How the BLM Turned Federally Managed Public Lands Into an Unconstitutional Federal Enclave
When one person can make the rules and laws over a land, it is called an autocracy or a monarchy (King or Queen). 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 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 laws over all federal lands with unilateral action. These Title 43 Code of Federal Regulations (CFR) pertain to about 1/3 of the land mass 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/laws over 640 million acres of federal public lands lands, all of which is located within the boundaries of various states. To research the rules/ laws 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? Absolutely, and this article will define that scenario. Here is an example of federal agency ignorance. Each year the Department of Interior (DOI) publishes the Public Land Statistics Book. Did you know that for at least 63 years (1951 to 2013), the DOI’s annual Public Lands Statistics book incorrectly claimed to have “Exclusive Jurisdiction” over all federal BLM lands? This was amended a few years ago because an informed individual who studied the federal jurisdiction reports on this web site, 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 BLM agency. It’s as if the federal jurisdiction reports on this website had been buried and forgotten. One can see based on the FOIA response that the BLM still claims “jurisdiction” over all federal lands, even though they have received no form of legislative jurisdiction from the states over 95% of federally manged lands, this will be explained in detail, within this article.
Let’s take this discussion one step further and dive into federal legislative jurisdiction on our federally owned, Bureau of Land Management (BLM) public lands. In the remainder of this well referenced article, we will discuss how it appears the vast majority of BLM federally managed public lands have become unconstitutional federal enclaves, subject to federal enclave law, despite the fact that the Federal Government has obtained no form of legislative jurisdiction over the majority of BLM 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 state cession process utilized to establish constitutional 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 federal 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 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.”
When someone acquires a solid understanding of legislative jurisdiction on federal lands, you will learn that no branch of the Federal Government or appointed bureaucrat; including Congress, Secretary of Interior, or the President of the United States, can take unilateral action and obtain/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 Jurisdiction Clause, Art 1, Sect 8, Clause 17 (aka Enclave Clause) regulates the acquisition of federal jurisdiction on federally managed public lands within the states, lets define the 4 types of jurisdiction as defined in these federal documents linked below. These documents are available at www.publiclandjurisdiction.com , which is by far, the best guide online, at helping define this topic. Be sure to share it, with your elected officials including your County Sheriff if you live in an area that has BLM and USFS lands. Most Sheriffs, State 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 and law schools. The four types of legislative jurisdiction:
- 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 refer 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.
- 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.”
- 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).
- 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 federal 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).
|Year / Federal Document||Download PDF|
|1956 Part 1 Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States||Download 1956 Part I Federal Jurisdiction Study|
|1957 Part 2 Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States||Download 1957 Part II Federal Jurisdiction Study|
|1962 Federal GSA Inventory Report on Jurisdictional Status of Federal Areas within the States, Eisenhower Report, all 50 states||Download 1962 Inventory Report Jurisdictional Status of Federal Areas within the States, Entire Report|
|1969 DOJ Jurisdiction Report, Wayne Aspinall||Download 1969 Federal Jurisdiction Report|
|1973 Military Administrative Law Handbook, Ch 6 Jurisdiction, Sect III and IV||Download 1973 Military Administrative Law Handbook, Ch. 6 Jurisdiction, Section III and IV|
|2020 Territorial Jurisdiction, Department of Justice, Criminal Resource Manual 664||Download 2020 Department of Justice, Criminal Resource Manual 664, Territorial Jurisdiction|
So, how 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 it appears to be under eCFR 8341.1 Regulation Governing Use.
What is the difference between United States Code (USC) and 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 written by executive agencies and 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 unprecedented “King” like powers to the Secretary of Interior to write federal laws on federal lands. However, as mentioned early the Jurisdiction Clause of the Constitution and the jurisdiction cession requirements clearly defined in the referenced federal jurisdiction reports, prevents unilateral action by the Federal Government and Congress to confiscate a states 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 required for the Federal Government to obtain jurisdiction over federal lands within a state, is well defined, the BLM / DOI is adopting/assimilating states laws when the BLM has not acquired Exclusive or Concurrent jurisdiction over 95% of the federally managed public lands. 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 long list of Colorado State laws that the BLM has “adopted” or “assimilated” even though the Federal Government has not acquired Exclusive or Concurrent jurisdiction. These BLM actions appear to be in total disregard for the Jurisdiction Clause and the Assimilative Crimes Act since 97.2% of the federally managed public lands in Colorado are held in a Proprietorial Interest Only by the Federal Government. It is probably safe to assume this is happening in other western states on BLM managed public lands and if you have an interest you should submit the same FOIA type request in your state.
This is significant because the State of Colorado and its elected state legislature was once required to provide a cession of Exclusive or Concurrent Jurisdiction in order for the Federal Government to adopt state laws and enforce them as federal enclave laws, per the Assimilative Crimes Act and the Jurisdiction Clause. Regardless if this is a mistake or intentional, all BLM federal managed public lands in the United States are now a federal enclave and the BLM can adopt whatever state laws the King (Secretary of Interior) decides are prudent 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 federally managed public lands today and how the Federal Government is now turning all federally managed public lands into federal enclaves. With no regard to a States legislative jurisdiction, the Federal Government is adopting state laws as federal laws without a cession of Exclusive or Concurrent jurisdiction by the States. This appears to be repugnant to the Constitution of the United States as it has bypassed the Jurisdiction Clause and the Assimilative Crimes Act.