IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

AMMON BUNDY, RYAN BUNDY,

SHAWNA COX, DAVID LEE FRY,

JEFF WAYNE BANTA, KENNETH

MEDENBACH, and NEIL WAMPLER,

Defendants.

3:16-cr-00051-BR

 

ORDER TAKING JUDICIAL

NOTICE OF FEDERAL

OWNERSHIP OF THE MALHEUR

NATIONAL WILDLIFE REFUGE

(#1229); ORDER DENYING

AMMON BUNDY’S MOTION

(#1248) TO ENJOIN

PROSECUTION

BROWN, Judge.

This matter comes before the Court on the government’s

Motion (#1229) for Judicial Notice Regarding Ownership of the

Malheur National Wildlife Refuge Headquarters Area and Defendant

Ammon Bundy’s Emergency Motion (#1248) to Enjoin Prosecution,

Dismiss With Prejudice, and Other Relief. 

For the reasons that follow, the Court GRANTS in part and

DENIES in part the government’s Motion (#1229) for Judicial

1 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 1 of 9
Notice Regarding Ownership of the Malheur National Wildlife

Refuge Headquarters Area; and DENIES Defendant Ammon Bundy’s

Emergency Motion (#1248) to Enjoin Prosecution, Dismiss With

Prejudice, and Other Relief.

I. Government’s Motion (#1229) for Judicial Notice Regarding

Ownership of the Malheur National Wildlife Refuge

Headquarters Area

In its Motion the government requests this Court take

judicial notice that: (1) the Malheur National Wildlife Refuge

(MNWR) is comprised of approximately 187,167 acres; (2) on

February 21, 1935, Harney County, Oregon, recorded a deed

transferring land from Eastern Oregon Land and Livestock Company

to the federal government; (3) the MNWR headquarters is located

on the property purchased by the federal government in 1935; and

(4) the property to the north of the headquarters was purchased

by the federal government from Paul C. and Ruth Stewart as

reflected in a deed recorded in Harney County, Oregon, on

November 27, 1940. The government supports its request for

judicial notice with the Declaration (#1230) of Charles Houghten,

which has copies of the deeds related to the two parcels attached

thereto. 

“Federal Rule of Evidence 201(b) permits judicial notice of

an adjudicative fact that is ‘not subject to reasonable dispute

in that it is either (1) generally known within the territorial

2 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 2 of 9
jurisdiction of the trial court or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned.’” United States v. Daychild, 357 F.3d

1082, 1099 (9th Cir. 2004). Under Rule 201(b), courts routinely

take judicial notice of public documents, including copies of

recorded deeds of trust. See Mann v. Nationstar Mortgage, LLC,

623 F. App’x 410, 412 (9th Cir. 2016).

The Court has reviewed the pertinent county records

submitted by the government showing title to these lands and

concludes the accuracy of those records cannot reasonably be

questioned. Defendants were provided with an opportunity to

respond to the government’s Motion, but there is not any contrary

evidence in the record. Accordingly, the Court takes judicial

notice as follows:

1. The lands comprising the Malheur National Wildlife

Refuge are owned by the United States government and include

lands reserved from the public domain, lands transferred by other

federal agencies, and lands acquired from private parties. 

2. The Malheur National Wildlife Refuge Headquarters

buildings are located on land that was purchased by the United

States government from the Eastern Oregon Land and Livestock

Company. Title passed via an instrument recorded February 21,

1935, in Book 36 Page 437, Deed records of Harney County, Oregon.

3 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 3 of 9
3. The area immediately north of the Refuge Headquarters

was purchased by the United States government from Paul C.

Stewart and Ruth Stewart. Title passed via Warranty Deed

recorded November 27, 1940, in Book 39 Page 214, Deed records of

Harney County, Oregon.

The Court, however, cannot take judicial notice of the total

acreage of the MNWR because the documents submitted by the

government in support of its Motion do not establish that

particular fact.

On this record, therefore, the Court GRANTS in part and

DENIES in part the government’s Motion (#1229) for Judicial

Notice Regarding Ownership of the Malheur National Wildlife

Refuge Headquarters Area. At the government’s request the Court

will give a judicial notice instruction in the form attached

hereto as Exhibit 1 before the close of the government’s case-inchief.

II. Ammon Bundy’s Emergency Motion (#1248) to Enjoin Prosecution

and Shawna Cox’s Arguments in her Response (#1245) to the

Government’s Motion (#1229) for Judicial Notice Regarding

Ownership of the Malheur National Wildlife Refuge

Headquarters Area 

Defendant Shawna Cox filed a Response (#1245) to the

government’s Motion on September 12, 2016. In that Response Cox

acknowledges the government has demonstrated it owns the land in

question, but, nonetheless, she contends the government does not

4 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 4 of 9
have any regulatory jurisdiction over that land because it did

not obtain the consent of the Oregon State Legislature as

required by the Enclave Clause of Article I, Section 8, Clause 17

of the United States Constitution. Related to Cox’s arguments,

Ammon Bundy requests in his Emergency Motion (#1248) to Enjoin

Prosecution that this Court reconsider its previous orders

denying Ammon Bundy’s Motions to Dismiss for Lack of Subject

Matter Jurisdiction on the basis that the record now clearly

reflects that the property on which the MNWR headquarters sits

was not part of the land the federal government has owned since

before Oregon statehood, but instead was acquired from the

Eastern Oregon Land and Livestock Company in 1935.

