Ammon Bundy made headlines earlier this year when he and his gang of armed thugs took over the Malheur National Wildlife Refuge in eastern Oregon. The weaponized action ended with his apprehension and arrest along with most of his followers, and the case has faded from national headlines. However, residence behind bars hasn't stopped Bundy from pushing for the Koch brothers' "states rights" agenda.
In the latest development: Bundy's attorney, Lissa Casey (no relation to this author), filed papers in court last Friday in support of a motion to dismiss the charges against her client. The foundation of her argument? Federal prosecutors have no jurisdiction to prosecute Bundy, because the federal government never had the constitutional authority to own the Malheur refuge -- or, for that matter, any land in any state.
Federal authority vs. states rightsIf that constitutional theory sounds a little nutty, it is. According to legal experts, Casey's argument is based on a gross misinterpretation of the Enclave Clause of the U.S. Constitution.
Casey is not an outlier, though. Her motion, filed in U.S. District Court in Portland, Oregon, describes an argument that dovetails with the Tenth Amendment "states rights" position that the Koch brothers have long promoted through an extensive lobbying network. The basic premise is that the federal government has no constitutional authority to own or manage land outside of Washington, D.C. Therefore, all federal land should be transferred to the states.
Such a land transfer would have a crippling effect on state budgets, given that few if any states have sufficient funds to manage the additional land that would come under their direct jurisdiction.
The more likely scenario is that the transfer would provide industry-friendly state legislators with leverage to open up more conservation lands for private development. That's particularly important in western states, where the federal government owns a significant percentage of the land.
A land transfer would mesh perfectly with the interests of the Koch brothers' family business. Their company, Koch Industries, is primarily focused on fossil fuel operations as well as mining and also logging, having acquired Georgia Pacific several years ago.
An article posted in High Country News on Feb. 4 provides a good rundown of the reasons why both the Enclave Clause and the Tenth Amendment are awfully shaky ground upon which to challenge federal land rights, in the Bundy case or any other.
It's a good read, but for those of you on the go, author Bryce Gray provides this shortcut to a fundamental flaw in Bundy's defense:
... Ammon Bundy is not only misinterpreting the Enclave Clause, but also overlooking the Constitution’s Property Clause, which further undermines his argument. The Property Clause, outlined in Article 4, Section 3, Clause 2, states the following:More recently, an April 25 in-depth article by Maxine Bernstein in The Oregonian newspaper lays out further details about last Friday's motion. Do read the whole thing for more details, but if you're short on time, Bernstein's lede says all you need to know about the Bundy defense:
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Ammon Bundy plans to challenge the constitutionality of the criminal charges against him — an argument that legal experts found laughably deficient.To win his case, Bundy would have to overcome a consistent, 200-year record of jurisprudence regarding federal land rights, including several cases from the early 20th century regarding federal ownership of the Malheur refuge in particular.
In contrast to the solid record of case law, the Bundy motion offers up the usual hodgepodge of misinformed historical theories that you can find on the websites of Koch-funded, right-wing organizations such as the Heritage Foundation and ALEC, the American Legislative Exchange Council.
The gist of the new motion is that Bundy's legal team needs more time to gather evidence to support a motion to dismiss the charges. Casey argues that the motion will challenge federal rights to the Malheur refuge, based on the idea that "the original intent of the United States Constitution was to create the sovereign states out of the original 13 colonies with the intention of a very limited federal government with powers outlined in the Constitution..."
It seems that Casey has learned from Bryce Gray's critique. Instead of overlooking the Property Clause, she incorporates it into the new motion. The new argument is that the Property Clause only covers territories, and that once the Oregon Territory became the state of Oregon, the Property Clause no longer applies:
The Federal Government ’s power of such Territories, which Oregon formerly was, is outlined in the Property Clause. Defendant will cite to the Enclave Clause for the Government’s power over such property once it stops being a Territory and becomes a State.Defendant further intends to argue that once statehood occurred for Oregon, Congress lost the right to own the land inside the state...
One door closes, another opensA judicial smack-down looked inevitable, and it was. Earlier this week, U.S. District Judge Anna J. Brown decided against an extension of the deadline for a motion to dismiss and ordered Bundy's lawyers to file the motion by April 27, when it will face review before a final decision is made.
Bundy's legal gambit looks likely to fail, and the Malheur episode has touched off a surge of public support for conservation. But that doesn't mean it's all over for the movement to grab federal land for private gain.
In another recent development: Bill Harvey, chair of Baker County, Oregon, is trying to convince other county chairs that they are on an "equal footing" with the federal government when deciding land use issues, Amanda Peacher of Oregon Public Broadcasting reports.
The idea seems to be that if you can't transfer federal land to the states, then county governments can exercise their authority to determine how federal lands are managed.
As Peacher reports, the Harvey argument is based on the Federal Land Policy Management Act, which explicitly calls for federal agencies to coordinate policy with local government. It appears that Harvey has put forth quite an aggressive interpretation of the word "coordinate."
According to Peachers' expert sources, Harvey is leading his fellow county executives down a dead-end street.
All is not lost for the Koch brothers, though. They seemed to have learned a few lessons of their own from the courtroom roadblocks that stand between them and expanding the operations of Koch Industries on public land.
Rather than depend on the courts to advance their agenda, the Kochs have assembled a Congressional "anti-parks caucus" of like-minded legislators who are set upon the goal of tearing down the national parks system and transferring land out of federal control.
If you are interested in contacting your federal representatives to see where they stand, The Wilderness Society has a good rundown of the legislators and their bills.
Photo: Damage at Malheur National Wildlife Refuge, screenshot from album by U.S. Fish and Wildlife Service via flickr.com.
Tina writes frequently for TriplePundit and other websites, with a focus on military, government and corporate sustainability, clean tech research and emerging energy technologies. She is a former Deputy Director of Public Affairs of the New York City Department of Environmental Protection, and author of books and articles on recycling and other conservation themes.