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)