redline Opposition to Mot In Limine re Adverse Possession...

Opposition to Government’s Motion In Limine to Exclude Defense of Adverse Possession – 1

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 [email protected] [email protected] 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 TRIAL MEMORANDUM AND OPPOSITION TO THE GOVERNMENT’S MOTION IN LIMINE RE: ADVERSE POSSESSION The Honorable Anna J. Brown

In its trial brief and motion in limine, the government seeks to preclude Ammon Bundy

(and other defendants) from presenting evidence of his core defense – his state of mind,

motivations, and the justifications underlying his alleged actions and leadership pertaining to the

January 2016 occupation of the Malhuer National Wildlife Refuge (“Refuge”). Its Motion In

Limine (“Motion”) is unfair, lacking in legal authority, and constitutionally impermissible in

seeking to exclude facts concerning Mr. Bundy’s claim of adverse possession over the Refuge.

Mr. Bundy has an unalienable right to present a complete defense to the pending charges,

including evidence that negates the willfulness of his allegedly criminal acts. See Crane v.

Kentucky, 476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense.’” (quoting California v. Trombetta, 467

U.S. 479, 485 (1984))). And courts cannot make rulings that undermine the doctrine of adverse

possession. Over 125 years ago, the Supreme Court reversed where the lower court had

Case 3:16-cr-00051-BR Document 1052 Filed 08/17/16 Page 1 of 28


instructed the jury that “[u]nless the defendant had a right to the possession of such lands when

he took possession of them, he has no right now; time never makes a wrong right” because – as

the Court recognized – the right of adverse possession “does not depend upon, and has no

necessary connection with, the validity of the claim under which that possession is held.” Probst

v. Trustees of Bd. of Domestic Missions, 129 U.S. 182, 190 (1889); see also Buchanan v. United

States, 233 F. 257, 258-59 (8th Cir. 1916) (reversing defendants’ conspiracy convictions based

on the trial court’s erroneous exclusion of evidence going to the defendants’ belief – even though

their actions were “indefensible” – regarding ownership of the property in question because “[i]f

that belief was entertained in good faith, and the intent of [defendants] was but to aid [their

leader] in the assertion of his supposed title they did not violate the act of Congress” (citing

United States v. Waddell, 112 U.S. 76, 80 (1884)).

Mr. Bundy’s defense is simple. There is no significant dispute regarding his presence in

Oregon, and the government has marked exhibits showing some of the actions he took and

statements he made in January 2016, widely covered by traditional and social media. These

include his protests regarding the treatment of the Hammonds and the larger issues presented –

i.e., the need to constrain the federal government to its constitutional limits regarding property

ownership, U.S. Const., Art. I, § 8, clause 17, and the harm that comes to families and

communities when it does not respect those limits. The government now intends to put Mr.

Bundy, his brother, and codefendants on trial for allegedly conspiring to use unlawful “force,

intimidation, and threats” against government officers, and for allegedly intending to use

firearms “in a federal facility” in furtherance of that purported conspiracy. (Doc. 282 at 2, 4)

Much attention has been given to Mr. Bundy’s rights, under the First and Second

Amendment, to petition the government for redress and to speak out against mistreatment of its



citizens, and the government has acknowledged those aspects of his defense. But Mr. Bundy has

also made repeated and consistent efforts to apprise the Court of his statutory and common law

rights to attempt adverse possession under the Color of Title Act, 43 U.S.C. § 1068, as justifying

his and his fellow defendants’ presence on the Refuge. (See Docs. 527 and 892) The government

has not responded substantively until now, at the eleventh hour, with a motion in limine seeking

to exclude the entirety of Mr. Bundy’s defense in that respect. But even during the recent July 18

release hearing, where the court declined to consider the attempted “adverse possession” in

denying Mr. Bundy’s motion for release under the Bail Reform Act, the Court acknowledged

that a claimed attempt at adverse possession could be presented at trial to “mitigate intent.”

(7/18/2016 Tr. 63:10-13) To that, the government acknowledged it was a “factual matter” and

that “perhaps the jury will decide maybe the government is wrong.” (Id. at 20:14-17)

This issue is critical, not just because Mr. Bundy’s understandings regarding adverse

possession would “mitigate [his] intent,” but, more importantly, because Mr. Bundy’s attempted

adverse possession of the Refuge, with his fellow protestors, provides a complete defense to the

government’s pending charges. In this respect, the government’s trial brief and Motion miss the

central point of Mr. Bundy’s defense: regardless of whether Mr. Bundy’s attempted adverse

possession of the Refuge would have been successful – it was unquestionably legal to try.1

Importantly, the government does not, and cannot, dispute the sufficiency of evidence showing

that Mr. Bundy was engaged in attempted adverse possession at the Refuge. Instead, the Motion

argues that: (1) government property is not subject to adverse possession; (2) any attempt at

adverse possession in this case would not have been “in good faith,” as the Color of Title Act

1 And even if the Court concludes that it was not legal, Mr. Bundy’s sincere belief regarding the legality of his actions remains a central consideration for the jury, disproving the mens rea element of charges that must be proved beyond a reasonable doubt. See Buchanan 233 F. at 259.



requires; and (3) Mr. Bundy and others are not entitled to a “misunderstanding” defense. But, as

demonstrated below, if Mr. Bundy and his colleagues were intentionally engaged in a statutorily

protected attempt at adverse possession as part of their lawful protest – regardless of the merits

of their attempt, and regardless of the actual outcome – they were not engaged in an illegal

conspiracy to do something else. And because their presence at the Refuge was in furtherance of

their statutory rights of adverse possession, the government cannot argue that Mr. Bundy and the

other defendants cannot avail themselves of their rights under the First and Second Amendments.

I. Adverse Possession Claims, Generally.

The Court and prosecutors in this case have, at times, expressed significant levels of

incredulity regarding Defendants’ actions at the Refuge in January 2016, which has also seeped

into media coverage of these proceedings. Commentators in and out of court seemingly boast in

their professed inability to understand how Mr. Bundy could possibly justify his actions at the

Refuge as being within the bounds of law. And yet, with its Motion and trial brief, the

government is seeking to prevent Mr. Bundy from doing exactly that: explaining how the law

allows for him and others to have attempted adverse possession of the Refuge in connection with

their First Amendment protest regarding the federal government’s treatment of the Hammonds

and its violations of the limits that the Constitution places on federal power.

