Federal Jurisdiction within a State

Federal Jurisdiction within a State

The ultimate goal of this document is to identify true jurisdictional authority of the Federal Government,
examine how the powers of individual States are usurped by federal agencies, and examine how the
health, safety, and welfare of the citizens within the State are undermined: as well as, provide a positive
and equitable solution.
Soon after declaring independence from the British Crown, the original Colonies established themselves as
sovereign and separate nations. In fact, so independent were they it caused an unforeseen rift between
the states in terms of interstate activity and commerce. In an attempt to link the several states, the Articles
of Confederation of November 17, 1777, emerged.
“Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right,
which is not by this confederation expressly delegated to the United States, in Congress assembled.” 1
It became abundantly clear a more cohesive and functional link between the states needed to be
developed. The First Constitutional Congress of 1787, eleven years after the Declaration of Independence
convened; from which emerged a legal contract between the states and the people, called the “United
States Constitution”.
The U.S. Constitution delegates, describes and limits the powers of each of the three branches of
government; they are Legislative, Executive, and Judicial.
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.” 2
The subsequent sections of Article I and paragraphs grant enumerated responsibilities to the central
government. The Framers intended that those were the only powers ceded to the central government but a
condition of ratification for many states was a “Bill of Rights,” which became the first ten amendments.
The 10th Amendment of the Bill of Rights reaffirmed that any power not explicitly granted to the central
government was explicitly withheld from the central government.
“The powers not delegated to the United States by the Constitution not prohibited by it to the States, are
reserved to the States respectively, or the people.”3
1 Article 2, Articles of Confederation
2 United States Constitution Article 1 § 1
3 10th Amendment, Bill of Rights
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The principal purpose was not the distribution of power between the central government and the states but
rather a reservation to the States, or people of all powers not explicitly granted.
POWER OVER LAND
The Constitution explicitly identifies geographic concerns as well as imposing limits on Congress’ authority
and jurisdiction; “to exercise exclusive Legislation in all cases whatsoever, over such District (not
exceeding ten miles square) as may, by Cession of particular States, and the Acceptance of congress,
become the Seat of the Government of the United States, and to exercise like authority over all places
purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings”.4
“The Court established a principle that federal jurisdiction extends only over the areas wherein it possesses
the power of exclusive legislation, and this is a principle incorporated into all subsequent decisions
regarding the extent of federal jurisdiction. To hold otherwise would destroy the purpose, intent and
meaning of the entire U.S. Constitution”.5
The State of Oregon consented to the federal government the acquisition of land for federal buildings and
granted exclusive jurisdiction for needful public buildings 6 ; the same applied to Fort Stevens 7, and Oregon
City canal 8. However, the State only granted concurrent jurisdiction over land acquired for national
forests. 9 “The State of Oregon retains a concurrent jurisdiction with the United States in and over lands so
acquired; So that civil processes in all cases, and such criminal processes as may issue under the authority
of this state against any person charged with the commission of any crime without or within such
jurisdiction, may be executed thereon in like manner as if this consent had not been granted.” 10
Concurrent jurisdiction does not reference perceived federal police powers but rather the state’s ability to
file the case in either state or federal court.
4 United States Constitution, Article 1 § 8 c.17
5 United States v. Bevans 16 U.S. (3Wheat.) 366 (1818)
6 Oregon Revised Statute 272.030
7 Oregon Revised Statute 272.033
8 Oregon Revised Statute 272.036
9 Oregon Revised Statute 272.040 (2)
10 Oregon Revised Statute
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In a dispute over federal jurisdiction of title to real property, the court held; “We think a proper examination
of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of
soil in and to the territory, of which Alabama or any of the new States were formed,” .
“Because, the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty,
or eminent domain, with the limits of a State or elsewhere, except in the cases in which it is expressly
granted,”
“Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits,
subject to the common law,” 11
The Constitution further grants Congress with the power, “To make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in
the government of the United States, or in any department or officer thereof.”12
Nowhere in these Articles is Congress granted a GENERAL legislative power. Accordingly, the 10th
Amendment reserved those powers to the States. This Article does not delegate a new and independent
specific power but rather a provision for making effective the powers theretofore mentioned.
