Case 3:16-cr-00051-BR

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Tanya M. Sanerib (OSB No. 025526)

Center for Biological Diversity
PO Box 11374
Portland, OR 97211
tsanerib@biologicaldiversity.org
(971) 717.6407 (phone), (503) 283.5528 (Fax)
William J. Snape, III (Pro Hac Vice Application Pending)
Fellow and Practitioner in Residence
American University, Washington College of Law
Senior Counsel, Center for Biological Diversity
1411 K St. NW, Suite 1300
Washington, D.C. 20005
wsnape@wcl.american.edu
202-536-9351 (phone)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

3:16-CR-00051-BR

AMMON BUNDY, et al.,

Motion for Leave to File an Amicus

Brief

Defendants.

The Center for Biological Diversity (Center) respectfully moves, pursuant to the
Courts inherent authority, and Local Rule 7.1, to file a brief as amicus curiae regarding the full
scope and authority of Article IV, Section 3 of the U.S. Constitution, otherwise known as the
Property Clause. Defendants have raised allegations about the Property Clause and its

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application to this case that, if accepted, would radically alter more than two centuries of U.S
legal history. A copy of the proposed brief is attached as Exhibit A to this Motion.
On Thursday May 19, 2016, Amicus counsel William J. Snape, III contacted the United
States Governments attorneys and Defendants counsel on the Motion to Dismiss to confer on
their position on the motion for leave to file an amicus brief. Three e-mail responses were
received by Proposed Amicus counsel:

Counsel for the United States Government, Mr. Geoffrey Barrow, United States
Department of Justice, U.S. Attorneys Office, Oregon, stated that the U.S. Government
does not take a position on your motion to file an amicus brief.

Counsel for Defendant Ammon Bundy, Mr. Michael Arnold, Arnold Law, does not
oppose the motion and stated: We think it's great that you are getting involved in this
courtroom dialogue. It was the goal of the protesters to start a national debate about the
issues that were important to them and some of their fellow citizens. Your filing of this
amicus brief illustrates that they have accomplished part of their goals of education and
dialogue. We welcome any additional commentary and discourse on these very
interesting issues.

Mr. Matthew Schindler, Attorney, stated: On behalf of the defendant number 16 in the
indictment Kenneth Medenbach who is proceeding pro se I object. I am sure all of the
other defendants will object as well. I think the government has this covered pretty
well.

I.

DISTRICT COURTS HAVE AUTHORITY TO ACCEPT AMICUS BRIEFS

All federal district courts possess the inherent authority and broad discretion to accept

amicus briefs. For example, Judge Redden ruled in Natl Wildlife Fedn v. Nat'l Marine
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Fisheries Serv., that: The Ninth Circuit has held the district court has broad discretion to
appoint amicus and that [t]he classic role of amicus curiae . . . [is to assist] in a case of
general public interest, supplementing the efforts of counsel, and drawing the court's attention to
law that escaped consideration. CV 05-23-RE, 2005 U.S. Dist. LEXIS 16657, 14-15 (D. Or.
Apr. 8, 2005) (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982); Miller-Wohl Co. v.
Commissioner of Labor & Industry, 694 F.2d 203, 204 (9th Cir. 1982)); see also Jin v. Ministry
of State Security, 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (district courts have inherent
authority to appoint or deny amici which is derived from Rule 29 of the Federal Rules of
Appellate Procedure); United States v. Davis, 180 F. Supp. 2d 797, 800 (E.D. La. 2001) (noting
that district courts have authority to permit the filing of amicus briefs).
The role of amici is to assist the court in cases of general public interest by making
suggestions to the court, by providing supplementary assistance to existing counsel, and by
insuring a complete and plenary presentation of difficult issues so that the court may reach a
proper decision. Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 808 (3d
Cir. 1991). This authority supports the Courts exercise of its discretion to accept the Centers
proposed amicus curiae brief.
Rule 29 of the Federal Rules of Appellate Procedure, which governs amicus curiae briefs
in the U.S. courts of appeal does not apply in district courts, but provides useful guidance.
According to the Rule, an amicus may only file a brief with leave of the court or with consent of
the parties. Fed. R. App. Pro. 29(a). There is no Federal Rule of Criminal or Civil Procedure
governing the filing of amicus curiae briefs in district courts. Rule 29(b), requires an amicus to
state the reason why an amicus brief is desirable and why the matters asserted are relevant to
the disposition of the case. Similarly, the U.S. Supreme Court Rules state: An amicus curiae

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brief that brings to the attention of the Court relevant matter not already brought to its attention
by the parties may be of considerable help to the Court. An amicus curiae brief that does not
serve this purpose burdens the Court, and its filing is not favored. Sup. Ct. R. 37.1; see also
Northern Securities Co. v. United States, 191 U.S. 555, 556 (1903) (the Court exercises great
liberality in such matters).
II.

