|Versus Pocket Classics|
|Ammon Bundy at Refuge|
ADVERSE POSSESSION IS NOT AVAILABLE AGAINST THE FEDERAL GOVERNMENT EXCEPT....
|The Fogbow Forum|
“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.”
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….”