While the chatter is all about how the Republicans are going to sell our public lands.  The federal government (BLM) is busy buying/acquiring private lands in Colorado and other western states. Just do some googling, and you will find the BLM is busy acquiring private lands in Colorado and in other states.  The federal government owns 1/3 of our country already. Is this a slippery socialist slope, or should we just turn all recreational land into a federal enclave?    What if a state or county does not support the sale of private lands to the federal government because they need taxable land and don’t want the federal government to control the land as a federal enclave?   

The Marton Property Acquisition refers to the Bureau of Land Management’s (BLM) $21 million purchase of the 35,668-acre private Marton Ranch southwest of Casper, Wyoming. Finalized through the Land and Water Conservation Fund in partnership with The Conservation Fund in 2022, it is the largest federal land acquisition in recent Wyoming history.

This article is a detailed review of the legal appeal filed regarding the 2023 Bureau of Land Management (BLM) Buffalo Horn Land Exchange in Rio Blanco and Moffat Counties, Colorado.    Please keep in mind that this appeal is not filed in a courthouse; it is an appeal that is reviewed by the BLM itself.  Wouldn’t it be nice to be able to police yourself?  In this case, the BLM was acquiring more private lands in Colorado by “swapping” lands with a private seller.  Here are the details of this BLM land swap and the details of the initial appeal filed (links are in blue). This appeal will show the federal agency’s overreach and an uneducated BLM assumption that they have automatic consent to acquire vast amounts of vacant lands in Colorado without the consent of the Colorado Legislature or County Commissioners.  Please keep in mind this has been going on for years, and no one in Colorado (County Commissioners or State legislatures) has done anything to define the legal conundrum of “what if the county/state doesn’t want to sell all/some of their land to the federal government????

One must recognize that when the federal government acquires (buys or swaps) private lands in Colorado, those lands are no longer controlled by the state.   Those newly acquired federal lands that were once private lands controlled by a sovereign state are now controlled by Congress and the often overreaching federal bureaucratic agencies that get to write their own rules/laws and print them in the Code of Federal Regulations at will.  Are all federal lands a federal enclave?  Yes, they have essentially all become federal enclaves.  Read these two articles (BLM #1 and USFS #2) to see how our federal lands became unconstitutional federal enclaves without the constitutionally required cessions of jurisdiction by the states (consent).  This website will teach you all you need to know about jurisdiction on federal lands if you wish to become educated on the matter.   

Does the federal government have to follow Colorado law when acquiring private lands?  The answer is yes, the federal government holds no legislative jurisdiction over Colorado’s private lands.  

Can the federal government buy private lands in Colorado?  Yes, with the consent of the County Commissioners and, if necessary, the state legislature. The only exception to this would be if they needed a piece of property for critical infrastructure, such as courts, jails, forts, post offices, interstates, etc. 

The foundation of this argument is that the BLM is ignoring state law, specifically Colorado Revised Statute (CRS) 3-1-102 when acquiring large tracts of private lands in Colorado.  A review of this law shows that since these large tracts of private lands (hundreds/thousands of acres or vacant land that will be used for recreational purposes only) are not used for critical federal government infrastructure such as buildings, forts, courthouses, interstates, etc., the consent of the state is required for such transfers of ownership.  Here is the state law:

CRS 3-1-102. Consent to acquire land – when notice required – directive to the attorney general  (1) Except as provided in this section, the consent of the state of Colorado is hereby given [automatic consent], in accordance with section 8 (17) of Article I of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation, or otherwise, of any land in the state required for custom houses, courthouses, post offices, arsenals, or other buildings whatever, or for any other proper purpose of the United States government; …. However, before any privately owned land in the state is acquired for any purpose other than for public highways, custom houses, courthouses, post offices, arsenals, or other governmental buildings, the United States shall give written notice of intention to acquire the land to the board of county commissioners of the county wherein the land is situated and to the division of property taxation, which notice shall be given at least sixty days prior to the date of the intended acquisition. If the notice is not given or if the board of county commissioners or the division files with the secretary of state of the state of Colorado within the sixty-day period a request that the acquisition be considered by the general assembly of the state of Colorado, then the consent of the state of Colorado shall not be deemed to have been given to the acquisition unless and until the general assembly of the state of Colorado shall have by law specifically consented thereto.

Would state consent likely be given in most circumstances?  My guess is yes, for small private land transfers that enhance public access,  but what happens if the state or county commissioners object to the BLM buying, let’s say, a 20,000-acre ranch?   This is an area equal in size to the Colorado National Monument.  Currently, according the BLM, the state and the county have no way of unilaterally stopping any vacant land or large land acquisition by the BLM.  Colorado and its County Commissioners can only protest a BLM land acquisition by working within the BLM controlled protest process (which surely is not biased in favor of the BLM).  So, the State of Colorado has no authority over the sale of private lands within its sovereign borders and lacks the ability to control who buys private lands that are currently under Colorado jurisdiction?  The federal government holds no level of legislative jurisdiction over private land in Colorado.  Generally, in order for the President to federalize the Colorado National Guard for a civil action, the Governor would have to cede that authority (give permission) to the President.  We saw this in the 2020 riots, President Trump waited for permission from the Governors to bring in the National Guard.  We have also heard recent concerns like this over foreign entities buying farm lands in the USA, and we must recognize that when the BLM/USFS acquires Colorado private lands those lands are no longer county taxable land, controlled by Colorado.  Colorado must be able to regulate private land sales/transfers of ownership to preserve and defend its state sovereignty and integrity, it would be unconstitutional to declare otherwise.   

The BLM claims automatic consent in the details of the Buffalo Horn Land Exchange Answer to Appeal.

“C.R.S. 3-1-102 specifically, and importantly, provides in relevant part that “[e]xcept as provided in this section, the consent of the state of Colorado is hereby given, in accordance with section 8 (17) of article I of the constitution of the United States, to the acquisition by the United States, by purchase, condemnation, or otherwise, of any land in the state required for custom houses, courthouses, post offices, arsenals, or other buildings whatever, or for any other proper purpose of the United States government.” Emphasis added.”

Which means the BLM can claim automatic consent in any private land acquisition in Colorado, regardless of intended use.  This is contrary to CRS 3-1-102, which specifically gives the County Commissioner and State Legislature a path to stop the federal government from acquiring private lands. 

Furthermore, this is all being done under a state statute that was meant only for procuring exclusive jurisdiction over federal enclaves such as Rocky Mountain National Park, under CRS Title 3 – Property Ceded to the United States.  If you read CRS 3-1-101, CRS 3-1-102 and CRS 3-1-103 in their entirety (below), you will see these Colorado laws all written within CRS Title 3, are meant to procure exclusive jurisdiction federal enclaves over federal infrastructure within the state (where only the federal government can enforce laws and the state has no authority).  More importantly, as defined within these three state laws, the automatic consent/cession of exclusive jurisdiction is only intended for critical infrastructure needed by the federal government to conduct business; it is not for vacant recreational land transfers, as we see in all BLM land acquisitions.

CRS 3-1-101– Consent to acquisition of lands by the United States- The consent of this state is hereby given to the purchase by the United States of such ground in the city of Denver, or any other city or incorporated town in this state, as its authorities may select, for the accommodation of the United States circuit and district courts, post offices, land offices, mints, or other government offices in said cities or incorporated towns, and also to the purchase by the United States of such other lands within this state as its authorities may from time to time select for the erection of forts, magazines, arsenals, and other needful buildings.

CRS 3-1-102 – Consent to acquire land – when notice required –  see definition above

CRS 3-1-103 – Jurisdiction of United States over land – Exclusive jurisdiction in and over any land so acquired by the United States shall be and the same is hereby ceded to the United States for all purposes….   

As you see in the linked “Answer to Appeal”, the BLM claims CRS 3-1-102 gives them automatic consent, so does this mean all private lands acquired by the BLM under CRS 3-1-102  are exclusive jurisdiction federal enclaves as intended? 

Two Problems with the BLM using CRS 3-1-102 to Claim Automatic Consent

1. CRS 3-1-102 is not intended for rural vacant land acquisitions.  Its meant for federal infrastructure within a city. See CRS 3-1-101 as adjoined. 

2. All of CRS Title 3 and CRS 3-1-102 form exclusive jurisdiction federal enclaves, clearly not the intent of vast tracts of recreational BLM lands that are all held in a proprietorial interest only in Colorado.  You can find the definition of proprietorial interest only, within www.publiclandjurisdiction.com.

Another consideration is the BLM is misreading CRS 3-1-102 and conveniently ignoring the parts of the law highlighted above.  “However, before any privately owned land in the state is acquired for any purpose other than for public highways, custom houses, courthouses, post offices, arsenals, or other governmental buildings” That implies vacant recreational lands qualify as “other than” exceptions that don’t apply.    Its very apparent the BLM has not taken into consideration CRS 3-1-101 (city acquisitions only) and CRS Title 3 as a whole.  

