Case 3:16-cr-00051-BR

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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
morgan@jmphilpot.com
mrm@mumfordpc.com
Attorneys for Defendant Ammon Bundy
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
v.
AMMON BUNDY, et al,
Defendants.

Case No. 3:16-cr-00051-BR

REPLY IN FURTHER SUPPORT OF THE
MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION RE:
ADVERSE POSSESSION
The Honorable Anna J. Brown

Apparently taking its cue from the Courts dismissive docket order [#1161], the
government files a one-paragraph response to Mr. Bundys motion challenging the Courts
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 aint got no badges. We dont need no badges. I dont have to
show you any stinking badges!1
The governments response says, essentially, we dont need to prove no stinking subject matter
jurisdiction!
But thats the thing: they do. And Mr. Bundys 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 BUNDYS MEMO IN SUPPORT OF HIS MOTION TO DISMISS

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governments 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. Bundys motion based on long-standing principles of property law and
adverse possession. But the governments 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 governments oneparagraph 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

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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 governments 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 governments 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 BUNDYS MEMO IN SUPPORT OF HIS MOTION TO DISMISS

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and consideration contrary to the governments recent slights. In any event, the government,
on this very topic, is simply wrong. It now rests entirely on the position that Bundys 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. Bundys 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

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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. California, 332 U.S. 19, 39-40
(1947) where the Supreme Court observed that The Government, which holds its interests here
as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary
court rules designed particularly for private disputes over individually owned pieces of property;
and officers who have no authority at all to dispose of Government property cannot by their
conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure
to act. But this does not deal with staking a claim for adverse possession directly, only the
question as to whether title can be perfected by adverse possessors against the United States.
In California, the Supreme Court concludes as this court has done previously in this
case that Congress is the ultimate decision maker on this issue. And that is the point.
Following the 1947 Supreme Court decision in California, Congress acted in 1953 to legitimize
and protect adverse claimants on public lands, expressly amending the Color of Title Act to
make what was once discretionary, mandatory, and to provide a new vested right for adverse

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possession holders as an exception to the prior law. See Day v. Hickel, 481 F.2d 473, 476 (9th
Cir. 1973) (The revised act gave a new statutory right - to any citizen authorized to own land,
and who initiated, claimed, and held adverse possession for the prescribed period to perfect
title against the United States).
At this point, the question before the court is not whether Mr. Bundy and the
codefendants successfully maintained adverse possession for 20 years to perfect title, and
therefore to survive a challenge in civil court to ejectment. The present question is twofold.
First, whether or not Congress has protected the force necessary to employ adverse possession
against the federal government in the first instance meaning initiation and claiming (disseizen
and ouster) because if so, by making such conduct expressly legal Congress has divested this
Court of criminal jurisdiction over allegations and charges that the same force is purportedly
illegal. The second question presented, if there is any dispute, if the answer to the first is
affirmative, is whether or not the conduct and alleged force employed by Mr. Bundy and any
of his co-defendants actually falls within the legally protected conduct required to initiate and
claim adverse possession. Thus, Defendants motion. The government has so far not disputed the
disseize and ouster thus rendering the second question un-necessary, and Defendants have
therefore moved for dismissal based upon the first. But, alternatively, if there is any question
regarding whether the conduct at issue is within this courts jurisdiction the September 7, 2016
trial should be a bifurcated first trial on that question alone.
In sum, the pending motion included a 10-page memorandum (as per the courts
instruction), which directly and amply musters legal authority from the early 1800s (in fact even
prior English common law origins) through to the present day, including multiple undisturbed
rulings from the United States Supreme Court and modern Ninth Circuit precedent that

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foreclosed the governments one paragraph conclusory denial. Mr. Bundy has endeavored
diligently and with much effort to discovery, abbreviate, and summarize the present and relevant
law on this essential point. It should not be too much to expect the government to directly
address this argument, which was also central to the entire motivation of Mr. Bundy and the
centrally disputed element of this pending case.
DATED: September 2, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

DEFENDANT AMMON BUNDYS MEMO IN SUPPORT OF HIS MOTION TO DISMISS