January 7, 2016

No Legal Issue in Oregon


Citizens for Constitutional Freedom, Erwin Chemerinsky, land ownership, Malheur National Wildlife Refuge

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.

The argument made by the protestors focuses on the “enabling acts” that created most states in the west as part of their transition from being territories. As a condition for statehood, the new states had to cede control of land to the federal government. In the enabling acts, there is language that says that the land is the federal government’s “until the title thereto shall have been extinguished.”            

The argument has been made for decades that this entitles the states to reclaim land from the federal government. But courts have uniformly rejected this argument since it was first made in the 1930s. The decisions have held that the language in the enabling acts allows the federal government to relinquish land, it does not require that the federal government do so. Nothing in the enabling acts limits the duration of ownership by the federal government of this property.           

Although the law on this is clear and has been for decades, the protestors continue to argue that the federal government does not have valid legal ownership of the land and must give it back to the states.  It is similar to tax protestors who continue to argue that the federal income tax is unconstitutional, despite every court rightly rejecting this argument.           

The occupation of the Malheur National Wildlife Refuge thus will not be resolved by the protestors succeeding in their demands. But all hope that it will end peacefully with no one being hurt.