BLM – Sheriff MOUs Can Essentially Deputize BLM Agents by Granting Peace Officer Authority to Enforce State and Local Laws

BLM - County Sheriff Law Enforcement MOU's

Many BLM – Sheriff MOUs Essentially Deputize BLM Agents, by Granting Peace Officer Authority to Enforce State and Local Laws on Federal Lands.

What does being deputized mean? : to give (someone) the power to do something in place of another person.

You can obtain a copy of any county sheriff / Bureau of Land Management (BLM) law enforcement agreements through a Federal FOIA request or an official document request at the sheriffs office.  The law enforcement MOUs should be reviewed alongside the current and past federal agency law enforcement guides for state and local agencies.  In the table below, you can review the 1999 and 2014 BLM Law Enforcement Guide for State and Local Law Enforcement Agencies.  Another applicable reference is Section 303 of FLPMA, it authorizes the BLM to procure “cooperative agreements” with sheriffs and states.   The USFS agreements in the table below are good examples of a Cooperative Agreements.   Are MOU’s,  Cooperation Agreements?  In many cases, they appear to be more related to a cession of authority (essentially deputize) from the sheriff to the 250 BLM agents nationwide.   Another good reference is the book titled “Seldom Was Heard an Encouraging Word” by Dennis McLane, retired Deputy Chief of BLM Law Enforcement. 

In the table below are examples of MOUs between the BLM and county sheriffs.  The MOUs are a boiler-plate BLM document, with variations by county sheriff.  For this article we will focus on Colorado BLM-sheriff MOUs and more specifically the 2015 BLM – Mesa County Sheriff MOU.    The BLM-Mesa County sheriff MOU represents a cession of authority (peace officer authority) to BLM Agents (250 nationwide) from the Mesa County Sheriff that allows any BLM Law Enforcement Officers (LEOs) to enforce state laws and county ordinances on federal lands, very similar as being deputized.  The BLM LEOs, normally tasked with enforcing federal statutes and federal CFRs, are authorized (w/MOU) to detain people that have violated state laws and county ordinances, until the law enforcement entity with jurisdiction arrives.  The MOU is not a cession of legislative jurisdiction because the BLM cannot prosecute (assimilate) the state law / county ordinance violation as a federal law violation.  Since this websites primary focus is legislative jurisdiction we must discuss the difference between jurisdiction and authority.  

Jurisdiction VS. Authority

Jurisdiction

According to the Jurisdiction Clause (Art 1, Sect 8, Cls 17), Assimilative Crimes Act, and the many referenced federal jurisdiction reports on this website.  The state legislature is the only entity in a state that can provide a cession of legislative jurisdiction over federal lands to the federal government.   When this happens the federal government can enforce state laws as federal crimes.  A good example of the legal jurisdiction cession process is in this link for the Colorado National Monument.  In 1983, the Colorado State Legislature passed CRS 3-3-101, providing a cession of concurrent jurisdiction in Mesa County over the Colorado National Monument.  Another example is in 1929 the State of Colorado provided a cession of exclusive jurisdiction over Rocky Mountain National Park by passing CRS 3-1-130, making it the largest federal enclave in Colorado. 

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”. 

Authority

A concept that can be difficult to understand, is that federal jurisdiction (legislative jurisdiction) is different than authority.    In this case, we reference the 1987 Department of Army, Field Manual 19-10, Ch. 5 Pg. 1 “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 or control.”

So at first look you might think that a MOU is a unconstitutional cession of partial jurisdiction, since the sheriff is expanding the federal governments powers, but these powers have to do with authority, not jurisdiction.   It also applies to state laws, in the Mesa County Sheriff MOU you will see a reference to CRS 16-3-110, a state law that provides a cession of authority, for all federal agents in Colorado to detain people who have committed felonies and misdemeanors in their presence.  No recorded federal acceptance is required for a cession of authority as required for a state cession of jurisdiction. Its also worth noting that some BLM law enforcement documents (2012 Guide in table below) state that even if the state authorizes federal agents to enforce state laws that the Sheriff must also authorize it for the cession of authority to be complete. 

The intent of the MOU is to streamline law enforcement and maximize resources.  It makes sense, since the sheriff’s rarely have the resources or the time to patrol thousands of acres of federal land.   However, there are questions as to whether or not the BLM LEOs are POST certified accredited peace officers in Colorado.  When you read details on a sheriff deputizing individuals you will read about liabilities and requirements in Colorado and other states. The Posse Comitatus And The Office Of Sheriff Aid Of Law Enforcement, 2015 Journal of Criminal Law and Criminology, by David Kopel is a well sourced reference on deputizing people.  

CRS 16-3-110 (appropriately referenced in the Mesa County MOU) gives all federal LEOs the authority detain anyone who is observed committing a felony or misdemeanor in Colorado.   The Mesa County Sheriff BLM MOU takes it step further and appears to include petty offenses and county ordinances.  One thing to be aware of in Colorado, there are laws in place like CRS 33-14.5-108 , which upgrade some Colorado petty offenses to a misdemeanor if committed on federal lands.   

