Defining Jurisdiction on Federally Owned Public Lands
Your guide to defining Legislative Jurisdiction on Federal Land in the United States. This includes jurisdiction on the Bureau of Land Management (BLM) public lands and jurisdiction on the United States Forest Service (USFS) public lands.
This material is intended for historical / educational purposes only and does not constitute legal advice.
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Search your state and county to locate federal enclaves, review cessions of jurisdiction documented within the 1962 federal GSA report titled “Inventory Report on Jurisdictional Status of Federal Areas within the States”. Jurisdiction on federal lands within the United States.
This material is intended for historical / educational purposes only and does not constitute legal advice.
UNDERSTANDING LEGISLATIVE JURISDICTION ON FEDERALLY OWNED PUBLIC LANDS (BLM/USFS)
You must first understand the various types of jurisdiction on federal lands and how the federal government obtains legislative jurisdiction over public lands within a state. This includes jurisdiction on the Bureau of Land Management public lands and jurisdiction on the United States Forest Service public lands. Do you understand what a federal enclave is? Take the time to read the federal reports on this website.
Federal Enclave: In United States law, a federal enclave is a parcel of federal property within a state, that is under the Special Maritime and Territorial Jurisdiction of the United States. DOJ Criminal Resource Manual 1630– 18 U.S.C. § 7, states “any property under the exclusive or concurrent jurisdiction of the United States is subject to these federal enclave laws”. “There are three methods by which the United States obtains exclusive or concurrent jurisdiction over federal lands in a state: (1) a state statute consenting to the purchase of land by the United States for the purposes enumerated in Article 1, Section 8, Clause 17, of the Constitution of the United States; (2) a state cession statute; and (3) a reservation of federal jurisdiction upon the admission of a state into the Union. See Collins v. Yosemite Park Co. Since February 1, 1940, the United States acquires no jurisdiction over federal lands in a state until the head or other authorized officer of the department or agency which has custody of the lands formally accepts the jurisdiction offered by state law. See 40 U.S.C. § 255; Adams v. United States, 319 U.S. 312 (1943). Prior to February 1, 1940, acceptance of jurisdiction had been presumed in the absence of evidence of a contrary intent on the part of the acquiring agency or Congress. See Silas Mason Co., Inc. v. Tax Commission, 302 U.S. 186 (1937).”
In the 1957 federal report titled, Part II Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Chapter 3 (Acquisition of Legislative Jurisdiction), Page 46 it states the following: “Constitutional consent –The Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction– by State consent under Article I, Section 8, Clause 17.” “No federal legislative jurisdiction without consent, cession, or reservation. It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or (3) unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State.”
Since 1940, per 40 USC § 3112 (C) -“It is conclusively presumed that jurisdiction has not been accepted until the government accepts jurisdiction over land as provided in this section.” There must be a recorded federal acceptance, of a cession of legislative jurisdiction, over federal lands by a state.
Assimilative Crimes Act (ACA) is Federal Statute (18 U.S.C. § 13) Laws of State Adopted within Areas of Federal Jurisdiction. Per uslegal.com, ACA “Provides adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction, if the crime is not punishable under federal law. In short, when a criminal offense has been committed on land or buildings that have been reserved or acquired by the federal government, and the offense is not a federal offense, state law will apply to the offense under the Assimilative Crimes Act. When the federal government prosecutes the offense, it is not enforcing state law but is enforcing the federal law, by incorporating or by applying the state law to the offense.”
DOJ Resource Manual 667 – “The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress.”
DOJ Resource Manual 1630, 18 U.S.C. § 7 – “… the United States may acquire property without accepting any special criminal jurisdiction over it. In this situation, the United States simply retains proprietary jurisdiction over the property. The jurisdictional status of property acquired by the United States is important because it triggers the application of a series of federal laws, known as federal enclave statutes. These statutes apply to lands within the “special maritime and territorial jurisdiction of the United States,” a term which includes “(a)ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof …. See 18 U.S.C. § 7(3). Therefore any property under the exclusive or concurrent jurisdiction of the United States is subject to these federal enclave laws.”
TYPEs OF LEGISLATIVE JURISDICTION
1. Exclusive Legislative Jurisdiction (Federal Enclave)
Exclusive Jurisdiction is the term applied when the Federal Government possesses, by whichever method acquired, all of the authority of the State, and in which the State concerned has not reserved to itself the right to exercise any of the authority concurrently with the United States except the right to serve civil or criminal process in the area for activities which occurred outside the area.
