by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
Those who are occupying the Malheur National Wildlife Refuge in Oregon are making a legal argument that has no basis. The protestors, led by Ammon Bundy and who call themselves “Citizens for Constitutional Freedom,” have made two demands.
One is a reduction in the sentences for Dwight Hammond and his son Steven, ranchers who were convicted in 2012 of committing arson on federal lands in Oregon. Their crime has a mandatory minimum sentence of five years in prison, but the federal district court imposed a three-month sentence on Dwight Hammond and two 12 month sentences (to be served concurrently) on Steven Hammond. In October 2015, the Ninth Circuit reversed these sentences as being inconsistent with mandatory minimums required by federal law. Although the protestors are objecting to this, the Hammonds, through an attorney, have stated that they do not support the occupation.
The other demand involves a claim about the law. The protestors are demanding that the federal government relinquish control over the wildlife refuge and much of the land that the federal government owns in western states. Their argument is that this is land that is legally owned by the state governments.
But this is a claim without basis in the law. In terms of the Constitution, there is no doubt that the United States government can own land. In fact, Article IV, section 3 of the Constitution gives Congress the authority to control all property of the United States. The United States government has owned and managed property since the first days of the nation.