MEMORANDUMS OF UNDERSTANDING (MOU’S) BETWEEN THE COUNTY SHERIFF AND BLM

Can a county sheriff provide a cession of legislative jurisdiction (partial, exclusive, concurrent) to the federal government that forms a federal enclave and enables enclave law on federally managed public lands?  Enclave law is in the absence of a federal law, a federal law enforcement officers (LEO) can adopt/assimilate a state law as federal law on federal lands. 

Can a county sheriff replace the state legislature?  Can a county sheriff form a federal enclave and enclave law for state and local laws with unilateral action?  According to the Jurisdiction Clause, Assimilative Crimes Act, and the many referenced federal jurisdiction reports on this web site, the answer is “NO”.  According to these sources a sheriff cannot act in place of the state legislature in any state.  The state legislature is the only entity in a state that can provide a cession of jurisdiction over federal lands to the federal government.   The federal LEO’s can always enforce federal rules (CFR) and federal laws but are exempt from enforcing or adopting state/local laws without a cession of jurisdiction by the state.  A local law would be a county ordinance that is passed by county commissioners as a subdivision of the state.  A good example of the legal cession process is in this link for the Colorado National Monument.  In 1983, the Colorado State Legislature passed CRS 3-3-101, providing a cession of concurrent jurisdiction in Mesa County over the Colorado National Monument.  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 41-46 it states the following: THREE METHODS FOR FEDERAL ACQUISITION OF JURISDICTION”  …. ”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 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”.

In order to have a full understanding of federal government jurisdiction within the federally managed public lands of your county, you will need to request a copy of any MOU’s between your County Sheriff and the Bureau of Land Management (BLM).  In this review we will look at BLM / Sheriff MOU’s in Western Colorado, but will focus on the MOU between the BLM and the Mesa County Sheriff in Grand Junction, CO.  Copies of any federal law enforcement agreements with a county sheriff can be obtained through a Federal FOIA request or an official document request at your sheriffs office.  The BLM / Sheriff MOU’s should be reviewed alongside the current and past federal agency law enforcement guides for state and local agencies.  The 1999 and 2014 BLM Law Enforcement Guide for State and Local Law Enforcement Agencies, are located in the table below.  It is important to read how the BLM interprets these MOU’s and it’s important to note that in Colorado, sheriffs are not taught jurisdiction on federally managed public lands, so their interpretations vary.  The State of Colorado, State Attorneys and State Legislature are completely checked out on the matter.  If you don’t believe me, just read how they nearly turned all federal lands in Colorado into a federal enclave in 2014 and proposed a unconstitutional retrocession.  If ignorance is bliss, than we are a mile high in Colorado when it comes understanding legislative jurisdiction on federally managed public lands.  The constitutional jurisdiction cession process is regulated by the Jurisdiction Clause of Constitution and that is explained in more detail below, but for a deep dive on whether or not the BLM is unconstitutionally adopting state laws in Colorado please read this review on how all BLM lands became a form of a federal enclave.

In the table below are several examples of BLM / Sheriff MOU’s in Western Colorado, they are a boiler-plate BLM document, with minor variations.  The level of federal jurisdiction currently in place within the federal lands of the county (Exclusive, Concurrent or Proprietorial) are not disclosed.  The BLM MOU’s mention the Federal Land Policy and Management Act (FLPMA), which is important when defining federal regulations but legislative jurisdiction is regulated through the Jurisdiction Clause (aka Enclave or Cession Clause), Art 1, Sect 8, Clause 17.   Per the Federal jurisdiction reports shared on this website, Congressional Acts (such as FLPMA) and Executive Orders from the President of the United States CANNOT alter a States’ legislative jurisdiction over federal lands within its borders.  This is also clarified within Section 701 of FLPMA.  In the 1999 BLM Law Enforcement Guide (table below) on page 5 it states “Public lands administered by the BLM are held in the proprietary status since no cession of State authority over these lands has occurred.”  This falls in step with 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), Pages 41-46 ….”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.”  By obtaining Exclusive or Concurrent Jurisdiction thru Constitutional Consent – Clause 17, the Federal Government is then able to adopt state laws as federal laws, per the Assimilative Crimes Act.