In the 1956 federal report on this web site, titled, Part 1, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Chapter III, Page 13 declares: ” The term Exclusive legislative jurisdiction as used in this report refer to the power “to exercise exclusive legislation” granted to the Congress by article I, section 8, clause 17, of the Constitution, and to the like power, which may be acquired by the United States through cession by a State, or by a reservation made by the United States through cession by a State, or by a reservation made by the United States in connection with the admission of a State into the Union. In the exercise of such power as to an area in a State the Federal Government theoretically displaces the State in which the area is contained of all its sovereign authority, executive and judicial as well as legislative. By State and Federal statutes and judicial decisions, however, it is accepted that a reservation by a State of only the right to serve criminal and civil process in an area, resulting from activities ,which occurred off the area, is not inconsistent with exclusive legislative jurisdiction.”
In the 1957 federal report on this web site, titled, Part 2, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Ch. 3 (Acquisition of Legislative Jurisdiction), Page 46 declares: ”NECESSITY OF STATE ASSENT TO TRANSFER OF JURISDICTION TO FEDERAL GOVERNMENT: Constitutional consent.–The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. Article I, section 8, clause 17, of the Constitution, provides that legislative jurisdiction may be transferred pursuant to its terms only with the consent of the legislature of the State in which is located the area subject to the jurisdictional transfer. As was indicated in chapter II, the consent requirement of article I, section 8, clause 17, as intended by the framers of the Constitution to preserve the States’ jurisdictional integrity against Federal encroachment.”
2. Concurrent Legislative Jurisdiction (Federal Enclave)
Concurrent Jurisdiction is the term applied in those instances wherein granting to the United States authority which would otherwise amount to exclusive legislative jurisdiction over an area, the State concerned has reserved to itself the right to exercise, concurrently with the United States, all of the same authority.
In United States law, a federal enclave is a parcel of federal property within a state, that is under the Special Maritime and Territorial Jurisdiction of the United States. DOJ Criminal Resource Manual 1630 — 18 U.S.C., states “any property under the exclusive or concurrent jurisdiction of the United States is subject to these federal enclave laws”.
In the 1956 federal report on this web site, titled, Part 1, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Chapter IV, Page 20 declares: “State law, including any amendments which may be made by the State from time to time, is applicable in a concurrent jurisdiction area. Thus there is absent the tendency which exists in exclusive jurisdiction areas for general laws to become obsolete. Federal law appertaining generally to areas under the legislative jurisdiction of the United States also applies. State or local agencies and administrative processes needed to carry out various State laws, such as laws relating to notaries, various licensing boards, etc., can be made available by the State or local government in accordance with normal procedures. State criminal laws are, course, applicable in the area for enforcement by the State. The same laws apply for enforcement by the Federal Government under the Assimilative Crimes Act, which by its terms is applicable to areas under the concurrent as well as the exclusive legislative jurisdiction of the United States, and other Federal criminal laws also apply. Most crimes fall under both Federal and State sanction, and either the Federal or State Government, or both, may take jurisdiction over a given offense. Unlike the situation in exclusive jurisdiction areas, the State and the local governmental subdivisions have the same obligation to furnish their normal governmental services, such as sewage disposal, to and in the area, as they have elsewhere in the state. They also have the compensating right of imposing taxes on persons, property, and activities in the area (but not, of course, directly on the Federal Government or its instrumentalities). The regulatory powers of the States may be exercised in the area but, again, not directly on the Federal Government or its instrumentalities, and not so as to interfere with Government activities.”
3. Partial Legislative Jurisdiction (Federal Enclave)
Partial Jurisdiction is the term applied in those instances wherein the Federal Government has been granted for exercise by it over an area in a State certain of the State’s authority, but where the State concerned has reserved to itself the right to exercise, by itself or concurrently with the United States, other authority constituting more than merely the right to serve civil or criminal process in the area (e.g., the right to tax private property).
4. Proprietorial Interest Only
Proprietorial Interest Only – the Federal Government has acquired no form of legislative jurisdiction over the federally owned lands in question. Those instances wherein the Federal Government has some right or title to an area in a State, but has not obtained any measure of the State’s authority over the area. In applying this definition, recognition should be given to the fact that the United States, by virtue of its functions and authority under various provisions of the Constitution (Property Clause, Commerce Clause, Necessary and Proper Clause, etc), has many powers and immunities not possessed by ordinary landholders with respect to federal lands, and the fact that all its properties and functions are held or performed in a governmental rather than a proprietary capacity. These days you rarely (if ever) hear federal agencies use the term Proprietorial Interest Only, they generally use the term “Proprietary Jurisdiction”. The term proprietary Jurisdiction implies to the uninformed (nearly everyone), that the federal gov’t has “jurisdiction” over an area. To this day, in the annually published DOI Public Land Statistics book, the federal government claims “Jurisdiction” over all federal lands. Federal reports on this web site reveal the federal government only has a Proprietorial Interest Only on approximately 95% of all federal lands (1962 Eisenhower Inventory Report). While the federal agencies have full management authority over all federal lands – Property Clause (article IV, section 3, clause 2), cessions of Jurisdiction are regulated solely under the Enclave Clause (article 1, section 8, clause 17) (aka Jurisdiction Clause).
