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.
Reposted by Reagangirl.com 6/4/16