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.
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
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."
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| Ammon Bundy at Refuge |
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.
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| 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.”
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….”