In the 1956 federal report, titled, Part 1, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Chapter IV, Page 21 defines Proprietorial Interest Only as: “Where the Federal Government has no legislative jurisdiction over its land, it holds such land in a proprietorial interest only and has the same rights in the land as does any other landowner. In addition, however, there exists a right of the Federal Government to perform the functions delegated to it by the Constitution without interference from any source. It may resist, by exercise of its legislative or executive authority or through proceedings in the court, according to the circumstances, any attempted interference by a State instrumentality as well as by individuals. Also, the Congress has special authority, vested in it by article IV, section 3, clause 2 of the Constitution, to enact laws for the protection of property belonging to the United States. Subject to these conditions, in the case where the United States acquires only a proprietorial interest, the State retains all the jurisdiction over the area which it would have if a private individual rather than the United States owned the land. However, for the reasons indicated, the State may not impose its regulatory power directly upon the Federal Government nor may it tax the Federal land. Neither may the state regulate the actions of the residents of the land in any way which might directly interfere with the performance of a Federal function. State action may in some instances impose an indirect burden upon the Federal Government when it concerns areas held in a proprietorial interest only, as in the Penn Dairies case, supra.”
GET STARTED! CLICK ON YOUR STATE – IT’S EASY
Inventory Report on Jurisdictional Status of Federal Areas within the States- 1962. The jurisdictional status of every acre of federal land (BLM and USFS) public land in the United States is defined in each state, by county. This report is often referred to as the Eisenhower Report. Locate federal enclaves in your state, listed by county.
Search your State - Download PDF - Jurisdiction on public lands within each state
Search state statutes for cessions of jurisdiction on public lands after 1962
The federal report titled, “Inventory Report on Jurisdictional Status of Federal Areas within the State” documents each cession of jurisdiction from a state to the federal government prior to 1962. This report is also known as the Eisenhower Report. In order to fully document jurisdiction and federal enclaves on federal lands in your state or county, you must research the state statutes (laws) in your state of interest to document any other cessions of legislative jurisdiction since 1962. The federal government has not done a detailed inventory report on legislative jurisdiction since 1962. For this website, we will use Colorado as a search example. Did you know that 97.2% of Colorado’s 24 million acres of federally managed public lands are held in a “proprietorial interest-only” by the federal government? This was calculated by following this process.
A. Locate State Statutes regarding jurisdiction on federal lands.
In Colorado search the Colorado Revised Statutes (CRS). Search “Colorado Revised Statutes” and click on http://www.advance.lexis.com/ . Agree to terms on the first page and you will see many states to choose from, click on Colorado. If you don’t see your state, you will need to access your state laws through a state-maintained web site, like https://leg.colorado.gov/laws.
B. Within the State Statutes find cessions of exclusive jurisdiction.
Within the Colorado Revised Statutes (CRS), click on “Title 3. United States”, click on “Jurisdiction“, than you will see Articles 1 – 3. (constitutional cessions of legislative jurisdiction in Colorado are recorded in CRS Title 3)
Title 3, Article 1, (click on link) shows all cessions of exclusive jurisdiction by Colorado to the federal government. Review of the exclusive jurisdiction cessions show none after 1962. Each of these locations is a federal enclave. Example- In 1929, Per CRS 3-1-101 Colorado ceded exclusive jurisdiction over Rocky Mountain National Park to the federal government, making it the largest federal enclave in Colorado. If you learned much in the “Get Educated” section of this web site, you also know that (since 1940) the federal government must formerly accept a cession of jurisdiction by a state. Here is the link to view CRS 3-1-130 and the February 19, 1929 formal acceptance by the federal government of exclusive jurisdiction over Rocky Mountain National Park per CRS 3-1-130.
C. Within the State Statutes find cessions of concurrent jurisdiction.
Article 3, Title 3, CRS 3-3-101– shows all cessions of concurrent jurisdiction by Colorado. In this case the only cessions occurred in 1983, when the state ceded concurrent jurisdiction over many National Monuments within the state, like the Colorado National Monument in Mesa County, Grand Junction, CO. Here is the link to the the federal governments 1984 formal acceptance of concurrent jurisdiction in Colorado.
D. Within the State Statutes find cession of partial or other jurisdiction.
There are no CRS records in Title 3, regarding cessions of “partial Jurisdiction” in the state of Colorado. This completes the research pertaining to the cessions of legislative jurisdiction in Colorado under Title 3.
Note: There is no cession process pertaining to “proprietorial interest only”. This is because, as quoted on page 3 of the Eisenhower report, “With respect to the large bulk of federally owned or operated real property in the several States and outside of the District of Columbia it is desirable that the Federal Government not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold the installations and areas in a proprietorial interest status only, with legislative jurisdiction remaining in the several States”.