This Updated Petition and Request for Stay was submitted after the Answer and was ultimately ignored.  The BLM ultimately ruled to reject the appeal because of “lack of standing” since the person had not visited the public lands in questions- what?  They did not reject based on merit or material fact.  Here is the BLM’s Final Answer.  You have to have visited the federal lands in question in order to legally challenge the BLM’s ignorance or illegal overreach.  Name removed from quote below. 

“We have held that an appellant challenging a BLM decision denying a protest of a land exchange had standing because they used the Federal lands at issue.34 In his protest and filings with this Board, XXXXXXX does not allege that he uses the Federal lands or private lands at issue. Instead, XXXXXXX merely alleges that BLM violated various State and Federal laws, including Article I, Section 8, Clause 17 of the United States Constitution (the Enclave Clause) in approving the land exchange.35 But XXXXXXX general concern that BLM may have violated certain laws in approving the exchange is not a legally cognizable interest,36 and, without a legally cognizable interest, XXXXXXX lacks standing to appeal.37”

Colorado desperately needs a new state law outside of CRS Title 3  (which is intended for procuring federal enclaves) to help define this federal land acquisition process and protect the states sovereignty.   At some point the federal government is going to try and buy too much of a Colorado County and the integrity of the state will be in question.  the idea that Colorado has petition a federal agency to preserve private lands within its sovereign boundaries is absurd.  Colorado should also clarify if the lands acquired by the BLM with “automatic consent” as claimed by the BLM under CRS Title 3 are an exclusive jurisdiction federal enclave, since that is the intent of those laws.  Additionally, since 1940 when Congress passed 40 USC 3112, it now requires recorded acceptance of a state cession of jurisdiction.   The BLM generally uses the Property Clause to push its agenda, but there is only one way to form a federal enclave and that is under the Enclave Clause of the Constitution.  The CRS Title 3 laws are clear that if automatic consent is given, it procures an exclusive jurisdiction federal enclave. 

Experience over the past 11 years shows few elected representatives understand jurisdiction on federal lands within the state and its the foundational mission of this website to educate those elected officials to prevent federal overreach and protect the rule of law and the constitutional integrity of our states with federal lands. 

The United States Forest Service (USFS) Law Enforcement is taking public comment until December 4, 2023, and they want to know if you are okay with the USFS  unconstitutionally and illegally enacting enclave law on all USFS National Forests.  That’s right they are following the lead of the BLM and unilaterally turning the public lands they manage into a federal enclave without a cession of jurisdiction by the State Legislature.   If you wish to make a comment or ask your elected official or sheriff to stand up for the Constitution here is the link https://www.federalregister.gov/documents/2023/10/03/2023-21563/law-enforcement-criminal-prohibitions

It would be appropriate for our elected officials across the West to ask for an extension on this comment period since it’s clear that this action by USFS law enforcement is a violation of federal law and the US Constitution.  Here is the PDF version of the USFS plan to turn all USFS National Forests into a federal enclave.

Summary- “The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to revise the Forest Service’s criminal prohibitions to enhance consistency of the Forest Service’s law enforcement practices with those of State and other Federal land management agencies. The Forest Service is proposing to streamline enforcement of criminal prohibitions in related to fire and use of vehicles on National Forest System roads and trails by eliminating the requirement to issue an order for enforcement.”

Traffic / Drugs / Alcohol / etc. – The proposed rule would incorporate (adopt/assimilate) state law in § 261.12 so that state law is enforceable as Federal law and the person is tried in a federal court.  This is the definition of enacting enclave law.  Please see below and after reading submit your comments to stop this massive federal overreach.  Isn’t it odd that the folks who swear an oath to protect the Constitution stand idle while the federal government violates that very Constitution?

Link to the Public Comment that explains the violation https://www.regulations.gov/comment/FS-2023-0012-0020.  Quoted Comments below:

Without a cession of jurisdiction by the State and the required recorded federal acceptance per {40 USC § 255, 40 USC § 355}, currently 40 USC § 3112, this appears to be an unconstitutional and illegal unilateral action.  Additionally, the USFS ignored, 18 USC 7, and  18 USC 13 – Assimilative Crimes Act and the Enclave Clause (aka Jurisdiction Clause) of the US Constitution (Art 1 Sect 8 Clause 17).  Additionally, the USFS ignored the federal policy guidelines defined in Federal Jurisdiction reports and federal laws referenced below,  regarding how to legally acquire a state’s jurisdiction on federal lands within the States and enforce enclave law- 12 citations defined and linked/quoted below:

1. Part I, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States. Chapter III, Page 26.  “The term Exclusive legislative jurisdiction as used in this report refers to the power “to exercise exclusive legislation” granted to 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.”

2.  Part II, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States. (Pages 46-47), “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.”

Ch. 3 (Acquisition of Legislative Jurisdiction), Pages 47-48 declare:  “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.”   

3. President Eisenhower Commissioned the Federal GSA Inventory Report on Jurisdictional Status of Federal Areas within the States. Defines what level of jurisdiction the federal government has on every acre of federal land within the United States.  Four types of jurisdiction defined – Exclusive, Concurrent, Partial, and Proprietorial Interest Only.  95% of federally owned lands within the United States is held in a Proprietorial Interest Only by the federal government.

4. 1973 Military Administrative Law Handbook, Ch 6.8 “(a) Methods of Acquisition. “There are 3 methods of acquiring Federal legislative jurisdiction over areas within a State: purchase with consent; cession of jurisdiction by the state; and reservation federal legislative jurisdiction at the time the State is admitted to the Union.” Page 27-21 “The requirement for state consent was deliberately inserted by the framers of the Constitution, and it is not possible for the United States to unilaterally assume Federal jurisdiction over an area within a State”.

5. 1974 US Army Jurisdiction Regulation 405-20 “ (a) Characteristics of exclusive legislative jurisdiction. Only Congress has the authority to legislate for areas held under exclusive legislative jurisdiction and the Federal Government has the responsibility for law enforcement. The State cannot enforce its laws and regulations in such areas”.

6. 18 USC 7, Department of Justice, Criminal Resource Manual 664 “the United States may exercise plenary criminal jurisdiction over lands within state borders: A. Where it reserved such jurisdiction upon entry of the state into the union; B. Where, prior to February 1, 1940, it acquired property for a purpose enumerated in the Constitution with the consent of the state; C. Where it acquired property whether by purchase, gift or eminent domain, and thereafter, but prior to February 1, 1940, received a cession of jurisdiction from the state; and D. Where it acquired the property, and/or received the state’s consent or cession of jurisdiction after February 1, 1940, and has filed the requisite acceptance.”

7. 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 USC 7, Department of Justice, Criminal Resource Manual 664 and 18 USC 7, Section 1630, DOJ Criminal Resource Manual “Yet it is clear that federal criminal jurisdiction does not exist over real property simply because the United States owns it. See Adams v. United States, 319 U.S. 312 (1943). “…”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., 304 U.S. 518 (1938).  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). See also JM 9-20.000 et seq., for a discussion of federal enclave jurisdiction.”

8. In 1940, Congress enacted the following statute, which now appears as 50 U.S.C. § 175 (the same statute also appears as 40 U.S.C. § 255), now 40 USC § 3112 and reads as follows: “Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”

9. In 22 C.J.S. Criminal Law § 139, p. 373, State V Sullivan, appears the following: “Generally in order to deprive the state courts of criminal jurisdiction over lands ceded to the United States there must be a surrender of jurisdiction by the state and an acceptance of jurisdiction by the United States. Moreover, where the federal government has not given notice of acceptance of jurisdiction over land acquired by it in a state, the federal courts are without jurisdiction of prosecution for an alleged crime committed therein although a state statute authorizes the United States to take jurisdiction, or at least the United States is without exclusive jurisdiction over the offense, and a state may enforce its criminal laws within the area acquired by the United States.”

10. As to 50 U.S.C. § 175, see Adams v. United States (1943), 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421, the Supreme Court of the United States stated that “the Act [50 U.S.C. § 175] created a definite method of acceptance of jurisdiction so that all persons could know whether the government had obtained `no jurisdiction at all, or partial jurisdiction, or exclusive jurisdiction.”

11. In Kleppe v. New Mexico, 426 U.S. 529, 543, 96 S.Ct. 2285, 2293, 49 L.Ed.2d 34, 45 (1976), the United States Supreme Court stated: “Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause.” Congress can surely pass laws under the Property Clause for rules and regulations on federal lands as defined within the Property Clause.  If State laws conflict with those Congressional laws, “the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause”.   However, the Property Clause does not define the process for forming a federal enclave or enacting enclave law within a state, that process is exclusively controlled by the Enclave Clause and applicable federal laws referenced above regarding acceptance of cessions of state jurisdiction.  Also note, that CFR regulations are unilaterally enacted by federal agencies, not laws passed by Congress.  The United States Supreme Court stated:   The court correctly ruled.   “The Act does not establish exclusive federal jurisdiction over the public lands in New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to regulate federally protected animals”.

