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Armed militants in Oregon claim that the federal government has no legal authority to own western lands

The Bundy Brothers were acquitted on all Oregon charges, but their fight is far from over.

Ammon and Ryan Bundy were found not guilty of conspiring against the government after a six-week trial over a nature-refuge standoff in Oregon state.  The brothers led a group of activists that occupied a Malheur, Oregon bird sanctuary managed by U.S. Fish and Wildlife Services, in response to the imprisonment of two Oregon ranchers for arson.  The protestors took control of government buildings, equipment, and land.  Some of the charged individuals used firearms as part of the occupation.  The occupation itself lasted for 41 days, with one of the leaders of the group dying during  a roadside altercation with police.  In total, the Bundy brothers were included among 26 defendants charged with conspiracy, intimidation, improper firearm possession, and theft of government property.  Ammon and Ryan Bundy were acquitted of the conspiracy and firearm charges, but the jury could not reach a verdict on Ryan’s theft of property charge for removing cameras mounted at the refuge.  The jury deliberated for a total of six hours before reaching its decision.

The Bundy brothers were protesting the federal government’s control of public lands in the west and demanding that the 188,000-acre refuge be surrendered to local control.  They also disputed the requirement by the federal government for ranchers like themselves to pay grazing taxes, and they sought easier sentences for Dwight and Steven Hammond, two Oregon ranchers convicted of arson in 2012.  The Hammond’s claimed that they started the fire on federal lands to protect their property from wildfires and to reduce the amount of invasive plants in the area, but federal prosecutors claimed that the defendants started the fire to conceal evidence of poaching.  Witnesses at the trial stated that the fire occurred shortly after Steven Hammond illegally killed several deer on land that belonged to the Bureau of Land Management.  The Hammonds have stated that they do not support the Bundys’ efforts.

The Bundy brothers will remain in custody for a similar charge in Nevada from an armed standoff in 2014 with the Federal Bureau of Land Management on their father’s ranch.  That dispute arose because the federal government wanted Cliven Bundy, the father of Ammon and Ryan, to move his cattle offof protected land.  That conflict ended when the federal government retreated.

At the heart of the dispute between the Bundys and the federal government is the issue of federal land ownership.

Marcus Mumford, the attorney for the Bundy brothers, argued in court that Ammon and Ryan should be released, but U.S. District Judge Anna Brown refused because of the pending charges in Nevada.  Mumford became extremely agitated by the decision and began yelling at the judge before being restrained by four U.S. marshals.  He eventually had to be tased.

The decision by the FBI and local law enforcement to refrain from invading the refuge was met with public criticism, but law enforcement countered that there was little threat to the public by the armed occupation.  Law enforcement argued that the refuge  is in a remote area of Oregon where no one, apart from those who chose to occupy the building, would be in immediate danger, and that the protestors were purposefully seeking a confrontation.

…congress has the discretion to retain or dispose of its vast landholdings in the west without consideration for state legislation. 

At the heart of the dispute between the Bundys and the federal government is the issue of federal land ownership.  The U.S. government has a long history of purchasing and owning land, beginning as far back as 1781, when the original 13 colonies began ceding portions of their “western” lands—the land between the Appalachian Mountains and the Mississippi River—to the government.  The U.S. also made land purchases from foreign colonial powers, beginning with the Louisiana Purchase in 1803.  Later, the U.S. purchased more land from Great Britain and Spain, with the purchase of Alaska in 1867, as the last major land acquisition by the federal government.  Most of the land purchases were performed via treaty with the foreign nation. These “public domain” lands (property acquired from a foreign sovereign) are governed by different rules than lands acquired from states or individuals.

