DuBois column

The enclave clause, the disappearing west and some good news

Contra Bundy

Quotes from members of the Bundy family and their supporters indicate they believe Article 1, Section 8, Clause 17 of the U.S. Constitution, the Enclave Cause, prevents the federal government from owning property within a state except for particular purposes, and then only if the feds have obtained approval of the state legislature.

That Clause grants Congress 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, 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…”

 

Unfortunately, the purpose of that clause is to authorize and set out a procedure whereby the feds could establish “exclusive Legislation”, or jurisdiction, over certain properties, not to place limits on federal ownership.  Federal exclusive jurisdiction means, basically, that state laws do not apply.

Why did our Founding Fathers include this exclusive jurisdiction language?  History gives us the answer.

In June of 1783 Congress was meeting in Philadelphia when their meeting house was surrounded by disgruntled soldiers who had not been paid.  There was even reports of them pointing their guns at the windows of the meeting house.  Congress requested the Pennsylvania Executive Council call up the state militia.  However, the council refused to do so and Congress was forced to move their proceedings to Princeton, New Jersey for several weeks.

In response to all this, a Congressional committee was formed to “consider and define the jurisdiction proper to be established by Congress” for their “permanent residence.”  The committee issued their report.  This led to several versions being considered by the Constitutional Convention, which was amended several times.  The last amendment accepted, done at the behest of the antifederalists, was to include the requirement the purchase be approved by the state legislature.

During the debate on ratification of the Constitution, James Madison wrote about the Enclave Cause in Federalist 43:

The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity…The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it.

It seems abundantly clear that Article 1, Section 8, Clause 17 of the U.S. Constitution, the Enclave Clause, is about jurisdiction, not limitations on ownership of all types of land. 

However, I’m no attorney.  Just a layman who is plowing through these historical documents and would welcome any comments, corrections or suggestions.

Are we disappearing?

The Conservation Science Partners, in cahoots with the enviro group Center for American Progress, has released a report titled The Disappearing West claiming 4,321 square miles have been developed in the 11 western states since 2001.  The report further states that urban sprawl, commerce and drilling claim the equivalent of one football field every 2 ½ minutes.

So, we have another "crisis" and Congress must act.  An often-used tactic to stir public opinion and help the enviro lobbyists.  And this all happens while the Park Service is pushing their 100th anniversary and the Land & Water Conservation Fund is up for reauthorization.  Just a coincidence, I'm sure.

According to the NRCS, the U.S. contains 1.4 billion acres, 94 % of which is not developed.  That's a helluva lot of football fields.  Do the math and you'll see this is hardly a crisis.

Good News Items

A Wyoming welder, Andy Johnson, built a pond in 2012 for his small herd of livestock.  Then our friends at the EPA informed Johnson he didn’t have the appropriate Clean Water Act permits and ordered him to restore the wetlands or face potential fines of up to $37,500 per day.  So what did Johnson do?  He sued the EPA with the help of the Pacific Legal Foundation and just this month they announced a settlement which allows Johnson to keep the pond in place, with no fines.  “This is a huge victory for us as well as private property owners across the country,” Johnson said.

The Obama administration has dropped its effort to list the lesser prairie chicken as a threatened species, handing a victory to oil companies, farmers and landowners in Oklahoma, Texas, Colorado, New Mexico and Kansas.  The U.S. Fish and Wildlife Service has decided to not appeal the decision of a federal judge in Texas, who overturned the administration's 2014 listing of the lesser prairie chicken as a threatened species.

In Colorado, both the House and Senate unanimously passed The Colorado Water Rights Protection Act, a bill that thwarts federal efforts to control or own water that begins on or passes through federal land, and to do so without paying for it.  Reportedly, the bill does three things: 1. Forces the feds to buy water rights, instead of taking them by manipulating policy. 2. Forces the feds to go through state water court, in compliance with federal law.  3. Orders Colorado’s state engineer not to enforce any water rights restriction by the U.S. Forest Service or the Bureau of Land Management, and provides tools for water right holders to fight these agencies in court if necessary. 

And in New Mexico, the State Game Commission continues to stand it’s ground in opposition to the fed’s proposed expansion of the Mexican Wolf Recovery Program.  Here’s a great big THANK YOU to Commissioners Kienzle, Montoya, Espinoza, Ramos, Ricklefs, Ryan, and Salopek. 

Till, next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation.

This column originally appeared in the June editions of the New Mexico Stockman and the Livestock Market Digest.