MISSION CREEP
A term often used in military circles called “mission creep” seems to be a repetitive phenomenon that
occurs within most organizations as well as governments, throughout history. Over the many years, our
system of government seemingly has fallen victim to this dilemma.
This methodology is often engaged to usurp limiting or prohibitive factors or to fill voids where deemed
necessary; as seen with the advent of, and continued efforts by the United States Forest Service, Bureau of
Land Management, Environmental Protection Agency, Department of Environmental Quality, Fish and
Game, and many other federal regulatory organizations.
According to enumerated powers of Congress expressed in Article 1, and subsequent paragraphs, the only
exceptions enabling Congress’ power over an individual State is often referred to as the Interstate
Commerce Clause, which states: “To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes. “ 13 In careful reading of the paragraphs contained in Article 1, the only
11 Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)
12 United States Constitution, Article 1 § 8 c.18
13 United States Constitution, Article 1 § 8 c.3
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other exception is the federal governments’ authority to coin money, declare war, raise revenue, and
certain felonies such as counterfeiting, piracy, espionage.
The largest volume of violations to the Constitution is under color of the Commerce Clause. In many
cases, the issues assume the form of a recommendation, guideline, or federal regulation of which the
States are often forced into compliance through threatening a loss of federal funding.
The United States Department of Agriculture and Department of Interior, specifically the United States
Forest Service and Bureau of Land Management identifies their source of authority to: “The Congress
shall have power to dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States; and nothing in this Constitution shall be so construed
as to Prejudice any Claims of the United States, or of any particular State.” 14
Their claims of authority, however, do prejudice the claims and powers of individual states.
The 10th Amendment, which was seemingly adopted with a precognitive insight that our central government
would eventually overstep their authority; by disclosing the widespread fear that the central government
might, under pressure of a supposed general welfare, attempt to exercise powers which had not been
granted. With equal determination, the Constitutional framers intended that no such assumption should
ever find justification; and if in the future, it were determined such additional powers seemed necessary –
only the people should grant them, in the proper manner prescribe for amending those acts.
The second claim of federal jurisdiction purportedly emanates from an interpretation describing their power
as “without limitation” referencing the Supremacy Clause. (see Kleppe v. New Mexico) 15
A study conducted (1956-1957) referred to as the Eisenhower Document examined the federal authority
within a State. It was determined local law enforcement overlooked duties within the lands held in trust by
the federal government and the federal agencies were not engaged in such actions. What emerged from
this study were four levels of jurisdiction. They are (1) exclusive, (2) concurrent, (3) partial, and (4)
propriatorial. Most lands fit into the propriatorial level of jurisdiction, unless specifically stated otherwise.
The United States Constitution was signed September 17, 1787; this document stood on its’ own for well
over 100 years; with a clear understanding of content and meaning. The public lands (out West) were
considered by many as the “problem lands”. Accordingly, these lands were for “disposal” and open for
purchase. The reason for selling these lands was to repay the National debt incurred by the Civil War.
Moreover, to open the lands for expansion, exploration, occupancy, and production by settlers.
When the actual shift in paradigm occurred is open for debate, but many of these “public lands” held in trust
seemingly became more desirable to retain, rather than for “disposal”. Whenever that actually started,
14 U.S. Constitution, Article IV § 3 c.2 (AKA Property Clause)
15 Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976)
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newly formed federal regulatory agencies worked their way into existence, each taking an increasingly
expanding role (enter “mission creep”).