The Property Clause in Article IV, section 3, Clause 2 of the U.S. Constitution gives congress the authority over lands, territories, or other property of the U.S. government.  The clause states that congress has the power to dispose of and make all necessary rules respecting the territory or property belonging to the U.S.  In Kleppe v. New Mexico, the Supreme Court stated that congress has broad authority to govern lands contemplated by the Property Clause and that, in the case of disputes between state and federal regulation over said land, the Supremacy Clause ensures that congressional legislation overrides conflicting state regulation.  Essentially, congress has the discretion to retain or dispose of its vast landholdings in the west without consideration for state legislation.  In early American history, the U.S. government disposed of large quantities of public lands via the Homestead Act of 1862, grants to railroads to develop the national transportation system, and grants to specific states.  The government acquired approximately 1.841 billion acres of public lands through treaties with foreign nations, and since then, the government has disposed of 1.275 billion acres of land.

…84 percent of the land in Nevada belongs to the federal government, while 53 percent of the land in Oregon belongs to the federal government.

Some residents of western states have been critical of federal land disposal policies because, in some states,  over 50 percent of the land in that particular state belongs to the federal government.  Specifically, 84 percent  of the land in Nevada belongs to the federal government, while 53 percent of the land in Oregon belongs to the federal government.  Western residents feel that, by owning such large quantities of land, the government exerts an unnecessary degree of influence over their lives, communities, and local economies.  The Sagebrush Rebellion, a political movement that gained some traction in the late ‘70s, saw many western states enacting statutes claiming state title to federal lands subject to the Property Clause, with similar laws passed in Wyoming, New Mexico, Utah, and other states.

However, litigation on the subject proved unsuccessful for western citizens in federal court.  For example, in United States v. Gardener ranchers asserted that they did not need a permit to graze livestock in a national forest because the state of Nevada, not the federal government, owned he land.  The plaintiffs were not successful on their claim and both the lower court and the appellate court rejected the argument that the federal government had any obligation to return lands to the states.  The Regan Administration began several stalled efforts to dispose of the vast public lands in the west, but congress refused to take action without specification on which lands would be subject to disposal.  No bills regarding federal land disposal have been proposed since the 105th Congress in the late ‘90s.

The Public Land Law Review Commission was enacted in 1964 to examine whether the federal government should dispose of or retain the land at issue, and a 1970 report from the organization recommended that the remaining public lands should be retained by the federal government.  Additionally, the 1976 passage of the Federal Land Policy and Management Act (FLPMA) made it the formal policy of the U.S. government to retain the public lands.  The FLPMA repealed most land disposal laws and repealed most laws authorizing homesteading.  Currently, the Bureau of Land Management controls 258 million acres of land, or 11.4 percent of all the land in the United States  A third of the public lands are in Alaska, and the rest is highly concentrated in western states.

The actions of the Bundy brothers have drawn national attention to the dissatisfaction felt by ranchers and western residents who want state control of the public lands, and the acquittal of both Bundy brothers and several other advocates, has made the significant presence of the federal government in western states a topic of national discussion.  Ammon and Ryan Bundy have been criticized for their extreme tactics, but the likelihood of either brother being convicted for charges related to the 2012 Nevada standoff is now in question following their acquittal in the Oregon trial.

Meredith Ballard, Staff Writer
About Meredith Ballard, Staff Writer (15 Articles)
Meredith Ballard is a third-year law student and serves as a Senior Staff Writer for the Campbell Law Observer. She is originally from New Bern, North Carolina and graduated from Appalachian State University in 2014 with a Bachelor of Science in Psychology. She is also a graduate of the Mira Foundation’s guide dog program in Quebec, Canada. After her first year of law school, Meredith interned at Disability Rights North Carolina, a protection and advocacy organization tasked with providing legal representation to individuals with disabilities. During her second year of law school, Meredith’s moot court team became regional finalists in the American Bar Association’s National Appellate Advocacy Competition. During the summer of 2016 Meredith will be interning at the North Carolina Medical Board. Meredith is a member of the Campbell Public Interest Law Student Association and her interests are in health law, disability law, and employment discrimination law.