THE PROPOSED AMICUS BRIEF PROVIDES SUPPLEMENTAL ANALYSIS

OF ARTICLE IV, SECTION 3 OF THE U.S. CONSTITUTION, RAISED BY THE
PARTIES BUT NOT BRIEFED IN THEIR ENTIRETY
The Center has reviewed the briefs filed to date in this case in order to avoid unnecessary

duplication of the parties arguments. Several of the Defendants Motions to Dismiss or Lack of
Subject Matter Jurisdiction filings make a number of claims about U.S. public lands law and
history. It is our position that several of these filings include inaccurate or misleading
statements. Thus, focusing on U.S. Supreme Court precedent, dating from as early as 1810 and
not discussed by any party, the proposed amicus brief offers a succinct overview of the rich case
law developed under Article IV, Section 3, the Property Clause, of the U.S. Constitution.
The Center for Biological Diversity is a national non-profit environmental organization
with approximately 50,000 members and over 1,000,000 activists and supporters throughout the
country. Founded as an organization in 1989, one of the Centers longest running programs is its
Public Lands Program. The Center advocates for the conservation of millions of acres of U.S.
public lands in national parks, national forests, national wildlife refuges, and many other
designations. The Centers professional staff studies and analyzes land management plans,
species protection proposals, and inter-agency cooperative documents.
The Centers members and supporters use the information generated by staff for
conservation purposes. The Center holds public events on public lands, files technical comments

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and other papers on behalf of conservation on public lands, and advocates before public bodies
and the general media for public land conservation. The Center also frequently uses the court
system to seek protections for federal public lands and waters. See, e.g., Center for Biological
Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012); Center for Biological Diversity v. Dept of the
Interior, 563 F.3d 466 (D.C. Cir. 2009); Southwest Ctr. For Biological Diversity v. U.S. Forest
Service, 307 F.3d 964 (9th Cir. 2002).
The organization, in short, has keen knowledge, experience and interest in the issues
raised by Defendants current Motions to Dismiss.
For all the foregoing reasons, and so that the Court possesses all relevant information it
needs, counsel for proposed Amicus Curiae respectfully requests this motion for leave to file an
amicus be granted. A draft proposed order accompanies this filing.

Dated: May 20, 2016

Respectfully submitted,
/s/ Tanya M. Sanerib
Tanya M. Sanerib (OSB No. 025526)
Center for Biological Diversity
PO Box 11374
Portland, OR 97211
tsanerib@biologicaldiversity.org
(971) 717.6407 (phone), (503) 283.5528 (Fax)
William J. Snape, III (Pro Hac Vice Application
Pending)
Fellow and Practitioner in Residence
American University, Washington College of Law
Senior Counsel, Center for Biological Diversity
1411 K St. NW, Suite 1300
Washington, D.C. 20005
wsnape@wcl.american.edu
202-536-9351 (phone)

CENTER FOR BIOLOGICAL DIVERSITYS MOTION FOR LEAVE TO FILE AMICUS BRIEF

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Exhibit A

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Tanya M. Sanerib (OSB No. 025526)

Center for Biological Diversity
PO Box 11374
Portland, OR 97211
tsanerib@biologicaldiversity.org
(971) 717.6407 (phone), (503) 283.5528 (Fax)
William J. Snape, III (Pro Hac Vice Application Pending)
Fellow and Practitioner in Residence
American University, Washington College of Law
Senior Counsel, Center for Biological Diversity
1411 K St. NW, Suite 1300
Washington, D.C. 20005
wsnape@wcl.american.edu
202-536-9351 (phone)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
v.

3:16-CR-00051-BR

AMMON BUNDY, et al.,

(Proposed) Amicus Curiae Brief

Defendants.

I.

Introduction
Proposed amicus, Center for Biological Diversity, agrees with the United States of

America that the Property Clause [of the U.S. Constitution] vests plenary authority over federal
landssuch as the Malheur National Wildlife Refugein Congress, including the power of
permanent ownership. U.S. Governments Response to Defendants Motion to Dismiss for

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Lack of Subject Matter Jurisdiction, at 2 (ECF No. 570). If this Court reaches the issue, the
purpose of this brief is to provide legal history and further elucidate that Article IV, Section 3 of
the Constitution has possessed a consistent interpretation since the beginning days of the
Republic.
II.