It is beyond ironic that the government bases its Motion on an argument as flimsy as “no

controlling legal authority.” (Doc. 959 at 4) The Court may recall that argument was popularized

in 1997 by then-Vice President Al Gore in defense of his conduct soliciting campaign donations

from the White House, for which he was never prosecuted.2 And only a month ago, the

2 See Alison Mitchell, Gore Says He Did Nothing Illegal In Soliciting From White House, NY Times, March 4, 1997, available at http://www.nytimes.com/1997/03/04/us/gore-says-he-did-nothing-illegal-in-soliciting-from-white-house.html.



Department of Justice used the same argument to justify its decision not to bring criminal

charges against a former secretary of state and current presidential nominee:

“In looking back at our investigations into the mishandling or removal of classified information,” Mr. Comey said, “we cannot find a case that would support bringing criminal charges on these facts.”3

And yet, in this case, the Department of Justice uses the argument to try and preclude a

defendant from being able to present evidence in support of his defense. Voluntary dismissal of

its case against Mr. Bundy on those grounds would be more appropriate.4

The Court’s prior statements concerning Mr. Bundy’s defense in this case seem to treat

adverse possession as some kind of anachronism. In response: First, Mr. Bundy would point out

how rights recognized by federal statute to assert adverse possession are no more anachronistic

than the statute that the government is using to prosecute him for an alleged “conspiracy,” 18

U.S.C. § 372. As Defendants have previously shown, Congress enacted 18 U.S.C. § 372 in July

1861, three months into the Civil War, after secession, and following widely publicized events

like those in St. Joseph, Missouri, where President Lincoln’s newly-appointed postmaster had

been chased from his post at gunpoint by Confederate sympathizers for refusing to take down the

union flag. (See Docs. 474 at 4-5; 1007 at 4-5) Pointedly, the government has no basis to accuse

Mr. Bundy of chasing any government official from his or her post at gunpoint. As his brother,

Ryan Bundy, testified at a recent hearing on their joint motion for release:

[T]hese charges relate directly to our right to assert the constitutional fact that the federal government cannot own land within a state, except for specific purposes outlined in the Constitution, and to attempt adverse possession, to return – return it to the rightful owners, including under the Color of Title Act.

3 Mark Landler & Eric Lichtblau, F.B.I. Director James Comey Recommends No Charges for Hillary Clinton on Email, NY Times, July 5, 2016, available at http://www.nytimes.com/2016/ 07/06/us/politics/hillary-clinton-fbi-email-comey.html?_r=0. 4 See United States Attorneys Manual § 9-2.031, available at https://www.justice.gov/usam/ usam-9-2000-authority-us-attorney-criminal-division-mattersprior-approvals#9-2.031; Doc. 881 at 9-10 (arguing that the DOJ’s “Petite Policy,” USAM§ 9-2.031, requires dismissal).



… I want to just focus on one particular piece of the law. The refuge – the refuge was empty when we got there on January 2nd. We made sure of that. The main buildings were unlocked. We checked all of the buildings and surrounding property because we did not want any confrontation or violence. Once we verified that the buildings were empty and that there was no one in the surrounding property, we staked our claim. Some have mocked our efforts. Some have criticized that some of us had firearms in our possession, though we never used them for threats or violence.

… That is what we set out to do. We did it openly, notoriously, and hostilely. …

… [But] we did not use violences [sic], and we caused no harm to anyone.

The only bullets that were fired were by the government, and the only force that was threatened and the only guns that were brandished were by the government.

(7/18/2016 Hrg. 74:13-76:18) The government did not challenge that account with any evidence.

The history of 18 U.S.C. § 372 raises another point that weighs against the government’s

Motion and trial brief. When introduced in 1861, the law included provisions criminalizing a

conspiracy “to overthrow, or to put down, or to destroy by force the government of the United

States, or to levy war against the United States, … or by force to seize, take, or possess any

property of the United States contrary to the authority thereof…” Those provisions criminalizing

seditious conspiracy have since been moved to 18 U.S.C. § 2384, which is not charged in this

case. And even if the government had charged a violation of § 2384, i.e., a conspiracy “to seize,

take or possess [by force] any property of the United States contrary to the authority thereof,” the

defendants would still be able to present their adverse possession defense, showing that, far from

being “contrary to the authority thereof,” their actions were authorized by the Color of Title Act.

One of the few reported cases under § 2384 helps illustrate why it does not apply here. In Phipps

v. United States, 251 F. 879, 880 (4th Cir. 1918), the court affirmed a § 2384 conviction based on

“plenary” evidence that the defendant conspired with others to recruit and “pledg[e] men under

oath,” to attack a military base – plans included “blowing up bridges” – to “take by violence the

arms and ammunitions of the government” – in other words, the defendant offered no evidence



to justify his actions under “the authority” of federal law, as Mr. Bundy has done here.

Mr. Bundy’s defense rests on basic and long-established principles of property law.

While some of these principles may be foreign to citizens in modern times (including

prosecutors, judges and potential jurors), they are familiar to those who, like Mr. Bundy and

some of the other defendants, rely on the land in the Western United States for their livelihood,

be it ranching, farming, or other vocations. On these topics, Mr. Bundy has been a well-known

and public advocate. His lectures, teaching, and public speeches (both before and during the

“occupation” of the Refuge) include plain and direct discussions of these matters – including the

doctrine of adverse possession. In fact, the government’s arrest of Mr. Bundy came as a direct

“consequence” of how effective his ideas were proving to be – on January 26, authorities

demanded Mr. Bundy’s arrest in order to stop the “virus [that he] was spreading” – those

demands leading, tragically, to the shooting death of LaVoy Finnicum.5

The government’s Motion ignores the facts of the case and basics of adverse possession

law as applied, and instead asks the Court – without any direct authority – to exclude Mr.