Instead of reading the Constitution in the matter of which it was designed – “pari materia” (all together), it
becomes easier to distort or usurp the original meaning of the U.S. Constitution. “The courts have stated
repeatedly that laws relating to the same subject (such as land disposal laws) must be read in pari materia
(all together). In other words, Federal Land Plan Management Act (FLPMA) or any other land disposal act
cannot be read as if it stands alone….” 16 Thereby, allowing these federal regulatory entities to come up
with their own agenda driven rules, which not surprisingly often benefits the special interest groups’
agendas.
Examples of the continuation of “mission creep” are demonstrated in illegal road closures of Revised
Statutes 2477 (RS2477) roads, which only meet the qualifications of consideration for Wild Lands
designation if they are 5,000 acres, or more, and “roadless”. These road and trail closures by
“decommissioning” or destruction have been occurring for years.
In 1964, the U.S.G.S. redefined categories of roads to meet with their new agenda…road closures for
qualifying as Wild Lands.
The Bureau of Land Management under the U.S. Department of Interior issued a letter dated June 1, 2011
from Mr. Salazar (Secretary of Interior) stating the BLM will not designate any lands a Wild Lands; but
directs Deputy David Hays to develop management of public lands with Wilderness characteristics and to
solicit members of Congress, state and local officials, tribes and federal land managers to identify BLM
lands that may be appropriate candidates for Congressional protection under the Wilderness Act.
The USFS recently sent out a communication dated July 15, 2011 titled Federal Register publication of
Final Proposed Rules 262,261 and 212; purportedly to clarify and expand their authority.
“Representatives of the USFS failed to defend their position from a legal standpoint, submitting no legal
analysis that justified their position. Instead, they simply “ruled” that they did not recognize the validity of the
County‟s assertion to the road.” 17
It is no wonder everyone is confused with various federal entities writing their own rules and regulations,
which serve only to confuse the public and often contradict each other. These many federal agencies often
fail to follow their own rules and regulations; examples being mining laws, clean water, timber harvest,
grazing, travel management acts such as FLPMA, and so on. This manner of business has turned into a
900-pound gorilla and needs to be addressed at the highest levels.
16 Congressional Record, October 23, 2000 E1883, Hon. Jim Gibbons of Nevada in the House of Representatives.
17 Congressional Record, October 23, 2000 E1884, Hon Jim Gibbons of Nevada in the House of Representatives.
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POLICE POWERS
Getting back to the original issue of the federal government bodies engaging in “police powers” within the
States – one of the more important cases, “the court ruled that forest reserves were not federal enclaves
subject to the doctrine of exclusive legislative jurisdiction of the United States. Local peace officers were
to exercise civil and criminal process over these lands. Forest Service rangers were not law
enforcement officers unless designated as such by state authority. The USFS had no general grant of law
enforcement authority within a sovereign State.” 18
Road closures, for example, are critical to our public health welfare, and safety. As the chief law
enforcement authority, saddled with those responsibilities, I must assert my lawful authority to use any road
deemed essential in this regard to conduct law enforcement operations including crime prevention, crime
response, fire suppression, emergency medical response, assistance to federal agents, search and rescue
operations, drug cartel and illicit drug eradication, and related operations. The closure of roads and
harassment by federal agents upon miners has prompted my actions.
LEGAL FOUNDATION FOR POLICE POWER
Recently, there has been a movement by the Supreme Courts in rendering decisions relative to the clear
meaning and intent of our Constitution. A recent Court reviewed many of the clear attempts on the part of
Congress to usurp authority it did not have. The Court stated “But law in the sense in which courts speak of
it today does not exist without some definite authority behind it. The common law so far as it is enforced in
a State, whether called common law or not, is not the common law generally but the law of that State
existing by the authority of that State without regard to what it may have been in England or anywhere
else….‟The authority and only authority is the State, and if that be so, the voice adopted by the State as its‟
own (whether it be of its Legislature or of its Supreme Court) should utter the last word.‟ Thus the doctrine
of Swift v. Tyson is, as Mr. Justice Holmes said, “an unconstitutional assumption of powers by the Courts of
the United States which no lapse of time or respectable array of opinion should make us hesitate to
correct.‟ In disapproving that doctrine, we do not hold [304 U.S. 64, 80] unconstitutional section of 34 of the
Federal Judiciary Act of 1789 or any other act of Congress. We merely declare that in applying the doctrine
this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to
the several states.”