1957 Part II Jurisdiction Over a Federal Areas Within the State

 

MOU’s / Cooperative Agreements

State County Sheriff Federal Agency Download Link
CO Delta BLM Delta County Sheriff and BLM MOU
CO Garfield BLM Garfield County Sheriff and BLM MOU
CO Mesa BLM Mesa County Sheriff and BLM MOU
CO Moffat BLM Moffat County Sheriff and BLM MOU
CO Montrose BLM Montrose County Sheriff and BLM MOU
CO Rio Blanco BLM Rio Blanco County Sheriff and BLM MOU
       
Year/BLM Guide to BLM Law Enforcement for State and Local Agencies Download Link
1999 Guide to BLM Law Enforcement 1999 BLM Law Enforcement for State and Local Law Enforcement Agencies
2012 Guide 2012 Law Enforcement Authority and Jurisdiction for BLM Agent, Special Agent and Manager
2014 Guide to BLM Law Enforcement 2014 Bureau of Land Management Law Enforcement for State and Local Law Enforcement Agencies

 

As of January 2020, BLM MOU’s with county sheriffs are not generally shared with the public.  They were not located on any federal or BLM web site and the BLM MOU with the Mesa County Sheriff is not on the Mesa County Web Site Intergovernmental Agreement page, nor is it shared on the Mesa County Sheriff web site.  Mesa County is comprised of 72% federally managed public lands, the area residents deserve to be notified with press releases and shared documents regarding these MOU’s. 

Jurisdiction Information absent from the BLM / Mesa County Sheriff Law Enforcement MOU

1. The BLM Mesa County Sheriff MOU does not clarify whether or not the 250 BLM agents in the United States (that are now given jurisdiction/authority by the Sheriff to “enforce” all state laws and county ordinances in Mesa County) are considered certified peace officers in the State of Colorado.

2. The BLM Mesa County Sheriff MOU claims that it is limited by a Colorado state law passed in 1993, Colorado Revised Statute CRS 16-3-110, which allows Federal Agents to arrest an individual when a state felony or misdemeanor happens in their presence.  It’s worth noting that this state law, which appears to be a cession of Partial Jurisdiction, was not formally accepted by the federal government as required per federal law 40 USC 3112, nor does it reference that it is a cession of jurisdiction of any kind.  It should have been recorded in Title 3 of the CRS with the other cessions of jurisdiction to the Federal Government in Colorado.  It appears to be a state law that gives any federal LEO the jurisdiction to perform an “arrest” on a person who broke a state law (state felony or misdemeanor), and hold that individual until local law enforcement agents with actual jurisdiction arrive.  Regardless, the State law does represent a cession of partial jurisdiction to the federal government.  Without this State law, the federal LEO’s would not be able to perform this action, unless possibly in the act of performing a citizens arrest.  

3. The BLM Mesa County Sheriff MOU does not clarify that CRS 16-3-110 limits federal LEO’s arrest capabilities to felony and misdemeanors and that the BLM LEO’s cannot act in the event of a petty offense state crime.    To add to this confusion, the Mesa County Sheriff has given the BLM LEO’s permission to enforce county ordinances, which is not allowed per CRS 16-3-110.  

4. The BLM Sheriff MOU does not define jurisdiction levels on the federal lands within Mesa County.  Mesa County is comprised of 72% federally owned lands (1,559,551 acres) and 98.7% of the federally managed public lands in Mesa County are held in a Proprietorial Interest Only by the Federal Government.  Only 1.3% of the federal lands in Mesa county are a federal enclave that are subject to federal enclave laws 18 USC 7 and 18 USC 13, where the federal government can adopt state laws and prosecute them as federal laws under the Assimilative Crimes Act.  Per the 1962 Federal Jurisdiction Inventory Report (on this website), the Federal Government has documented that only 83.4 acres of federal land in Mesa County are held in Exclusive Jurisdiction by the Federal Government (VA Hospital 27.2 acres, Rood Avenue Post Office 0.5 acres, Atomic Energy HQ 55.7 acres).  In 1983, the state legislature passed a cession of Concurrent Jurisdiction in Mesa County over the 20,487 acre Colorado National Monument.   All remaining federal lands in Mesa County are held in a Proprietorial Interest Only by the Federal Government.  None of these details are on the  MOU.

5. In a 2020 conversation with the Mesa County Sheriff it was disclosed by the Sheriff , that the sheriff cannot deputize federal agents.  This information should also should be defined and disclosed on the MOU, in the event of a local emergency it is pertinent information for the general public.  

6. The BLM Mesa County Sheriff MOU does not disclose that the BLM has adopted state laws in Colorado without a cession of exclusive or concurrent jurisdiction by the State Legislature.  According to the federal jurisdiction reports on this website, this unilateral action by the DOI / BLM is unconstitutional.  Here is a 2020 FOIA response regarding the issue and it provides a long list of Colorado State Laws (most are Petty Offenses) that the BLM has “adopted” or “assimilated” even though the Federal Government has not acquired Exclusive or Concurrent jurisdiction as required per the Assimilative Crimes Act and the Jurisdiction Clause, per the federal jurisdiction reports on this website.  

7. The BLM Mesa County Sheriff MOU does not disclose that it would be unconstitutional for the Mesa County Sheriff to provide any cession of jurisdiction to the federal government beyond CRS 16-3-110.  This is because the Sheriff cannot act in place of the state legislature in Colorado.  The state legislature is the only elected body in Colorado that can provide a cession of jurisdiction over federal lands to the federal government.   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 41-46 it states the following: THREE METHODS FOR FEDERAL ACQUISITION OF JURISDICTION”  …. ”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 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”.

