Outpost of Freedom blog

Burns Chronicles N^o 31
Public Lands – Part 3
The Queen Has Ruled – Off With Their Heads

Gary Hunt
Outpost of Freedom
September 29, 2016

In two previous articles, Shawna Cox brought the matter of Jurisdiction to the Court.  The first, explained in “Public Lands – Part 1 – It’s a Matter of Jurisdiction“, was filed in response to the government’s “Motion for Judicial Notice” (1229), providing proof of ownership of the land upon which the MNWR headquarters sit.  In that Motion, filed September 9, 2016, they cited no previous motion to which they were responding.

Shawna, based upon a chain of title that she had received, had no dispute with the ownership.  However, neither the government’s request for judicial notice and attached documentation nor the chain of title provided any indication that the land, which both parties agreed, had been in private hands before the government reacquired it, had been ceded back to them by Oregon.

Shawna then filed her “Response to and Motion for Judicial Notice Regarding Ownership & Ceding of the MNWR Headquarters Area” (1245).  In that Motion, she stipulated the government’s ownership and asked the Court to take Judicial Notice that the subject lands had not been ceded back to the federal government by Oregon.  The Motion was quite simple and simply stated that since no proof of ceding had been provided, the Judicial Notice was in order.

The government then filed its Response (1272) to a number of motions, including Shawna’s Motion.  Geoffrey A. Barrow, the attorney that signed the Response, apparently has a reading disorder.  Shawna never contested the government’s motion for judicial notice.  Instead, she stipulated that they did own the land.  However, he chose to read into her motion what he thought the Judge might like:

Cox opposes the government’s request (ECF No. 1229) and, in turn, moves for judicial notice consistent with the separately filed McIntosh Declaration (ECF No. 1252). McIntosh repeats the adverse possession theories that this Court has already rejected many times, although he reads the government’s Houghton Declaration (ECF No. 1230) as further support for his views. McIntosh’s theory is that the federal government simply could not have obtained lawful title to the MNWR absent permission from the state. His theories are contrary to the law that this Court has already recognized controls this issue, and his stated credentials (i.e., his stated directorship of two web-based, environmental-sounding organizations) reveal that he is an advocate who shares defendants’ misguided views. (One organization promises to give a “strong voice that will dominate and control state and federal bureaucrats”).
Cox’s counter-Motion for Judicial Notice should be denied.

Now, Shawna never mentioned “adverse possession” in her motion – she simply sought judicial notice that the land had not been ceded back to the government.  This is quite consistent with what the government had cited in their judicial notice, when they said:

Federal Rule of Evidence 201 permits this Court to take judicial notice of adjudicative facts “not subject to reasonable dispute.” The Advisory Committee Note to the rule explains that “adjudicative facts” are those that “relate to the parties, their activities, their properties, their businesses.” Courts routinely take judicial notice of recorded property records.

Now, the government has proffered no argument establishing that Oregon had ceded back jurisdiction to the federal government.  If it had been ceded back, then it would have, as required by the Statute of Frauds, been recorded in the public records.  There is no argument, except the false association with Ammon’s motion, which would be cause for the Court not to take “Judicial Notice”.

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Barrow’s ad Hominem fallacy is compounded when in his Response (1295) to an Ammon Bundy Motion, he says:

Like defendant Shawna Cox in her Motion for Judicial Notice (ECF No. 1245), Ammon Bundy also relies on Mr. McIntosh’s Declaration (ECF No. 1252), which espouses the same faulty adverse possession theories.

Let me repeat, Shawna Cox, in her Motion, never mentions adverse possession, she simply seeks Judicial Notice of a fact consistent with the record that the government provided, that the land had not been ceded back.  Now, at this point, you have to begin to wonder if the Judge and prosecutors are conspiring to set things up to avoid taking such a critical Judicial Notice.  After all, they have no idea how the jury will take such an admission of no jurisdiction.

Next, we have the Judge siding with the erroneous argument given by Barrow when she files her “Order Taking Judicial Notice of Federal Ownership of the Malheur National Wildlife Refuge…” (1317).  In that Order, she states the following:

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 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.

Well, at least the Judge read Cox’s motion correctly and did not assert that it denied ownership, as Barrow did.  However, when we read the entire Order, she does relate Ammon’s Motion to Cox’s argument, and then denies Ammon’s Motion.  However, at this point, she has not denied Shawna’s Motion (1245), nor has she taken Judicial Notice.

So, on September 22, 23016, Shawna filed a “Motion to Reconsider Order Taking Judicial Notice, in part” (1322), in order to attempt to force the Court to take Judicial Notice that the land had not been ceded back to the government.

In the denial of Ammon’s Motion (1317), the Court cited Kleppe v New Mexico 426 US 529 (1976).  Apparently, Barrow did not read the decision; he probably simply resorted to Key notes.  As Shawna states in her Motion:

The government offers Kleppe v. New Mexico, 426 U.S. 529, 543 (1976) to support their broad contention of jurisdiction un Article IV, § 3, clause 2, however, Kleppe addressed jurisdiction over land that had not been transferred out of the government’s ownership, and to that, there is no contest. Kleppe merely attached the federal jurisdiction to the burros, whether on, or off of, the public lands. This is akin to the parent’s jurisdiction over the child, both inside and outside of the home. It is only for the return of the burros, and of the children. It does not carry with it a jurisdiction over the land where the burros roam, except to the extent of the right to retain ownership of the burros, and obligation to remove them, when so notified. Kleppe addressed an Act of Congress appropriately titled “Wild Free-roaming Horses and Burros Act”, as it applied to the presumption that the home of the burros was the public lands, and they had simply decided to wander away from that home. It did not apply to burros that were raised and branded by a private owner.