Bundy’s defense. Undersigned counsel can understand the perverse allure underlying the

government’s argument. If the court would also chain Michael Phelps to the wall of the

swimming pool, we might be able to beat him in a 100m butterfly. But the Constitution

guarantees that Mr. Bundy be given “‘a meaningful opportunity to present [his] complete

defense.’” Crane, 476 U.S. at 690. The government must prove beyond a reasonable doubt that

Mr. Bundy and others engaged in a conspiracy, knowing of its illegal object and intending to

help accomplish that illegal object. It makes reason stare to try and argue that Mr. Bundy should

not be able to argue that his actions in protest to the federal government’s actions were in pursuit

5 KOIN 6 News Staff, “Militia at Malheur: ‘Virus was spreading,’” January 29, 2016, http://koin.com/2016/01/29/militia-at-malheur-virus-was-spreading (last visited July 13, 2016).



of a legal object, i.e., a lawful attempt at adverse possession. That protest garnered national

attention, including a response from Oregon’s congressional delegation, and increased public

scrutiny of the government’s claims to own and control the majority of land in the Western

United States. We anticipate that the jury in this case will be asking, among other things, why the

protestors changed the sign at the Refuge, why they changed its name, why they tried to assume

the utilities and have mail delivered there, and why did they put their efforts into improvements

at the Refuge? Did Mr. Bundy and others do those things, and others, to somehow “intimidate”

federal officers from discharging their official duties? No. But if the Motion is granted, the jury

will never hear the central truth of this case concerning Mr. Bundy’s intent. The answer to all of

those questions, and others, is that Mr. Bundy and others took the actions they did, understanding

that they would be factors in assessing what they hoped would be a successful attempt at adverse

possession. The Court should not preclude Defendants’ ability to tell the jury, in the well-known

words of radio commentator Paul Harvey, “the rest of the story.”

II. The Contours Of Adverse Possession.

The government’s Motion does not address the substance of what an “adverse

possession” defense would look like at trial. It seeks to exclude it without any such discussion.

But the Court must recognize that the lawful use of “adverse possession” has a long and well-

established legal tradition in the United States, at common law and by way of state and federal

statute. See, e.g., Ewing's Lessee v. Burnet, 36 U.S. 41, 52 (1837) (affirming the sufficiency of

evidence to establish a claim for adverse possession where one enters the land of another “under

claim and color of right [thus constituting] an ouster, otherwise, it is a mere trespass”); NAC Tex

Hotel Co. v. Greak, 2015 WL 7019738, at *3 (Tex. App. Nov. 12, 2015) (describing adverse

possession as a “harsh” doctrine, which “requires that the parties’ intentions be very clear”).



Unquestionably, the actions of claiming or holding property by way of adverse possession are

lawful. In Ewing’s Lessee, 36 U.S. at 54, the Supreme Court rejected a property owner’s

challenge to a jury’s verdict on grounds that adverse possession “was not fair and honest.”

“[O]ne who seeks to set up an adverse possession need not have a good title, or in fact

any title, except a possession adverse and hostile to that of the true owner under a pretense or

claim.” 3 Am.Jur.2d Adverse Possession § 11 (1986). “While a discussion of adverse possession

ordinarily centers on real property, the same principle has been applied to the acquisition of title

to personal property.” Id. at § 12. The hostility requirement “does not require ill will or malice,

but an assertion of ownership adverse to that of the true owner and all others … whether by

mistake or willfully.” Id. at § 43. “[T]he intention with which possession is taken and maintained

is the controlling factor.” Id. at § 45. “If the possessor intends to hold the land only until or

unless the true owner claims the premises ... there is no claim of right under adverse possession,”

but it is not necessary that the possessor’s use or claim is “legally justified” because “ [a]dverse

possession does not depend on … whether the motivation is guilty or innocent.” Id.

The government’s Motion admits that federal law recognizes a statutory right to perfect

title obtained by way of adverse possession. See Beaver v. United States, 350 F.2d 4, 9 (9th Cir.

1965) (recognizing that “possession, to be adverse, must still constitute color of title … [and] be

actual, open and notorious to satisfy the Color of Title Act”). In its trial brief, the government

concedes by implication that if Defendants’ words and actions in establishing possession of the

Refuge in January 2016 were lawful, they remain protected by the First Amendment. (Doc. 958

at 19-21) Finally, the government has already admitted that the issue of adverse possession

presents a “factual matter” where “perhaps the jury will decide maybe the government is wrong.”

(7/18/2016 Hrg. 20:14-17) In considering whether the Court can preclude Defendants from



presenting facts to the jury to support their defense on this matter, it is helpful to distinguish the

three phases involved in adverse possession – (1) staking the claim, (2) holding the claim, and

(3) perfecting the claim.

The first stage is the “entry,” “ouster,” or “disseizin” – often described as staking a claim.

For over 150 years, the Supreme Court has recognized that the “entry by one man on the land of

another, is an ouster of the legal possession arising from the title, or not, according to the

intention with which it is done; if made under claim and color of right, it is an ouster, otherwise,

it is a mere trespass; in legal language, the intention guides the entry and fixes its character.”

Ewing's Lessee, 36 U.S. at 52 (emphasis added); see also Probst, 129 U.S. at 189 (reversing

based on court’s erroneous jury instructions “at variance” with the doctrine of adverse

possession: “‘The whole of this doctrine is summed up in very few words, as laid down by Lord

COKE, (1 Inst. 153,) and recognized in terms in the case of Blunden v. Baugh, Cro. Car. 302, in

which it underwent very great consideration. Lord COKE says: ‘A disseisin is when one enters

intending to usurp the possession and to oust another of his freehold; and therefore querendum

est â judice quo animo hoc fecerit, why he entered and intruded.’ So the whole inquiry is reduced

to the fact of entering, and the intention to usurp possession.’”); Springer v. Young, 12 P. 400,

403 (Ore. 1886) (“[A]dverse possession cannot begin until there has been a disseizin ….”).

The disseisor must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest. He must intend to hold the land for himself, and that intention must be made manifest by his acts. It is the intention that guides the entry and fixes its character. No particular act, or series of acts, is necessary to demonstrate an intention to claim ownership. Such a purpose is sufficiently shown where one goes upon the land and uses it openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner.

Robin v. Brown, 162 A. 161, 161 (Pa. 1932) (affirming judgment against adverse possession

where the claimant had merely enclosed the property with an “old fence whose wires were broke



down”) (citation omitted). Whether a party is staking its claim under “color of right,” and thus

committing a legal act as opposed to trespass, is a fact question that should be presented to the

jury. Ewing’s Lessee, 36 U.S. at 52. If a party admits to the finder of fact that he “simply

squatted … for present convenience,” without any “color of title or claim of right to it in any

sense whatever,” and “that he did not even intend or think of obtaining title to it … for many

years thereafter,” courts will affirm the judgment of the trial court ejecting that party. Blake v.