12. FLPMA [43 USC 1701] Section 701 (G) (2) “Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or – as expanding or diminishing Federal or State jurisdiction”.

Mesa County Commissioners and Colorado Sheriffs Unite Against USFS Rule Change in 2024

 In early 2024 the Mesa County Commissioner and the Mesa County Sheriff submitted this letter against the United States Forest Service unilaterally assimilating state laws without a cession of jurisdiction by the State of Colorado.  Mesa County Commissioners and Sheriff Rowell February 6, 2024 Letter to the USFS. 

County Sheriffs of Colorado (CSOC)  Issue Letter Against USFS Rule Change in 2024

CSOC represents 64 Sheriffs of Colorado and they submitted this letter against the USFS unilaterally assimilating state laws without a cession of jurisdiction by the State of Colorado.  64 County Sheriffs of CSOC February 7, 2024 letter to the USFS. 

Lewis and Clark County Sheriff in Montana Comment Against USFS Rule Change 

 Lewis and Clark County Sheriff, Leo Dutton in Montana submitted this comment against this USFS rule change and shares his MOU that deputizes specific USFS LEOs.   Sheriff Dutton November 2023 Comment discusses why its critical to maintain local and constitutional control of federal law enforcement in western states.   Sheriff Dutton’s MOU deputizing federal agents to enforce local and state laws. 

Western State Sheriffs Association Letter Against USFS Rule Change

The Western State Sheriffs Association (WSSA) issued this letter in opposition of the USFS assimilating state laws. “Assimilation.  Many of the proposed changes appear to take a direct route toward assimilating state law into the Code of Federal Regulation. Through this assimilation and, by channeling a large portion of Subpart B orders to the category of Subpart A orders, the nationalization of enforcement of rules becomes troubling. While we recognize that Congress provided the USFS with the authority to create needful rules and regulations to effectively manage NFS lands, we stand firm in the belief that the law prohibits assimilation of state law on those lands held under proprietary interest. Most lands managed by the USFS in the western United States fall under the definition of proprietary interests. We oppose this effort to bolster the federal enforcement tool chest through the assimilation of state law and in fact, we believe by doing so, the USFS may create significant legal challenges across the lands they manage in the western United States. The County Sheriff, working within the legal systems in each of the western states, is best suited to address crimes against persons and property. The various legal ramifications for any person charged with alcohol and drug offenses in a state are designed to carry long term impacts associated with not only a citation, but several other requirements related to rehabilitation of the offender and long-term consequences that State legislatures have implemented to increase the safety to the public. The federal government has not legislated in the same manner and is therefore not designed to effectively address these lesser offenses. “

BLM Complaints filed in 2022 also apply to USFS illegally enacting enclave law on USFS lands

This BLM Complaint from 2022 (bottom on the attached USFS Letter) has been filed with the BLM in Colorado regarding the BLM unilaterally assimilating 115 state laws in Colorado – see the bulleted pdf documents below. The Colorado BLM director did not respond to the complaint.   The same “no response” was received from the BLM Director in the State of Utah in 2023, where the BLM has also unilaterally assimilated dozens of Utah state laws.

• 40 USC 3112, 40 USC 255
• BLM adopts 115 CO state laws
• DOJRES~2
• DOJ Resource Manual 1630 18 USC 7 a
• statviewer 355 

As stated earlier, It would be appropriate for our elected officials across the West to ask for an extension on this comment period since it’s clear that this action by USFS law enforcement is a violation of federal law and the US Constitution.

Are De Facto Federal Enclaves being formed as a result of Kleppe Vs New Mexico –   Bill Reed and Bill Howell RS 2477 Report (pages 10-18) goes into great detail on this topic.

Colorado State Representative Matt Soper on the Issue

https://repmattsoper.substack.com/p/forest-service-rule-change-reflects?utm_source=post-email-title&publication_id=2079239&post_id=139700145&utm_campaign=email-post-title&isFreemail=true&r=336po8&triedRedirect=true 

 Here is the pdf of the write up on this issue from Rep Matt Soper in February 2024- PDF Link.

Has the BLM Turned Federally Managed Public Lands Into an Unconstitutional Federal Enclave?

 https://publiclandjurisdiction.com/wp-content/uploads/2022/04/4.18.22-AGNC-JURISDICTION-RESOLUTION-draft.pdf

 RESOLUTION # _______________

DEFINING LEGISLATIVE JURISDICTION AND AUTHORITY ON FEDERAL LANDS

WHEREAS, Legislative jurisdiction is the constitutional authority to make and enforce laws. A transfer of the state’s legislative jurisdiction to the United States is a cession, and the return of that legislative jurisdiction to the state is a retrocession.

WHEREAS, The Enclave Clause, Article 1, Section 8, Clause 17 of the United States constitution, referred to herein as “Clause 17”, states that the federal government will “exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.”

WHEREAS, During the Eisenhower Administration, the United States General Services Administration (GSA) published a series of reports titled “Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States” referred to herein as “GSA Jurisdiction Reports”.  There were three separate GSA jurisdiction reports published, Part I (1956), Part II (1957), and the Inventory Report (1962); in which four types of legislative jurisdiction were identified and the jurisdictional status of every acre of federal land within the United States was recorded in each state, categorized by county.

• Exclusive Legislative Jurisdiction: This term is 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 to serve civil or criminal process in the area for activities that occurred outside the area.  The GSA Jurisdiction Reports (Part I) states: “The term “exclusive legislative jurisdiction” as used in this report refers to the power “to exercise exclusive legislation”…  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.”;
• Concurrent Legislative Jurisdiction: This term is applied in those instances wherein by 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;
• Partial Legislative Jurisdiction: This term is applied in those instances wherein a state has granted authority to the federal government to legislate over an area of the state, but the state 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, or the right to tax private property; and
• Proprietorial Interest Only: This term is applied to those instances wherein the federal government has acquired 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, has many powers and immunities not possessed by ordinary landholders with respect to areas in which it acquires an interest, and of the further fact that all its properties and functions are held or performed in a governmental, rather than a proprietary, capacity.

WHEREAS, The GSA Jurisdiction Reports (Part II, Pages 46-47), states: “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…“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… The consent requirement of [Clause 17] was intended by the framers of the Constitution to preserve the States’ jurisdictional integrity against federal encroachment.”

WHEREAS, The GSA Jurisdiction Reports (Part II, Page 48) states: “NECESSITY OF FEDERAL ASSENT: Express consent required by R.S. 355–Acquiescence, or acceptance, by the Federal Government, as well as by the State, is essential to the transfer of legislative jurisdiction to the Federal Government. When legislative jurisdiction is reserved by the Federal Government at the time statehood is granted to a Territory, it is, of course, obvious that the possession of legislative jurisdiction meets with the approval of the Federal Government. When legislative jurisdiction is to be transferred by a State to the Federal Government either pursuant to Article I, Section 8, Clause 17, of the Constitution, or by means of a State cession statute, the necessity of Federal assent to such transfer of legislative jurisdiction has been firmly established by the enactment of the February 1, 1940, amendment to R.S. 355. While this amendment in terms specifies requirement for formal Federal acceptance prior to the transfer of exclusive or partial legislative jurisdiction, it also applies to the transfer of concurrent jurisdiction.”

WHEREAS, The GSA Jurisdiction Reports (Part I, Page 11) states the following:  “Exclusive jurisdiction requirement terminated.– enacted, on February 1, 1940, an amendment to Section 355 of the Revised Statutes of the United States which eliminated the requirement for State consent to any Federal acquisition of land as a condition precedent to expenditure of Federal funds for construction on such land. The amendment substituted for the previous requirement provided that (1) the obtaining of exclusive jurisdiction in the United States over lands which it acquired was not to be required, (2) the head of a Government agency could file with the governor or other appropriate officer of the State involved a notice of the acceptance of such extent of jurisdiction as he deemed desirable as to any land under his custody, and (3) until such a notice was filed it should be conclusively presumed that no jurisdiction had been accepted by the United States. This amendment ended the 100-year period during which nearly all the land acquired by the United States came under the exclusive legislative jurisdiction of the Federal Government. “

WHEREAS, The GSA Jurisdiction Reports (Part I, Page 64) “Federal lands primarily in proprietorial interest status– The committee notes as to the great bulk of land owned by the United States, including substantially all lands of the so-called public domain, the Federal Government holds only a proprietorial interest, possessing with respect to such land no measure of legislative jurisdiction within the meaning of article 1, section 8, clause 17, of the Constitution.”

