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

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,