Shriver, 68 P. 330, 332 (Wash. 1902). And what does it mean to act under “‘claim of right,’

‘claim of title,’ and ‘claim of ownership’” in this respect? The Supreme Court has explained

those terms “mean nothing more than the intention of the disseisor to appropriate and use the

land as his own to the exclusion of all others.’” Guar. Title & Trust Corp. v. United States, 264

U.S. 200, 204-05 (1924). The statements of Mr. Bundy and others from the January 2016 period

reveal their intent to do exactly that, and while the Court may disagree with the wisdom of their

actions, it cannot prevent them from presenting evidence to the jury to show that those actions

were lawful, in the context of asserting a claim for adverse possession of the Refuge.

The second stage of adverse possession is “holding the claim” for a prescribed period of

time (set by common law or statute). See, e.g., Quality Ag Serv. of Iowa, Inc. v. Burlington N. &

Santa Fe Ry., 809 F.3d 386, 388 (8th Cir. 2015) (rejecting adverse possession argument

concerning a “sidetrack” where the owner had reentered and “began occupying the sidetrack

after [a] derailment” 22 days before the 10-year adverse possession period ran). This stage is

distinct from the initial act necessary to commence a claim for adverse possession. And this

answers the question raised in the government’s Motion as to whether Mr. Bundy’s stated

intention to “possess” the refuge property “for years” was somehow unlawful. In the context of

an adverse possession claim, such a statement is legally required.



The third stage of adverse possession is “perfecting the claim,” or quieting title, after

staking the claim and holding it for the requisite time period. See Faulks v. Schrider, 114 F.2d

587, 592 (D.C. Cir. 1940) (rejecting the argument that adverse possession could only be asserted

as a “defense” because “Congress did not mean to have one law adverse possession for a

defendant in ejectment and another for all other parties and actions”); see also United States v.

Wooten, 40 F.2d 882, 884 (10th Cir. 1930) (rejecting the government’s argument that the court

could not award title to adverse possession claimants under federal statute). It seems that this is

where the government would have the Court focus its attention – seeking a ruling that

Defendants failed, as required by the Color of Title Act, to hold “a tract of public land … in good

faith and in peaceful, adverse, possession … for more than twenty years.” 43 U.S.C. § 1068.

Two issues in response: first, Mr. Bundy does not seek in this matter to be awarded actual title of

the Refuge, only to show that he was lawfully exercising his rights to attempt such a claim; and

second, case law does not require perfection of an adverse possession claim before recognizing a

claimant’s right to possess and exclude others from the subject property. See Blumrosen v. St.

Surin, 1995 WL 918312, at *6 (Terr. V.I. Sept. 29, 1995) (recognizing that even “before the

court’s quieting of title, the adverse possessor can maintain an action for trespass against all who

allegedly enter onto the adversely possessed property without his consent”).

Most significantly, the government cites no authority where a court held that a party

attempting adverse possession could simultaneously be prosecuted under criminal laws. As

illustrated below, the opposite is true. Adverse possession is lawful, and, thus, so is the attempt.

III. Legitimate Adverse Possession Claims Against the United States.

The government correctly argues that, generally, adverse possession against the United

States is not permissible – meaning that it will not succeed – but that the “Color of Title Act” is



an exception to that rule. See Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992)

(recognizing that the Color of Title Act is, “in effect, an exception to 28 U.S.C. § 2409a(n)”).

The Code of Federal Regulations recognizes that “[a]ny individual, group, or corporation

authorized to hold title to land in the State and who believes he has a valid claim under color of

title” may attempt adverse possession and, after twenty years of holding that claim, “may make

application” for legal title. 43 CFR 2541.1. Significantly, the government cites no authority to

suggest that an attempt to establish adverse possession against the federal government is

unlawful, under the Color of Title Act or otherwise. Presumably, that is why it asserts a “no

controlling legal authority” argument. But, perhaps unwittingly, that is determinative as to why

the Motion should be denied. In other words, having shown how evidence of their intent is

relevant, the government now bears the burden of proving why that should not be admitted under

the United States Constitution, a federal statute, or applicable rules. Fed. R. Evid. 402.

The government does not argue how federal law, which expressly allows for “any

individual” to hold federal land by “adverse possession” under “claim or color of title for more

than twenty years” and then make “application” for legal title, can simultaneously criminalize the

exercise of this same right. Why? Because the law does no such thing. The government ignores

multiple examples in the case law showing the opposite – that parties claiming adverse

possession against the federal government are protected – until the government brings a civil

action and proves that the attempted adverse possession claim cannot succeed.

For example, the government cited Jackson v. United States, 56 F.2d 340 (9th Cir. 1932),

to argue that federal property is not subject to adverse possession. But, first, in the next

paragraph, the government acknowledges that the Color of Title Act is an exception to that

general rule. Second, it is significant that Jackson itself involved a civil ejectment – as opposed



to a criminal prosecution – and that the adverse possession claimants who were in “possession of

several structures and buildings” on federal land in that case were not charged with any crime

and that law enforcement was not used to forcibly removed them. 56 F.2d at 341. At the close of

evidence, the district court directed a verdict in the government’s favor. Id. In affirming, the

Ninth Circuit reviewed the undisputed evidence and held that the alleged adverse possessors

could not satisfy the relevant California statutes to establish their title. Id. at 341-43.

Other cases show a clear pattern on the government’s part of resolving adverse

possession claims via civil as opposed to criminal litigation. In United States v. Gossett, 416 F.2d

565 (9th Cir. 1969), the Ninth Circuit affirmed summary judgment on the government’s action

for civil ejectment, noting that the parties being ejected lacked any evidence to support their

claim to title either by grant from the state, or by adverse possession. Id. at 567-69 (“[T]here is

not a scintilla of proof that the property was used in a manner which would permit the

acquisition of title by adverse possession.”). In United States v. Wharton, 514 F.2d 406, 409-13

(9th Cir. 1975), also involving a civil ejectment action – after the BLM informed the defendant

that he was trespassing and ordered him from the land – the Ninth Circuit reversed the district

court’s order directing the Secretary of Interior to grant the defendant’s application under the

Color of Title Act, but ruled that the government was estopped from its actions based on the

BLM’s misrepresentations to defendant, remanding so that the Secretary could “entertain an

application” for his family’s adverse possession claim under a more favorable act of Congress.

