Friday, August 19, 2016

Adverse Possession is Available Against Department of Interior in Limited Circumstances

Remember when Judge Jones said to the Bundys that adverse possession wasn't available against the federal government? Well, that was plain wrong. It was explained in an earlier pleading, but this is an example of how the government is way better at controlling the narrative against a minority cause/opinion.


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What the judge missed was that adverse possession is available in very limited circumstances against the Department of Interior (USFWS, BLM, etc.). There are two ways to prove per
Ammon Bundy at Refuge
the 
federal statute. One requires a time machine to 1910 ("class 2" per the CFRs), the other ("class 1") requires "good faith and in peaceful, adverse, possession...under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation."

Recall when they claimed on video that they intended to stay for years, made improvements and then had recorded lectures on adverse possession law? This is relevant to intent.  While the potential success of the argument will be debated, the jury is entitled to hear about it to determine state of mind. Judge Brown keeping it out would be a costly mistake and possibly lead to a retrial. In a case of this magnitude she should be erring on the side of protecting the defendants’ record.  

As the AUSA admitted, this is the most complicated case in history of the Oregon district. Her attempts to simplify it are shortsighted.  It’s a good tactic to harm the defense, a bad tactic for a long-term strategy of achieving a non-appealable conviction. But as Sun Tzu says: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.”  (Pocket Art of War on Amazon: http://bit.ly/2brAwKP). And it's getting pretty noisy up in here. 

ADVERSE POSSESSION IS NOT AVAILABLE AGAINST THE FEDERAL GOVERNMENT EXCEPT....


There has been a lot of confusion about adverse possession, since it’s not available against the government unless the government expressly permits it -- hence the federal statute. The statute was intended to protect those homesteaders who fenced in or were otherwise using/improving Interior land without express permission. However, it’s still on the books and hasn’t been updated since the early part of last century and is still available for use by citizens. 

The Fogbow Forum
One of the Fogbow contributors candidly retracted his previous misstatements about the availability of the statute had this to say about it the statute:

“The statute in question is old, but still on the books. Whether or not the statute actually establishes a right to adverse possession, or if it's a waiver of sovereign immunity that covers limited circumstances, or if it just establishes something akin to adverse possession is more a matter of semantics than anything else. For all intents and purposes, the effect is the same. 

“That said, since the statute requires good faith, a legitimate claim to land, or occupation under color of title, I'd say that it's unlikely that there are more than a handful of potential cases left where anyone is likely to successfully claim land under this statute. I'm also not sure that the statute is applicable to Malheur even in principle - but I'll check that a bit later.
“It's a poorly-punctuated statute, but after re-reading it both in the US Code and in the two relevant statutes-at-large volumes, I have to agree that your interpretation is probably right, and mine probably wrong. The 1901 probably does only apply to the situation in (b) where there are no improvements or cultivation. So while there are many, many reasons that no adverse possession claim to the refuge would succeed, particularly under the circumstances of the occupation, failure to use a time machine is not one of them.



STOP TROLLING


You see folks, this is what civil discourse is about.  Instead of calling dissenters names, try engaging them or else you are the “sheeple” following each other into irrelevance.  You should be way more than 3% in the modern social media world. Remember, you aren’t trying to change each other’s minds when arguing. You are trying to impress the silent majority of onlookers whose minds can be changed.  For every commenter or “like” we get thousands of other views of posts and comments. 

Here's what was argued in a motion in May (PDF): 
“Ammon Bundy’s peaceful protest at the Malheur Wildlife Refuge was an act of civil disobedience and a calculated legal maneuver through adverse possession (43 U.S. Code § 1068 "Lands held in adverse possession”). The protest was in part designed to force the federal government into court to address the constitutionality of its federal land management policy. *** However, instead of arguing the issue in a civil courtroom through an ejectment proceeding – where such a debate belongs – Mr. Bundy finds himself before a federal criminal court as a prisoner. Ammon and the Citizens for Constitutional Freedom may not have prevailed in their adverse possession claim. But, that was for a civil court to decide. If the government would have acted with a remote degree of competence, it would have challenged the adverse possession, with an ejectment or eviction claim….”

Mike Arnold,
08.19.2016 

7 comments:

  1. While the whole adverse possession argument might be worth pursuing, I fear that the Bundys are barking up the wrong tree by spending all their legal capital on that argument. The issues in favor of the Bundys are simple and don't have to rely on an esoteric, obscure, ancient law. Rather, the Bundys et al were wrongfully charged and arrested for the following reasons:
    1. Abundant, well settled case law that they had a fundamental, even absolute right to bail absent charges for capital offense. 500 years of bail law and the due process clause of the constitution guarantees that right. The Bail Reform Act is unconstitutional and overturns decades of right to bail. That should be attacked.
    2. The overly broad, ambiguous, vague charges by the government don't sustain a presumption of flight risk or dangerousness. The charges on which the Bundys have been indicted have no evidentiary substance and can easily be challenged on cross examination of the parties who are bringing those charges. Where is the concrete evidence that they impeded federal officers?
    3. The charge of using a firearm in the commission of a crime was dropped, so why do they remain in prison?