For some reason as of 2019, these MOU law enforcement agreements are not generally shared with the public.  Why are they not shared with the public?  As of 01/29/2020 the BLM and USFS law enforcement agreements, shared in table below, are not on the Mesa County Web Site Intergovernmental Agreement page, nor are they shared on the Mesa County sheriff web site.  Mesa County is comprised of 72% federally owned lands (1,559,551 acres) and area residents deserve to be notified of what authorities the sheriff has given federal agents on public lands. 

Several other documents worth referencing in regards to the sheriff deputizing (posse comitatus): 

1. 2017 Special Deputy Memo Colorado Sheriffs Association

2. Sheriff Dave Brown President of the Western States Sheriffs Association 2015 MOU Testimony.  “Sheriffs, under state statute, have the authority to cross-deputize LEOs. As mentioned earlier, this can also be accomplished through MOUs…” 

3. Website by Dennis McLane, retired Deputy Chief of BLM Law Enforcement.  Fed Jurisdiction Page as of 5/19/21 http://landmanagementle.com/le/Fed_Jurisdiction.cfm “Land management law enforcement officers can only enforce state and local laws under two circumstances: (1) where the agency’s regulations have “assimilated” certain state and local laws; and (2) the officers have been “deputized” by a state or local official who has the authority to deputize under state law.  State laws that are “assimilated” by agency regulations are generally those that relate to the uses of the lands in question.  Examples would be motorized vehicles, forest and vegetative products, fire prevention, and the take of fish and game resources. When land management law enforcement officers enforce these regulations, it is done through the federal criminal justice system (not the state courts). When the land management law enforcement officers are “deputized” they will operate under an agreement of some sort with the deputizing official in which they receive instruction as to the scope and/or limitations of such authority. When they operate under such circumstances they enforce state and local laws through the state courts. Enforcement of assimilating regulations can be done by the federal agency without consent of state and local officials. But law enforcement officers being deputized by a state or local official, always requires the consent of such local officials and exercise of such authority is done under that official’s instructions.”  The “agreement of some sort” in the quote above is assumed to be the BLM Sheriff MOUs referenced in the table below. Mr. McLane never references the BLM Sheriff MOU’s on his website nor his book.  Regarding Mr. McLane’s comments of the BLM being able to take unilateral action and assimilate state laws without a cession of jurisdiction by the state be sure to read https://publiclandjurisdiction.com/how-blm-federally-managed-public-lands-became-unconstitutional-federal-enclaves/ .

4.  The 2012 Law Enforcement Authority and Jurisdiction for BLM Agent, Special Agent and Manager, referenced in the table below states the following ” BLM policy requires that a written Memorandum of Understanding signed by the appropriate State Director, BLM Special Agent-in-Charge, and the authorized State or Local law enforcement official be in place prior to any BLM Ranger or Agent exercising any State Peace Officer authority.  Being sworn in as a Special Deputy by the Sheriff is not enough.

The 2020 Mesa County Sheriffs’ position regarding the Mesa County Sheriff BLM MOU is that it does not deputize the BLM LEOs.  This seems contrary to nearly all referenced material based on the fact that it is a cession of authority but one thing is clearly referenced on the Mesa County Sheriff BLM MOU, the BLM LEO’s are not working under the responsibility of the Sheriff, the Mesa County Sheriff BLM MOU states the following “BLM LEOs will remain under the supervision and responsibility of the BLM.”   The BLM LEO’s get the authority to enforce state and local laws from the state or sheriff but are under the responsibility of the BLM.  

The intent of this article is to educate and shine some light on these rarely publicly shared MOUs.   These MOUs should be respected as law.  However, it is the Sheriffs responsibility to make sure the residents understand the BLM’s law enforcement role and authorities when it comes to enforcing state laws and county ordinances.  Its apparent that many County Commissioners are unaware of these MOUs, so its safe to say the general public is unaware as well.  In the table below, you will see examples of Bureau of Land Management BLM MOUs, United State Forest Service USFS Cooperative Law Enforcement Agreement and National Park Service Cooperative Law Enforcement Agreements.  Delta County Sheriff BLM MOU.  Garfield County Sheriffs BLM MOU.  Mesa County Sheriff BLM MOU in Colorado.  Mesa County Sheriff USFS Cooperative Law Enforcement Agreement in Colorado.   Moffat County Sheriff BLM MOU.  Montrose County Sheriff BLM MOU.  Rio Blanco County Sheriff BLM MOU.  Eddy County Sheriff NPS Cooperative Law Enforcement Agreement.  Eddy County Sheriff USFS Cooperative Law Enforcement Agreement in New Mexico.

In closing, during election season be sure to ask your sheriff if they will “authorize federal agents to enforce state and local laws within the county”, don’t use the term “deputize” as the federal agents will not be under the direction or control of the sheriff, so your sheriff could answer “no” to the deputize question.   Also, be sure to ask if the sheriff plans to share MOU’s and law enforcement agreements (with other agencies) on any county website.   This will help encourage full disclosure and educate the residents that live in the county and recreate on federal lands.  Federal Jurisdiction and authority are not complicated, its just not taught in colleges, local police academies,  and it’s not generally discussed in local and state politics.   Have you ever seen a sheriff / county commissioner give a public presentation on federal land jurisdiction/authority?   

http://www.tucsonsentinel.com/local/report/080913_cochise_bp_sabre/cochise-sheriff-backs-off-deputizing-federal-agents/ 

BLM online law enforcement forum discussing MOUs/deputize