Finally, Beaver v. United States, 350 F.2d 4, 9 (9th Cir. 1965), was a civil condemnation

proceeding where the district court concluded, after holding two nonjury trials, that because

“appellants’ adverse possession [claim under the Color of Title Act] lacked one year and four

months of the required twenty-year period,” they had no title or right to compensation. Beaver is



significant because even though the federal government “was of the opinion that it already

owned” the property in question, it was still required to file proceedings to condemn the adverse

possession claim, “because appellants claimed an adverse interest.” Id. at 5; see also United

States v. Schwarz, 460 F.2d 1365, 1372 (7th Cir. 1972) (affirming judgment for government in

quiet title action brought on behalf of Indian heirs after adjacent landowner asserted adverse

possession). In each of the above cases, the party asserting adverse possession had the protected

and legal opportunity to establish its claim.

The practice of using civil actions to resolve adverse possession claims is consistent with

the so-called “legality principle” – mandating that “conduct is not criminal unless forbidden by

law which gives advance warning that such conduct is criminal.” 1 W. LaFave & A. Scott,

Substantive Criminal Law § 3.1, at 271 (1986); see also Lambert v. California, 355 U.S. 225,

228 (1957) (reversing criminal conviction for failure to register). Because a party has a right to

attempt, hold and perfect claims for adverse possession, it follows that, without more, they

cannot be guilty of a crime for attempting it. See Lambert, 355 U.S. at 228.

Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.

Id. Nowhere does the government explain why it broke, in bringing this case as a criminal

matter, from prior practice and precedent of resolving adverse possession claims with civil

ejectment – in fact, the government has falsely claimed that “the FBI repeatedly told

[Defendants] to” leave. (7/18/2016 Hrg. 10:4-18, 17:25-20:17) But, when challenged on this

point, the government admitted that “no formal notice was served saying ‘It’s now time for you

to leave the property,’” but that it was relying on “notice” that was purportedly “conveyed

through the local sheriff on January 7th when he asked them to leave town” and “[b]roadcast



media [that] was replete at that time with messages, I guess, trickling down that it was time for

them to leave”:

[T]he whole point of the bureau's presence at that time – and this is the government’s position – was to deescalate the situation.

So they were not going in there saying “Get out now or else.” The whole point was to try to do it in such a way where there would not be a volatile or violent conclusion to the occupation.

So, in that sense, Mr. Mumford is right that they weren't formally served papers to leave a property they had no business being on in the first instance. That's a factual matter that perhaps the jury will decide maybe the government is wrong.

(Id. at 20:1-17) And yet, with the current Motion, the government is seeking to deprive the jury

of the ability to decide that the government is wrong.6

In fact, the only federal case that closely parallels the facts in this one was In re Timmons,

607 F.2d 120 (5th Cir. 1979). In that case, political protestors occupied and claimed title to a

federal wildlife refuge based on the broken promises of the federal government; they only faced

criminal liability after the federal government initiated a civil ejectment action and, in the

context of that action, an order to show cause why protestors should not be held in criminal

contempt, after those protestors refused to comply with the court’s temporary restraining order

“to cease bringing building materials onto the wildlife refuge,” and to “remove themselves and

all of their personal belongings” by the following day at 5:00 p.m. Id. at 123. The Timmons case

bears remarkable similarities to this one. In 1979, a passionate and civic minded leader, after 6 Mr. Bundy also showed how, contrary to the government’s argument, the local sheriff did not make a demand to leave on January 7, but rather “offer[ed] [the Defendants] the opportunity to help you get out and get home and resolve this thing peacefully,” pointing out that “there’s been some positive stuff that’s come out of this … and I think that the people of the county are excited about working out issues that – that come from government (indiscernible),” stating, in response to Mr. Bundy’s claim to be there for the “people of Harney County,” that he (the sheriff) was there with a similar, and unspecified, mandate: “I'm here because the citizens of Harney County have asked me to come out and ask you folks to peacefully leave. I think that you respect their wishes, and I want to help you guys get out of here.” (7/18/2016 Hrg. at 22:5-23:10)



failing to get a direct response to his prior petitions for redress, organized a group of like-minded

associates into the “People Organized for Equal Rights,” who occupied and took possession of a

federal wildlife refuge. Id. at 122-23. Like the present case, protestors in Timmons, “entered the

wildlife refuge with the apparent intention of asserting … claim to the land.” Id. Approximately

25-40 individuals began possession “without permits or authorization and informed the Project

Leader of the Savannah National Wildlife Refuge Complex, Department of Interior, that they

intended to remain indefinitely … [and] said that they did not recognize the area as federal

property.” Id. The leader of the occupation having previously tried to “address the government,”

the court described his efforts to appeal to God for help, while not relying solely “on divine aid.”

Id. The occupiers brought unauthorized off-road vehicles and cars onto the property and also

“building materials, including concrete blocks, bags of mortar and ladders.” Id. at 123.

Rather than militarizing the situation, and rather than demonizing protesters as religious

or political extremists, in Timmons, the federal government followed well-established and

predictable legal precedent, by acting first through the courts in a civil ejectment proceeding. Id.

“The United States government then filed a complaint for ejectment, a civil action, against Edgar

Timmons, Jr., a group known as People Organized for Equal Rights and other unknown

individuals.” Id. In “connection with this complaint for ejectment,” the government obtained an

ex parte TRO that required, inter alia, that “defendants … remove themselves and all of their

personal belongings by 5:00 p. m. on May 1, 1979.” Id. Reflecting some similarities with the

present case, four hold-outs remained. But, in contrast with this case, after they refused to leave:

[T]he U.S. Attorney, an Assistant U.S. Attorney and the U.S. Marshal came to the area to meet with [protesters] and discuss the order that had been entered. They encouraged the [protesters] to leave the area voluntarily and pursue their claims through normal judicial proceedings. The U.S. Attorney spoke personally with [the protesters] and explained that he had no desire to arrest anyone. He also attempted to convince them either to seek legal advice and file a civil action to



quiet title to the wildlife refuge or to take their complaint to the Congress of the United States, rather than to violate the district court order.