WHEREAS, The GSA Jurisdiction Reports (Inventory Report, Page 895), categorize 95% of United States Forest Service (USFS) and Bureau of Land Management (BLM) public lands in the United States as held in “Proprietorial Interest Only” (aka Proprietary Jurisdiction) by the federal government.

WHEREAS, Cessions of legislative jurisdiction by the Colorado State Legislature to the Federal Government are recorded in Title 3 of the Colorado Revised Statutes (CRS).  Research reveals that since 1962, (when the GSA Jurisdiction Reports (Inventory Report) was published), only one recorded cession of jurisdiction has occurred on federal lands within Colorado.  The cession of concurrent jurisdiction within the boundaries of nine separate National Monuments and National Recreation Areas in 1983, with the passage of State Senate Bill 313 (CRS 3-3-101).  This included areas such as the Colorado National Monument, Black Canyon of the Gunnison National Monument, and Dinosaur National Monument.  Federal acceptance of the cession of concurrent jurisdiction was recorded by the DOI in 1984.

WHEREAS, Once the federal government has obtained exclusive, concurrent, or partial jurisdiction over federal lands thru the cession/reservation process, it is often referred to as a federal enclave.  Federal enclaves are subject to the Assimilative Crimes Act 18 U.S.C § 13 and territorial jurisdiction per 18 U.S.C § Section 7 (3) where federal law enforcement agencies can assimilate (adopt) state laws and prosecute them as a federal law violation (when the violation is not punishable by an applicable federal law). The process is often referred to as Enclave Law.

WHEREAS, When the federal government holds a proprietorial interest only (proprietary jurisdiction) on federal lands they cannot unilaterally assimilate (adopt) state and local laws.

WHEREAS, In 1970 the United States Government published the One Third of Nations Land report, prepared by the Public Land Review Commission and Chaired by Wayne Aspinall (Colorado Congressman from Palisade, CO).   Page 278 of the report identifies the four types of legislative jurisdiction on federal lands as Exclusive, Concurrent, Partial, and Proprietorial.  Additionally, the report states: “Two other provisions of the Constitution are germane to the power which the Federal Government may exercise over its lands, the “Property” and “Supremacy” clauses. While the Property Clause was originally thought to apply only to federally held lands outside the boundaries of any state, later judicial decisions leave no doubt that plenary authority is vested by this provision in Congress as to the protection, management, and disposition of federal lands within the states. The Constitution, laws of the United States, and treaties made under its authority are declared to be the supreme law of the land in the Supremacy Clause. Conflicting state law must yield to federal law, and a state cannot interfere with an agency or instrumentality of the United States engaged in a lawfully authorized activity, without the consent of Congress.”

WHEREAS, The Property Clause (Article 4, Section 3, Clause 2) of the Constitution allows Congress to dispose of and make needful rules and regulations over federal lands.  The Property Clause does not apply to how the federal government obtains a state’s legislative jurisdiction over federal lands.

WHEREAS, Title VII, Section 701 (G) (2)  of the Federal Land Policy and Management Act (FLPMA) of 1976 states “(G) Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or–  (2)  as expanding or diminishing Federal or State jurisdiction.”

WHEREAS, Within the 1987 Department of Army, Field Manual 19-10, Ch. 5 Pg. 1 it states “jurisdiction and authority are not the same.  MP may have the authority to apprehend a suspect, but the military may not have jurisdiction to try the suspect.  Authority is the lawful right of designated persons or agencies to exercise governmental power and control.”

WHEREAS, The Colorado State Legislature has provided a cession of “authority” for federal law enforcement agents (LEOs) to enforce state law felonies and misdemeanors in Colorado with the passage of CRS 16-3-110.  This law is not a cession of jurisdiction, it’s a cession of the states’ law enforcement authority.  Upon making an arrest for state felonies or misdemeanors (not petty offenses), federal LEOs must contact the local authority with “jurisdiction” and release the person/s to the local law enforcement agency with “jurisdiction”.  It should also be noted that some federal agencies such as the BLM, also require a signed Memorandum of Understanding (MOU) by the local Sheriff, before they will enforce any state law, even if state statute allows it.

WHEREAS, Sheriffs in Western Colorado have, on occasion, provided cessions of authority to federal BLM LEO’s beyond CRS 16-3-110; in the form of MOUs which included the authority to enforce state law petty offenses, county ordinances, and even county regulations.  The 2015 and 2020 Mesa County Sheriff / BLM MOU are such an example.

WHEREAS, The State of Colorado passed CRS 3-1-102 Consent to Acquire Land.  It states “the United States shall give written notice of intention to acquire the land to the board of county commissioners of the county wherein the land is situated and to the division of property taxation, which notice shall be given at least sixty days prior to the date of the intended acquisition. If the notice is not given or if the board of county commissioners or the division files with the secretary of state of the state of Colorado within the sixty-day period a request that the acquisition be considered by the general assembly of the state of Colorado, then the consent of the state of Colorado shall not be deemed to have been given to the acquisition, unless and until the general assembly of the state of Colorado shall have by law specifically consented thereto.”

AS DEFINED HEREIN, IT IS RESOLVED, that the Associated Governments of Northwest Colorado (“AGNC”) hereby proclaim that review of Colorado Enabling Act of 1875 and review of the GSA Jurisdiction Reports, reveal Colorado provided no reservation of legislative jurisdiction for the United States at statehood, regarding public lands (public domain) within the borders of Colorado.  It is also worth noting that Colorado provided no reservation of legislative jurisdiction to the United States toward “reserved” public lands within its borders.

AS DEFINED HEREIN, IT IS RESOLVED, that since 1940 and the passage of R.S. 355 the federal government and its various agencies such as the BLM and USGS, cannot currently take unilateral action to acquire any level of the state’s legislative jurisdiction or adopt/assimilate state laws without a cession of jurisdiction (exclusive, concurrent, partial) by the Colorado State Legislature.   This legal cession process is defined within Clause 17, 40 USC § 3112 (RS 355), and the Assimilative Crimes Act.  Approximately 97% of Colorado’s 23+ million acres of federally managed public lands are held in a Proprietorial Interest Only by the Federal Government.   These federal lands are largely made up of USFS and BLM lands.  When the federal government holds a proprietorial interest only (proprietary jurisdiction) on federal lands they cannot unilaterally assimilate (adopt) state and local laws.

AS DEFINED HEREIN, IT IS RESOLVED, that the AGNC hereby proclaims that unless a recorded cession of jurisdiction or a legal cession of authority has occurred, the federal government and its various agencies cannot enforce state laws, county ordinances, or county regulations. The various federal agencies have certain defined and limited jurisdiction/authority on federally managed public lands. The enforcement of criminal and civil law on federal lands within the boundaries of a state is not one of them.  County and state governments using local ordinances and state statutes oversee and enforce all criminal and civil actions within their jurisdiction.  In the event, an AGNC members county sheriff provides a cession of authority to federal LEOs (MOU/Cooperation Agreement, etc).  The AGNC hereby advises it would be appropriate to share this cession document with county commissioners and county residents to encourage full transparency.  Residents should be made aware of what local law enforcement authorities a sheriff has given to federal agents within their county on public and private lands.

AS DEFINED HEREIN, IT IS RESOLVED, That the AGNC hereby supports the inherent right of its member counties to object to the Federal Government purchasing/acquiring private lands within its borders as defined in CRS 3-1-102.  It should be recognized that the various federal agencies hold no level of legislative jurisdiction whatsoever, over Colorado private lands and once those private lands are transferred to federal ownership it can negatively impact the county (taxes / local control).  Prior to private lands within member counties being transferred to the Federal Government (sale, land swap, etc), approval must be attained either by the appropriate Board of County Commissioners or the General Assembly (Colorado State Legislature) per CRS 3-1-102.

AS DEFINED HEREIN, IT IS RESOLVED, That the AGNC fully recognize the constitutional and legal process to form a federal enclave on federal lands within Colorado.  The list below are few examples of recorded legislative cessions of jurisdiction from the Colorado Assembly to the Federal Government forming federal enclaves on federal lands within the state.

AS DEFINED HEREIN, IT IS RESOLVED, That the AGNC fully recognizes that there are also federal enclaves (exclusive jurisdiction) formed within certain communities of NW Colorado, as a result of the federal government purchasing lands within the state prior to Congress amending R.S. 355 in 1940.  These acquisition federal enclaves are identified (by county) within the GSA Jurisdiction Report (Inventory Report).  Three such examples are on Page 123 of the GSA Inventory Report for Mesa County, CO:

1. 1) 402 Rood Ave. Post Office (0.5 acres)
2. 2) VA Hospital, 2121 North Avenue (27.2 acres)
3. 3) Atomic Energy Comm., Grand Jct OPR. HDQT-S (55.7acres)

PASSED, APPROVED, AND ADOPTED on April ?, 2022

_________________________________

Chairman

Yesterday the US House passed The Washington, DC Admission Act (H.R. 51) which would make the most populated federal enclave the 51st state if it passes the Senate.  Some people that live in DC say they lack representation because they are not part of a State.  In this article, we will dive into Article 1, Section 8, Clause 17 known as the Enclave Clause (aka Jurisdiction Clause) and we will compare it to another federal enclave in Colorado that has residents.  The Jurisdiction Clause is often misunderstood and ignored on federal lands in the Western United States.  Luckily you’re on the website with the most federal jurisdiction reports ever assembled pertaining to federal lands.

