IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

AMMON BUNDY, JON RITZHEIMER,

JOSEPH O’SHAUGHNESSY, RYAN

PAYNE, RYAN BUNDY, BRIAN

CAVALIER, SHAWNA COX, PETER

SANTILLI, JASON PATRICK,

DUANE LEO EHMER, DYLAN 

ANDERSON, SEAN ANDERSON,

DAVID LEE FRY, JEFF WAYNE

BANTA, SANDRA LYNN ANDERSON,

KENNETH MEDENBACH, BLAINE

COOPER, WESLEY KJAR, COREY

LEQUIEU, NEIL WAMPLER, JASON

CHARLES BLOMGREN, DARRYL

WILLIAM THORN, GEOFFREY

STANEK, TRAVIS COX, ERIC LEE

FLORES, and JAKE RYAN,

Defendants.

3:16-cr-00051-BR

 

ORDER RESOLVING ROUND

ONE MOTIONS ON THE

PLEADINGS

BROWN, Judge.

This matter comes before the Court on the following Motions:

1. Defendant Peter Santilli’s Motion (#479) to Dismiss

Count One as Constitutionally Protected Conduct;

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2. All Defendants’ Motion (#482) to Dismiss Count Two;1

3. Defendant Kenneth Medenbach’s Motion (#505) to Dismiss;

and

4. Defendants’ Motion (#527) to Dismiss for Lack of

Subject Matter Jurisdiction.2

On May 17, 2016, the Court concluded oral argument was not

necessary to resolve these Motions. The Court, however,

permitted the moving Defendants to file optional reply memoranda

no later than May 27, 2016, in lieu of oral argument. The Court

took the Motions under advisement on May 27, 2016.

For the reasons that follow, the Court DENIES Defendants’

Motions.

DEFENDANT PETER SANTILLI’S MOTION (#479) TO DISMISS

COUNT ONE AS CONSTITUTIONALLY PROTECTED CONDUCT

Defendant moves to dismiss Count One pursuant to Federal

Rule of Criminal Procedure 12(b) on the basis that the conduct

underlying the charge is constitutionally protected by the First

Amendment.

Rule 12 provides: “A party may raise by pretrial motion any

defense, objection, or request that the court can determine

1

 Defendants’ Motion (#482) to Dismiss Count Two was filed

by Defendant Geoffrey Stanek and is joined by all other

Defendants.

2

 Defendants’ Motion (#527) to Dismiss Count Two was filed

by Defendant Ammon Bundy and is joined by all other Defendants.

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without a trial on the merits.” In a motion to dismiss brought

under Rule 12(b), the Court “must presume the truth of the

allegations in the charging instruments.” United States v.

Jensen, 93 F.3d 667, 669 (9th Cir. 1996). See also United States

v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “‘A motion to

dismiss the indictment cannot be used as a device for a summary

trial of the evidence. . . . The Court should not consider

evidence not appearing on the face of the indictment.’” Jensen,

93 F.3d at 669. See also Boren, 278 F.3d at 914. “The

‘unavailability of Rule 12 in determination of general issues of

guilt or innocence . . . helps ensure that the respective

provinces of the judge and jury are respected.’” Boren, 278 F.3d

at 914 (quoting United States v. Nukida, 8 F.3d 665, 670 (9th

Cir. 1993)).

Santilli specifically contends his involvement in the

underlying events in Harney County, Oregon, was to “cover and

publish the continuing and developing story of the protesters’

occupation” of the Malheur National Wildlife Refuge as “an

alternative to mainstream media” by way of broadcasting news,

current events, and a talk show on the internet. He also

contends the only conduct specific to him that was detailed in

the Criminal Complaint and Superseding Indictment relates to his

broadcasting of calls for others to come to Harney County for the

purpose of joining in peaceful, lawful protests. Santilli,

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therefore, asserts his conduct was protected by the First

Amendment because his speech did not qualify for any exception

under the First Amendment.

The government, on the other hand, contends Santilli’s

Motion impermissibly requests the Court to examine whether there

is sufficient evidence to support a charge against him before

trial. The government contends its factual representations in

the Complaint and the Superseding Indictment are not complete and

that the government will present its case and additional evidence

at trial.

The government is correct that Defendant’s Motion presents

arguments that can only be determined after the government has a

full opportunity to present its case at trial. The government

concedes Santilli may contend at trial that he is not guilty

because his conduct was protected by the First Amendment. 

After reviewing Count One of the Superseding Indictment as

to Santilli, the Court concludes the Superseding Indictment is

legally sufficient. See United States v. Torres-Bobadilla, 450

F. App’x 572, 573 (9th Cir. 2011)(“A legally sufficient

indictment is one that ‘state[s] the elements of the offense

charged with sufficient clarity to apprise a defendant of the

charge against which he must defend and to enable him to plead

double jeopardy.’”)(quoting United States v. Hinton, 222 F.3d

664, 672 (9th Cir. 2000)).

