The United States Forest Service (USFS) Law Enforcement is taking public comment until December 4, 2023, and they want to know if you are okay with the USFS unconstitutionally and illegally enacting enclave law on all USFS National Forests. That’s right they are following the lead of the BLM and unilaterally turning the public lands they manage into a federal enclave without a cession of jurisdiction by the State Legislature. If you wish to make a comment or ask your elected official or sheriff to stand up for the Constitution here is the link https://www.federalregister.gov/documents/2023/10/03/2023-21563/law-enforcement-criminal-prohibitions
It would be appropriate for our elected officials across the West to ask for an extension on this comment period since it’s clear that this action by USFS law enforcement is a violation of federal law and the US Constitution. Here is the PDF version of the USFS plan to turn all USFS National Forests into a federal enclave.
Summary- “The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to revise the Forest Service’s criminal prohibitions to enhance consistency of the Forest Service’s law enforcement practices with those of State and other Federal land management agencies. The Forest Service is proposing to streamline enforcement of criminal prohibitions in related to fire and use of vehicles on National Forest System roads and trails by eliminating the requirement to issue an order for enforcement.”
Traffic / Drugs / Alcohol / etc. – The proposed rule would incorporate (adopt/assimilate) state law in § 261.12 so that state law is enforceable as Federal law and the person is tried in a federal court. This is the definition of enacting enclave law. Please see below and after reading submit your comments to stop this massive federal overreach. Isn’t it odd that the folks who swear an oath to protect the Constitution stand idle while the federal government violates that very Constitution?
Link to the Public Comment that explains the violation https://www.regulations.gov/comment/FS-2023-0012-0020. Quoted Comments below:
Without a cession of jurisdiction by the State and the required recorded federal acceptance per {40 USC § 255, 40 USC § 355}, currently 40 USC § 3112, this appears to be an unconstitutional and illegal unilateral action. Additionally, the USFS ignored, 18 USC 7, and 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 USFS ignored the federal policy guidelines defined in Federal Jurisdiction reports and federal laws referenced below, regarding how to legally acquire a state’s 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. Chapter III, Page 26. “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. (Pages 46-47), “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. The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 USC 7, Department of Justice, Criminal Resource Manual 664 and 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), now 40 USC § 3112 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, State V Sullivan, 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 overrides 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. The United States Supreme Court stated: The court correctly ruled. “The Act does not establish exclusive federal jurisdiction over the public lands in New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to regulate federally protected animals”.
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”.
Mesa County Commissioners and Colorado Sheriffs Unite Against USFS Rule Change in 2024
In early 2024 the Mesa County Commissioner and the Mesa County Sheriff submitted this letter against the United States Forest Service unilaterally assimilating state laws without a cession of jurisdiction by the State of Colorado. Mesa County Commissioners and Sheriff Rowell February 6, 2024 Letter to the USFS.
County Sheriffs of Colorado (CSOC) Issue Letter Against USFS Rule Change in 2024
CSOC represents 64 Sheriffs of Colorado and they submitted this letter against the USFS unilaterally assimilating state laws without a cession of jurisdiction by the State of Colorado. 64 County Sheriffs of CSOC February 7, 2024 letter to the USFS.
Lewis and Clark County Sheriff in Montana Comment Against USFS Rule Change
Lewis and Clark County Sheriff, Leo Dutton in Montana submitted this comment against this USFS rule change and shares his MOU that deputizes specific USFS LEOs. Sheriff Dutton November 2023 Comment discusses why its critical to maintain local and constitutional control of federal law enforcement in western states. Sheriff Dutton’s MOU deputizing federal agents to enforce local and state laws.
Western State Sheriffs Association Letter Against USFS Rule Change
The Western State Sheriffs Association (WSSA) issued this letter in opposition of the USFS assimilating state laws. “Assimilation. Many of the proposed changes appear to take a direct route toward assimilating state law into the Code of Federal Regulation. Through this assimilation and, by channeling a large portion of Subpart B orders to the category of Subpart A orders, the nationalization of enforcement of rules becomes troubling. While we recognize that Congress provided the USFS with the authority to create needful rules and regulations to effectively manage NFS lands, we stand firm in the belief that the law prohibits assimilation of state law on those lands held under proprietary interest. Most lands managed by the USFS in the western United States fall under the definition of proprietary interests. We oppose this effort to bolster the federal enforcement tool chest through the assimilation of state law and in fact, we believe by doing so, the USFS may create significant legal challenges across the lands they manage in the western United States. The County Sheriff, working within the legal systems in each of the western states, is best suited to address crimes against persons and property. The various legal ramifications for any person charged with alcohol and drug offenses in a state are designed to carry long term impacts associated with not only a citation, but several other requirements related to rehabilitation of the offender and long-term consequences that State legislatures have implemented to increase the safety to the public. The federal government has not legislated in the same manner and is therefore not designed to effectively address these lesser offenses. “
BLM Complaints filed in 2022 also apply to USFS illegally enacting enclave law on USFS lands
This BLM Complaint from 2022 (bottom on the attached USFS Letter) has been filed with the BLM in Colorado regarding the BLM unilaterally assimilating 115 state laws in Colorado – see the bulleted pdf documents below. The Colorado BLM director did not respond to the complaint. The same “no response” was received from the BLM Director in the State of Utah in 2023, 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
As stated earlier, It would be appropriate for our elected officials across the West to ask for an extension on this comment period since it’s clear that this action by USFS law enforcement is a violation of federal law and the US Constitution.
Are De Facto Federal Enclaves being formed as a result of Kleppe Vs New Mexico – Bill Reed and Bill Howell RS 2477 Report (pages 10-18) goes into great detail on this topic.
Colorado State Representative Matt Soper on the Issue
Here is the pdf of the write up on this issue from Rep Matt Soper in February 2024- PDF Link.