BLM and USFS Lack Enforcement Authority on Federally Managed Lands

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The U.S. Con­sti­tu­tion and laws of Con­gress have nev­er pro­vid­ed for a gen­er­al grant of law enforce­ment author­i­ty to the fed­er­al gov­ern­ment. Our nation­al gov­ern­ment was pur­pose­ful­ly cre­at­ed by our found­ing fathers to be a gov­ern­ment of “lim­it­ed” pow­ers. World his­to­ry has repeat­ed­ly proven that an uncon­trol­lable and intru­sive bureau­cra­cy destroys a free soci­ety. When unelect­ed and union pro­tect­ed, life-time bureau­crats assume the role of a nation­al police force, which has no account­abil­i­ty to the cit­i­zens, we step dan­ger­ous­ly close to tyran­ny. The recent para-mil­i­tary BLM raid on the Bundy Ranch in Neva­da was a shock­ing exam­ple of such tyran­ny.

When state and coun­ty law enforce­ment juris­dic­tion is usurped by armed fed­er­al employ­ees, act­ing under col­or of office, it places the cit­i­zen in the dif­fi­cult posi­tion of either sub­mit­ting to an unlaw­ful act by the fed­er­al employ­ee or resist­ing under threat of bod­i­ly harm and/or death. As cit­i­zens of our states become increas­ing­ly aware of the fact that the armed employ­ee of the BLM, U.S. For­est Ser­vice, U.S. Fish and Wildlife Ser­vice and oth­er fed­er­al land man­age­ment agen­cies most like­ly exer­cise only the pow­er of citizen’s arrest, a right vest­ed in all cit­i­zens, the oppor­tu­ni­ty for a major breach of the peace aris­es. That fact that a mas­sacre under the I-15 high­way inter­change near Mesquite, NV was avert­ed is con­sid­ered by many observers to be a mir­a­cle.

Both civ­il and crim­i­nal juris­dic­tion were vest­ed by the Con­sti­tu­tion in the States, includ­ing in instances where lands with­in the State’s bound­aries are man­aged by the Bureau of the Land Man­age­ment (BLM), U.S. For­est Ser­vice (USFS), U.S. Fish and Wildlife Ser­vice (USFWS), etc. In 1956, the U.S. Attor­ney Gen­er­al issued a com­pre­hen­sive two-vol­ume report enti­tled, Juris­dic­tion Over Fed­er­al Areas With­in the States: Report of the Inter­de­part­men­tal Com­mit­tee for the Study of Juris­dic­tion Over Fed­er­al Areas With­in the States. The Report was the first com­pre­hen­sive fed­er­al study on the sub­ject of juris­dic­tion on fed­er­al­ly man­aged or owned lands. The Report also inven­to­ried all fed­er­al areas to deter­mine what type of leg­isla­tive juris­dic­tion applied to those lands. In Neva­da, with over 86 per­cent of the land with­in its bor­ders fed­er­al land, much of which is man­aged by the BLM and USFS, the issue of juris­dic­tion becomes para­mount to deter­mine whether the fed­er­al or state gov­ern­ment has police pow­er, pow­er of tax­a­tion, man­age­ment of wildlife, etc.

The only lands iden­ti­fied by the Report on which the fed­er­al gov­ern­ment assumes all police pow­er and law enforce­ment author­i­ty are lands com­mon­ly known as “fed­er­al enclaves”. These are lands which were acquired by the fed­er­al gov­ern­ment under arti­cle I, sec­tion 8, clause 17, of the U.S. Con­sti­tu­tion. This clause pro­vides that the fed­er­al gov­ern­ment, “shall have exclu­sive leg­isla­tive juris­dic­tion over such areas not exceed­ing 10 miles square as may become the seat of gov­ern­ment of the Unit­ed States, and like author­i­ty over all places acquired by the Gov­ern­ment, with the con­sent of the State involved, for Fed­er­al works.” Some fed­er­al build­ings such as post offices, fed­er­al cour­t­hous­es, as well as arse­nals and docks, etc. may fall under the exclu­sive juris­dic­tion sta­tus of clause 17.

