I worked with Dr. Angus McIntosh, who conducted a brilliant analysis on legislative, case law and Supreme Court decisions that affect this ongoing trial. This blog summarizes the White Paper we wrote (read White Paper) that was entered into evidence in the trial. While this blog is long, what we found will shock most readers and hopefully will eventually establish major new precedents in federal v private land ownership in the West.

Michael Coffman, Ph.D.

United States of America v Ammon Bundy

Ninth District Court Case No. 3:16-cr-00051-BR

During the pre-trial hearing on June 3, 2016, Ammon Bundy claimed the federal government had no jurisdiction in the Malheur NationalWildlife Refuge (MNWR) because they gave patented title of the land to homesteaders. In response, the federal government boldly lied that they had held ownership of the property since Oregon became a state, giving them jurisdictional right to bring law enforcement and criminal charges against Bundy, et al.  At that time Bundy had no hard evidence to refute the federal government’s claim and the district court ruled that “there is not any evidence in the record that the United States ever relinquished title to the lands that comprise the MNWR.” The District Court thereby claimed it had jurisdiction and a trial was scheduled.

Although much of MNWR was homesteaded which received land patents, not all the land was homesteaded and patented. In 1908, President Theodore Roosevelt designated the non-patented land as a non-occupied Indian Reservation that had strong regulations protecting migratory birds. This eventually became the Malheur National Wildlife Refuge. During the next thirty years several families apparently squatted on the unsurveyed refuge land and claimed ownership by adverse possession. Adverse possession occurs when an individual or a group occupies property allegedly belonging to others, claiming that the property belongs to the occupying group or individual. Most readers will probably believe that this must be illegal. But it is not, as discussed below.

Adverse Possession

The Bundy trial is not the first time the federal government claimed ownership of all the land within what is now the refuge. In 1940 the federal government claimed in District Court of the Ninth District that all the land belonged to them which led to the United States v Otley (1942) trial in the U.S. Court of Appeals for the Ninth Circuit. Specifically, the federal government claimed it owned all of the lake beds up to the meander lines and all unsurveyed lands. Therefore, the homesteaders (or subsequent owners) had no right to graze or hay the land between the meander line and the current, but highly variable, lake level as they had done for over 30 years. 

Contrary to the claims of the federal government, United States v Otley (1942), found that much of the land surrounding and including the Malheur National Wildlife Refuge headquarters was originally deeded to families under the various Homestead Acts and the Desert Land Act as land patents—potentially the strongest form of ownership. There were numerous Acts of Congress granting the homesteaders varying amounts of land to settle. Generally the size of the grant was increased with each Act from 160 acres in the late 19^th century to 640 acres in the mid-20^th century so the homesteaders had enough land to support their families.

Since the lake bed was nearly flat and the lake shallow, the declining lake level each summer exposed a lot of land that was used by the homesteaders for grazing and haying, as allowed by their land patents. To the disappointment of the federal government, Roosevelt’s executive order creating the reservation also included the words “subject to valid existing rights,” of the homesteaders. The lower Ninth District Court upheld the existing rights of the homesteaders, but did not uphold those lands acquired under adverse possession. The federal government appealed the decision to Appellate Court.

In United States v Otley (1942) the Ninth District Court of Appeals found: “The Supreme Court holds that a meandered water boundary of a non-navigable lake shown on the plat referred to in the patent made the shore of the lake the true upland boundary, and that the patent conveyed the title to the center of the lake.” (Emphasis added) (citing Hardin v. Jordan and many more)  Since the patentees owned the lakebed, they had every right to graze and hay the land between high water in the spring and low water in the fall, or to the center of the lake if the lake dried up completely—which apparently has never happened.

Most importantly, the Court of Appeals for the Ninth District found in United States v Otley (1942) that since the squatters on the unsurveyed land had occupied the land for more than 10 years (the number of years required to obtain title in Oregon under adverse possession), the lands claimed by adverse possession have “valid existing rights” and therefore “are entitled to have their title quieted against both such patentees and the plaintiff.” In addition the Court found “The district court erred in making no finding with regard to the character of the adverse possession, and the judgment must be reversed and the case remanded for further consideration as to these adverse claimants.” In other words, the Court found that the claim of adverse possession is a valid and existing right which is also true in the United States v Ammon Bundy case in 2016.

