Memorandums of Understanding (MOU’s)
Between the County Sheriff and BLM / USFS
Can a county sheriff provide a cession of legislative jurisdiction (partial, exclusive, concurrent) to the federal government that forms a federal enclave and enables enclave law on federally managed public lands? Enclave law is in the absence of a federal law, a federal law enforcement officers (LEO) can adopt/assimilate a state law as federal law on federal lands.
Can a county sheriff replace the state legislature? Can a county sheriff form a federal enclave and enclave law for state and local laws with unilateral action? According to the Jurisdiction Clause, Assimilative Crimes Act, and the many referenced federal jurisdiction reports on this web site, the answer is “NO”. According to these sources a sheriff cannot act in place of the state legislature in any state. The state legislature is the only entity in a state that can provide a cession of jurisdiction over federal lands to the federal government. The federal LEO’s can always enforce federal rules (CFR) and federal laws but are exempt from enforcing or adopting state/local laws without a cession of jurisdiction by the state. A local law would be a county ordinance that is passed by county commissioners as a subdivision of the state. A good example of the legal 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. 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”.
In order to have a full understanding of federal government jurisdiction within the federally owned public lands of your county, you will need to request a copy of any MOU’s between your county sheriff and the federal agencies like the BLM and USFS. You can obtain a copy of any county law enforcement agreements through a Federal FOIA request or an official document request at your sheriffs office. The Law Enforcement MOU’s should be reviewed alongside the current and past federal agency law enforcement guides for state and local agencies. In this review, we will use the 1999 and 2014 BLM Law Enforcement Guide for State and Local Law Enforcement Agencies, it is located in the table below.
For some reason as of 2019, these law enforcement agreements are not generally shared with the public. Lets use Mesa County, Colorado as an example. As of 01/29/2020 the BLM and USFS law enforcement agreements, shared 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. Residents of Mesa County also deserve to understand that 98.7% of the federally managed public lands in Mesa County, CO are held in a Proprietorial Interest Only by the federal government, only 1.3% of federal lands in the county are a federal enclave that are subject to federal enclave law 18 USC 7, 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 web site), you can see that 83.4 acres of 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 ceded 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.
In the table below are examples of BLM MOU’s in Colorado, they are a boiler-plate BLM document, with minor variations. The level of federal jurisdiction currently in place within the BLM lands of the county (Exclusive, Concurrent or Proprietorial) are not disclosed. The BLM MOU’s mention the Congressional Act- FLPMA, which is important when defining federal regulations but legislative jurisdiction is regulated through the Jurisdiction Clause (aka Enclave or Cession Clause), Art 1, Sect 8, Clause 17. Per the federal jurisdiction reports shared on this web site, Congressional Acts (such as FLPMA) and Executive Orders from the President of the United States CANNOT alter a States’ legislative jurisdiction over federal lands within in its borders. This is also clarified within Section 701 of FLPMA. In the 1999 BLM Law Enforcement Guide (table below) on page 5 it states “Public lands administered by the BLM are held in the proprietary status since no cession of State authority over these lands has occurred.” This falls in step with the 1957 federal report titled, Part II Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Chapter 3 (Acquisition of Legislative Jurisdiction), Pages 41-46 ….”NECESSITY OF STATE ASSENT TO TRANSFER OF JURISDICTION TO FEDERAL GOVERNMENT: Constitutional consent.– The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. Article I, section 8, clause 17, of the Constitution, provides that legislative jurisdiction may be transferred pursuant to its terms only with the consent of the legislature of the State in which is located the area subject to the jurisdictional transfer. As was indicated in chapter II, the consent requirement of article I, section 8, clause 17, as intended by the framers of the Constitution to preserve the States’ jurisdictional integrity against Federal encroachment.” By obtaining Exclusive or Concurrent Jurisdiction thru Constitutional Consent – Clause 17, the Federal Government is then able to adopt state laws as federal laws, per the Assimilative Crimes Act.
However, in stark contrast to this, the 2014 Guide to BLM Law Enforcement for State and Local Law Enforcement Agencies, states the following: “There are also federal regulations that adopt various State laws by reference. This is generally done in cases such as vehicle code violations where every State may have slightly different standards and it would be a burden on the public to have to comply with a different federal standard while on public lands. Adopting the State law by reference allows federal agencies to stay consistent with their State and local partners.” This quote appears to be repugnant to the Constitution and the federal reports shared on this web site. The process for the federal government to gain the ability to “Adopt” State Laws is well documented via 18 USC 7 and the Assimilative Crimes Act. There are also state and federal documents that clearly define the federal Government cannot adopt state laws when they only have Proprietorial Interest Only (aka Proprietary Jurisdiction). If the Federal Government is adopting and enforcing state law on their own accord, they are taking unilateral action to acquire a states jurisdiction, without a cession from the state.