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Accordingly, on this record the Court DENIES Santilli’s

Motion (#479) to Dismiss Count One as Constitutionally Protected

Conduct.

DEFENDANTS’ MOTION (#482) TO DISMISS COUNT TWO

Defendants move to dismiss Count Two on the basis that the

offense in Count Two based on 18 U.S.C. § 930(b) is

unconstitutionally vague and overbroad. Section 930(b) provides:

Whoever, with intent that a firearm or other dangerous

weapon be used in the commission of a crime, knowingly

possesses or causes to be present such firearm or

dangerous weapon in a Federal facility, or attempts to

do so, shall be fined under this title or imprisoned

not more than 5 years, or both.

Count Two of the Superseding Indictment alleges Defendants Ammon

Bundy, Jon Ritzheimer, Ryan Payne, Ryan Bundy, Brian Cavalier,

Shawna Cox, Jason Patrick, Dylan Anderson, Sean Anderson, David

Lee Fry, Jeff Wayne Banta, Sandra Lynn Anderson, Wesley Kjar,

Corey Lequieu, Jason Charles Blomgren, Darryl William Thorn,

Geoffrey Stanek, Travis Cox, and Eric Lee Flores violated 

§ 930(b) by possessing firearms on the Malheur National Wildlife

Refuge (MNWR) with the intent to use the weapons in the

commission of Conspiracy to Impede Officers of the United States

in violation of 18 U.S.C. § 372 (Count One).

I. Vagueness

“‘A criminal statute is void for vagueness if it is not

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sufficiently clear to provide guidance to citizens concerning how

they can avoid violating it and to provide authorities with

principles governing enforcement.’” United States v. Harris, 705

F.3d 929, 932 (9th Cir. 2012). “In a facial challenge, a

statute is unconstitutionally vague if it ‘fails to provide a

person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.’” Harris, 705

F.3d at 932 (quoting United States v. Kilbride, 584 F.3d 1240,

1257 (9th Cir. 2009)). “In an as-applied challenge, a statute is

unconstitutionally vague if it ‘fail[s] to put a defendant on

notice that his conduct was criminal.’” Harris, 705 F.3d at 932

(quoting Kilbride, 584 F.3d at 1257 ).

“When a statute ‘clearly implicates free speech rights,’ it

will survive a facial challenge so long as ‘it is clear what the

statute proscribes in the vast majority of its intended

applications.’” Humanitarian Law Project v. United States

Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009)(quoting Cal.

Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1149, 1151

(9th Cir. 2001)). “The touchstone of a facial vagueness

challenge in the First Amendment context, however, is not whether

some amount of legitimate speech will be chilled; it is whether a

substantial amount of legitimate speech will be chilled.” Cal.

Teachers Ass'n, 271 F.3d at 1152. “To trigger heightened

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vagueness scrutiny, it is sufficient that the challenged statute

regulates and potentially chills speech which, in the absence of

any regulation, receives some First Amendment protection.” Id.

at 1150

“Outside the First Amendment context, a plaintiff alleging

facial vagueness must show that ‘the enactment is impermissibly

vague in all its applications.’” Humanitarian Law Project, 578

F.3d at 1146.

Section 930(b) does not “clearly implicate free speech

rights,” and, therefore, the heightened level of vagueness

scrutiny does not apply to § 930(b). See Humanitarian Law

Project, 578 F.3d at 1146 (quoting Cal. Teachers Ass'n, 271 F.3d

at 1149, 1151). Defendants contend § 930(b) does not provide

individuals with fair notice of the conduct prohibited and

permits arbitrary enforcement because the terms “federal

facility” and “firearm” are not sufficiently defined and because

the phrase “inten[d] that [the] firearm . . . be used in the

commission of a crime” does not sufficiently specify the crimes

that fall within the scope of that phrase.

The term “federal facility,” however, is well-defined in 

§ 930(b) as “a building or part thereof owned or leased by the

Federal Government, where Federal employees are regularly present

for the purpose of performing their official duties.” 18 U.S.C.

§ 930(g)(1). The term “firearm” is sufficiently clear to

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“provide a person of ordinary intelligence fair notice of what is

prohibited.” See Harris, 705 F.3d at 932 (quoting Kilbride, 584

F.3d at 1257). Moreover, the phrase “intent that a firearm or

other dangerous weapon be used in the commission of a crime” is

not ambiguous. Accordingly, because § 930(b) provides

individuals with sufficient notice of the conduct prohibited and

sets out a standard for enforcement, the Court concludes § 930(b)

is not unconstitutionally vague on its face.