History and Binding Legal Precedent Regarding Article IV, Section 3 of the U.S.
Constitution (The Property Clause)
The Property Clause states that:
The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or
other Property belonging to the United States; and nothing
in this Constitution shall be so construed as to Prejudice
any Claims of the United States, or of any particular State.

U.S. Const. art. IV, 3, cl. 2.

a. Early Supreme Court Cases Recognize the Property Clause Provides the
Federal Government Power to Acquire and Indefinitely Hold Property
Recognizing the power of Congress to pass laws regarding federal property interests
covered by Article IV, Section 3, Chief Justice Marshall stated that the power of governing and
of legislating for a territory is the inevitable consequence of the right to acquire and to hold
territory. Could this position be contested, the Constitution of the United States declares that
Congress shall have power to dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States. Sere & Laralde v. Pitot, 10 U.S.
332, 336-337 (1810).
In a case upholding a federal land patent over a competing state grant, Justice Field noted
that Congress has the sole power to declare the dignity and effect of titles emanating from the
United States; and the whole legislation of the Federal government, in reference to the public

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lands, declares the patent the superior and conclusive evidence of legal title. 1 Gibson v.
Chouteau, 80 U.S. 92, 102-103 (1871) (quoting Bagnell v. Broderick, 38 U.S. 436, 450 (1839)).
Justice Field also wrote the opinion in the unanimously decided Ft. Leavenworth R. Co.
v. Lowe, 114 U.S. 525 (1885), which upheld a state tax upon a railroad company on a federal
military reservation pursuant to an agreement between Kansas and the federal government. The
Court explained that:
since the adoption of the Constitution, they [the United States] have by cession
from foreign countries, come into ownership of a territory still larger, lying
between the Mississippi River and the Pacific Ocean, and out of these territories
several States have been formed and admitted to the Union. The proprietorship of
the United States in large tracts of land within these States has remained after
their admission.
Id. at 532 (emphasis added). 2

Congress also possesses the power, as it exercised with Oregon and other states, to
negotiate different terms of state admittance into the United States, particularly as it relates to
retained and new federal property ownership: The requirement of equal footing does not
demand that courts wipe out diversities in the economic aspects of the several States, but calls
for parity as respects political standing and sovereignty. The power of Congress to cede
property to one state without corresponding cession to all states has been consistently
recognized. Alabama v. Texas, 347 U.S. 272, 275 (1954) (citations omitted) (J. Reed
Concurring).
2
Further, in reference to Defendants enclave clause arguments pursuant to Article I,
Section 8, Clause 17 of the Constitution (Enclave Clause), as well as their position on
permanent federal government ownership of property, Justice Fields quotation continues:
There has been therefore, no necessity for them to purchase or to condemn lands within those
States, for forts, arsenals, and other public buildings, unless they had been disposed of what they
afterwards needed. Having the title, they have usually reserved certain portions of their lands
from sale or other disposition, for the uses of the government. Ft. Leavenworth R. Co., 114
U.S. at 532 (emphasis added); see also Collins v. Yosemite Park & Curry Co., 304 U.S. 518,
529-30 (1938) (The United States has large bodies of public lands. These properties are used
for forests, parks, ranges, wild life sanctuaries, flood control and other purposes not covered by
[Constitution Article I, Section 8] Clause 17.).
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b. Pursuant to the Property Clause, Congress Has Power to Protect, Manage,

Control and Hold Public Lands
One of the very first Article IV cases in the United States involved a plaintiff who did not
want to pay for leases issued to him by the federal government for a mine on federal public
lands. In response to plaintiffs argument that Article IV, Section 3 only dealt with the power by
Congress to dispose of federal lands, the Supreme Court cited the needful rules and
regulations clause of Article IV, Section 3 and upheld the lease payments. United States v.
Gratiot, 39 U.S. 526 (1840).
Since the early 19th century, the U.S. Supreme Court has had numerous opportunities to
revisit and analyze Article IV, Section 3, Clause 2 of the Constitution. Every single time, the
Court has reaffirmed the plain and wide reading of the Congressional power to retain, use,
sell, buy, manage, and conserve public lands. It is firmly settled that Congress may prescribe
rules respecting the use of the public lands. It may sanction some uses and prohibit others, and
may forbid interference with such as are sanctioned. McKelvey v. United States, 260 U.S. 353,
359 (1922). Under the Constitution (Art. IV, 3) Congress has plenary power to dispose of and
to make all needful rules and regulations respecting the naval oil reserves, other public lands and
property of the United States. Sinclair v. United States, 279 U.S. 263, 294 (1929). And the
power of the United States to thus protect its lands and property does not admit of doubt. Hunt
v. United States, 278 U.S. 96, 100 (1928). Also beyond challenge is the power of the Federal
Government to impose reasonable conditions on the use of federal lands, federal property and
federal privileges. Ivanhoe v. McCracken, 357 U.S. 275, 295 (1958).
III.

