Case 3:16-cr-00051-BR Document 1178 Filed 09/02/16 Page 1 of 7 J. Morgan Philpot (Oregon Bar No. 144811) Marcus R. Mumford (admitted pro hac vice) 405 South Main, Suite 975 Salt Lake City, UT 84111 (801) 428-2000 [email protected] [email protected] Attorneys for Defendant Ammon Bundy IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Case No. 3:16-cr-00051-BR Plaintiff, REPLY IN FURTHER SUPPORT OF THE v. MOTION TO DISMISS FOR LACK OF AMMON BUNDY, et al, SUBJECT MATTER JURISDICTION RE: ADVERSE POSSESSION Defendants. The Honorable Anna J. Brown Apparently taking its cue from the Court’s dismissive docket order [#1161], the government files a one-paragraph response to Mr. Bundy’s motion challenging the Court’s subject matter jurisdiction, which brings to mind the memorable exchange from the classic film The Treasure of the Sierra Madre (Warner Bros. 1948) between a bandit (Alfonso Bedoya) and Fred Dobbs (Humphrey Bogart): BANDIT: We are federales. You know, the mounted police. DOBBS: If you are the police, where are your badges? BANDIT: Badges? We ain’t got no badges. We don’t need no badges. I don’t have to show you any stinking badges!1 The government’s response says, essentially, we don’t need to prove no stinking subject matter jurisdiction! But that’s the thing: they do. And Mr. Bundy’s motion raises serious issues, based on the 1 See https://www.youtube.com/watch?v=VqomZQMZQCQ (last visited 9/2/16); credit Dickerson v. Napolitano, 604 F.3d 732, 736 n.1 (2d Cir. 2010), and United States v. Sash, 444 F. Supp. 2d 224, 230 (S.D.N.Y. 2006). DEFENDANT AMMON BUNDY’S MEMO IN SUPPORT OF HIS MOTION TO DISMISS 1 Case 3:16-cr-00051-BR Document 1178 Filed 09/02/16 Page 2 of 7 government’s own admitted facts, as to whether this Court has subject matter jurisdiction. And yet, despite being put on notice that the defendants’ adverse possession claim is governed by the Color of Title Act (“CTA”), the government continues to present the kind of argument in response more indicative of first-year law student. The cases it relies on, like United States v. Pappas, only address the Quiet Title Act (“QTA”). Rather than actually confront the arguments raised, the government seems to argue that because “we are federales,” the Court can just summarily deny Mr. Bundy’s motion based on long-standing principles of property law and adverse possession. But the government’s approach, whether ignorant or purposeful, ignores Ninth Circuit precedent to the contrary. For example, the Ninth Circuit has expressly recognized with respect to the QTA and adverse possession that “[a]n exception exists for claims falling within the Color of Title Act.” United States v. Vasarajas, 908 F.2d 443, 447 n.4 (9th Cir. 1990). In Vasarajas, the defendant did not claim adverse possession, and in any event the Color of Title Act did not apply because the land at issue was “Fort Richardson, a military reservation.” Id. at 445. Furthermore, unlike this case, the defendant in Vasarajas seemed to concede that the government had “legal title to the land.” Id. at 445-46. In other words, the Vasarajas case did not involve the kind of “public lands” that are at issue in this case and to which the CTA applies. See 43 U.S.C. § 1068. Here the opposite is true; Mr. Bundy and others lawfully disseized and ousted the United States as occupants, under color of title, to directly challenge its purported title to the land. they were, therefore, staking a claim “under claim or color of title.” 43 U.S.C. § 1068; see also 43 CFR § 2541.1. The government’s one‑paragraph response offers nothing to the contrary. In fact, the government has ignored Defendants’ repeatedly provided explanations and authority on this point, in favor of summary and conclusory denials. See, again, Cavin v. United States, 956 F.2d DEFENDANT AMMON BUNDY’S MEMO IN SUPPORT OF HIS MOTION TO DISMISS 2 Case 3:16-cr-00051-BR Document 1178 Filed 09/02/16 Page 3 of 7 1131, 1134 (Fed. Cir. 1992) (recognizing that the Color of Title Act is, “in effect, an exception to 28 U.S.C. § 2409a(n)”); United States v. Wooten, 40 F.2d 882, 884 (10th Cir. 1930) (showing that even before the amended Color of Title Act, an unperfected adverse possession was still valid, and provided equitable foundation for the Court issuing an order – outside of the Color of Title Act, explicitly estopping the federal government from claiming title to the disputed and adversely possessed land). The other cases cited by the government’s response, Wisconsin Valley Improvement Co. v. United States, 569 F.3d 331, 335 (7th Cir. 2009), and United States v. Hato Rey Bldg. Co., Inc., 886 F.2d 448, 450 (1st Cir. 1989), are similarly inapposite