In 1790, Maryland ceded the federal district that became Washington DC.   The town of Georgetown went from a city in Maryland to a federal enclave overnight.  Virginia withdrew its lands from the DC enclave in 1847.  In 1801, with the passage of the Organic Act, Congress took control per the Enclave Clause and the federal government has had exclusive jurisdiction ever since.  A detailed reference of this process and the types of jurisdiction on federal lands is provided in the federal report commissioned by President Eisenhower in 1956, Jurisdiction Over Federal Areas Within the State, Part 1.

From 1841 to 1940 and the passage of Section 355 of the Revised Statutes, when the federal government purchased land in a state it acquired exclusive jurisdiction by default.  After Section 355 passed, the state legislature must provide a cession of jurisdiction over lands acquired by the federal government, and per federal law 40 USC 3112, the federal government must formally accept and record that acceptance to receive the cession by the state.  Around this time, the states started to provide cessions of Exclusive, Concurrent (shared jurisdiction), and Partial jurisdiction to the federal government over purchased lands.  All pubic domain (public lands) remained in a proprietorial interest only. 

In 1929, Colorado passed CRS 3-1-130 (link shows bill and federal acceptance) providing a cession of exclusive jurisdiction over Rocky Mountain National Park making it a federal enclave with reservations of partial jurisdiction for the state.  There are permanent residents that live within Rocky Mountain National Park.  Within CRS 3-1-130 wise Colorado state legislatures also preserved for the residents of the National Park, the right to vote in all elections (county, state and federal) “… and saving, also, to the persons residing in said park now or hereafter the right to vote at all elections held within the county or counties in which said tracts are situated.”

Once a state provides a cession of jurisdiction to the federal government the only way to get jurisdiction or partial jurisdiction returned is a retrocession from Congress.  A state cannot take unilateral action to regain or adjust its cession of jurisdiction, just like the federal government cannot take unilateral action to acquire a state’s jurisdiction.  In this case, under no fault of their own, the State of Maryland did not reserve the right to vote in 1801 for the residents within the Washington DC area.  That included the city of Georgetown at that time.  

The only constitutional fix for those residing in Washington DC that feel disenfranchised would be for Congress to follow the example of Rocky Mountain National Park and the Colorado legislatures defined in CRS 3-1-130.  Congress should immediately provide a retrocession of partial jurisdiction that cedes to DC residents the right to vote in all local, state, and national elections, held within Maryland.  This retrocession of jurisdiction would then need to be accepted by the Maryland Legislature.  Problem solved and the Constitution is preserved. 

Note another good reference for the Enclave Clause and its processes is the Assimilative Crimes Act and 18 US Code § 7(3).  This legal cession process is defined within Clause 17, 40 USC § 3112 (RS 355), and the Assimilative Crimes Act.  Also see these GSA Reports, Part I (1956), Part II (1957), and the Inventory Report (1962). Federal enclaves are subject to the Assimilative Crimes Act 18 U.S.C § 13 and territorial jurisdiction per 18 U.S.C § Section 7 (3). 

One main issue with the idea that a federal enclave can become a new State is common sense, Maryland gave us the land that encompasses Washington DC, if the federal enclave is dissolved then the lands should go back to the State of Maryland.  This is currently what happens when the federal government disposes of or sells land, buildings, and forts within a state today.  Those lands go back to the state as private property, under the state’s jurisdiction.  Forming the 51st state from a federal enclave that was developed under the Jurisdiction Clause is contrary to what our founders intended and is likely unconstitutional.  

Has the BLM Turned Federally Managed Public Lands Into an Unconstitutional Federal Enclave that are Subject to Enclave Law?  Is the BLM adopting (assimilating) state laws and prosecuting them as federal law without a cession of jurisdiction by the state legislature?

When one person can make the rules and laws over a land, it is called an autocracy or a monarchy.  In the case of the Secretary of Interior, they are appointed by the President and according to President Trump, the Secretary of Interior is the largest “Property Manager” in the United States (2-20-2020, Trump Rally in Colorado Springs, CO).   The Property Clause of the Constitution, Art IV, Clause 3, Section 2, declares “The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”.  However, in 1976 Congress passed the Federal Land Policy and Management Act (FLPMA) and Section 303 allows the Secretary of Interior to write rule and regulations over all federal lands.  These Title 43 Code of Federal Regulations (CFR) pertain to about 1/3 of the landmass of the United States.  CFR is very important to understand, per Barbara Bavis, “How to Trace Federal Regulations”, Library of Congress, 2014, https://blogs.loc.gov/law/2014 , “Our patrons at the Law Library of Congress frequently ask us for assistance in investigating the origins and statutory authority of federal rules and regulations.  And no wonder–regulations are important to understand, because they have the force and effect of law just as federal statutes do, though they are not issued by Congress.  Instead, rules and regulations are created by a federal body such as an agency, board, or commission, and explain how that body intends to carry out or administer a federal law.  In fact, these rules and regulations can often affect our everyday lives even more directly than statutes…”.     As a result of FLPMA, the Secretary of Interior was basically given the power to write rules/regulations over 640 million acres of federal public lands, all of which are located within the boundaries of various states.  To research the rules/regulations implemented by the Secretary of Interior, reference Title 43 in the eCFR.  

What happens if the Secretary of Interior does not understand legislative jurisdiction on federally owned lands?  Could a CFR regulation be recorded, that is unconstitutional?   Here is an example of federal agency ignorance.  Each year the Department of Interior (DOI) publishes the Public Land Statistics Book.  For at least 63 years (1951 to 2013), the DOI’s annual Public Lands Statistics book incorrectly claimed to have “Exclusive Jurisdiction” overall federal BLM lands?  This was amended a few years ago because an informed individual who studied the federal jurisdiction reports on this website, submit a FOIA request and received this “unintended misuse” response from the BLM.  For at least 63 years the Federal Government claimed all BLM lands were a federal enclave under the exclusive jurisdiction of the Federal Government and no one knew better within the entire federal agency.  It’s as if the federal jurisdiction reports on this website had been buried and forgotten.  Based on the FOIA response, the BLM still claims “jurisdiction” over all federal lands, even though they have received no cession of legislative jurisdiction from the states on over 95% of federally managed public lands. 

Diving into federal legislative jurisdiction on our federally owned, Bureau of Land Management (BLM) public lands.  In the remainder of this article, we will discuss how (it appears) the vast majority of the BLM managed public lands have become a type of unconstitutional federal enclave, subject to federal enclave law, despite the fact that the BLM has obtained no form of legislative jurisdiction over the majority of BLM public lands. See DOJ Section 1630 regarding 18 U.S.C. § 7 “any property under the exclusive or concurrent jurisdiction of the United States is subject to these federal enclave law”. 

According to page 895 of the 1962 GSA Federal Inventory Report on Jurisdictional Status of Federal Areas within the State 95% of federally managed public lands are held in a Proprietorial Interest Only and only 4% of federally managed public lands are held in Exclusive or Concurrent Jurisdiction.  Federal public lands that are under the Exclusive or Concurrent Jurisdiction of the Federal Government are subject to federal enclave laws (18 USC 13 – Assimilative Crimes Act), which gives the federal government the authority to “adopt” or “assimilate” state laws in the absence of federal laws, thus making the federal lands in question a Federal Enclave.   Two examples of this constitutional state cession process utilized to establish federal enclaves in Colorado; are Rocky Mountain National Park which became an Exclusive Jurisdiction federal enclave in 1929 and the Colorado National Monument (Mesa County – Grand Junction, CO) which became a concurrent jurisdiction enclave in 1984.  Each link on the two above-mentioned federal enclaves provides the constitutionally required state cession by the elected state legislature and the official federal recorded acceptance of that state cession, which has been required since 1940, per federal law Sect 355 of 1930, HR 7293 of 1940, 40 USC 3112.

What is a 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., 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.” 

Per federal jurisdiction reports, Enclave Clause (Art 1, Sect 8, Cls 17), and the Assimilative Crimes Act, the Federal Government (Congress, Secretary of Interior, or the President of the United States)  cannot take unilateral action and adopt a State’s legislative jurisdiction.   This is well defined in the 1957 GSA 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 defines 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.”

What are the 4 Types of Legislative Jurisdiction on Federal Lands?