Most fed­er­al­ly man­aged lands how­ev­er fall under the def­i­n­i­tion of a “pro­pri­eto­r­i­al inter­est only” juris­dic­tion, defined below. They include, “…the vast areas of land which con­sti­tute the Fed­er­al pub­lic domain gen­er­al­ly [which] are held by the Unit­ed States in a pro­pri­eto­r­i­al sta­tus only.”[1] Includ­ed among these lands are most mil­i­tary bases, and lands man­aged by the the USFS. BLM, Bureau of Recla­ma­tion and USFWS.

The type of leg­isla­tive juris­dic­tion the Fed­er­al gov­ern­ment retains over lands it man­ages deter­mines which sov­er­eign, the State or Fed­er­al gov­ern­ment, has civ­il and crim­i­nal juris­dic­tion, author­i­ty for levy­ing var­i­ous tax­es, cer­tain reg­u­la­to­ry juris­dic­tion such as licens­ing rights, con­trol over pub­lic util­i­ty rates, and con­trol over wild game and live­stock. The def­i­n­i­tions for the var­i­ous cat­e­gories of leg­isla­tive juris­dic­tion are as fol­lows:

Exclu­sive Juris­dic­tion refers to the pow­er to “exer­cise exclu­sive leg­is­la­tion” grant­ed to Con­gress by arti­cle I, sec­tion 8, clause 17 of the Con­sti­tu­tion, and to like pow­er which may be acquired by the Unit­ed States through ces­sion by a State, or by a reser­va­tion made by the Unit­ed States in con­nec­tion with the admis­sion of the State into the Union…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.” [2]

Con­cur­rent Leg­isla­tive Jurisdiction—This term is applied to those instances where­in in grant­i­ng 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.

Par­tial Leg­isla­tive Jurisdiction—This term is applied to 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 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.

Pro­pri­eto­r­i­al Inter­est only—This term is applied to those instances where­in the Fed­er­al Gov­ern­ment has acquired 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 with respect to areas in which it acquires an inter­est, and of the fur­ther fact that all its prop­er­ties and func­tions are held or per­formed in a gov­ern­men­tal rather than a pro­pri­etary capac­i­ty.

Pro­pri­eto­r­i­al inter­est only was fur­ther clar­i­fied by the Report, “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 lim­it­ed func­tions or enu­mer­at­ed pow­ers del­e­gat­ed to it by the Con­sti­tu­tion with­out inter­fer­ence from any source. 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.”[3] With­in the scope of those lim­i­ta­tions, the State retains all leg­isla­tive juris­dic­tion mak­ing all State civ­il and crim­i­nal laws ful­ly applic­a­ble on fed­er­al­ly man­aged lands. Oth­er lands includ­ed in the pro­pri­eto­r­i­al inter­est only sta­tus are Bureau of Recla­ma­tion lands includ­ing dams, flood con­trol works, pow­er sta­tions, etc.[4]

Con­gress has con­sis­tent­ly and express­ly reserved civ­il and crim­i­nal juris­dic­tion to the states. For exam­ple, the Weeks Forestry Act[5], which relates to the acqui­si­tion of land for nation­al for­est pur­pos­es, pro­vides that the State shall not, by rea­son of estab­lish­ment of the nation­al for­est, “…lose its juris­dic­tion, or the inhab­i­tants there­of their rights and priv­i­leges as cit­i­zens.”

In fact, every fed­er­al land law passed by Con­gress con­tains pro­tec­tions for both pre­ex­ist­ing prop­er­ty rights and the states’ civ­il and crim­i­nal juris­dic­tion. For exam­ple, the Sav­ings Clause of the omnibus Fed­er­al Land Pol­i­cy and Man­age­ment Act of 1976 pro­vides:

Sec. 701 (b) SAVINGS PROVISIONS:

(a) Noth­ing in this Act, or in any amend­ment made by this Act shall be con­strued as ter­mi­nat­ing any valid lease, per­mit, patent, right-of-way, or oth­er land use right or autho­riza­tion exist­ing on the date of approval of this Act .… . .