43 U.S.C. § 1068; 43 CFR 2541.1 states that “[a]ny individual, group, or corporation authorized to hold title to land ... and who believes he has a valid claim under color of title” to attempt a claim for adverse possession against federally-owned land under the Color of Title Act.” Furthermore, according to Ammon Bundy’s attorneys in pretrial evidence, “Cases examining the doctrine of adverse possession recognize that, as soon as Defendants effectuated an “ouster” of the government, their “naked possession” in the land – even if “acquired by wrong, as by disseisin,” constituted “a title” to that property, which would continue “‘till some act be done by the rightful owner to devest the possession.’” Robinson v. Campbell, 16 U.S. 212, 224 (1818) (emphasis added) (quoting 2 Blackstone Commentaries on the Laws of England 196).

In other words, even if Bundy was wrong in his claim of adverse possession, he had every right to possess the refuge headquarters until the federal government challenged Bundy in civil court showing they had a legal deed to the land. Since Bundy had not possessed the land for ten years, he would have no legal authority to continue his possession and would have had to abandon his claim to adverse possession. As described in my previous blog, that is not what the federal government did. Instead of going to civil court they chose an armed response that led to LaVoy Finicum’s death.

The land claimed to have been purchased during the 1935 to 1940 period by the United States from the prior owners (inclusive of Section 35 and the Refuge Headquarters) was acquired for “resettlement” or construction of conservation projects only. It was part of over 7,000 acres of land and 150,000 acre/ft. of water rights. It was included into the local Grazing District and adjudicated into Grazing Allotments in the 1940s. It was grazed and hayed as part of local “ranch units” for the next 40 years until the ranchers were purposely flooded out in the 1980s. They were forced to leave without compensation for their allotments, forage crops, improvements, stock-water rights, or the value of the land for grazing.

Once those allotments were made they could not be reduced or changed (Sellas v Kirk, supra). Assuming the 1940s purchase of the land was legitimately done under 48 Stat 22, then the owners of those Allotments abandoned private property when they left in the 1980s. The surface limited fee Grazing Allotment being a completely separate estate from the United States mineral estate, those Allotments were then available for adverse possession.  See (Kinney Coastal Oil v Kieffer, supra; Watt v Western Nuclear, supra). Since the United States cannot acquire property by adverse possession (Leo Sheep Co. v United States, 440 US 668 (1979)), then the surface fee Grazing Allotment could only be acquired for inclusion in the Refuge by condemnation with consent of the State Legislature (United States v New Mexico, supra).

Resettlement Acts Specifically Deny Federal Government Jurisdiction

There is also a reason why the federal government did not want to go to civil court. In our White Paper Angus McIntosh and I found that beginning with the Act of March 3, 1933 (48 Stat 22), Congress enacted a series of statutes to buy failing, or abandoned farms (typically 160, or 320 acre homesteads), and then ‘resettle’ them in “farm management units of a size sufficient for the support of a family” (Bankhead-Jones Farm Tenant Act (BJFTA) July 22, 1937, 50 Stat 522)… This was all in response to the Great Depression and Dust Bowl. This was an era of failing and abandoned farms, bankrupt counties due to no tax revenue, high unemployment, and failing banks due to defaulted farm and ranch loans.”

Congress wanted to make it clear there was no intention to acquire any jurisdiction over the land. So, it enacted the “Act to Waive Exclusive Jurisdiction” of June 29, 1936 (49 Stat 2035):

“That the acquisition by the United States of any real property heretofore or hereafter acquired for any resettlement project or any rural-rehabilitation project for resettlement purposes heretofore or hereafter constructed with funds allotted or transferred to the Resettlement Administration pursuant to the Emergency Relief Appropriations Act of 1935, or any other law, shall not be held to deprive any State or political subdivision thereof of its civil and criminal jurisdiction in and over such property, or to impair the civil rights under the local law of the tenants or inhabitants on such property; and insofar as any such jurisdiction has been taken away from any such State or subdivision, or any such rights have been impaired, jurisdiction over any such property is hereby ceded back to such State or subdivision.”  