Id. Following this visit, some of the protestors still refused to leave. So, the federal court issued

an order to show cause “why they should not be held in criminal contempt for their failure to

obey the April 30 order.” Id. Finding that a jury trial was unnecessary for petty offenses, the

court convicted the defendants following a two-hour trial, and sentenced them to 30 days in jail

for criminal contempt. Id. The remaining discussion on appeal affirmed the district court’s

conduct of the trial pursuant to criminal contempt standards. The Fifth Circuit pointed out that

the original TRO “might be challenged as a prior restraint on First Amendment liberties,” and:

[i]t may be that there is some valid basis to attack by legal process of the government’s acquisition of the Timmons tract two generations ago …. But, until the government’s title is divested, the appellants must obey the process issued by the court system that not only protects the government’s property but also preserves the appellants’ life and liberty while mounting their protest and safeguards their access to a legal forum for their dispute. The marshal’s guns were not drawn against appellants, the militia was not called and those who chose to defy the court order were not injured. Even their confinement has been suspended pending this appeal.

Id. at 124-26. Far from supporting the government’s Motion to preclude the jury from hearing

evidence concerning the Defendants’ attempt to establish an adverse possession claim at the

Refuge, these cases show why they must be able to present that evidence as part of their

“complete defense.” Crane, 476 U.S. at 690.

IV. The Government’s “Good Faith” Reference, Is Irrelevant.

The government argues that, even if adverse possession were possible, “there is no good

faith exception that would permit the adverse possession of federal property in defendants’ case,”

citing to 43 C.F.R. § 2540.0-5(b) which provides that a claim asserted under the Color of Title

Act is not “held in good faith where held with knowledge that the land is owned by the United

States.” (Doc. 959 at 3) But this argument is misplaced. At best, it is an argument in favor of a



possible civil ejectment action – which the government did not bring. While a finding regarding

the factual issue of “good faith” may support the Secretary’s decision not to grant title under the

Act, it does not preclude a claimant from establishing a claim or support the conclusion that one

who purportedly lacks “good faith” is acting illegally. Here, it is significant that the very issue of

Mr. Bundy’s and others’ “knowledge that the land is owned by the United States” was one of the

primary purposes of their protest. The protesters asserted their adverse possession claim in hopes

that it would force the government to bring their civil ejectment action, where Defendants and

their group, the Citizens For Constitutional Freedom, could raise, inter alia, an argument under

Article 1, Section 8, Clause 17 of the U.S. Constitution to challenge the federal government’s

illegal ownership. On this very point, the government cites Wharton, 54 F.2d 406. But that case

supports Mr. Bundy’s position. In Wharton, a husband and wife moved onto a track of “Oregon

land” in 1919 and attempted to gain title through the Desert-Land Entry Act of 1877 (now 43

U.S.C. § 321). The government approved the application, and the Whartons improved the land,

lived and raised a family on the land, until their father died in 1949. Thereafter, in 1955, 1956

and through 1967 the government sent notices that the Wharton family was trespassing on

federal land. Id. at 407. For the first time in 1967, the federal government demanded that the

Whartons vacate the land, and sued for ejectment. Id. Being informed that the law had changed

and that they could no longer perfect their claim under the Desert-Land Entry Act, the Whartons

filed an application for title under the Color of Title Act, based upon the principle of adverse

possession. Id. The government denied the application, but the district court concluded the denial

was clearly erroneous and ordered the Secretary of the Interior to allow the Whartons to purchase

the land as provided in the statute. Id. On appeal, the government argued that the district court

abused its discretion in setting aside the Secretary’s decision based on a lack of “good faith” on



the part of the Whartons. The Ninth Circuit reversed the district court’s ruling, but made the

express finding, contrary to the government’s argument, that “the Color of Title Act, 43 U.S.C. §

1068(a) authorizes adverse possession claims against the United States” acknowledging that it

“might have come to a different conclusions on this issue” if the facts had been before “us.” Id.

at 408. While recognizing the need to defer to the Secretary’s findings regarding applications to

perfect claims asserted under the Color of Title Act, the Wharton Court goes on to rule in favor

of the Whartons’ adverse possession claim on estoppel grounds. Id.7 First, Wharton concerns

phase three of adverse possession – perfecting the claim. Even more detrimental to the

government’s theory here, the Ninth Circuit nevertheless ordered that the federal government

was still “estopped from claiming ownership of the land.” Id. On what grounds? Because the

government had engaged in misconduct, had not properly used the civil process available, and

the court held that “estoppel may be applied against the government acting in its sovereign

capacity” including “in disputes over public land.” Id. In short, Wharton does not stand for the

evidentiary preclusion order that the government seeks in this case, but rather opens up a number

of other arguments in favor of adverse possession. And it clearly establishes the fact that

perfecting an adverse possession claim is an entirely separate legal question from the lawfulness

of asserting a claim in the first instance. In other words, Wharton helps show how the

government’s argument about “good faith” is not only wrong on the facts of this case but

irrelevant because attempted adverse possession is still lawful, regardless of whether a party’s

claim under the Color of Title Act is ultimately successful. See also Coleman v. United States,

363 F.2d 190, 196 (9th Cir. 1966), adhered to on reh'g, 379 F.2d 555 (9th Cir. 1967), and rev'd

7 As set forth in the authority provided in this memo, the government should similarly be estopped from prosecuting defendants for actions and activities that took place as part of lawful adverse possession, and from asserting that the defendants “had no business being on [the Refuge property] in the first instance.” (7/18/2016 Tr. 20:14-17)



on other grounds, 390 U.S. 599 (1968) (“It has long been established that a qualified entryman

upon public lands of the United States, whether as a locator of a mining claim, as a homesteader,

or as one asserting rights under others of the multifarious laws governing entries on public lands,

who perfects his entry by compliance with the applicable Act of Congress, thereby acquires a

right to the land as against the sovereign itself, as well as third persons.”). While it may not be a

popular right exercised as frequently as others, Mr. Bundy’s right to stake the claim, based upon

adverse possession, entitled him to protection of the law as opposed to prosecution until the

federal government – or whoever the lawful owner of the property turned out to be – obtained a

lawful court order resolving the matter and directing him off the claim. See Pillow v. Roberts, 54

U.S. 472, 477 (1851) (“It is not necessary” that an adverse possession claimant “should have a

good title, or any title but possession. A wrongful possession, obtained by a forcible ouster of the

lawful owner, will amount to a disseisin, and the statute will protect the disseizor. One who

enters … claiming for himself upon any pretence or color of title, is equally protected with the

forcible disseizor.”).