Now that you understand how the Enclave Clause, Article 1, Section 8, Clause 17 (aka Jurisdiction Clause) regulates the acquisition of federal jurisdiction on federally managed public lands within the states, let’s define the 4 types of jurisdiction as defined in these federal documents linked below.  Be sure to share this information with your elected officials including your County Sheriff if you live in an area that has BLM and USFS lands.  Many sheriffs, state attorneys, district attorneys, and elected officials have no educational background on the topic.   This is largely the result of this topic not being taught in criminal justice programs in colleges, law schools, and state/county-run police academies. The four 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.  

In the 1956 federal GSA report on this website, titled, Part I, 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 refers to the power “to exercise exclusive legislation” granted to 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.” 

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 the 1957 federal GSA report, titled, Part II, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Ch. 3 (Acquisition of Legislative Jurisdiction), Pages 47-48 declare:  “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.”  

3. Partial Legislative Jurisdiction– 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 (a.k.a. proprietary jurisdiction) the Federal Government has acquired no form of legislative jurisdiction over the federal 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, has many powers and immunities not possessed by ordinary landholders. 

In the 1956 GSA 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…. 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.”

Please refer to the federal report resources in the table below, to further understand legislative jurisdiction on federally managed public lands.   Be sure to search your own state and county for cessions of jurisdiction in the 1962 Federal GSA Inventory Report on Jurisdictional Status of Federal Areas within the States (aka Eisenhower Report).

Per the attached and electronically linked FOIA document (FOIA CO-20-015 1278 (CO-951), the BLM has unilaterally assimilated 115 Colorado laws, without a cession of jurisdiction by the State and the required recorded federal acceptance per 40 USC § 255, 40 USC § 355, 40 USC § 3112.  With this apparently unconstitutional and illegal unilateral action, the BLM ignored, 18 USC 7,  18 USC 13 – Assimilative Crimes Act and the Enclave Clause (aka Jurisdiction Clause) of the US Constitution (Art 1 Sect 8 Clause 17).  Additionally, the BLM ignored the federal policy guidelines defined in Federal Jurisdiction reports and federal laws referenced below,  regarding how to legally acquire a states’ jurisdiction on federal lands within the States and enforce enclave law- 12 citations defined and linked/quoted below:

1. Part I, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States. “The term Exclusive legislative jurisdiction as used in this report refers to the power “to exercise exclusive legislation” granted to 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.” 

2. Part II, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States. “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.” 

Ch. 3 (Acquisition of Legislative Jurisdiction), Pages 47-48 declare:  “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.”   

3. President Eisenhower Commissioned the Federal GSA Inventory Report on Jurisdictional Status of Federal Areas within the States. Defines what level of jurisdiction the federal government has on every acre of federal land within the United States.  Four types of jurisdiction defined – Exclusive, Concurrent, Partial, and Proprietorial Interest Only.  95% of federally owned lands within the United States is held in a Proprietorial Interest Only by the federal government. 

4. 1973 Military Administrative Law Handbook, Ch 6.8 “(a) Methods of Acquisition. “There are 3 methods of acquiring Federal legislative jurisdiction over areas within a State: purchase with consent; cession of jurisdiction by the state; and reservation federal legislative jurisdiction at the time the State is admitted to the Union.” Page 27-21 “The requirement for state consent was deliberately inserted by the framers of the Constitution, and it is not possible for the United States to unilaterally assume Federal jurisdiction over an area within a State”. 

5. 1974 US Army Jurisdiction Regulation 405-20 “ (a) Characteristics of exclusive legislative jurisdiction. Only Congress has the authority to legislate for areas held under exclusive legislative jurisdiction and the Federal Government has the responsibility for law enforcement. The State cannot enforce its laws and regulations in such areas”. 

6. 18 USC 7, Department of Justice, Criminal Resource Manual 664 “the United States may exercise plenary criminal jurisdiction over lands within state borders: A. Where it reserved such jurisdiction upon entry of the state into the union; B. Where, prior to February 1, 1940, it acquired property for a purpose enumerated in the Constitution with the consent of the state; C. Where it acquired property whether by purchase, gift or eminent domain, and thereafter, but prior to February 1, 1940, received a cession of jurisdiction from the state; and D. Where it acquired the property, and/or received the state’s consent or cession of jurisdiction after February 1, 1940, and has filed the requisite acceptance.” 

7. 18 USC 7, Section 1630, DOJ Criminal Resource Manual “Yet it is clear that federal criminal jurisdiction does not exist over real property simply because the United States owns it. See Adams v. United States, 319 U.S. 312 (1943). “…”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., 304 U.S. 518 (1938).  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). See also JM 9-20.000 et seq., for a discussion of federal enclave jurisdiction.” 

8. In 1940, Congress enacted the following statute, which now appears as 50 U.S.C. § 175 (the same statute also appears as 40 U.S.C. § 255), and reads as follows: “Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.” 

9. In 22 C.J.S. Criminal Law § 139, p. 373, appears the following: “Generally in order to deprive the state courts of criminal jurisdiction over lands ceded to the United States there must be a surrender of jurisdiction by the state and an acceptance of jurisdiction by the United States. Moreover, where the federal government has not given notice of acceptance of jurisdiction over land acquired by it in a state, the federal courts are without jurisdiction of prosecution for an alleged crime committed therein although a state statute authorizes the United States to take jurisdiction, or at least the United States is without exclusive jurisdiction over the offense, and a state may enforce its criminal laws within the area acquired by the United States.” 

10. As to 50 U.S.C. § 175, see Adams v. United States (1943), 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421, the Supreme Court of the United States stated that “the Act [50 U.S.C. § 175] created a definite method of acceptance of jurisdiction so that all persons could know whether the government had obtained `no jurisdiction at all, or partial jurisdiction, or exclusive jurisdiction.” 

11. In Kleppe v. New Mexico, 426 U.S. 529, 543, 96 S.Ct. 2285, 2293, 49 L.Ed.2d 34, 45 (1976), the United States Supreme Court stated: “Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause.” Congress can surely pass laws under the Property Clause for rules and regulations on federal lands as defined within the Property Clause.  If State laws conflict with those Congressional laws, “the federal legislation necessarily override conflicting state laws under the Supremacy Clause”.   However, the Property Clause does not define the process for forming a federal enclave or enacting enclave law within a state, that process is exclusively controlled by the Enclave Clause and applicable federal laws referenced above regarding acceptance of cessions of state jurisdiction.  Also note, that CFR regulations are unilaterally enacted by federal agencies, not laws passed by Congress. 

12. FLPMA [43 USC 1701] Section 701 (G) (2) “Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or – as expanding or diminishing Federal or State jurisdiction”.

Did 95% of the federally managed BLM public lands become unconstitutional federal enclaves by the Secretary of Interior? 

As explained earlier, 95% of federally managed public lands are held in a Proprietorial Interest Only, by the Federal Government.  They own the land, they lack the legislative jurisdiction over the public lands to apply federal enclave law and adopt state laws according to the shared federal reports.  In spite of these federal jurisdiction documents, the BLM is adopting state laws in Colorado and Utah with unilateral action and it appears to be under eCFR 8341.1 Regulation Governing Use. 

What is the difference between the United States Code (USC) and the Code of Federal Regulations (CFR)?   USC is made up of the official federal statutes passed by our elected Congress and contains 53 titles,  FLPMA  is located in Title 43.   CFR contains all of the regulations that are written by unelected bureaucrats and it puts statutes from the USC into administrative practice.  Title 43, Subtitle B, Sub-chapter H, Part 8340 Off Road Vehicles, Sub-part 8341.1 (d) and (e) is adopting state laws on federal lands held in a Proprietorial Interest Only by the BLM, see CFR 8341.1 Regulation Governing Use.  

The Property Clause allows Congress to make needful federal rules and federal regulations over federal lands and FLPMA gives the Secretary of Interior the authority to write (pass) federal regulations on federal lands.  However, as mentioned earlier, the Enclave Clause of the Constitution and the cession requirements clearly defined in the referenced federal jurisdiction reports prevents unilateral action by the Federal Government and Congress to unilaterally adopt a state’s jurisdiction.  Title 7 of FLPMA even clarifies that FLMPA does not change any level of state or federal jurisdiction (it can’t).

Even though the constitutional process/ cession statute (RS 355) required for the federal government to obtain jurisdiction over federal lands within a state is well defined, the BLM / DOI is adopting/assimilating state laws when the BLM has not acquired a cession of any form of jurisdiction by the state legislature.  This process of the BLM adopting state laws, when they only have a Proprietorial Interest Only over the majority of BLM lands, can be referenced in the 2014, Guide to BLM Law Enforcement for State and Local Law Enforcement Agencies.  On page 5, it states “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. Regardless of whether BLM LEOs are enforcing a federal regulation that is similar to a State law or adopting a State law by reference, unless there is legal conveyance of State Peace Officer authority to the BLM LEO, the LEO is enforcing a federal law, issuing federal citations and charging suspects in federal court. They are not enforcing state laws.”  It was noted that the 2009, Guide to BLM Law Enforcement for State and Local Law Enforcement Agencies is vastly different than the 2014 Guide, it does not claim the ability to adopt state laws and even correctly references the need for a cession of jurisdiction by the state.  This 2012 BLM Document is also contrary to the 2014 Guide.  

