Sorry, Oregon militants: National parks and refuges are definitely constitutional

by Danielle Wiener-Bronner


Over the weekend, armed anti-government militants set up camp in a federal building in Oregon and declared, in admittedly vague terms, that they are willing to spill blood and occupy it for years to reclaim land they claim was unconstitutionally taken. This, not surprisingly, is a false premise.


From the start, what exactly the group of men holed up in the office building on the Malheur National Wildlife Refuge are after is not entirely clear. Ammon Bundy—son of the notorious Cliven Bundy and a member of the occupying group, along with brother Ryan—didn’t do a great job articulating the point of the occupation in a conversation with CNN:


He spoke by phone to CNN on Sunday. Asked several times what he and those with him want, he answered in vague terms, saying that they want the federal government to restore the “people’s constitutional rights.”… “People need to be aware that we’ve become a system where government is actually claiming and using and defending people’s rights, and they are doing that against the people.”


Ostensibly, the link between the federal building the group has taken over—an office building on the grounds of the Malheur National Wildlife Refuge —is that the refuge is itself unconstitutional. The Washington Post reported:


At Sunday’s news conference, Ammon Bundy said the refuge’s creation was “an unconstitutional act,” one that removed local ranchers from their lands, thrusting the county into an economic depression.


As cases against the government go, this is very bad.


To be fair, the armed men aren’t the first to question the constitutionality of national land. Back in 2011, The House Resources Subcommittee on National Parks Chairman Rob Bishop said during a panel that national parks violate the Constitution, and clarified to ThinkProgress that:


The Constitution actually allows very specific reasons for the federal government having land. Almost all of those are for military purposes and like [inaudible] and stuff. The lands in the West transferred over to the federal government prior to statehood was never intended that the federal government would keep that. It was only in the early 1900s that all of a sudden the federal government changed its policy and they codified that with the [inaudible] back in the 1960s.


But if that argument seems like nonsense to you, that is because it is. Environmental lawyer James M. Auslander explained to me that “the national parks and national wildlife refuges system are pursuant to statutes enacted by Congress.” And statutes enacted by Congress are, you guessed it, inherently constitutional. There is not, says Auslander, “a bona fide legal claim that I’ve seen raised in this instance.”


More likely, said Auslander, is that these claims are just the most recent iteration of ranchers expressing anger over how much land in the west is owned by the government.


Elizabeth Wydra, chief counsel of the non-profit Constitutional Accountability Center, added in an email that “the Constitution clearly provides for federal authority ‘to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States’ (US Constitution Article IV, Section 3). Dedicating federal land a wildlife refuge, as Teddy Roosevelt did for the Malheur Refuge in 1908, plainly falls within that constitutional authority.”


The ranchers at the center of the controversy, Dwight and Steven Hammond, meanwhile, have distanced themselves from the whole thing as they request clemency from President Obama over their upcoming prison sentence. So the claim that this refuge is unconstitutional seems to be the closest the group has to a case.


So nice try, Bundys and others, but you’ll have to work a little harder to convince the nation that this occupation makes any sense.