The Enduring Strength of Article IV, Section 3

While the Supreme Court has made it clear that the plain language of Article IV, Section

3 is inviolate, it has also explained that the peoples branchCongresshas wide authority to
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make rules, change rules, and even delegate the power to make rules regarding federal public
lands. Notably, in Camfield v. United States, 167 U.S. 518, 525-528 (1897), it was held that
Congress possessed the constitutional right to protect public lands from activities by adjoining
private landowners, for example if such action constitutes a nuisance. In fact, the only time the
Supreme Court questions the reach of Article IV, Section 3 is when it asks how far the
Congressional power to regulate private property goes under the Property Clause. See, e.g.,
Kleppe v. New Mexico, 426 U.S. 529, 546-47 (1976); see also United States v. Alford, 274 U.S.
264, 267 (1927) (Congress may prohibit the doing of acts upon privately owned lands that
imperil the publicly owned forests.).
In United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Supreme Court held that
Congress had implicitly delegated power to the President to withdraw federal public lands from
oil exploration. 3 The power of the Executive, as agent in charge, to retain the property from
sale need not necessarily be expressed in writing . . . . For it must be borne in mind that
Congress not only has a legislative power over the public domain, but it also exercises the
powers of the proprietor therein. Id. at 474.
Congress also frequently exercises its power over public lands, including for example the
passage of the National Forest Management Act, 16 U.S.C. 1600 -1614, and the Federal Land
Policy and Management Act, 43 U.S.C. 1701-1785, in the mid-1970s. Congress also
responded to the courts when appropriate about exercising its Article IV duties and authorities.
For example, after United States v. California, 332 U.S. 19 (1947), which held that Congress had
a long-standing policy of recognizing federal ownership of the three-mile belt from shore to sea,

A delegated Presidential action was also at issue in United States v. Oregon, 295 U.S. 701
(1935) (81,786 acres within Oregon, including portions of Lake Malheur, ordered, adjudged and
decreed to the United States after a quiet title action by the latter).

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Congress later gave this three mile stretch back to the states by statute. See Outer Continental
Shelf Lands Act of 1953, 43 U.S.C. 1331 - 1356, P.L. 212, Ch. 345, August 7, 1953, 67 Stat.
462.
The Property Clause is not only a cornerstone of the Constitution, but it is also a
provision profoundly responsive to the people. As the Supreme Court has reminded: [W]e
cannot and do not assume that Congress, which has constitutional control over Government
property, will execute its powers in such way as to bring about injustices to states, their
subdivisions, or persons acting pursuant to their permission. U.S. v. California, 332 U.S. at 40.
IV.

Conclusion
Defendants arguments, seeking to circumvent the federal governments power over

federal public lands, fly in the face of over two centuries of Constitutional interpretation, practice
and precedent. Not one case or legal provision supports Defendants reading of the Constitution
and laws of the United States, at issue with the current Motion to Dismiss.
Respectfully submitted,
/s/ WJ Snape III
William J. Snape, III (Pro Hac Vice Application Pending)
Fellow and Practitioner in Residence
American University, Washington College of Law
Senior Counsel, Center for Biological Diversity
1411 K St. NW, Suite 1300
Washington, D.C. 20005
wsnape@wcl.american.edu
202-536-9351 (phone)
Tanya M. Sanerib (OSB No. 025526)
Center for Biological Diversity
PO Box 11374
Portland, OR 97211
tsanerib@biologicaldiversity.org
(971) 717.6407 (phone), (503) 283.5528 (Fax)
Dated: May 20, 2016
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

United States of America,

Plaintiff,
v.

3:16-CR-00051-BR

Ammon Bundy, et al.,

Proposed Order
Defendants.

Upon consideration of Center for Biological Diversitys Motion for Leave to File an
Amicus Curiae Brief, it is hereby:
ORDERED that Proposed Amicus Motion is GRANTED, and
ORDERED that the Center for Biological Diversity file its proposed amicus curiae brief.

IT IS SO ORDERED.

__________________________________
Hon. Anna J. Brown
United States District Judge

PROPOSED ORDER

Dated: ________________