Defendants also contend § 930(b) violates equal protection

because “[t]here is no rational basis for punishing the same

conduct (possessing a firearm) differently in § 930(a) and (b)

but curtailing a defense based solely on the intent of a

defendant to use the firearm in some crime to be committed

someplace else in the future.” Although Defendants’ argument is

more properly characterized as substantive due process rather

than equal protection, it is without merit under either doctrine. 

Section 930(b) prohibits the possession of a firearm or dangerous

weapon in a federal facility with the intent to use that weapon

in the commission of a crime. The only reasonable reading of the

statute is that a defendant must intend to use the weapon to

commit the crime (at least in part) within that federal facility. 

The Court concludes this prohibition and the additional penalties

provided in § 930(b) are rationally related to the legitimate

government interest of protecting federal facilities.

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Similarly, the Court concludes § 930(b) is not vague as

applied to Defendants. Defendants have not demonstrated any

basis by which § 930(b) failed to put them “‘on notice that

[their alleged] conduct was criminal.’” Harris, 705 F.3d at 932

(quoting Kilbride, 584 F.3d at 1257). As noted, the scope of §

930(b) is clear and Defendants have not identified any basis to

conclude that its application to Defendants’ conduct was

uncertain in any way.

Accordingly, on this record the Court concludes § 930(b) is

not unconstitutionally vague either on its face or as applied to

these Defendants and is rationally related to the legitimate

government interest of protecting federal facilities.

II. Overbreadth

“Under the doctrine of First Amendment overbreadth, a

litigant may mount a facial attack on a statute that restricts

protected speech even if the litigant’s own speech is

unprotected.” Turney v. Pugh, 400 F.3d 1197, 1200 (9th Cir.

2005). “The overbreadth must be substantial in order for the

statute to be invalidated on its face; the fact that a court may

conceive of a single impermissible application is insufficient to

justify striking down the law.” Id. See also United States v.

Stevens, 559 U.S. 460, 472 (2010)(“[A] law may be invalidated as

overbroad if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute's plainly

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legitimate sweep.’”)(quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449, n.6

(2008)).

Defendants contend § 930(b) is unconstitutionally overbroad

because it chills constitutionally protected speech that may

include the possession of firearms in a federal facility. In

addition, Defendants contend § 930(b) is overbroad because it

encompasses conduct that is protected by the Second Amendment.

Section 930(b) and its prohibition on possessing a firearm

in a federal facility with the intent to use that firearm in the

commission of a crime, however, does not prohibit a substantial

amount of expression protected by the First Amendment nor conduct

protected by the Second Amendment.3 See Stevens, 559 U.S. at

472. Accordingly, on this record the Court concludes § 930(b) is

not unconstitutionally overbroad.

For these reasons, the Court DENIES Defendants’ Motion

(#482) to Dismiss Count Two.

DEFENDANTS’ MOTION (#527) TO DISMISS FOR LACK OF

SUBJECT MATTER JURISDICTION AND DEFENDANT

KENNETH MEDENBACH’S MOTION (#505) TO DISMISS

3 Defendants also contend § 930(b) directly violates the

Second Amendment. The Second Amendment, however, does not

prevent the prohibition of carrying firearms “in sensitive places

such as schools and government buildings.” District of Columbia

v. Heller, 554 U.S. 570, 626 and n.26 (2008)(noting such

prohibitions are “presumptively lawful.”). 

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In Defendants’ Motion (#527) to Dismiss for Lack of Subject

Matter Jurisdiction and Defendant Kenneth Medenbach’s Motion

(#505) to Dismiss, Defendants move to dismiss the Superseding

Indictment for lack of subject-matter jurisdiction on the basis

that the United States does not constitutionally own and exercise

jurisdiction over the MNWR. In particular, Defendants contend

the Constitution does not permit the federal government to

“forever retain the majority of land within a State” and, thus,

to exercise its current ownership over federal lands including

the MNWR.

The government, on the other hand, contends Defendants lack

standing to challenge the government’s authority to retain land,

including the MNWR, because a ruling in favor of Defendants on

that issue would not affect any of the charges against

Defendants. In any event, the government contends Defendants’

arguments concerning the government’s ability to retain certain

land within the borders of states are without merit.

The Court concludes even if Defendants’ arguments concerning

the government’s authority to own the MNWR are properly raised as

subject-matter jurisdictional defenses to the Counts in the

Superseding Indictment, Defendants’ arguments are without merit. 

Defendants would, at the least, have to demonstrate the federal

government may not constitutionally own the land that constitutes

the MNWR rather than merely raise generalized objections to the

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extent of federal landholdings in the western United States. 

In any event, the Property Clause of the United States

Constitution provides Congress has the power “to dispose of and

make all needful Rules and Regulations respecting the Territory

or other Property belonging to the United States.” U.S. Const.

art IV, § 3, cl. 2. “[U]nder the Property Clause, the United

States can administer its federal lands any way it chooses.” 

