Summary of Legislative Jurisdiction on Public Lands in ...

Summary of Legislative Jurisdiction on Public Lands in Colorado

Prepared For: All Elected Coun,ty Sheriffs, County Commissioners,

and State Representatives in Colorado

Prepared By: Bra ndon Siegfried Public Land Access Association bra ndons@

Public Land ,Access Association

PLAA.CO February 19, 2014

Critical References Attached To This Summary: 1. Inventory Report of Jurisdictional Status of Federal Areas within the States, compiled by

the General Services Administration. (The Eisenhower Report) 2. Colorado Revised Statutes Title 3 (United States Jurisdiction) 3. 2014 FOIA Request and Federal Land Policy Management Act, Page 90 Stat. 2786

legislative Jurisdiction on Public lands in Colorado

Introduction On February 3, 2014 I read over Colorado Senate Bill 14-077, review of this bilt which luckily did not pass on January 29, 2014, reveals that the 11 State Senators who sponsored SB 14-077 (Lambert, Lundberg, Marble, Baumgardner, Cadman, Grantham, Harvey, King, Renfroe, Roberts, Scheffel) have completely misinterpreted legislative jurisdiction on public lands in the State of Colorado. In my opinion we are facing a jurisdictional crisis on our public lands and much of the crisis is the result of uniformed elected officials making misguided policy decisions that ultimately give the federal government more control over things like our public roads and water rights.

The first two lines in the bill description are alarmingly inaccurate; "Currently, the federal government holds exclusive jurisdiction over land within the state owned and operated by the United States Forest Service (USFS) and the United States Bureau of Land Management (BLM). This means the federal government possesses all the authority of the state to legislate and to exercise executive and judicial powers in connection with a particular land area, and the state has not reserved itself the general right to exercise, concurrently, with the United States government."

The bill goes on to try and unconstitutionally "claim" concurrent Jurisdiction for the State on public lands in Colorado. A noble effort if their erroneous presumption regarding exclusive jurisdiction was accurate, which it is not. What the Senators actually proposed, could have actually given the federal government more legislative jurisdiction than it currently holds on 97.2% of the public lands in our State. This report will summarize the facts regarding legislative jurisdiction on public lands in Colorado and reveals that the federal government only holds a proprietorial interest on the vast majority, (97.2%) of public lands; this includes BLM lands and USFS lands.

Types of Legislative Jurisdiction

Exclusive Legislative Jurisdiction- The federal government possesses all of the authority of the state and the state has not reserved any right to exercise authority. The federal government is the police power on these public lands and buildings. The County Sheriff would have little or no authority.

Concurrent Legislative Jurisdiction- Same as exclusive legislative jurisdiction except the state has reserved itself the right to exercise, concurrently with the federal government, all the same authority.

Proprietorial Interest - The federal government has acquired some right of title to an area in a state but has not obtained any measure of the state's authority over the area. (sole proprietor). The state has full police powers on these public lands. In Colorado, that means the Sheriff is the ultimate law enforcement authority and once a legal Right-of-way has been established as defined under the Colorado Revised Statutes, state law must be followed when regulating/closing that Right-of-way.

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2 14 Legislative Jurisdiction on Public Lands in Colorado

General Service Administration's, Inventory Report on Jurisdictional Status of Federal Areas within the States, (The Eisenhower Report)

? In a letter dated September 3, 1964 to the President, Bernard Boutin, Administrator of the US Department of Agriculture, stated the following regarding the General Services Administration inventory report; "The inventory will be made available to federal agencies and state governments for use as a ready reference to assist in the solution of jurisdictional status problems and in the development of appropriate remedial legislation./I

? "Article I, Section 8, Clause 17, of the Constitution provides that the Congress shall have the power 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,......, 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./I Additionally, any cession of jurisdiction by the State must be officially accepted in writing by the Federal Government. Once the Federal Government has accepted the transfer of legislative jurisdiction it takes an act of Congress to reverse the newly acquired jurisdictional status. This is clear instructions by the U.S. Constitution that in order for the federal government to have exclusive legislative jurisdiction (police power/full authority) over public lands/buildings, that the legislative jurisdiction must be officially ceded by the State and officially accepted by the Federal Government where the public lands/buildings are located.

