Resolution on State and Political Subdivision Jurisdiction
This joint resolution of the Legislature declares and asserts the jurisdictional right of the state of [INSERT STATE] and its political subdivisions to respond to and take action when conditions on federally managed land in the state adversely affect, or may adversely affect, the health, safety, or welfare of the people.
Whereas, in its Patient Protection and Affordable Care Act decision, released June 2012, the United States Supreme Court reaffirmed the position of the states as “separate and independent sovereigns”;
Whereas, the court made it clear that the federal government “must show that a constitutional grant of power authorizes each of its actions”;
Whereas, in contrast, the Supreme Court further explained that “the same does not apply to the States, because the Constitution is not the source of their power…The States thus can and do perform many of the vital functions of modern government…even though the Constitution’s text does not authorize any government to do so”;
Whereas, the Supreme Court added, “Our cases refer to this general power of governing, possessed by the States but not by the federal government, as the ‘police power.’…Because the police power is controlled by different states instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant bureaucracy”;
Whereas, the Supreme Court also highlighted a vital role of states as a check to federal power, stating, “The independent power of the States also serves as a check on the power of the Federal Government: ‘By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power…In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own’”;
Whereas, the Supreme Court, concluding this line of logic, declared, “The States are separate and independent sovereigns. Sometimes they have to act like it”;
Whereas, in 1917, the Court Utah Power and Light v. United States, held that “The power of the United States to protect its property by its own legislation from private trespass and waste does not, and cannot, imply a general police power over the vacant public lands within a State. The section in the Constitution relating to the admission of new States, and the concomitant disposition of the public lands, excludes, by its express terms, any construction by which the United States may claim any additional governmental or police powers within the States in which such public land is situated”;
Whereas, Article 1, Section 8, Clause 17, of the United States Constitution states that the federal government will only “exercise exclusive Legislation” (i.e. jurisdiction) over the District of Columbia 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, dock-Yards, and other needful Buildings”;
Whereas, “other needful Buildings” does not include undeveloped public lands;
Whereas, during the Eisenhower Administration, the United States government published a comprehensive report by all the attorneys general of the United States and each respective State entitled “Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States” in which four basic areas of federal authority were identified:
1. Exclusive Legislative Jurisdiction: This term is applied when the federal government possesses, by whichever method acquired, all of the authority of the State, and in which the State concerned has not reserved to itself the right to exercise any of the authority concurrently with the United States except to serve civil or criminal process in the area for activities that occurred outside the area;
2. Concurrent Legislative Jurisdiction: This term is applied in those instances wherein by granting to 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;
3. Partial Legislative Jurisdiction: This term is applied in those instances wherein a state has granted authority to the federal government to legislate over an area of the state but the State has reserved to itself 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, or the right to tax private property;
4. 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;
Whereas, the report also stated, “It scarcely needs to be said that unless there has been a transfer of jurisdiction pursuant to [Article I, Sec. 8,] clause 17 [of the U.S. Constitution] by a Federal acquisition of land with State consent, or by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non-interference by the State with Federal functions. …The consent requirement of Article I, Section 8, Clause 17, was intended by the framers of the Constitution to preserve the State’s jurisdictional integrity against federal encroachment. The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State”;
Whereas, an Inventory Report On Jurisdictional Status of Federal Areas Within the States, compiled by the United States General Services Administration, categorizes all United States Forest Service (USFS) and Bureau of Land Management (BLM) land in the state of [INSERT STATE] as #4, Proprietorial Interest Only;
Whereas, the USFS and the BLM have caused a public nuisance and safety issue for the people of the state of [INSERT STATE] and [INSERT STATE]‘s political subdivisions by not mitigating conditions in or around the National Forest and BLM system lands that pose a risk to the health, safety and welfare of the State and it citizens;
Whereas, [examples of health, safety and welfare conditions at the community level that have been jeopardized or adversely impacted by the federal government’s mismanagement of federal lands]; and
Whereas, states have both the right and the duty to mitigate potential risks to the health, safety, or welfare of the state, or a political subdivision, or its citizens and not allow their jurisdiction to be eroded by federal government claims or actions:
Now, therefore be it resolved that the Legislature of the state of [INSERT STATE] declare and assert its jurisdictional right and duty, and the right and duty of its political subdivisions, to respond to and take action when conditions on federally managed land in the state adversely affect, or may adversely affect, the health, safety, or welfare of the people, and urge all States to join in asserting this same jurisdictional right and duty.
Be it further resolved that a copy of this resolution be sent to the President of the United States, the Majority Leader of the United States Senate, the Speaker of the United States House of Representatives, the United States Forest Service, the commissions of each county in the state of [INSERT STATE], the Council of State Governments, the National Conference of State Legislatures, and the members of [INSERT STATE]‘s congressional delegation.
Approved by the ALEC Board of Directors on September 29, 2013.