Colorado Proposes Illegal Retrocession and Nearly Turns all 24 Million Acres of Federal Lands in the State into a Federal Enclave

Since 1940, once a State has ceded a form of jurisdiction to the Federal Government over federally managed public lands and that cession has been accepted by the Federal Government per 40 USC 3112, there are only three ways for a State to terminate the Federal Governments acquired legislative jurisdiction, one way is called a retrocession.

Retrocession is defined in federal reports.  In Part II of the 1957 GSA federal report titled, Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States, Chapter IV Termination of Legislative Jurisdiction, Pages 83-104.   It states the following

 “UNILATERAL RETROCESSION OR RECAPTURE OF JURISDICTION: RETROCESSION. –There has been discussed in the preceding chapter whether the United States, while continuing in ownership and possession of land, may unilaterally retrocede to the State legislative jurisdiction it has held with respect to such land.  It was concluded that, while there is opinion to the contrary, by analogy to the decision in the case of Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), acceptance of such retrocession by the State is essential, although it seems probable that such acceptance may be presumed in the absence of–to use the term employed in the Fort Leavenworth R.R. case, supra–a “dissent” on the part of the State.”

 “Recapture.–In Yellowstone Park Transp. Co. v. Gallatin County, 31 F.2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555, it was stated that a State cannot unilaterally recapture jurisdiction which had previously been ceded by it to the Federal Government.  A similar rule must apply, for lack of any basis on which to rest any different legal reasoning, where Federal legislative jurisdiction by the Federal Government at the time the State was admitted into the Union, or where it is derived from the provisions of article I, section 8, clause 17, of the Constitution.  In any case, therefore, it would appear clear that a State cannot unilaterally recapture legislative jurisdiction once it is vested in the Federal Government.”

MEANS OF TERMINATION OF JURISDICTION: In general. –Federal legislative jurisdiction over an area within a State will, however, terminate under any of the following three sets of circumstances:

  1. Where the Federal Government, by or pursuant to an act of Congress, retrocedes jurisdiction and such retrocession is accepted by the State;
  2. Upon the occurrence of the circumstances specified in a State cession or consent statute for the reversion of legislative jurisdiction to the State; or
  3. When the property is no longer used for a Federal purpose.”

Jurisdictional status on federally managed public lands and the retrocession process is not common knowledge in many western states.  Even though they hold 24 million of acres of public lands within their borders, the Colorado State Attorneys and the Colorado State Legislature that wrote Senate Bill SB-077 in 2014 were ignorant regarding the jurisdictional status of those public lands and they were ignorant regarding the retrocession process as they illegally proposed the State could take a unilateral action to reverse the Federal Governments jurisdiction over our those public lands.     In the case of Senate Bill SB 14-077 the State of Colorado was incorrect by saying that all public lands are held in exclusive jurisdiction by the Federal Government.  Research shows that over 97% of Colorado’s public lands are held in a Proprietorial Interest Only by the Federal Government.   Had SB 14-077 passed it would have turned all federally managed public lands in the State of Colorado into a federal enclave under the Concurrent Jurisdiction of the Federal Government.  Additionally, SB 14-077  proposes a state unilateral retrocession of jurisdiction held by the Federal Government, which is not allowed.

Since 1940 and the passage of 40 USC 255, jurisdiction (aka legislative jurisdiction) on federally managed public lands is a defined process of state cessions and retrocessions.

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 1 7, 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 41-46 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.”