(g) Noth­ing in this Act shall be con­strued as lim­it­ing or restrict­ing the pow­er and author­i­ty of the Unit­ed States or …

(6) as a lim­i­ta­tion upon any State crim­i­nal statute or upon the police pow­er of the respec­tive States, or as dero­gat­ing the author­i­ty of a local police offi­cer in the per­for­mance of his duties, or as depriv­ing any State or polit­i­cal sub­di­vi­sion there­of of any right it may have to exer­cise civ­il and crim­i­nal juris­dic­tion on the nation­al resource lands; or as amend­ing, lim­it­ing or infring­ing the exist­ing laws pro­vid­ing grants of lands to the States.

Employ­ees of the fed­er­al gov­ern­ment often quote the Suprema­cy Clause of the Con­sti­tu­tion to assert that fed­er­al law trumps state law, includ­ing the state’s police pow­ers. How­ev­er, bureau­crats usu­al­ly only quote the first half of the clause. The Suprema­cy Clause in the Con­sti­tu­tion of the Unit­ed States of Amer­i­ca 1789 found at arti­cle VI, clause 2 makes is very spe­cif­ic as to what it says.

This Con­sti­tu­tion, and the laws of the Unit­ed States which shall be made in Pur­suance there­of, and all Treaties made, or which shall be made, under the author­i­ty of the Unit­ed States, shall be the supreme law of the land, and the Judges in every State shall be bound there­by, any Thing in the Con­sti­tu­tion or Laws of any State to the Con­trary notwith­stand­ing.”

To ful­ly under­stand exact­ly what this means you have to go to Webster’s Dic­tio­nary 1828 for the def­i­n­i­tion of, “notwith­stand­ing.”

NOTWITHSTANDING, the par­tici­ple of with­stand, with not pre­fixed, and sig­ni­fy­ing not oppos­ing; nev­er­the­less. It retains in all cas­es its par­ticip­i­al sig­ni­fi­ca­tion.

Gun wield­ing fed­er­al bureau­crats, as seen in recent fed­er­al raids such as the Bundy raid, USFWS raid on Gib­son Gui­tar Com­pa­ny, and many oth­ers, are oper­at­ing out­side their law­ful del­e­gat­ed author­i­ty. Unless the fed­er­al agen­cies are required by the sher­iff to fol­low the law they will con­tin­ue to ille­gal­ly encroach upon state juris­dic­tion. When the local sher­iff, as in the case of Clark Co. Sher­iff Gille­spie abdi­cate their duties, and turn a law enforce­ment oper­a­tion over to the fed­er­al gov­ern­ment, they may sub­ject them­selves to removal for malfea­sance of office.

The recent breach of the peace that we wit­nessed in Clark Co., Neva­da empha­sizes the grav­i­ty of allow­ing fed­er­al employ­ees to con­tin­ue to assert law enforce­ment pow­ers nev­er grant­ed to them by Con­gress or the Con­sti­tu­tion. These fed­er­al employ­ees need to be dis­armed. Con­gress needs to open an inves­ti­ga­tion into appro­pri­a­tions for guns, ammu­ni­tion and law enforce­ment equip­ment. Man­agers of the BLM, USFS and oth­er agen­cies should be called to tes­ti­fy under oath about where in law they obtain their law enforce­ment author­i­ty. While the BLM asserts they were mere­ly enforc­ing a law­ful court order in the Bundy mat­ter, Con­gress needs to inves­ti­gate the numer­ous court orders against fed­er­al agen­cies which they ignore with impuni­ty. The rule of law needs to apply equal­ly to every­one, includ­ing fed­er­al bureau­crats.

[1] Report, Part I, p. 8 [2] Report, Part I, p. 13–14 [3] Report, Part I, p. 21. [4] Report, Part I, p. 98 [5] Report, Part I, p. 234

The Lib­er­ty and Prop­er­ty Rights Coali­tion is com­mit­ted to pro­mot­ing and pre­serv­ing Con­sti­tu­tion­al rights to lib­er­ty and prop­er­ty in pub­lic pol­i­cy and the law.

A ser­vice of Lib­er­ty and Prop­er­ty Rights Coali­tion, 2013.

 

About Jean Voigts