Although it is now clear that the MNWR is made up of a

combination of lands that the federal government reserved from

the public domain, acquired from other federal agencies, and

purchased from private parties, the government, nevertheless,

properly exercises jurisdiction over all such lands under the

Property Clause of Article IV, Section 3, Clause 2.

“The Property Clause of the Constitution states that ‘[t]he

Congress shall have power to dispose of and make all needful

Rules and Regulations respecting the Territory or other Property

belonging to the United States.’” Confederated Tribes of the

Siletz Indians of Oregon v. United States, 110 F.3d 688, 694 (9th

5 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 5 of 9
Cir. 1997)(quoting U.S. Const. art. IV, § 3, cl. 2). When the

United States acquires property pursuant to the Property Clause,

it may also exercise jurisdiction over those lands concurrently

with the jurisdiction of the state in which that property is

located.1 As the Supreme Court has explained:

[W]hile Congress can acquire exclusive or partial

jurisdiction over lands within a State by the State’s

consent or cession, the presence or absence of such

jurisdiction has nothing to do with Congress’ powers

under the Property Clause. Absent consent or cession a

State undoubtedly retains jurisdiction over federal

lands within its territory, but Congress equally surely

retains the power to enact legislation respecting those

lands pursuant the Property Clause. 

Kleppe v. New Mexico, 426 U.S. 529, 543 (1976). See also United

States v. Bohn, 622 F.3d 1129, 1133-34 (9th Cir. 2010). “[E]ven

over public land within the States,” the federal government

“‘doubtless has a power over its own property analogous to the

police power of the several states, and the extent to which it

may go in the exercise of such power is measured by the

exigencies of the particular case.’” Kleppe, 426 U.S. at 540

(quoting Camfield v. United States, 167 U.S. 518, 525 (1897)). 

Accordingly, the arguments of Ammon Bundy and Cox regarding the

Enclave Clause are “beside the point” because the federal

government may constitutionally exercise jurisdiction over the

1 Notably, at trial Harney County Sheriff David Ward

testified the state exercised jurisdiction over the MNWR

concurrently with federal jurisdiction over those lands.

6 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 6 of 9
MNWR pursuant to the Property Clause.2

Ammon Bundy also contends the Court should revisit the

arguments he made in his Motion (#1155) to Dismiss for Lack of

Subject Matter Jurisdiction re: Adverse Possession that the Court

denied by Order (#1228). That Order, however, was not based on

the method by which the United States acquired the lands that

constitute the MNWR. Thus, the additional information concerning

the source of the federal government’s ownership of the MNWR does

not affect the Court’s analysis in its Order (#1228) Denying

Ammon Bundy’s Motion to Dismiss for Lack of Subject-Matter

Jurisdiction re: Adverse Possession.

On this record, therefore, the Court DENIES Ammon Bundy’s

Emergency Motion (#1248) to Enjoin Prosecution, Dismiss With

Prejudice, and Other Relief. 

In addition, the Court notes Defendants have made an

exhaustive record through multiple filings and arguments on the

record regarding their contentions that the federal government

lacks constitutional authority to own and to exercise 

2

 Ammon Bundy also argues Congress enacted legislation in

1936 to divest the federal government of jurisdiction over lands

that include the MNWR. See 49 Stat. 2035. That statute,

however, only disclaims any exclusive federal jurisdiction over

such lands. As noted, the government’s proprietary jurisdiction

over the MNWR is not exclusive of the State of Oregon’s

jurisdiction. See Kleppe, 426 U.S. at 543. 

7 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 7 of 9
jurisdiction over the MNWR and as to their assertions that their

alleged adverse-possession claim deprives this Court of subjectmatter jurisdiction or otherwise constitutes a basis to dismiss

the Superseding Indictment (#282). The Court, therefore, will

not entertain any additional motions regarding any such

arguments. In addition, Defendants may not seek to introduce any

evidence or make any argument to the jury inconsistent with the

Court’s Orders on these issues except, as the Court has

consistently ruled, as these issues pertain to Defendants’

alleged state of mind which is relevant to the alleged intent to

impede officers of the United States by force, intimidation, or

threat. To the extent that the government requests limiting

instructions on these issues as the trial continues, the

government should so move.

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in

part the government’s Motion (#1229) for Judicial Notice

Regarding Ownership of the Malheur National Wildlife Refuge

Headquarters Area; and DENIES Defendant Ammon Bundy’s Emergency 

8 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 8 of 9
Motion (#1248) to Enjoin Prosecution, Dismiss With Prejudice, and

Other Relief.

IT IS SO ORDERED.

DATED this 21st day of September, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

9 - ORDER TAKING JUDICIAL NOTICE OF FEDERAL OWNERSHIP OF THE

MALHEUR NATIONAL WILDLIFE REFUGE (#1229); ORDER DENYING

AMMON BUNDY’S MOTION (#1248) TO ENJOIN PROSECUTION

Case 3:16-cr-00051-BR Document 1317 Filed 09/21/16 Page 9 of 9