Here is a 2020 FOIA response regarding the issue and it provides a list of 115 Colorado state laws that the BLM has “adopted” or “assimilated” even though the federal government has not acquired a cession of jurisdiction by the Colorado state legislature.  Additionally, the same has happened in Utah, here is a FOIA link to the 39 Utah State laws adopted with unilateral action by the BLM.  It is probably safe to assume this is happening in all western states on BLM-managed public lands and if you have an interest, you should submit the same FOIA request in your state.  

This is significant because the states of Colorado and Utah and their elected state legislatures were once required to provide a cession of exclusive, concurrent, or partial jurisdiction in order for the Federal Government to adopt state laws and enforce them as federal enclave laws.   Section 701 of FLPMA does not allow the BLM to assume any form of Jurisdiction within a state.   Regardless if this is a mistake or intentional, assuming the BLM has adopted state laws with unilateral action in all western states, all BLM managed public lands in the United States are now a form of a federal enclave and the BLM feels it can adopt whatever state laws they feel are necessary to protect public lands. 

In Grand Junction, CO, which is the new home of the BLM, the Federal Building / U.S. Federal Courthouse at 400 Rood Avenue is named after former U.S. Congressman, Wayne N. Aspinall, who lived just a few miles away in Palisade, CO.  Congressman Wayne Aspinall commissioned the Federal Legislative Jurisdiction Report prepared for Public Land Law Review Commission, Land, and Natural Resources Division, United States Department of Justice, Washington, DC, May 1969.  Based on this 1969 federal jurisdiction report alone, one can presume that Wayne Aspinall might be turning over in his grave, based on the level of federal encroachment on our BLM federally managed public lands today and how the BLM is now turning all BLM federally managed public lands into federal enclaves.  This appears to be repugnant to the Enclave Clause of the Constitution, RS 355 (cession statute), and the Assimilative Crimes Act.  

https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice 

2015 Congressional Hearing – Sheriff Dave Brown, discussing the BLM needs to stop assimilating state laws.

2015 Congressional-HearingBLM-jurisdiction-federal-lands-Dan-Love.pdf

“STATEMENT OF DAVE BROWN, SHERIFF, SKAMANIA COUNTY, WASHINGTON
Sheriff BROWN. Thank you, Chairman Gohmert, Ranking Member Dingell, members of the committee. I am here today to testify on behalf of the Western States Sheriffs’ Association and the more than 800 sheriffs in the 15 states that we represent. The nearly 200 million acres of Federal forestland managed by the U.S. Forest Service represents a national treasure of incredible value, the treasure of natural beauty and resources deserving sound management and protection. U.S. Forest Service has been tasked with that management and protection to include the dedicated law enforcement officers, or LEOs, who enforce resource protection laws. With over 28 years of law enforcement experience in Skamania County, including 9 years patrolling the Gifford Pinchot National Forest, I routinely worked with district rangers and LEOs. The productive working relationships I developed in the late 1980s and early 1990s changed in 1993 when U.S. Forest Service law enforcement investigations became an independent entity under central direction from Washington, DC.

 

This restructuring, commonly called the ‘‘stove-pipe effect,’’ took place just 1 year prior to the implementation of the Northwest Forest Plan. The effect of this over time has served only to distract LEOs from their primary responsibility of resource protection by shifting their focus to law enforcement functions traditionally addressed by county sheriffs. Additional LEOs were added to patrol efforts. K-9 units and radar enforcement capabilities were added. Traffic enforcement off national forest system roads became common, and individuals were often arrested on state warrants. Funding also provided to sheriffs for cooperative law enforcement contracts declined. It became evident the Forest Service law enforcement was no longer focused on resource protection. While Skamania County has no Bureau of Land Management, or BLM, managed land, sheriffs across the western states struggle with similar issues in witnessing the BLM migration away from resource protection. These actions were recognized by county sheriffs as being outside the scope of authority and jurisdiction of both the Forest Service and the BLM. The failure of the ‘‘stove-piping’’ of Forest Service law enforcement was the subject of a congressional hearing in 1998. The issues we are discussing here today are the same issues that were discussed without resolution 17 years ago. There have, however, been some successes in the past 4 years. We began building stronger relationships with the Forest Service.
The Western States Sheriffs’ Association has worked together with the Director of Forest Service Law Enforcement and Investigations to create a Memorandum of Agreement, including a template when sheriffs are considering providing state authority to an LEO. In the agreement, the Forest Service acknowledges the sheriff is the chief law enforcement officer in the county. As such, the sheriff is accountable and responsible to the citizens for promoting a law enforcement philosophy for their county, including our public lands. County sheriffs, the managers of Federal law enforcement agencies, and the public deserve a positive working relationship and open lines of communication.

 

I submit there are five immediate remedies to accomplish this. First, eliminate the stove-pipe structure of the Forest Service law enforcement. Reintegrate the Special Agents in Charge and the LEOs into the regional and local structure to reconnect the Forest Service law enforcement with the county sheriff and the lands they protect. Two, create a local law enforcement council chaired by the sheriff to include Forest Service and BLM representatives for effective local oversight. Three, review the Code of Federal Regulation and eliminate language that assimilates state crimes or state statutes into Forest Service and BLM enforcement. Four, examine staffing levels of the Forest Service and the BLM law enforcement agencies and align those levels to the management activities on the lands they protect. Five, expand cooperative law enforcement agreements with the
county sheriff.

 

While these hearings are important to expose the issues and openly debate them, right now is the time for action. Now is the time to take substantive steps to rebuild trust among sheriffs and our Federal partners. I urge this committee to examine all of the written testimony. I am confident you will reach a course of action to improve our public safety services for all citizens who live near and/or visit our treasured national forestlands. It is they we all serve. Thank you for your time, and I am available for questions. [The prepared statement of Sheriff Brown follows:]”

 

See Complaints filed with BLM, DOJ, DOI, State and Federal Representatives  

Full article—https://publiclandjurisdiction.com/blm-complaint-filed-with-boebert-office-ignored/ 

The Complaint/s are below all had the 5 bulleted pdf documents below attached.  Not one response was received by any elected representative, state, or federal agency as of 6.2.23.  The same complaint was filed with the BLM Director in the state of Utah where the BLM has also unilaterally assimilated dozens of Utah state laws.

• 40 USC 3112, 40 USC 255
• BLM adopts 115 CO state laws
• DOJRES~2
• DOJ Resource Manual 1630 18 USC 7 a
• statviewer 355 

Actual Complaint Filed with BLM Director for the State of Colorado in 2022

From: xxxxxxxx
Sent: Tuesday, March 8, 2022 2:04 PM
To: ‘StateDirector, BLM_CO’ <BLM_CO_StateDirector@blm.gov>
Subject: The BLM has adopted 115 Colorado State Laws without a cession of jurisdiction by the state

Ms. Lavery, I have attached 5 documents to this email, and 2 federal jurisdiction reports are linked in the text below.

Attached is a list of 115 Colorado state laws (obtained thru FOIA), that the Bureau of Land Management (BLM) has assimilated/adopted and is now able to enforce and prosecute as a federal crime on Colorado BLM lands.

Research shows that the BLM obtaining a state’s legislative jurisdiction is solely provided thru a cession of jurisdiction by the state- defined in the Enclave Clause of the Constitution- Article 1, Section 8, Clause 17.  The assimilation process is also defined in the Assimilative Crimes Act, 18 USC § 13.   Many examples of this constitutional cession process are available today- national parks, national monuments, etc. The Colorado National Monument went thru this constitutional/federal statute-guided cession and federal acceptance process in 1983/1984– link.

Since 1940 and passage of 40 USC § 255, 40 USC § 355, 40 USC § 3112 (attached) by Congress the requirement for a state cession of legislative jurisdiction and the recorded acceptance by the federal government is well defined.   In the case of the vast majority of BLM federal lands, they are held in a Proprietorial Interest Only (aka proprietary jurisdiction) by the federal government.  There appears to be little doubt that the BLM would need a cession of concurrent or partial jurisdiction by the Colorado State Legislature to assimilate state laws and prosecute them as a federal crimes.

It appears that by using 43 C.F.R § 8341.1(d) the BLM may be taking an unconstitutional / legally questionable unilateral action to adopt/assimilate Colorado states’ laws without a cession of jurisdiction (exclusive, concurrent, or partial) by the state and is adopting the state’s legislative jurisdiction pertaining to these 115 state laws.  This unilateral action by the federal government is forbidden according to several linked historical federal jurisdiction reports referenced below:

1957 GSA 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 defines 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.”