Then, in referring to the rather feeble substance of the same Order, she responds to the footnote on page 6 that the Court seems to present as authoritative when she says:

The Order cites, in footnote 1, page 6, that “at trial Harney County Sheriff David Ward testified the state exercised jurisdiction over the MNWR concurrently with federal jurisdiction over those lands.” That does not meet the statutory requirements set forth in 40 US Code § 3112. It can be considered to be nothing more than an unfounded opinion, not support by any factual proof.

Now, to support what she had stated, she offered an existing statute that should put the whole matter to rest.  She cited 40 US Code § 3112 (b) & (c):

(b) Acquisition and Acceptance of Jurisdiction. – When the head of a department, agency, or independent establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or secure, from the State in which land or an interest in land that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of, any jurisdiction over the land or interest not previously obtained. The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.

(c) Presumption. – It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section.

That should have been the end of the matter, and the Judge should have taken Judicial Notice, since there was no argument, or document, that established any ceding back to the government over the lands where the headquarters buildings were situated at MNWR.

But, the persistent Queen Judge was determined that truth was not a factor, and that she was not going to allow the jury even to begin to believe that possibly the government had no jurisdiction over the land in question.  She was committed to using her power to assure a conviction, with no regard for Justice.  So, now the ball is back in Queen Judge’s Court, on September 22, 2016, she files another “Order Taking Judicial Notice of Federal Ownership of the Malheur National Wildlife Refuge” (1327).

In that Order, she incorporates both of Shawna’s Motions:

The Court has now reconsidered the entire record on these matters, which includes the following…

** *

Defendant Shawna Cox’s Motion for Judicial Notice Regarding Ownership & Ceding of the MNWR Headquarters Area¹;

                        ¹ The government did not file a reply in support of its Motion (#1229) for Judicial Notice.

She does acknowledge that the government never did file a reply to the challenges to the initial request for Judicial Notice of Ownership, probably, because they can find no rational argument.  So, this leaves the entire responsibility, not on the Prosecution, but on the Queen Judge Brown.  What is supposed to be an adversarial proceeding, where there are two sides, and the judge’s duty is to assure fairness and justice, is now turned into a situation where the judge has become the adversary to the Defendants.  So, the judge exempts the Prosecution from having to respond:

In addition, on September 22, 2016, Cox filed a Motion (#1322) to Reconsider Order Taking Judicial Notice. Although Cox’s Motion to Reconsider related to the Court’s now-withdrawn Order (#1317), the Court, nevertheless, has reviewed Cox’s arguments therein and considers them as part of the record on these Motions. Accordingly, the government need not file a response to Cox’s Motion (#1322) to Reconsider.

She then “DENIES Defendant Shawna Cox’s Motion (#1322) to Reconsider Order Taking Judicial Notice.”  However, she never denied Shawn’s first Motion to take Judicial Notice.

She then cites the authority for taking Judicial Notice:

“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 jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Well, apparently, it is not “generally known”, or a blind eye has been turned to the fact, or, the Court expects Shawna Cox to prove a negative.  Or, as Shawna put it in her Motion (1322):

It is impossible to prove negative, and for that reason, 40 US Code §3112 sets the standard for proof that there exists a jurisdiction, whether exclusive or concurrent. Any determination to the contrary is Arbitrary and Capricious.

For whatever reason, the docket then shows the same Motion (1322) that Shawna filed on September 22, filed again on September 26 (1344).  However, Shawna’s signature is dated September 22, 2016.  There is no explanation as to why this document was filed, in identical form, 4 days later, and after the Court’s Order of September 22.  Perhaps, in an effort to cover up the misdeeds of government, the Court and Clerk are getting overwhelmed and confused in trying to obfuscate the issues brought up by the Defendants.

In a final assertion of her authority, even though the Prosecution never contested Shawna’s motions, Queen Judge Brown chops the head off of her victims in a Minute Order (1350), dated September 27, 2016 (repeating what had already been stated) which states:

ORDER by Judge Anna J. Brown as to Shawna Cox (7). The Court DENIES Defendant Shawna Cox’s Motion [1344] for Reconsideration, which is identical to her Motion [1322] for Reconsideration that the Court denied in its Order (#1327) Taking Judicial Notice of Federal Ownership of the Malheur National Wildlife Refuge. 40 U.S.C. § 3112 does not deprive the federal government of jurisdiction over the Malheur National Wildlife Refuge (MNWR) because, as owner of the MNWR, the government may lawfully exercise jurisdiction pursuant to the Property Clause of Article IV, Section 3, Clause 2 of the United States Constitution. See United States v. Bohn, 622 F.3d 1129, 1133-34 (9th Cir. 2010). (bb)

Interestingly, however, it appears that the Judge never denied Shawna’s original Motion for Judicial Notice (1245), though she never did grant the requested “Judicial Notice”.  She only denied the Motion for Reconsideration (1322 & 1344).

Regardless, there is a significant, un-convoluted, matter for the Appellate Court, as to whether Federal Jurisdiction exists at the MNWR.

So, regardless of a statute (40 US Code § 3112) and no case law to the contrary, the Queen Judge has shown total contempt for the laws and her judicial obligation for justice, in her rulings in this matter.  Her obsession with keeping her schedule and upholding, not the rule of law, rather, the rule of the government, are so clearly demonstrated in the above sequence, that we can clearly understand that law and justice have vacated the Mark O. Hatfield U.S. Courthouse, in Portland Oregon.  All that remains are injustice and some patriotic political prisoners.