatedly interpreted very broadly by the Supreme Court. In 1897, the court ruled in Camfield v. United States that the government had the power to prosecute a Colorado resident for building a fence on public lands.
"While the lands in question are all within the State of Colorado, the government has, with respect to its own lands, the rights of an ordinary proprietor to maintain its possession and to prosecute trespassers," Justice Henry Billings Brown wrote. "It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale. It may grant them in aid of railways or other public enterprises."
In 1911, the high court ruled on a trio of cases that presented similar issues. Most notably, in Light v. United States, the court upheld the Camfield precedent.
The case concerned a Colorado rancher who grazed his cattle on Forest Service land to take them to water. The agency brought an enforcement action, which the rancher challenged, making arguments that the federal regulations violated state sovereignty.
Justice Joseph Rucker Lamar, writing for the court, rejected those contentions.
"The United States can prohibit absolutely or fix the terms on which its property may be used," Lamar wrote.
Six years later, the court reached a similar conclusion in Utah Power and Light Co. v. United States, a case focusing on hydropower equipment on public lands.
Fast forward to 1976, when the Supreme Court dealt with another case on point with Bundy and his supporters’ claims.
In Kleppe v. New Mexico, the state challenged a law authorizing federal regulation of wild horses and burros on public lands. A New Mexico rancher claimed a group of burros was restricting his cattle’s access to water and feed.
The state intervened, rounding up the nearly 20 burros and selling them. The government brought a lawsuit and lost in lower court. New Mexico’s primary arguments were that the law violated state rights and that the Constitution’s property clause allows the federal regulation of property only. The burros themselves, the state said, were not federal property if they were only found within New Mexico.
Again, the justices rejected New Mexico’s case and extended federal authority to wildlife on public lands.
Citing precedent, the federal government has "complete power" over "public lands" that "includes the power to regulate and protect wildlife living there," wrote Justice Thurgood Marshall.
Those precedents, as well as others, show that the government’s case — should it choose to prosecute Bundy and his allies — would be very strong.
"The federal government’s authority to regulate its own property is very firmly established in the law and has also been repeatedly recognized as very broad," said Sarah Krakoff of the University of Colorado Law School. "There are hard cases at the margins that might get traction some day, but the [Bureau of Land Management’s] authority to regulate the public range and the included power to enforce that authority are not close calls."
Former Interior Deputy Secretary David Hayes made the same point and called for prosecutions in a National Law Journal op-ed earlier this week.
"Unfortunately, for Bundy and company, the law is not on their side," wrote Hayes, who is now a lecturer at Stanford Law School (Greenwire, Jan. 18).
An issue of ‘political will’
Keiter, the University of Utah law professor, placed Bundy and his allies in the "transfer movement," which calls for government to hand over its large swaths of public lands in the West to states.
Utah has gone the furthest in the effort, passing legislation in 2012 that demands the United States transfer title of about 30 million acres of public lands to the state. (The state’s attorney general is now considering whether to bring a lawsuit against the government seeking the lands.)
Similar legislation has been passed in Idaho, Wyoming, Nevada and Montana.
Keiter said the transfer movement tends to focus on the first part of the Property Clause regarding the government’s authority to "dispose of" federal lands. The activists tend to read that as meaning Congress and the government is obligated to transfer the property.
The Supreme Court and others, Keiter said, have been resolute in interpreting the phrase to only mean Congress and the government has discretion to keep or appropriate the lands.
Robert Glicksman, an environmental law professor at George Washington University, echoed Keiter’s point.
"There is no support in judicial construction of the Property Clause for the contention that the federal government must either dispose of its lands or subordinate its objectives in managing those lands to the laws of the state in which those lands are located," Glicksman said.
Moreover, the campaign to claim public lands isn’t entirely new, said Eric Biber, an environmental law professor at the University of California, Berkeley. There was a similar movement in the 1930s, he said.
"This stuff has happened again and again," he said. "The difference now is the level of rhetoric, the level of confrontation and the threat of violence."
Since the law on the issue seems settled, the question of whether to prosecute Bundy and his supporters appears more political than legal, said Justin Pidot, a former Justice Department environmental attorney.
"A prosecution would be an easy win for the government," said Pidot, who is now a professor at the University of Denver’s Sturm College of Law.
"There is simply no legal basis for the assertion that the federal government doesn’t own and control these lands," Pidot said. "The issue strikes me as one of political will, rather than law."