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Territorial Jurisdiction on Federal Property (transcript)

Solari: Welcome to the next in our series of podcasts. I'm Jenna Solari, a senior instructor in the
FLETC Legal Division, and with me today is another senior instructor in Legal
Division, Steve Perry. Today, we are
going to be discussing the exercising of federal law enforcement authority on
government property, and also the ways in which federal ownership of land or
property may affect federal law enforcement authority on those lands. Steve is our resident expert here, so Steve
if you could tell our listeners a little bit about yourself.

Perry: Thanks Jenna. I've been in
law enforcement for 34 years now. Most
relevant to what this little podcast is
about is my experience as a federal law enforcement officer with the U.S.
Forest Service. I worked in Idaho, Montana,
and various other states both as a uniformed officer and as an agent. About four years ago I took a job as a
regional chief and spent three years up in Alaska with the U.S. Fish & Wildlife Service.

Solari: Great, well tell us: why is knowledge of the types of ownership of
federal lands important to knowing what federal law enforcement actions can be
taken there?

Perry: It all starts with the United States Constitution. Everyone in federal law enforcement knows
that there must be a connection between the offense and the federal government,
a nexus we call it, for federal law enforcement to take action. The vast majority of law enforcement work is
done by state and local police, and has always been so.

Solari: So then the issue then is, when does a federal nexus, or a federal
connection, create a need for federal law enforcement on a particular piece of
federal property?

Perry: Correct. And federal land
has certain territorial jurisdiction aspects.

Solari: Well, and what types of federal property are there?

Perry: Originally, there were relatively few pieces of federal property
to be concerned about, a few forts, arsenals, post offices and federal
buildings in large cities. There were
always large tracts of undeveloped public lands in the western United States,
and of course large areas of Indian country lands. But the United States government was
land-rich, and it encouraged westward expansion for over a hundred years by
giving away and cheaply selling federal lands.
Originally, little federal law enforcement took place.

Solari: What happened as the population began to move westward?

Perry: As the population moved, states often gave land to the United States
to encourage development of new federal military installations, post offices,
veteran's hospitals, research facilities, forests, refuges, parks. The government also purchased lands as needed
for facilities and federal courthouses and other buildings. In the late 1800s, the government began
protecting the remaining pieces of federal lands, often removing them entirely
from further development.

Solari: So how much land are we really talking about today? What does the U.S. Government own as far as
land and buildings?

Perry: The U.S.
owns more than you might think. In 2004
the General Services Administration estimated the United
States government owns almost 30% of all land in the United States; that's around 670 million acres
of land in the United States,
plus another 1 million acres owned outside the country. The U.S. government also owns over
432,000 buildings and leases another 42,000 buildings.

Solari: Well, clearly there's no way the federal government can provide law
enforcement services for all that property, those buildings and all that land.

Perry: No, and it was never intended that the United States do so. Remember that well over 90% of all law
enforcement today is handled by state and local authorities. Federal officers and agents investigate and
prosecute a very small percentage of criminal justice activity in the United States.

Solari: Is there a legal standard for determining the appropriate federal
law enforcement support for all these properties and buildings?

Perry: Over time, there has come to be three general categories of
federal land ownership. How much federal
law enforcement is done, if in fact any is done at all, depends on what
category of federal land we are talking about.

Solari: Well, let's start off with the largest category, which one's that?

Perry: The largest percentage of federal land is held in a category known
as proprietary jurisdiction.

Solari: Well based on the name, sounds to me like that must mean Uncle Sam
acts like a normal proprietor -- a property owner -- would act.

Perry: That's mostly correct. When
the ownership of a piece of land, government land, is considered proprietary,
the government is said to have taken over none of the state's obligations for
law enforcement. In other words, state
and local law enforcement officers still handle calls for service as if the
land were privately owned. The sheriff
or city police will respond and they'll handle calls without regard to the
property's ownership.

Solari: But realistically, the U.S. government's not really like a
private landowner. I mean private
landowners don't have their own legislative branch to make laws and
regulations, for example. They don't
have their own court systems.

Perry: Absolutely right. The
Property Clause of the United States Constitution gives Congress the authority
to make and enforce all necessary rules and regulations to protect federal
property, including property that is held in proprietary jurisdiction status.

Solari: Well can you give us an example?

Perry: Millions of acres of national forest lands are considered to be
proprietary jurisdiction. To help
protect the valuable national resources found within, Congress has given the
Department of Agriculture, through the U.S. Forest Service, power to enact
regulations to control use and protect those national forest lands. There are laws found in the Code of Federal
Regulations that require visitors to national forests to obey standard rules of
behavior, for example to avoid damaging public property, and to get permits
before taking or altering any natural features found in the forest.

Solari: But those Forest Service laws found in the Code of Federal
Regulations, the CFR, can then only apply to the national forests? They don't apply anywhere else?

Perry: Generally, they apply only to national forest lands. However, sometimes activities occurring
outside a national forest may interfere with the adjacent forest. A common example is a wildfire starting
outside a national forest on private property.
It may eventually burn onto United States
land and damage U.S.
property. In that case, the Forest
Service regulations may apply and the person responsible for letting that fire
escape will be prosecuted in federal court.