In a concurring opinion, Justice Thomas stated; “the exchanges during the ratification campaign reveal the
relatively limited reach of the Commerce Clause and of federal power generally. The Founding Fathers
confirmed that most areas of life (even many matters that would have substantial effects on commerce)
18 Congressional Record, October 23, 2000 E1886, Hon Jim Gibbons of Nevada in the House of Representatives.
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would remain outside the reach of the Federal Government. Such affairs would continue to be under the
exclusive control of the States.”
“We have said that Congress may regulate not only „Commerce…among the several states,‟ U.S. Const.,
Art. I, 8, cl.3, but also anything that has a „substantial effect‟ on such commerce. This test, if taken to its
logical extreme, would give congress a “police power‟ over all aspects of American life. Unfortunately, we
have never come to grips with this implication of our substantial effects formula. Although we have
supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of
the Commerce Clause and the scope of federal power that would permit Congress to exercise a “police
power”; our cases are quite clear that there are real limits to federal power…Indeed, on the crucial point,
the majority and Justice Breyer agree in principle: the Federal Government has nothing approaching a
police power.”
“The Constitution mandates this uncertainty by withholding from Congress a plenary “police power” that
would authorize enactment of every type of legislation.” 19
In another case, the Court claimed the federal government had no jurisdiction over crimes committed within
the 50 States.20
“In the United States of America, there are two separate and distinct jurisdictions, such being the
jurisdiction of the states within their own state boundaries, and the other being federal jurisdiction (central
government), which is limited to the District of Columbia, the U.S. territories, and federal enclaves within the
states, under Article 1, Section 8, Clause 17.” “The article which describes the judicial power of the United
States is not intended for the cession of territory or of general jurisdiction… Congress has power to
exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the
legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings.”21
“Special provision is made in the Constitution for the cession of jurisdiction from the States over places
where the federal government shall establish forts or other military works. And it is only in these places, or
in the territories of the United States, where it can exercise a general jurisdiction.”22
19 United States v. Lopez, 115 S.Ct. 1624 (1995)
20 United States v. Morrison, 169 F.3d 820 (1999)
21 United States v. Bevans, 16 (3 Wheat.) 336 (1818)
22 New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)
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USES OF PUBLIC LAND
There seems to be more and more regulations coming forth that violate property rights and grants to the
people by our Constitution; such as, the “Executive order creating Humboldt National Forest, Where the
Road resides and relevant Congressional acts contain a savings clause protecting preexisting rights. The
Presidential Executive Order which created the Humboldt National Forest contained a savings clause,
protecting all existing rights and excluding all land more valuable for agriculture and mining.” 23
“Public Lands” are “lands open to sale or other dispositions under general laws, lands to which no claim or
rights of others have attached” „The United States Supreme Court has stated: “It is well settled that all land
to which any claim or rights of others has attached does not fall with the designation of public lands.”
„FLPMA defines “public lands” to mean “any land and interest in land owned by the United States with the
several states and administered by the Secretary of the Interior through the Bureau of Land
Management.”24
“Public land” that is disposed by claims under the act of 1872 is “Public Domain”. “The locators of all
mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and
assigns, were no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws
of the United States, and with State, territorial, and local regulations not in conflict with the laws of the
United States governing their possessory title, shall have the exclusive right of possession and enjoyment
of all the surface included within the lines of their locations.” 25
The mechanics of what happens to the “public land’ once found to be mineral in character is expressly
evidenced in the Organic Act of 1897, that “any public lands embraced within the limits of any forest
reservation which…” “…shall be found better adapted for mining or for agricultural purposes than for forest
usage, may be restored to the public domain.” By private settlement under various land disposal laws of the
United States, such as the Mining Law of 1872, “public land” is restored to the public domain.