V. Adverse Possession Is A Full Defense To The Pending Charges.

The government argues that there is no “misunderstanding” of the law defense. But, as

argued above, Mr. Bundy’s purported right to attempt adverse possession, whether valid or

invalid, was no mistake, was not a misunderstanding and was not unlawful. In the alternative,

even if Mr. Bundy was mistaken, the government cites no case where an attempted adverse

possession can or should result in criminal charges. Based on the “legality principle” described

above, and the fact that the Color of Title Act expressly allows “any individual” to claim an

“adverse possession” of real property purportedly owned by the federal government, for twenty

years, before having to bring a claim to perfect the title, and for a decision on the merits of the



claim, it would be inconsistent and tragically unjust for the government be allowed to continue

seeking criminal sanction for exercising that very statutory right, as it is doing in this case. The

government cites Finn v. United States, 219 F.2d 894 (9th Cir. 1955), but its facts are inapposite

and even there, the Ninth Circuit expressly acknowledged the theory of the defense and the

“growing” field of cases where “the law does negate the existence of the right kind of intent,”

citing as examples cases such as Buchanan, 233 F. at 258, where the court reversed the

defendants’ conspiracy conviction based on the trial court’s erroneous exclusion of evidence

going to the defendants’ belief regarding the ownership of “the improvements [made to the

property], the grounds of their belief, and their intent in what they did.” Id. at 259. Defendants in

that case had entered upon land “held by James H. Scott and wife by virtue of an unperfected

homestead entry under the laws of the United States, and tore down and removed buildings and

improvements”:

Buchanan was the leader and director; the others were men either in his general service or specially employed by him to assist in what was done. In any aspect the conduct of the accused was indefensible. Viewed most favorably for them, it was a case of high-handed, lawless self-help. But there was a question, and rather a close one as to most of them, whether their intent was to interfere with the exercise by the Scotts of their homestead right, or, on the other hand, and wholly aside from the character of the occupancy of the land, they believed Buchanan owned the improvements and was entitled to remove them. If that belief was entertained in good faith, and the intent of Buchanan's helpers was but to aid him in the assertion of his supposed title they did not violate the act of Congress. Intent in respect of the federal right is an essential element of the offense charged.

Id. at 258 (citing Waddell, 112 U.S. at 80); see also Miller v. United States, 120 F.2d 968, 970

(10th Cir. 1941) (reversing conviction for mail fraud conspiracy where the trial court excluded

testimony from others that would corroborate defendants’ denials and explain “what was meant

by these [defendants’ allegedly fraudulent] statements”).

The government next argues that there is no controlling legal authority that permits



adverse possession as an affirmative defense. First, as a matter of first principles, the question

raised by the government’s charge is whether or not there was a conspiracy to impede, and the

existence of a deliberate attempt to assert a lawful adverse possession claim, as part of a political

protest – directly answers the question. Second, the authority cited above amply explains how

each stage of an adverse possession claim, by itself, is lawful. Third, the government’s own

authority shows that the appropriate and lawful response by the government should have been

civil proceedings – not criminal action. Fourth, while there is no obvious record of criminal cases

on the topic (for reasons likely covered above), the theory of “adverse possession” is itself a long

recognized legal theory of “defense” to allegations of otherwise impermissible conduct. Faulks v.

Schrider, 114 F.2d 587, 594 (D.C. Cir. 1940) (discussing the “defense of adverse possession”)

Fifth, in other contexts, the same legal principles at issue here are recognized as constitutionally

protected defenses. See e.g. Washington v. Texas, 388 U.S. 14, 22, 87 S. Ct. 1920, 1925 (1967)

(holding that it is impermissible, under the Sixth Amendment, “to make all defense testimony

inadmissible as a matter of procedural law” by “arbitrary rules that prevent whole categories of

defense witnesses from testifying on the basis of a priori categories that presume them unworthy

of belief.”); United States v. Scheffer, 523 U.S. 303, 315–16 (1998) (“a defendant ought to be

allowed ‘to present his own version of events in his own words’”); United States v. Whittemore,

776 F.3d 1074, 1080 (9th Cir.), cert. denied, 136 S. Ct. 89 (2015) (holding that the trial court

“must allow the jury to consider any defense theory supported by law”); United States v.

Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993) (discussing entrapment, but explaining “a

pretrial motion” to prohibit the presentation of a defense theory is available only when “it is clear

that the evidence to be offered by the defendant can, under no interpretation, be considered

sufficient” to sustain a defense to the charged elements and that such decisions are “typically not



amendable to pretrial resolution because whether or not” a defense exists is “intertwined with the

issue of intent” and such decisions are “traditionally reserved for jury resolution”).

Finally, if Mr. Bundy and his co-defendants were engaged in an attempt at setting up an

adverse possession claim, the refuge property was not a “federal” facility during the occupation.

Consistent with the principles of adverse possession, the occupiers changed the name, attempted

to change the utilities and signs, began exercising exclusive possession and control – including

ingress and egress – and while this occupation was pending, under long standing legal principles,

it was the occupiers who lawfully could set the rules and uses on the property, in fact their

“exclusive use and control of the property” is the legally protected status of adverse possession.

See, e.g., Air Stream Corp. v. 3300 Lawson Corp., 952 N.Y.S.2d 608, 612 (2012) (examining the

“exclusive possession and control” requirement for adverse possession and that such possession

be “accompanied by the usual acts of ownership”). Mr. Bundy and the Citizens for Constitutional

Freedom, by admission of the government, did in fact occupy and exclusively possess the

property at the refuge, both the land and other property, and protected that occupation, and

exercised control over that property. This fundamentally changed the nature of the property from

what it was – to what its new possessors say it is. See The Uneasy Case for Adverse Possession,

89 Geo. L.J. 2419, 2424 (2001) (recognizing that adverse possessors must “act as a true owner

would act” and this includes all typical elements of “control” and full “exercise of dominion”);

see also Blumrosen, 1995 WL 918312, at *6 (“[B]efore the court’s quieting of title, the adverse

possessor can maintain an action for trespass against all who allegedly enter onto the adversely

possessed property without his consent.”). Thus, at the time of the occupation, the property at

issue was not the Malhuer National Wildlife Refuge, it was the “Harney County Resource

Center” as its occupiers had so determined, and the rules and control of the property was firmly



in the hands of the adverse possessors, and should have remained so, until the government

lawfully succeeded at retaking possession – assuming it could. In fact, this is one of the

ubiquitous conditions of adverse possession. See Blickenstaff v. Bromley, 220 A.2d 558 (Md.