Solari: Ok, well and of course, a private landlord can't create his own
police force to enforce the special rules or regulations that he created for
his private property.

Perry: Unlike a private landlord, Congress has the authority to create
law enforcement organizations to patrol and to protect areas of federal
property. Violations occurring within
the federal land will then be handled by a federal law enforcement
officer. This occurs on many of our land
management areas, national parks, national refuges and forests, and BLM lands,
as well as in developed areas and federal buildings protected and patrolled by
many of our federal police agencies.
Many of them have their own CFR regulations that are enforced within
their property.

Solari: Ok, so that's proprietary jurisdiction. What are the other two categories of
jurisdiction under which the government owns land?

Perry: The United
States can also own land under either
exclusive or concurrent legislative jurisdiction. These categories are basically
self-explanatory. If land is owned
exclusively, the federal government takes over all the law enforcement
responsibilities. Federal officers and
agents are responsible for handling all investigations and cases, and the local
police do not come onto the facility to investigate or arrest suspects. The only power the non law enforcement officers
would have in an area of exclusive jurisdiction would be to serve process, in
other words, summons or subpoenas.

Solari: Alright, so state and locals then could come onto that piece of
property that has exclusive jurisdiction to serve summons and subpoenas.

Perry: That's correct.

Solari: Ok. So the remainder of all
of the law enforcement work done in that jurisdiction then would now be the
responsibility of the federal government alone?

Perry: Yes. And that can be a real
disadvantage if the agency lacks law enforcement resources to handle the crimes
occurring there. Most of the federal
property owned in the 1800s was held in exclusive jurisdiction. Today, it is probably the category with the
fewest number of properties. However,
military installations, federal buildings, post offices, and some other high
value or security sensitive sites continue to be held in exclusive

Solari: So then what is the third category of jurisdiction?

Perry: Concurrent legislative jurisdiction is the third type. It is considered partial jurisdiction because
the federal government shares law enforcement responsibilities with the state
and the local officers. In other words,
should a crime occur on area owned concurrently with the state, either a federal
law enforcement agency or a state or local law enforcement agency can respond,
they can investigate, arrest and charge the suspect. If the federal officer or agent handles the
case, that suspect will be tried in federal court. If arrested and charged by a state or local
officer, the case will instead go to state or local court.

Solari: Well it seems like this category, concurrent jurisdiction, gives
the federal law enforcement officer or agent the most options.

Perry: That's true. Many federal
law enforcement agencies prefer to have concurrent jurisdiction on their lands,
because they can share the workload, so to speak, with the state and local
officers. However, concurrent
jurisdiction brings other non-law enforcement responsibilities to that agency
as well, and some agencies prefer to keep their properties held as proprietary

Solari: That makes sense. Now Steve,
I've heard the term “Special Maritime & Territorial Jurisdiction”, or
sometimes called SMTJ. I hear that
used. Is that the same as what we're
talking about here?

Perry: Not exactly the same thing.
Exclusive jurisdiction and concurrent jurisdiction are included within
the term Special Maritime & Territorial Jurisdiction, or SMTJ. That is a statute, 18 United States
Code Section 7, that lists areas of federal jurisdiction for which certain
crimes may be prosecuted.

Solari: So let's assume that a crime has occurred in an area of exclusive
jurisdiction. So only federal law
applies, and only a federal officer or agent can handle the case. But let's say the behavior, the offense
that's occurring at the scene, doesn't have a federal statute to cover it. You’re telling me we can't call in the state
or local officers to handle it. So what
do we do now?

Perry: Well that's a good question.
Congress, long ago solved that problem, partially, and created a statute:
Title 18 United States Code Section 13, that allows the officer or agent to
assimilate an applicable state law under those circumstances. We know it as the Assimilative Crimes Act, it
allows a federal officer who lacks an appropriate federal charge to use an
appropriate state law in federal court.
The charge is brought in the federal court, it's tried in the federal
court, and if convicted the defendant does time in federal prison. The limitation on assimilative crimes is that
if there is a federal statute covering the offense, that federal statute must
be used. The officer can not shop
between the jurisdictions to get the best charge in this case.

Solari: Alright. Well does the
Assimilative Crimes Act work for concurrent and for proprietary jurisdiction

Perry: By definition, it does work, but only in the areas of exclusive or
concurrent jurisdiction. It can not be
used in areas of proprietary jurisdiction.

Solari: One last question: how would a person who has newly arrived at his
or her duty station, find out which category he or she is working in?

Perry: The agency should always know how it legally holds all of its
property. Often, there is no dispute about
the ownership, and all lands are the same type.
Other places may have a mixture of types. I know of national parks, forests and
military installations in this country where some of the land is concurrent and
nearby land across the road, purchased at a later date for example may be
proprietary. There's even the potential
for having all three types of jurisdiction within one federal
installation. It's a question every
officer and agent should ask when arriving at an unfamiliar area.

Solari: Well I'm glad you've put us on notice of this issue, Steve, because
it seems like it could create a pretty sticky issue, depending on where an
agent or officer finds him or herself once they get on the job. So thank you very much, Steve, for helping us
out with this issue today.

Perry: You’re welcome.

Solari: For those of you who want to hear more of our podcasts, you can
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