Monday, January 11, 2016

Malheur Wildlife Refuge Occupiers get an F

By Bob Ferris

Cliven Bundy speaking in support of Nevada Representative Michele Fiore's so-called "Bundy Bill" that was declared un-constitutional.   
Years and years ago I was a teaching assistant in a class that was really, really hard for some students. In fact, it might have even determined whether or not they were going to stay in a field that required a high level of attention to detail or not.  The most painful part of that class to the instructors was reading the initial essays because some of them were illogical, poorly-written and largely nonsense.  I think about that experience now as I read the proposal put forth by the so-called Citizens for Constitutional Freedom.   My questions and critique of each section of this two-page document  directed at the occupiers can be found below.

All proposals and petitions need to fundamentally make sense.  The above couching does not. Successful government "asks" are generally about leverage—specifically constituents asking elected officials to act on a matter within their jurisdiction or powers.  As the Citizens for Constitutional Freedom are on the main people who reside outside of the Harney County and generally out of the state, then the leverage enjoyed by constituents per se does not apply.  And as the lands in question, the involved agencies, the legal processes, and actions requested within this document are all beyond the authority of the target of this missive.  As a result, one has to question the logic behind the document's construct and direction.

If you in the Citizens for Constitutional Freedom have any leverage it is a leverage of guns which is exactly why our Founding Fathers when writing in the Federalists Papers (see Number 10) warned us about “factions” defined by Alexander Hamilton as "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."  You have to understand that you are not defending the US Constitution you are what the Founding Fathers warned us about and why they argued for a strong central government.

Setting aside grammar and typos and focusing on content, I can see where the County Commissioners and the Sheriff have an obligation to address the concerns of their constituents and potentially those the ad hoc Committee of Safety, but I am confused as to why the issues of the Committee of Safety are viewed as the purview of the Citizens for Constitutional Freedom as the former had asked the latter to leave the County and had done so prior to the writing of this document along with locally empowered groups representing the interests of ranchers like the Oregon Cattlemen’s Association   and Oregon Farm Bureau and also the community itself (see below picture of raised arms in case you didn't see it).

The above is a muddled mess of one-sided, ill-defined “he said-she said” that does not match the court records or reflect the media accounts of this long-standing conflict (1,2,3).  Also both the 5th and 8th Amendments cover a lot of legal ground so without providing specifics and evidence those assertions essentially become meaningless “blah, blah, blah.”  And if there is any truth to the procedural narrative described above that is for the Hammonds' attorney to pursue and there are legal avenues for him to do just that.  These arguments are grounds for making contributions to a legal defense fund not occupying a legally established wildlife refuge and unduly frightening a rural community.  In any case, the Hammonds, through their attorney, have asked you not to get involved.

“Based on the courts' previous application of the Property Clause, there is a high probability that a court would hold that the federal government is the sovereign of public lands surrendered to or withheld by the federal government at the time of Utah's acceptance into the Union. See generally United States v. Nye County, 920 F. Supp. 1108, 1109 (D. Nev. 1996); Gibson v. Chouteau, 80 U.S. 92 (1872). In short, the state has no standing as sovereign to exercise eminent domain or assert any other state law that is contrary to federal law on land or property that the federal government holds under the Property Clause.”  From the Utah Office of Legislative Research and General Counsel dated February 10, 2010.
Now here we get into the meat of the topic—as a side-note this is what should have come first in this document, because all else are side issues.  While this—the argument that the Enclave Clause (Article 1, Section 8, Clause 17) rather than the Property Clause (Article 4, Section 3, Clause 2) rules all federal lands in spite of the "Property Clause" language to wit: “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State”—is your core concern and likely both the source of your anger and your hope, it is really without warrant and those egging you on like Bundy family friend Nevada Representative Michele Fiore (1,2,3) know it or at least should know it.

In Ms. Fiore’s case she tried to write legislation in Nevada known in some circles as the “Bundy Bill” using a similar philosophy to covert federal lands to state lands.  Ms. Fiore’s efforts did not proceed because the Legislative Counsel Bureau told the Nevada Assembly leadership that the bill she offered was unconstitutional.  And she should have already known that because her colleagues in this effort to take federal lands away from the people who actually own them (1,2,3) tried a similar legal stunt in Utah a few years before with the same response from legal experts familiar with case law and the US Constitution (see above opinion in Utah).
"Emphasis shifted during the 20th century from the disposal and conveyance of title to private citizens to the retention and management of the remaining federal lands. During debates on the 1934 Taylor Grazing Act, some western Members of Congress acknowledged the poor prospects for relinquishing federal lands to the states, but language included in the act left disposal as a possibility. It was not until the enactment of the Federal Land Policy and Management Act of 1976 (FLPMA) that Congress expressly declared that the remaining public domain lands generally would remain in federal ownership." pages 2-3 of in Federal Land Ownership: Overview and Data by Congressional Research Service (2014)
Quite frankly your dogged adherence to this failed and ungrounded legal reasoning is troubling when the evidence in western state constitutions (1,2,3), case law and respected legal analyses all point to the faultiness of your argument.  Moreover, the idea that the “federal government” could in any quick fashion accede to your bizarre demands is na├»ve to say the least.  Yes Congress has the power over federal lands under the Property Clause (Article 4, Section 3, Clause 2) you cite (but do not name), but that would take an Act of Congress.  That Act—to move forward—would have to enjoy broad public support from Americans willing to give up their interest and accesses to that land and their enjoyment of the benefits of having that important and popular wildlife refuge founded by a popular and iconic president in that locale.  Legislators would understand that the lobbying against this would be intense by birders, hunters, public lands advocates and others (see above quote from CRS report above). And then the lawsuits would start.


So taken in sum, what do we have?  We have a request sent to the wrong entity by the wrong people using the wrong methods based on ill-defined and questionable facts, relying heavily on disproved legal theory as well as an unrealistic legislative prognosis, and opposed by pretty much anyone of consequence who has been asked.  Final Grade: F


Dear All:

Within the next few days I am going to write a piece in GREEN DREAMS that starts to frame what we—the actual owners of the Malheur National Wildlife Refuge—think that the occupiers have done wrong legally and that requires punishment. I would ask folks to speculate on exactly what charges should be leveled and what rational punishment should be applied and to whom. Please let me know what you think and your ideas in the comments section of this post and others. I know that these might range from firing squads to atomic wedges, but this is a serious set of questions that we should address and by doing so and by conducting a public dialog on this issue help those trying to assess the public appetite for doing something. Thank you for your help and interest in this important concern.

And please enter the public dialog on Jail the Bundys, Now and encourage others to do the same.


  1. Very clear that Ammon Bundy should be charged with seditious conspiracy. The Oregonian reported that he and Ryan Payne met and staked out (PLANNED) Burns for this activity, and in advance. The Portland District DOJ U.S. Attorneys office ought be very busy investigating and corroborating that. Should be that hard. I'm happy to cite other possible federal violations.

    8 U.S. Code § 2384 - Seditious conspiracy

    If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

  2. We are still at war and since they have tenderized the community of Burns, The county of Harney, The state of Oregon and the Federal Government, and all of the people in these entity's they should be charged with terrorism and sentenced as such, in the meantime while awaiting trial they should be held at Guantanamo Bay Cuba as other terrorists are currently being held.