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  2. Yes, they are being railroaded. The "Federal" Authorities feel their power threatened and were treating the whole thing like the Bundys are Bonny and Clyde. So when they win who loses his job?

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  3. Truthseeker, it seems that you are arguing against the detain mentioned without bail not the charge itself. These are two separate issues. I agree with your position, but think that this is only one of at least two cases.

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  4. Since Oregon is an open carry state, the fact that the peaceful protesters were armed has no significance regarding the charges against these good men and women.

    Is it 'illegal' to carry arms within a wildlife refuge or the offices and support building? If not, all weapons related charges must be dropped.

    Charges of threats against federal agents or employees (BLM/USFWS) are blatantly false as it was Sheriff Dave Ward, Judge Steve Grasty, at the direction of the FBI, who kept workers from returning to work, not the peaceful protesters.

    Even in the charges against Shawna Cox, regarding having a holstered side arm, and the case against Peter Santilli, no one was threatened by the peaceful protesters by 'brandishing' firearms.

    The rally on Saturday, January 2, 2016 was in support of the Hammond family, particularly, the re-sentencing of Dwight and Steven Hammons on 'terror enhancement' mandatory sentencing, as there is nothing in evidence that demonstrates the back burn started by the Hammonds, was arson, but suppressed eyewitness and video evidence indicates that BLM started fires that killed cattle, destroyed corals, and threatened to burn Frenchglen. The Hammonds are heroes for saving the town.

    I have been following and writing about land grabs by the overreaching federal government since 2014 and the Bundy Ranch standoff. Based on all of the accounts of people directly connected to them, nobody in the Bundy family has ever demonstrated a threat or use of force against federal agents of their contract mercenaries.

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  5. I have followed the Malheur protest since the end of December, 2015. Somehow I missed Arnold Law's motion to dismiss for lack of subject matter jurisdition. http://arnoldlawfirm.com/wp-content/uploads/2016/05/bundy-motion-to-dismiss.pdf

    A few days ago I happend onto this youtube video https://youtu.be/7Hk9Hl9M9Ug

    I have been following Dr. John Parks Trowbridge Jr.'s battle with the IRS where he challenged the court's having constitutional authority giving it the capacity to take jurisdiction in a state. https://supremecourtcase.files.wordpress.com/2015/10/filed-dkt-58-objection-and-demand-091415.pdf

    https://supremecourtcase.files.wordpress.com/2015/08/memorandum-of-law-august-10-2015.pdf
    https://supremecourtcase.files.wordpress.com/2016/04/united-states-motion-for-order-of-sale-and-to-vacate-property.pdf

    The government has not forclosed on Dr. Trowbridges property. Dr. Trowbridge filed a quiet title lawsuit against Judge Schneider, then closed the case, I believe due to error. He then opened a lawsuit agins the magistrate judge Keith Giblin in Texas state court, which Judge Giblin had removed to the US District Court. That case is pending 9:16-cv-00086.

    After watching Mrs. B Stacy's video I had the thought that Ammon should incorporate Dr. Trowbridge's argument the court lacks constitutional authority giving it the capacity to take jurisdiction in a Union state. Usung the same reasoning thee BLM lacks constitutional authority to manage land with a state, which has not been challenged in the Supreme Court.

    Also if, it can be proven the US District Courts lack the constituional authority giving them the capacity to take jurisdiction within a sovereign state the convictions of the Hammonds, Joe Robertson, and all other political prisoners must be null and void

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  6. This comment has been removed by a blog administrator.

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  7. Has the governmentmshot themselves in the foot by entering the deed for the Malheur land and buildings into evidence?

    Judge Brown was not going to allow the defense to argue land ownership.

    By purchasing a private ranch in 1935 the USA stepped down from it position of sovereignty into the commercial plane. They are simply another Oregon property owner in this particualr instance. Just another neighbor.

    The Ninth Circuit has ruled more than any othe court in the nation on fedeal jurisdiction.

    The feds don't have jurisdiction on this former ranchland unless it was ceded to them the USA by the Oregon legislature.

    Constitutional attorney has posted some valuable information on the subject of federal jurisdiction here


    http://home.hiwaay.net/~becraft/FEDJurisdiction.html

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