In the 1956 federal GSA report on this website, titled, Part I, 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 refers to the power “to exercise exclusive legislation” granted to 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 1957 federal GSA report, titled, Part II, Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Ch. 3 (Acquisition of Legislative Jurisdiction), Pages 47-48 declare:  “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.”  

In closing, I would like to summarize that with the BLM unilaterally adopting/assimilating 115 Colorado state laws without a cession of jurisdiction by the State that it appears to be 3 possible violations:

1. Possible Violation of the Enclave Clause of the US Constitution Art 1, Section 8, Clause 17
2. Possible Violation of 40 USC 255, 40 USC § 355, 40 USC § 3112 (current)
3. Possible Violation of the Assimilative Crimes Act, 18 USC 13

If I am incorrect, please provide the documentation that shows how this unilateral action by the BLM in Colorado is constitutional/legal.  I cannot find it and have researched the topic extensively. The Property Clause permits the federal government to make needs rules and regulations on federal lands but obtaining a state’s legislative jurisdiction is reserved exclusively for the Enclave Clause and backed by the referenced federal statutes and reports.

Thanks for your attention to this matter.  Please confirm receipt. Respectfully,

As of January 2020, BLM MOUs 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 MOUs. 

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

1. The BLM Mesa County Sheriff MOU by Sheriff Matt Lewis 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 LEOs would not be able to perform this action, unless possibly in the act of performing a citizen’s 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 LEOs 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 Matt Lewis, that the sheriff cannot deputize federal agents.  This information should also 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

This is a review of the Federal Law Enforcement Training Centers (FLETC) podcast titled, Territorial Jurisdiction on Federal Property, which is located online at https://www.fletc.gov/audio/territorial-jurisdiction-federal-property-mp3  .  Most of the information on the podcast is accurate and informative.  The podcast has been online since 2008 and is presented by a Senior Instructor named Jenna Solari at the Federal Law Enforcement Training Centers (FLETC).   We see very few federal presentations or detailed definitions of jurisdiction on federally managed public lands by the Federal Government, so it is a well intention-ed attempt to inform the general public on a topic that is not understood by the vast majority of our elected officials.   There is a such a level of jurisdictional ignorance regarding federally managed public lands in the United States that it is embarrassing at the county, state and federal level.  The problem with the podcast,  is several points made by Steve Perry who has 34 years of experience USFS law enforcement, appear not to be accurate based on the federal jurisdiction reports and federal laws shared on www.PublicLandJurisdiction.com.  

In this review we will use quotes from the above linked FLETC podcast, PLJ downloaded the MP3 file , and the downloaded transcript of the podcast, and then share the federal jurisdiction report quotes and federal laws that appear to contradict some of what the USFS law enforcement officers statements.   

Quotes Contrary to Federal Law and Federal Jurisdiction Reports

 FLETC Page 2/5:

Solari: Is there a legal standard for determining the appropriate federal law enforcement support for all these properties and buildings?

Perry: Over time, there has come to be three general categories of federal land ownership. How much federal law enforcement is done, if in fact any is done at all, depends on what category of federal land we are talking about.

Solari: Well, let’s start off with the largest category, which one’s that?

Perry: The largest percentage of federal land is held in a category known as proprietary jurisdiction.

Per the federal reports in the table below there are not forms of “ownership”, there are  5 categories of legislative jurisdiction (Exclusive, Concurrent, Partial, Unknown, and Proprietorial Interest Only) on federal lands.  Three of these categories are a type of jurisdiction (Exclusive, Concurrent, and Partial).   There is also a category of jurisdiction that defines when the federal government holds NO FORM of legislative jurisdiction on the federal lands in question and that is called Proprietorial Interest Only, Mr. Perry calls this “proprietary jurisdiction”.

In the 1962 federal jurisdiction report (table below), it is revealed that over 11.5 million acres of federal land are held in “Partial Jurisdiction” and over 11,000 acres are held in the “Unknown” category, Mr. Perry does not mention either in the podcast.

Per the federal reports and federal laws referenced in the table below, there are only 3 ways in which the Federal Government can obtain any form of legislative jurisdiction on federal lands within a state and they are best summarized in this PLJ description. 

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.” 

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.”

In the 1957 federal report titled, Part II Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Page 5, it states the following about the Assimilative Crimes Act, (18 U.S.C. § 13) “With respect to crimes occurring within Federal enclaves the federal Congress has enacted the Assimilative Crimes Act, which adopts for enclaves, as Federal law, the State law which is in effect at the time the crime is committed.” 

FLETC Page 3/5

Solari: So then what is the third category of jurisdiction?

Perry: Concurrent legislative jurisdiction is the third type. It is considered partial jurisdiction because the federal government shares law enforcement responsibilities with the state and the local officers.

In the federal reports listed in the table above Concurrent Jurisdiction is Concurrent Jurisdiction and Partial Jurisdiction is Partial Jurisdiction.   Concurrent jurisdiction is not considered partial jurisdiction.   In the Federal Legislative Jurisdiction Report Prepared Wayne Aspinall for Public Land Law Review Commission, Land and Natural Resources Division, United States Department of Justice, Washington, DC, May 1969, Page 57-58 defines Concurrent and Partial Jurisdiction as two separate forms of jurisdiction:

“Concurrent legislative jurisdiction. This term is applied to those instances wherein in 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.”

“Partial legislative jurisdiction. This term is 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).”

FLETC Page 4/5

Solari: One last question: how would a person who has newly arrived at his or her duty station, find out which category he or she is working in?

The answer to this for the elected officials and the general public is Step 2 and Step 3 of https://publiclandjurisdiction.com/.  By researching State records in the 1962 GSA Inventory Report Jurisdictional Status of Federal Areas within the States,  and then searching State cession laws after 1962 per the Enclave Clause-  Art 1, Section 8, Clause 17, everyone can find out exactly what type of the legislative jurisdiction the Federal Government holds on any federal lands / public lands of interest.  The Enclave Clause is also referred to as the Jurisdiction Clause in some historical federal jurisdiction reports.

There are several federal jurisdiction reports on this website, that accurately define the process of the requirement that the federal government must formally record the acceptance of a cession of jurisdiction from a state.   In 1940 the federal statute 40 USC 255 passed defining this requirement.  In 2002 the federal statute was updated and is now recorded in 40 USC 3112 , the requirement remains the same.

The Federal Legislative Jurisdiction Report Prepared for Public Land Law Review Commission, Land, and Natural Resources Division, United States Department of Justice, Washington, DC, May 1969 ( 1969 Federal Jurisdiction Report ) was commissioned by a US Congressman from Palisade, CO named Wayne Aspinall.   The 216 page Federal Legislative Jurisdiction Report and the US Codes are linked above.   The 1969 Federal Legislative Jurisdiction Report states on page 49, Paragraph 3, titled: Federal Statute Curtailing Federal jurisdiction:  “In 1940 the flood of transfers of legislative jurisdiction to the United States was stayed, by an amendment to section 355 of the Revised Statutes of the United States which eliminated the presumption of Federal acceptance. The amendment provided:  Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired, as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted (R.S. 355, as amended February 1, 1940, 54 Stat. 19; 40 u.s.c. 255).”

You can view a couple of examples of the federal acceptance of a state cession of jurisdiction on this website.  In 1983 the State of Colorado ceded concurrent jurisdiction (link to doc) to the federal government over the following national monuments: (a) Bent’s Old Fort National Historic Site;
(b) Black Canyon of the Gunnison National Park;
(c) Colorado National Monument;
(d) Curecanti National Recreation Area;
(e) Dinosaur National Monument;
(f) Florissant Fossil Beds National Monument;
(g) Great Sand Dunes National Monument;
(h) Hovenweep National Monument;
(i) Yucca House National Monument.

The 1956 Federal GSA Study titled 1956 Part 1 Jurisdiction over Federal Areas within the States is linked here.  Chapter II is titled History and Development of Federal Legislative Jurisdiction, page 11 states the following:  “Exclusive jurisdiction requirement terminated.–There was also enacted, on February 1, 1940, an amendment to section 355 of the Revised Statutes of the United States which eliminated the requirement for State consent to any Federal acquisition of land as a condition precedent to expenditure of Federal funds for construction on such land. The amendment substituted for the previous requirement provided that (1) the obtaining of exclusive jurisdiction in the United States over lands which it acquired was not to be required, (2) the head of a Government agency could file with the governor or other appropriate officer of the State involved a notice of the acceptance of such extent of jurisdiction as he deemed desirable as to any land under his custody, and (3) until such a notice was filed it should be conclusively presumed that no jurisdiction had been accepted by the United States. This amendment ended the 100-year period during which nearly all the land acquired by the United States came under the exclusive legislative jurisdiction of the Federal Government. “

DOJ reference https://www.justice.gov/jm/criminal-resource-manual-664-territorial-jurisdiction .