? lilt is desirable that the Federal Government not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold the installations and area in a proprietorial interest status only, with legislative jurisdiction remaining with the states." President Eisenhower'concurred with the GSA report in a letter to the Attorney General dated April 27, 1956.

? In the United States the Federal Government currently holds 770,735,225 acres of public lands in trust for the American people (owners). 728,489,391 acres or (95%) fall under proprietorial interest only.

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legislative Jurisdiction on Public Lands in Colorado

Colorado Revised Statutes (CRS) Title 3 (United States Jurisdiction)

? The cession of exClusive legislative jurisdiction to the Federal Government is defined in CRS Title 3; Article 1. Article 1 reveals that the only public lands that Colorado has ceded exclusive legislative jurisdiction on are the Rocky Mountain National Park and Mesa Verde National Park. Additionally, the state has ceded exclusive legislative jurisdiction on multiple forts, post offices and other federal buildings.

? The cession of concurrent legislative jurisdiction to the Federal Government is defined in CRS Title 3, Article 3. Article 3 reveals that the State of Colorado has ceded concurrent legislative jurisdiction on the following public lands; Bents Old Fort National Historic Site, Black Canyon National Park, Colorado National Monument, Curecanti National Recreation Area, Dinosaur National Monument, Florissant National Monument, Great Sand Dunes National Monument/Preserve, Hovenweep National Monument, Yucca National Monument, United State Air Force Academy, Pinon Canyon and Rocky Mountain Arsenal.

? A detailed evaluation of the Eisenhower Report and the CRS Title 3 reveals; the Federal Government holds 23,913,630 acres of public lands in Colorado in trust. Of that, 97.2% or 23,237,501.4 acres fall under proprietorial interest only. The Federal Government only has exclusive or concurrent legislative jurisdiction on 2.8% of our public lands in Colorado. Nearly all BLM lands and National Forests are held in a proprietorial Interest.

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Legislative Jurisdiction on Public Lands in Colorado

On January 17, 2014 I delivered the attached FOIA request to the Grand Junction BLM Office. In the FOIA request I specifically asked the BLM to provide the documentation that grants the legal jurisdiction for the BLM to close or vacate legal Rights-of-way as defined under state law. Their attached response reveals that they feel FLPMA gives them the exclusive legislative jurisdiction necessary to control legal Rights-of-way as defined by Colorado law.

Federal Land Policy Management Act (FLPMA) as Amended 2001

? FLPMA (Public Law 94-579) Sec. 701 (g) (2), reveals IINothing in this Act shall be construed as limiting or restricting the power and authority of the United States or- (2) as expanding or diminishing federal or state jurisdiction." This is good, because an attempt to change jurisdiction without it being ceded by the state in which the lands are located, would violate Article I, Section 8, Clause 17, of the U.S. Constitution.

? FLPMA, Sec. 701 (g) (6), reveals IINothing 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 Statutes 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." Nothing in FLPMA can limit the Colorado Revised Statutes, the police power of the State, or the authority of the County Commissioners (Political Subdivision of the State) to regulate legal Rights-of-way on public lands per the Colorado Revised Statutes.

? FLPMA, Sec. 701 (g) (h), reveals IINothing in this Act shall be construed as limiting or restricting the power and authority of the United States or- (h) All actions by the Secretary concerned under this Act shall be subject to valid existing rights."

Conclusion The Federal Government lacks the exclusive legislative jurisdiction to regulate/close legal Rights-of-way on public lands, as defined by the Colorado Revised Statutes (such as; CRS 43-2201, CRS 29-20-104, and CRS 43-1-202). The State of Colorado has full legislative jurisdiction on over 97.2% of the public lands within its borders. The State of Colorado has given full authority to the Board of County Commissioners in each respective County, to regulate all rural Rights-ofway on public lands and private lands.

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Inventory Report on Jurisdictional Status of Federal Areas within the Stat,e (The Eisenhower Report)

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