 

2009 and 2014 Guide to BLM Law Enforcement for State and Local Enforcement Agencies

In the 1999 BLM Law Enforcement Guide (table above) on page 5 it states “Public lands administered by the BLM are held in the proprietary status since no cession of State authority over these lands has occurred.”  This falls in step with 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), Pages 41-46 ….”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.”  By obtaining Exclusive or Concurrent Jurisdiction thru Constitutional Consent – Clause 17, the Federal Government is then able to adopt state laws as federal laws, per the Assimilative Crimes Act.

The 1999 Guide gives recognition to the jurisdiction cession limits from the state and does not mention the BLM’s ability to adopt state laws without a cession of jurisdiction per the Assimilative Crimes Act.  However, in stark contrast to this, the 2014 Guide to BLM Law Enforcement for State and Local Law Enforcement Agencies, states the following: “There are also federal regulations that adopt various State laws by reference. This is generally done in cases such as vehicle code violations where every State may have slightly different standards and it would be a burden on the public to have to comply with a different federal standard while on public lands.  Adopting the State law by reference allows federal agencies to stay consistent with their State and local partners.”  This quote appears to be repugnant to the Constitution and the federal jurisdiction reports shared on this website.  The process for the federal government to gain the ability to “Adopt” State Laws is well documented via 18 USC 7 and 18 USC 13 per the Assimilative Crimes Act.   There are also state and federal documents that clearly define the Federal Government cannot adopt state laws when they only have Proprietorial Interest Only (aka Proprietary Jurisdiction).  If the Federal Government is adopting and enforcing state law on their own accord, they are taking unilateral action to acquire a states jurisdiction, without a cession from the state legislature.

There are different jurisdictional interpretations highlighted in the 1999, 2012 and 2014 BLM Law Enforcement documents (table above).  These BLM law enforcement guides appear to contradict themselves, on Page 5 of the 2014 BLM Law Enforcement document, it states that “There are also federal regulations that adopt various State laws by reference”, it also states on the same page 5 that ” BLM LEOs do not have authority to enforce State laws without the written authorization of the Sheriff, other authorized State official or State law.”  So which is it? Can the Secretary of Interior take unilateral action and adopt/enforce state laws or does the Sheriff/State have to give written authorization?   Lots of questions, many of these statements are not supported by the Federal Jurisdiction Reports on this website.

The 2012 BLM Law Enforcement Authority document recognizes that a cession of exclusive and current Jurisdiction by a state, is necessary for the Federal Government to adopt state laws under the Assimilate Crimes Act.  This 2012 report declares “As we learned in our earlier discussion on jurisdiction, the vast majority of public lands fall under proprietary jurisdiction. Therefore the Assimilative Crimes Act cannot be used to enforce state law on BLM managed public lands.”  

The 1999 Guide to BLM Law Enforcement stands in contrast to the 2014 Guide to BLM Law Enforcement, the reference from page 5 (1999 quote above) and on page 7 it declares the following “Clearly understanding the authority granted by the “Property Clause,” Congress granted law enforcement authority only for “Federal laws and regulations relating to the public lands and their resources.” In fact, the word Federal was specifically inserted into the final version of the Act in consideration of State and local concerns.  The testimony related to this amended change was as follows: “What this amendment does is to make clear that, insofar as the powers of those persons charged with enforcing any law or regulation related to lands and resources managed by the Secretary, it shall be the Federal law or regulation that is to be interpreted …. .I have letters from constituents in my State saying, ‘Are we going to make cops out of every single Bureau of Land Management employee?’ It is not the intention in this section of the bill to do any such thing.”  This quote is very important.  It points out that the Property Clause only allows the Secretary of Interior to issue federal regulations as federal laws, it does not allow the Federal Government to bypass the Jurisdiction Clause and permit the Federal Government the ability to stripe the State of their legislative jurisdiction with unilateral action.   Allowing this unilateral action would turn all federally managed public lands into de facto federal enclaves, subject to federal enclave law, and would give the Federal Government the ability to adopt any and all state laws at their leisure, if they feel it helps protect federal lands.

Conclusion

Sheriff Dave Brown President of the Western States Sheriffs Association 2015 MOU Testimony

The BLM and Colorado County Sheriff MOU’s do state that the BLM can enforce state laws and county ordinances and hold the person/s until the local law enforcement agency with jurisdiction arrives, and this must be respected.   This article is not stating that it does or does not make sense to have the federal BLM LEO’s enforcing state laws.  The purpose of the article is to point out that the BLM and Sheriff MOU’s in Colorado appear to be done without community knowledge and appear to be unconstitutional and outside the guidelines set by federal jurisdiction reports.  “All laws which are repugnant to the Constitution are null and void”  Marbury vs. Madison 5 US  (2 Cranch) 137, 174, 176, (1803)