While there is other legislation and/or court decisions that parallels this Congressional action, the 1936 (49 Stat 2035) expressly forbids the federal government from assuming criminal or civil jurisdiction or impairing the civil rights of any individual or private group on any so-called federal land that was designated for resettlement. The Malheur National Wildlife Refuge and much of the surrounding private land fall under this “resettlement” category. Therefore, the federal government and the Ninth District Court have no jurisdiction—at all. They had no jurisdictional authority to set up roadblocks on Highway 395 and subsequently kill LaVoy Finicum and have no authority to bring criminal charges against the occupiers of the Malheur Refuge, and certainly had no subject matter jurisdiction to try the defendants in federal district court.

The Trial

In spite of the clear language of 49 Stat 2035, Judge Anna Brown in the Ninth District Court has chosen to ignore it and has denied the defense from saying anything about federal jurisdiction. The U.S. Court of Appeals for the Ninth District also denied it, stating “Whether defendants have suffered any prejudice as a result of dual prosecutions can be reviewed on direct appeal from a conviction. Numerous court cases have established that if the court’s subject jurisdiction is challenged, it must be heard first before a criminal trial can proceed.[1] The reason for this is obvious. Why put a defendant through months of judicial hell and enormous costs if the district court has no judicial jurisdiction in the first place? Bundy and the other seven defendants can only address the federal criminal charges, even if the court has no subject matter jurisdiction to do so.

Separately, Judge Brown denied the defense any testimony about the Finicum killing, or Bundy’s legal use of adverse possession. While denying the defense from saying anything about the Finicum killing, Judge Brown has also allowed federal attorneys to say anything they want about the killing of Finicum thereby biasing the information the jury hears. That bias was amplified almost on a daily basis. (See Todd Macfarlane day by day recap of the trial at rangefire.us.com)

The judge allowed almost all of the government’s objections and very few of the defenses’. Writing for Redoubt News, Sheri Dovale revealed, “She [the judge] was so wrapped up in helping the prosecution” that she blurted out, “‘Objection Sustained!’  When she realized that no one had made an objection, she then said, ‘Oh, there was no objection, but I am going to sustain it anyway. I am not going to let the witness speculate.’” 

At another time Judge Brown suddenly and unilaterally changed the jury instructions in a way that further obstructed the defense. When defense attorney Mumford challenged her saying the “court is taking sides against the defense,” Judge Brown completely ignored his argument and did not even bother to address it. The trial has become so bizarre that observers are beginning to believe that Judge Brown seems to be asking for a mistrial.

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[1] United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008); De La Maza v. United States, 215 F.2d 138, 140 (9th Cir. 1954); United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (citation omitted); and others.

Finally, the land allegedly purchased by the federal government for the refuge headquarters in 1936 and 1940 could only be done if Oregon’s State Legislature approved of the purchase under Article 1, §8, cls 17 of the United States Constitution which states: “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings...”. There is no record in evidence that Oregon ever gave this consent. Therefore, the alleged “purchase” is likely not legal and the federal government does not actually own the land upon which the refuge headquarters is located, nor any other land that was part of the various resettlement Congressional actions.

It is interesting that the federal prosecution only took six days to lay out their case. In their opening statement they said that they would provide witnesses having signed sworn affidavits that they saw criminal activity being conducted by the occupiers of the refuge headquarters. That would have taken days if not weeks. However, the prosecution never put these witnesses on the stand to testify, strongly suggesting that the prosecution was afraid of cross examination. Their case seems very weak.

It is almost a certainty that the case will be appealed to the Ninth District Appeals Court regardless of the outcome of the current trial. According to attorney Todd McFarland, who is closely following the case: “The appeal can include anything the defendants attempted to address at trial. If they raised and attempted to address those issues, but the judge made legal rulings excluding that subject matter, etc., those rulings are part of what is challenged on appeal.” 

Therefore, the evidence against federal jurisdiction and Bundy’s legal use of adverse possession is allowed in the Appeals Court and could be very damaging to the federal government’s claim of absolute power over much of the land in the West. The federal government can’t let that happen and is taking every action, including lying, to force the case to a favorable outcome for them so they can keep their power. As they have done in the past, expect the federal government to use every legal action they can to delay the proceedings and bankrupt the defendants.

Michael S. Coffman, Ph.D.

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[1] United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008); De La Maza v. United States, 215 F.2d 138, 140 (9th Cir. 1954); United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (citation omitted); and others.