1966); see also Peck v. Bigelow, 613 N.E.2d 134, 138 (Mass. 1993) (explaining that “‘when

evaluating actual and open use, the court examines the nature of the occupancy in relation to the

character of the land’” and the occupants’ use of the disputed area must exhibit a control and

dominion so as to be “‘readily considered acts similar to those ordinarily associated with

ownership’”). Thus, the more poignant issue is that the government presents no authority – let

alone controlling authority – that supports the bringing of any criminal charges for conduct of

those adversely possessing land, federal, public, or otherwise, while possessing that same land,

under the possessor’s actual and lawful control and direction prior to legal ejectment. See e.g.

Scott v. Mineral Dev. Co., 130 F. 497, 499 (6th Cir. 1904) (explaining that “the rights” of an

adverse possessor begin to accrue when the occupier “takes adverse possession of the owner's

lands”).

Further, aside from the issue of mistake, Mr. Bundy has a right to defend his lawful

conduct, and it is well established that protected conduct which otherwise amounts to the lawful

exercise of a right to petition for redress cannot be an unlawful conspiracy. See, e.g., Stern v.

U.S. Gypsum, Inc., 547 F.2d 1329, 1346 (7th Cir. 1977) (holding that a petition for redress

cannot also be an impermissible act of impeding federal officers: “No citation of authorities is

needed for the proposition that the rights our founding fathers set down in the First Amendment

are the subject of special protection by the courts. Those rights despite their theoretical strength

as a constituent of democratic government have demonstrated remarkable fragility when exposed

to the air of autocracy.”); see also United States v. Hylton, 710 F.2d 1106, 1112 (5th Cir. 1983)



(recognizing that actions amounting to a petition for redress of grievances could not be the basis

of an indictment charging a defendant with “corruptly endeavoring to intimidate or impede” IRS

agents: “[W]e likewise cannot condone the imposition of criminal sanction for Hylton's exercise

of her constitutional right.”).

On the other side of the spectrum, federal courts have long recognized that prosecutions

seeking to “retaliate for or discourage the exercise of constitutional rights” are brought in “[b]ad

faith.” Lewellen v. Raff, 843 F.2d 1103, 1109 (8th Cir. 1988). Scrutiny is especially warranted in

cases charging conspiracy, where, since at least Poulterers’ Case, decided by the Star Chamber

in 1611, courts have allowed prosecutors to expand the law “away from targeting clearly

dangerous and operative conspiracies and toward enabling the prosecution” of “unpopular ideas,

and the speech that expresses them.”8 Here, the government has now admitted that it was not the

occupation of the refuge itself that spurred law enforcement to arrest Mr. Bundy and his brother

on January 26, 2016, as they drove to their planned public presentation on property rights in

neighboring Grant County, Oregon. Contemporary newspaper accounts report how, a mere

“hours before” the arrest, Oregon’s two federal senators met with prosecutors and FBI Director

James Comey and determined that action needed to be taken against the Bundys’ protest in order

to stop the “virus [that] was spreading” by imposing “consequences.”9

CONCLUSION

Justice Oliver Wendell Holmes referred to the “strange and wonderful” doctrine of

adverse possession. See Letter from Oliver Wendell Holmes to William James (Apr. 1, 1907), in

8 Steven R. Morrison, System of Modern Criminal Conspiracy, 63 Catholic Univ. L. Rev. 371, 372, 377 (2014) (citing Kenneth A. David, The Movement Toward Statute-Based Conspiracy Law in the United Kingdom and United States, 25 Vand. J. Transnat’l L. 951, 954-55 (1993)). 9 KOIN 6 News Staff, “Militia at Malheur: ‘Virus was spreading,’” January 29, 2016, http://koin.com/2016/01/29/militia-at-malheur-virus-was-spreading (last visited July 13, 2016).



The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions 417,

417-18 (Max Lerner ed., 1943). In the present case, there is simply no legal authority – either

presented by the government in its Motion, or that Defendant could find, that raises any question

whatsoever but that the attempt at adverse possession is lawful, that it is uniquely described and

conditions uniquely prescribed, and that a true owner’s remedy is first, civil in nature. Until that

remedy, an adverse possessor is rightfully protected by the law.

The fact that Ammon Bundy was involved in political protest, the fact that some of the

occupiers were openly and obviously engaged in carrying out their right to bear arms, the fact

that the land in question was purportedly owned by the federal government – none of these

things change the basic issue. Ammon Bundy should not be impeded from presenting his

complete defense – that he did not engage in a conspiracy to impede federal officers, but rather

that he engaged in a legitimate political protest, using the lawful principles and rights pertaining

to setting up and attempting an adverse possession claim – and it was the government’s over-

reaction, political motivations, and distain for his person political views that have distorted the

nature of the protest and occupation, and tragically altered the course of what took place in

January 2016. While at the “Harney County Resource Center,” the occupiers exercised the well-

recognized characteristics and requirements of adverse possession, and the government now

admits that for its own strategic reasons, neither Mr. Bundy nor any other occupiers were ever

expressly told to leave, and there is no evidence that the federal government ever sought to a)

establish its lawful ownership; or b) challenge the adverse possession. Instead, the government

skirted the issue entirely, used overwhelming force, arrested Mr. Bundy and his co-defendants,

and charged them with conspiracy and federal firearms violations. Mr. Bundy has a right to put

on a full defense to these charges, including all legal theories that establish a defense to the



elements charged.

In this memorandum, Defendant has presented the court with a wide survey of legal

authority on the doctrine of adverse possession from as far back as 1861 to as recent as 2015.

There is not one case – provided by the government, or identified by Defendant – that holds

contrary to Mr. Bundy’s main defense. The defense is simple, a citizen of the United States has

the lawful right to assert a claim of ownership over land, including specifically through adverse

possession, for whatever purpose he choses, whether political or personal. And this same right,

is expressly and statutorily protected by the United States Congress and its continued support of

the Color of Title Act, as well as repeated and undistributed United States Supreme Court

decisions endorsing the fundamental lawfulness of attempted adverse possession. The exercise of

this right, and the lawfulness of that exercise, is a compete defense to the elements charged in

this case. On this point, the government’s motion in limine and trial brief are wholly

unsubstantiated, seeking impermissible rulings from this Court, and should be denied.

DATED: August 17, 2016

/s/ Marcus R. Mumford Marcus R. Mumford J. Morgan Philpot Attorneys for Ammon Bundy


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