There are different jurisdictional interpretations highlighted in the 1999, 2012 and 2014 BLM Law Enforcement documents (table below). These BLM law enforcement guides appear to contradict themselves, on Page 5 of the 2014 BLM Law Enforcement document, it states that “There are also federal regulations that adopt various State laws by reference”, it also states on the same page 5 that ” BLM LEOs do not have authority to enforce State laws without the written authorization of the Sheriff, other authorized State official or State law.” So which is it? Can the Secretary of Interior take unilateral action and adopt/enforce state laws or does the Sheriff/State have to give written authorization? Lots of questions, many of these statements are not supported by the federal jurisdiction reports on this web site.
Have the BLM / County Sheriff MOU’s replaced the Jurisdiction Clause and the necessity of state assent to transfer jurisdiction to the federal government? Are these MOU’s acting as Federal Acceptance of jurisdiction ceded by the Sheriff per 40 USC 3112? Based on the federal jurisdiction reports on this web site and Clause 17, the Sheriff does not hold the constitutional authority to provide a cession of legislative jurisdiction on behalf of the State Legislature. The Sheriff can deputize people in a time of an emergency, but these MOU’s do not represent being “deputized” because the BLM Agents are not working under the authority of the Sheriff, the BLM MOU’s state the following “BLM LEOs will remain under the supervision and responsibility of the BLM.”
The 2012 BLM Law Enforcement Authority document appears to recognize that a cession of Exclusive and Current Jurisdiction by a state, is necessary for the Federal Government to adopt state laws under the Assimilate Crimes Act. This 2012 report declares “As we learned in our earlier discussion on jurisdiction, the vast majority of public lands fall under proprietary jurisdiction. Therefore the Assimilative Crimes Act cannot be used to enforce state law on BLM managed public lands.” Here is an great example of a 1983 state cession of concurrent jurisdiction over federal lands in Mesa County and the recorded federal acceptance.
The 1999 Guide to BLM Law Enforcement stands in contrast to the 2014 Guide to BLM Law Enforcement, the reference from page 5 (1999 quote above) and on page 7 its declares the following “Clearly understanding the authority granted by the “Property Clause,” Congress granted law enforcement authority only for “Federal laws and regulations relating to the public lands and their resources.” In fact, the word Federal was specifically inserted into the final version of the Act in consideration of State and local concerns. The testimony related to this amended change was as follows: “What this amendment does is to make clear that, insofar as the powers of those persons charged with enforcing any law or regulation related to lands and resources managed by the Secretary, it shall be the Federal law or regulation that is to be interpreted …. .I have letters from constituents in my State saying, ‘Are we going to make cops out of every single Bureau of Land Management employee?’ It is not the intention in this section of the bill to do any such thing.” This quote is very important, it points out that the Property Clause only allows the Secretary of Interior to issue federal regulations as federal laws, it does not allow the federal government to bypass the Jurisdiction Clause and permit the federal government the ability to stripe the State of their legislative jurisdiction with unilateral action. Allowing this unilateral action would turn all federally managed public lands into de facto federal enclaves, subject to federal enclave law, and giving the federal government the ability to adopt any and all state laws at their leisure if they feel it helps protect federal lands.
One, who shall remain nameless, Western Colorado Sheriff, mentioned that the 250 BLM agents in the United States are not certified peace officers in Colorado, they only have the ability to perform “citizens-arrest” powers for state law offenses on BLM lands within the county, this would include county ordinance violations as stated in the MOU’s. The current, 2014 Guide to BLM Law Enforcement must be taken into consideration before county sheriffs sign a BLM MOU.
Some of the BLM MOU’s in Colorado, mention a state law that passed in 1993, CRS 16-3-110, which allows Federal Agents to act when a state felony or misdemeanor happens in their presence, anywhere in the state. This state law was not accepted by the federal government as a cession of jurisdiction per 40 USC 3112, nor does it reference a cession of legislative jurisdiction of any kind. It appears to be a state law that would give any federal law enforce agents the permission to perform an “arrest” on a person who broke a state law (misdemeanor or felony), and hold that individual until local law enforcement agents with jurisdiction arrive. Very similar to a citizens arrest.
These MOU’s do not clarify if the 250 BLM agents in the United States are certified peace officers in the State of Colorado. Sheriff Dave Brown President of the Western States Sheriffs Association 2015 MOU Testimony. The Colorado BLM MOU’s do state that the BLM can enforce state laws and county ordinances and hold the person/s until the local law enforcement agency with jurisdiction arrives, and this must be respected. However, based on the Jurisdiction Clause, the federal jurisdiction reports on this website, and that fact that Colorado passed CRS 16-3-110 (cession of partial jurisdiction), it appears these MOU’s are an unconstitutional cession of jurisdiction by the county sheriffs ,who cannot act in place of the Colorado state Legislature when it comes to providing cessions of jurisdiction to the federal government, as seen in CRS Title 3.
In the table below you will see examples of Bureau of Land Management BLM MOU’s, 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.