Bundy group’s claims are non-starters legally

Les Saitz in The Oregonian examines the constitutional land and sovereignty claims of the Malheur occupiers, which tend to sound in what I have previously called folk law. Many in the group were arrested last night. One final point: the Bundy group can call itself a militia if it likes, but only in the same sense that Dorothy Parker could call herself the Queen of Rumania. Earlier here.


  • The Bundy clan seems to have Al Bundy as their legal advisor.

  • I agree, they don’t have valid legal case. However, that doesn’t mean that it was/is good policy for the federal government to retain control of such a large percentage of the land in the western states.

  • Agreed. The case for pulling back the federal government’s role as Western landowner deserves to stand on its own, without this distraction.

    • “The case for pulling back the federal government’s role as Western landowner deserves to stand on its own, without this distraction.”

      I’m not so sure it can stand on it’s own. The people in the western states have been complaining about how much land the Feds retained literally since those territories first became states, but the issue has never been debated on a policy basis.

      Granted, they won’t make much headway as long as they are pushing silly legal theories rather then making a moral/policy argument, but without protests like this, the issue would be completely ignored.

  • If you sell off the Western lands for pennies to a handful of wealthy interests, then hunters and others will be shut out of lands they have enjoyed for generations. The current system may be ideologically offensive, but it looks better when compared to likely alternatives.

    • False conclusions. The method/price to sell the land hasn’t been determined, thus the land may not go for ‘pennies to a handful of wealthy interests’. This is simply an attempt to drag in class warfare.

      Secondly, just because land becomes private doesn’t mean hunting will stop. Lots of private land owners allow hunters to operate on their lands (typically for a fee).

      On the other hand, there is the argument that none of us really own the land we are on anyway, as the land is always up for seizure if we fail to pay rent (aka property taxes).

    • So, don’t sell it. Parcel it out to various private conservation organizations.

      For grazing lands, let the ranchers created an association to own/manage the land that is under their control.

  • ” Lots of private land owners allow hunters to operate on their lands (typically for a fee).”

    If a landowner is letting people on his/her/its property to use for recreational purposes, charging a fee is a very bad idea. All Recreational Use statutes which shield landowners against tort liability are limited to persons who don’t charge a fee (or, the fee is minimal and its purpose is sharply circumscribed). A major drawback is that the landowner gives up a lot of control if relying on RU statutes as liability protection. For example, the landowner may not have authority to evict persons who drink and have firearms, without waiving the RU statute’s liability protection, and so have to rely on local police (who, in many rural areas, may not be readily available). A landowner who allows the public to use his/her/its land for free needs to have counsel do a thorough analysis of the RU statute’s provisions and jurisprudence (including the jurisprudence from other states whose RU statutes are identical or very similarly worded) to determine the risks and landowner’s authority to control the conduct of people who come on the land. Also, liability insurance is necessary (and, with fairly high limits, since a gunshot wound will typically put the victim in ICU for some time, and, is a sufficiently serious injury that air ambulance evac is foreseeable — which can cost, itself, well in excess of $15K).

    If the landowner charges a fee, then the operation should be run as a commercial operation — employees, safety standards which are enforced, liability insurance, rescue equipment and training, etc. The fees charged will have to be sufficient to cover these costs and still generate a profit. Or, the land can be leased to private hunting clubs. And, the land will need to be fenced, posted, and patroling it is probably warranted.

    Also, the state of the tort doctrine for premises liability needs to be considered, to consider the times the RU statute isn’t applicable. Most states follow the Restatement (2d Ed) of Torts (1965), and duties owed persons on the land are based on whether the person is an invitee (or business invitee in some jurisdictions), licensee or trespasser. These distinctions are essentially eliminated in the Restatement (3d Ed) of Torts (2012), which ties the duty owed to foreseeability. But, while foreseeability isn’t supposed to be a post hoc analysis, it’s hard to ignore bad facts, even it they are unusual or rare, when the court defines the duty owed and determines if there was a breach..

    So, while the choices and outcomes aren’t quite a stark as Hugo states, there can be other economic forces that will push private landowners towards denying access to the public.