The federal agencies have management authority only over “public land”, not privately settled public
domain. The act of location restores the land to public domain and the mining law provides the locator of
such segregation “shall have the exclusive right of possession and enjoyment of all the surface included
within the lines of their locations” 26
23 Congressional Record October 23, 2000 E1885 Hon. Jim Gibbons of Nevada in the House of Representatives
24 Congressional Record October 23, 2000 E1885-E1886 Jim Gibbons of Nevada
25 30 USC § 26
26 R.S. § 2332 derived from act May 10, 1872 ch. 152, § 3, 17 Stat. 91
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Federal mining claims are “private property” 27
“but so long as he complies with the provisions of the mining laws his possessory right, for all practical
purposes of ownership, is as good as though secured by patent.” 28
“All mining claims, whether quartz or placer, are real estate. The owner of the possessory right thereto has
a legal estate therein with the meaning of ORS 105.005” 29
Setting the required boundaries of a mining claim literally sets a boundary describing land separate and
distinct from agency authority placing the land under the exclusive authority and jurisdiction of the locator.
This interest is also stated as case law and Forest Service Manual details. 30
By clear and identical language, Congress has stated in the Organic Act of June 4, 1897, the Eastern
Forests (Week’s) Act of 1911, and the Taylor Grazing Act of 1934, that there was no intention to retain
federal jurisdiction over private interests within national forests. The courts have consistently upheld the
ruling in Kansas v. Colorado since 1907.
No section of the FLPMA and, therefore, no Forest Service authority may impair or amend locator’s rights
under the act of 1872. 31 Further that, “no provision of this section or any other section of this Act (FLPMA)
shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress”
One final point, “where rights secured by the constitution are involved, there can be no legislation or rule making
that would abrogate them” 32
27 Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d
103 (1981): Oil Shale Corp. v. Morton, 370 F. Supp. 108, 124 (D.Colo. 1973)
28 Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445
29 Oregon Revised Statute 517.080 Mining claims as realty.
30 Forest Service Manual 2813 – rights and obligations of claimants
31 43 USC 1732 (b)
32 Miranda v. Arizona, 384 U.S. 436 p. 491
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CONCLUSION
In summation, the Supreme Court has declared the federal government has no authority or jurisdiction over
individuals or issues not involving interstate commerce or issues not involving federal territory. Neither
Congress, nor the President, can pass laws that govern life or activities within the boundaries of the several
States. “Police” powers are not explicitly granted to the central (federal) government and thereby fall
within the purview of the 10th Amendment Clause of the Bill of Rights.
The points addressed in this document are not all that require redress, but rather presented to identify
violations and disjointed (often overbearing) management of our public lands. The lack of federal
Coordination and the inaccurate scientific studies to mention two, must also be addressed, as the federal
agencies seem to blatantly ignore.
At the beginning of this document, reference was made proposing a possible solution. To that end, I would
begin with a point made in the Congressional Record referred to several times from Hon. Jim
Gibbons of Nevada, to wit:
“forest reserves were not federal enclaves subject to the doctrine of exclusive legislative jurisdiction of the
United States. Local peace officers were to exercise civil and criminal process over these lands. Forest
Service rangers were not law enforcement officers unless designated as such by state authority.”33
Put police enforcement back where it belongs, within the several States, or political subdivisions. In these
tough economic times, it would put our citizens back to work; by sub-contracting to local authorities for Law
Enforcement services it would most certainly provide a cost savings benefit to the federal government; and
places the protection of our forests and natural resources with those having a real stake in the safety,
health, and welfare of the community they serve.
It is my hope; this letter will serve as a starting point of discussion.
Respectfully,
Gil Gilbertson, Sheriff
Josephine County, Oregon
33 Congressional Record October 23, 2000 E1886 Hon. Jim Gibbons of Nevada in the House of Representatives, and
U.S. Supreme Court May 19, 1907 Kansas v. Colorado