United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir. 1997). 

See also Kleppe v. New Mexico, 426 U.S. 529, 539 (1976)(“And

while the furthest reaches of the power granted by the Property

Clause have not yet been definitively resolved, we have

repeatedly observed that ‘[t]he power over the public land thus

entrusted to Congress is without limitations.’”)(quoting United

States v. San Francisco, 310 U.S. 16, 29 (1940)).

Here Defendants do not submit any evidence that demonstrates

the United States does not appropriately own the land that now

constitutes the MNWR. Moreover, Defendants do not contend the

United States ever relinquished title to the MNWR or that the

MNWR was ever owned by any other entity. To the contrary, in

United States v. State of Oregon the Supreme Court noted much of

the land that now makes up the MNWR “was a part of the public

domain of the United States” at the time Oregon was admitted to

the Union, and “[n]o part of it has ever been disposed of, in

terms, by any grant of the United States.” 295 U.S. 1, 6 (1935). 

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The Court found the waters of Malheur Lake and other bodies of

water in the area were not navigable, and, accordingly, concluded

the lands underlying and surrounding those waters did not

automatically pass to the State of Oregon at the time of its

admission into the Union. Id. at 14-24. The Court, therefore,

quieted title in the United States to much of the land that now

makes up the MNWR.4

 Id. at 29.

Defendants’ sole contention, therefore, is that the United

States does not have the constitutional authority to own the

MNWR.5 Defendants, however, are mistaken.

Prior to Oregon becoming a state in 1859, “the United States

acquired clear ownership of the Oregon Territory, which included

what is now Washington, Oregon and Idaho, as well as portions of

Montana and Wyoming.”6 Office of the Attorney General, State of

4 Defendants acknowledge the Supreme Court held the federal

government owns the MNWR in United States v. Oregon, but

nonetheless contend that case is wrongly decided. This Court is

not empowered to overrule Supreme Court precedent.

5 Defendant Medenbach has raised similar arguments in two

prior proceedings. In each instance the courts rejected

Medenbach’s contentions. See United States v. Medenbach, No. 96-

30168, 1997 WL 306437, at *2-*3 (9th Cir. 1997); United States v.

Medenbach, 1:15-cr-00407-MC, 2016 WL 1394440, at *1 (D. Or. Apr.

7, 2016).

6 Medenbach contends the “Oregon Territorial Act” of 1848

defined and limited the extent to which the federal government

could own land within the as-yet unformed State of Oregon. 

Medenbach is incorrect, however, because that Act did not contain

any provision that disposed of any federally-held lands, and the

federal government retained ownership of lands within the Oregon

Territory that were not expressly granted to the State of Oregon

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Oregon, Op. No. 8237, 48 Or. Op. Atty. Gen. 1, 1995 WL 400487, at

*3 (Jul. 7, 1995). “Oregon never had any claim to sovereignty

prior to its admission to the Union,” and, therefore, “it had no

basis to claim independence or ownership of land.” Id. The

Oregon Attorney General summarized as follows the disposition of

lands owned by the federal government and granted to the State of

Oregon at the time Oregon was granted statehood: 

By the terms of this compact between Oregon and the

United States, Oregon agreed that in return for a grant

of certain land and monies from Congress’ sale of

public land, the state would never interfere with the

disposal of the remaining land by the United States. 

In effect, Oregon acquiesced in federal ownership of

the unappropriated public lands within the boundaries

of the new state. This agreement preserved the federal

government’s authority under the Property Clause from

challenge by the new state.

Id. at *5. Because there is not any evidence in the record that

the United States ever relinquished title to the lands that

comprise the MNWR, the Court concludes the Property Clause grants

the United States regulatory jurisdiction over the MNWR. See

Kleppe, 426 U.S. at 539.

The Ninth Circuit in Gardner addressed a similar situation

regarding federal lands in Nevada and concluded the United States

had the constitutional authority to regulate those lands under

the Property Clause. See Gardner, 107 F.3d at 1318 (“[A]s the

United States has held title to the unappropriated public lands

at the time of statehood.

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in Nevada since Mexico ceded the land to the United States in

1848, the land is the property of the United States.” Moreover,

because Nevada had “no independent claim to sovereignty,” the

United States can administer its federal lands within the State

of Nevada “any way it chooses.”). Accordingly, the Court

concludes the United States’ exercise of regulatory jurisdiction

over the MNWR is authorized by the Property Clause, and,

therefore, this Court has jurisdiction over the charged offenses

that allegedly took place on the MNWR.

For these reasons, the Court DENIES Defendants’ Motion

(#527) to Dismiss for Lack of Subject Matter Jurisdiction and

Defendant Kenneth Medenbach’s Motion (#505) to Dismiss.

IT IS SO ORDERED.

DATED this 3rd day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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