Oregon Standoff Latest: Judge Says Ammon Bundy's Lawyers Can't Have More Time

The federal government does not own Malheur National Wildlife Refuge, has no right to have federal employees work on the land and, thus, has no right to charge anyone with interfering with that work.

That's the crux of the argument lawyers for Ammon Bundy plan to put forth, according to documents filed Friday in federal court.

"The motion to dismiss in this case will challenge the Federal Government's authority to assert ownership over the land that is now known as the Malheur National Wildlife Refuge," writes Lissa Casey, one of Bundy's lawyers. "It is Defendant’s position that this authority is critical to the Federal Government’s authority to have federal employees work on that land.

"Jurisdiction in this case will determine whether the Federal Government can prosecute protesters for being there at all."

Casey asked the judge for more time to file a motion to dismiss the charges.

On Monday, the judge said no.

Judge Anna Brown directed Bundy's team to file papers by Wednesday and she will decide after that whether there should be a hearing.

"The Court notes it appears Ammon Bundy's anticipated motion relies on the type of historical and legal facts that do not ordinarily necessitate an evidentiary hearing or the examination of live witnesses," she ordered. "Accordingly, the Court directs Ammon Bundy to file any necessary supporting material in the form of declaration(s) together with his anticipated motion."

Bundy is one of 27 people indicted in connection with the armed takeover of the wildlife refuge in January.

Casey's co-counsel on the case, Mike Arnold, tells patch.com that his client and the others are protesters who were exercising their First Amendment rights.

"They believe in the Constitution, they believe in the Federal Government," Arnold says. "They are patriots, not seditionists."

According to the filing, Bundy would like a hearing to show - using the Enclave Clause of the Constitution - that the federal government has no authority over Malheur.

"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," Casey writes.

"Defendant further intends to argue that once statehood occurred for Oregon, Congress lost the right to own the land inside the state."

Bundy, she claims, will demonstrate that the government cannot demonstrate the sequence of the deeding and homesteading of the land and, thus "the Court will not have sufficient information to determine the constitutionality of the Government acquiring the land, and therefore jurisdiction in the case."

According to the filing, they plan to challenge the 1935 case of United States vs. Oregon, which established the government's ownership of the refuge.

Bundy's argument that the Enclave Clause prevents federal ownership of Malheur, while it has gained widespread acceptance among certain groups, has never been adopted by the United States Supreme Court or any appellate court.

Most case law, experts say, establishes the opposite.

"The unmistakable legal reality is that a series of solid, indisputable U.S. Supreme Court cases establishes that the federal government is constitutionally empowered to own land, control that land through federal statutes and regulations as it sees fit, and dispose of that land if it chooses to “without limitation," Willamette University Law Professor Susan Smith wrote in a paper she was requested to research and write by the Association of Oregon Counties in January.

Jennifer Rokala, executive director of the Center for Western Priorities, also sees Bundy having a hard time proving this case.

“We look forward to Ammon Bundy’s attempt to re-litigate 200 years of jurisprudence regarding the property clause, and United States v. Oregon, the 1935 Supreme Court case that specifically established the American people’s ownership of the Malheur National Wildlife Refuge," she said.

"The Bundy case is the perfect opportunity to remind anyone who would try to take land from the American people that such efforts are wildly unpopular, unwise, and unlikely to succeed."

Bundy's lawyer, Mike Arnold, tells Patch that while there is case law arguing the opposite of what his client intends to prove, that case law was wrongly decided.

Meanwhile, Bundy, his brother Ryan, and five other co-defendants were checked back into jail on Monday after being returned from Nevada,

The seven are also charged their in connection with the 2014 standoff in Bunkerville.

READ MORE ON THE BUNDYS AND THEIR ASSOCIATES

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DEATH THREATS POURED IN FOR OREGON GOVERNOR, LAW ENFORCEMENT OFFICERS

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