as QTA cases. In Hato Rey, the court acknowledged the distinction between the QTA and the CTA, as , further supporting the suggested that its conclusion might have been different had there been any grounds to assert a claim for adverse possession under the Color of Title Act. See Hato Rey, 886 F.2d at 451. Likewise, in United States v. Rice, the Ninth Circuit recognized that the CTA may “authorize adverse possession” if certain conditions are met. United States v. Rice, 886 F.3d 334, 1989 WL 112460, at *10 (9th Cir. 1989) (unpublished). In Rice, adverse possession did not apply under the CTA because “the Rices knew the title to land was in the United States.” Id. But again, this case presents the opposite, and Mr. Bundy and others staked their claim precisely based on their good faith belief and argument presented at the time, openly and notoriously, that the government does not have a valid claim of title. And yet, the government did not take any civil action, under the QTA or otherwise, to eject the Defendants and resolve matters in court. The government’s argument under the QTA indicates that it understands the The Defendants and their attorneys are not advancing uninvestigated or novel theories. The briefing to this court on the subject of adverse possession is entitled to sincere deliberating DEFENDANT AMMON BUNDY’S MEMO IN SUPPORT OF HIS MOTION TO DISMISS 3 Case 3:16-cr-00051-BR Document 1178 Filed 09/02/16 Page 4 of 7 and consideration – contrary to the government’s recent slights. In any event, the government, on this very topic, is simply wrong. It now rests entirely on the position that “Bundy’s adverse possession theory is fatally flawed because it does not apply to the federal government.” First, the government ignores the ample authority provided by Mr. Bundy’s motion that the actual “exercise” of adverse possession through deseizen and ouster is expressly protected as “legal” conduct by longstanding common law and expressly condoned by Congress (as described in more detail below). And, the government presents no authority showing that the kind of “force” required in making a deseizen or “ouster” in claiming adverse possession – against the United States or any other purported land owner – is or can be a crime. Defendant has searched thoroughly and has found no such authority – not even close. This forecloses the issue, but it is not all. Second, besides the protected action of legally initiating, claiming and holding adverse possession (concepts the government seems to misunderstand or simply ignore) until court action is taken by someone (in this case, the United States) purporting to have legal title steps forward and ejects the adverse claimant through civil court – the government skips to the question of “perfecting title” against the federal government based upon adverse possession. Or, to make this simple, there is a difference between initiating, claiming, and holding adversely, and ultimately prevailing to “perfect” title. But, here too the government is wrong. It used to be the case, as the government cites, that adverse possession holders (who have always been protected by law up to the point that civil ejectment proceedings were initiated), were susceptible and could not sue for superior or perfected title against the United States. Some courts – not centrally considering the merits of the full scope of adverse possession rights as presented here – have observed in dicta that “One cannot gain title to land of the United States through adverse possession.” Pappas, 814 DEFENDANT AMMON BUNDY’S MEMO IN SUPPORT OF HIS MOTION TO DISMISS 4 Case 3:16-cr-00051-BR Document 1178 Filed 09/02/16 Page 5 of 7 F.2d at 1343. But this line of authority deals with the question of perfecting title, not holding adversely prior to ejectment, and rests on the QTA, 28 U.S.C. § 2409(g), that prohibits suit for perfecting title. Of critical importance, this statute and the related law says nothing about adverse possession otherwise and Congress – since at least 1928 when it first passed the Color of Title Act expressly condoned adverse claimants and gave the Interior Secretary – rather than the courts discretion to – in fact – perfect title under certain circumstances in favor of adverse possessors. See Act of December 22, 1928, ch. 47, § 1, 45 Stat. 1069. Further, Pappas relies upon Sweeten v. United States, 684 F.2d 679, 682 (10th Cir. 1982), which argues that “[t]he Supreme Court has ruled that no title to public lands can be obtained by adverse possession, laches, or acquiescence,” which like other similar cases construe earlier dicta in United States Supreme Court cases, i.e., United States v.